United States District Court, E.D. Michigan, Southern Division
ORDER DENYING MOTION IN LIMINE TO PRECLUDE THE
GOVERNMENT FROM CALLING ONE AGENT ON MULTIPLE OCCASIONS IN
ITS CASE IN CHIEF (DOC. 53)
VICTORIA A. ROBERTS UNITED STATES DISTRICT JUDGE.
United States Government charged Paul Nicoletti
(“Nicoletti”) in a four-count indictment with
conspiracy to commit bank fraud and aiding and abetting bank
fraud. Nicoletti filed a motion in limine to
preclude the Government from calling F.B.I case agent, S.A.
Christine Taylor, and Fifth Third Investigator, Darrin
Morgan, multiple times in its case in chief. The Government
says that splitting their testimony would substantially
reduce the possibility of jury confusion and will aid the
jury in determining the truth.
Motion is DENIED.
an attorney licensed in the State of Michigan and President
of Continental Title Insurance Agency, Inc., was indicted on
one count of conspiracy to commit bank fraud in violation of
18 U.S.C. § 1349 and three counts of aiding and abetting
bank fraud in violation of 18 U.S.C. §§ 1344 &
indictment alleges that Nicoletti willfully conspired with
and aided and abetted others to execute and attempt to
execute a scheme to defraud and obtain money from Fifth Third
Bank. Each of the three counts is for a separate
multi-million dollar mortgage/construction loan that
Nicoletti allegedly secured under materially false and
fraudulent pretenses and representations.
Indictment also alleges that as part of the scheme and
conspiracy, Nicoletti and his alleged co-conspirators
employed straw buyers to serve as mortgage loan applicants
for the purchase of real property that the conspirators
wanted to purchase and develop. It was also allegedly part of
the scheme and conspiracy to provide false information in the
loan applications regarding the income and assets of the
straw buyers, the source of the down payments for the loans,
and the intentions of the purported purchasers to use the
properties as their primary residences to qualify the straw
buyers for the loans.
to the Indictment, Nicoletti's role in the conspiracy was
to knowingly facilitate the fraudulent real estate
transactions by acting as the title agent, coordinating and
conducting real estate closings, preparing HUD-1 Settlement
Statements, and disbursing the proceeds of the mortgage
STANDARD OF REVIEW
courts may rule on motions in limine under their authority to
manage trials. The Court “has substantial discretion in
its control of the presentation of evidence at trial”
under Fed.R.Evid. 611(a), this includes whether a witness may
testify multiple times throughout a trial. See Davis v.
City of Memphis Fire Dept., 576 Fed.Appx. 464 (6th Cir.
2014) (the district court did not err by not permitting the
plaintiff to recall a witness to repeat earlier testimony);
see also Roush v. Burt, 2005 WL 6365795 *11 (E.D.
MI., Jan. 18, 2015) (“the recall of a prosecution's
witness to the stand is within the sound discretion of the
Government intends to call F.B.I case agent, S.A. Christine
Taylor (“Taylor”), and Fifth Third Investigator,
Darrin Morgan (“Morgan”), multiple times in its
case in chief to summarize, publish and/or explain numerous
documents which are expected to be admitted at trial
pertaining to six mortgage/construction loans that Fifth
Third Bank funded. The witnesses will testify as summary,
overview, and fact witnesses for each loan. The Government
says that this strategy is the most effective procedure to
reduce the possibility of jury confusion, and will improve
its ability to determine the truth.
Court notes that at least three other judges in this district
have followed this format - with a limiting instruction - in
complex fraud cases and found that it moves the case along
expeditiously, and avoids jury confusion. See e.g. United
States v. John Bravata, et al., Judge Paul Borman, an
eight-week investment fraud trial; United States v. Kwame
Kilpatrick, Judge Nancy G. Edmonds, a six-month jury
trial; United States v. James Wiese, et al., Judge