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United States v. Nicoletti

United States District Court, E.D. Michigan, Southern Division

April 18, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
PAUL NICOLETTI, Defendant.

          ORDER GRANTING DEFENDANT'S MOTION IN LIMINE TO PRECLUDE IMPROPER EVIDENCE AND ARGUMENT [DOC. 48]

          VICTORIA A. ROBERTS UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         The United States charged Paul Nicoletti (“Nicoletti”) in a four-count indictment with conspiracy to commit bank fraud and aiding and abetting bank fraud. The United States filed a motion in limine to preclude Nicoletti from introducing evidence and argument which: (1) suggests that the victim financial institution invited or could have prevented the fraud; (2) suggests that the victim financial institution subjectively did not rely on his misrepresentations or omissions; and, (3) references the foreclosure crisis and the Government's actions in seeking to resolve the crisis.

         Nicoletti says that he does not intend to raise the issue of reliance or refer to the foreclosure crisis at trial. Thus, the only issue in dispute is the relevancy of evidence or argument related to Fifth Third Bank's own efforts to prevent fraud.

         The Court GRANTS the Government's motion in limine, based on the evidence Nicoletti proffers in his Response to the Government's motion.

         II. BACKGROUND

         Nicoletti is an attorney licensed in the State of Michigan and President of Continental Title Insurance Agency, Inc. The United States indicted him 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 & 2.

         The Indictment alleges Nicoletti willfully conspired with and aided and abetted others to obtain multi-million dollar mortgage/construction loans from Fifth Third Bank under material false and fraudulent pretenses and representations.

         The Indictment also alleges that as part of the scheme and conspiracy, Nicoletti and others employed straw buyers to serve as mortgage loan applicants to purchase and develop real property. The Government says these straw buyers supplied false information concerning income and assets, the sources of down payments for the loans, and their intentions to use the properties as primary residences.

         According to the Indictment, Nicoletti's role in the conspiracy was to knowingly facilitate the fraudulent real estate transactions by acting as title agent, coordinating and conducting real estate closings, preparing HUD-1 Settlement Statements, and disbursing proceeds of the mortgage loans.

         III. STANDARD OF REVIEW

         District courts have broad discretion over matters involving the admissibility of evidence at trial. U.S. v. Seago, 930 F.2d 482, 494 (6th Cir.1991). In determining the admissibility of evidence, the Court must first decide whether the evidence is relevant. Under the Federal Rules of Evidence, relevant evidence is that which has “any tendency to make a fact more probable or less probable than it would be without the evidence; and the fact is of consequence in determining the action.” Fed.R.Evid. 401.

         Under Fed.R.Evid. 402, all relevant evidence is admissible, unless a statute or rule provides otherwise. Evidence that is not relevant is not admissible. Fed.R.Evid. 402. Further, “the Court may exclude relevant evidence if its probative value is substantially outweighed by the danger of…unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needless presentation of cumulative evidence.” Fed.R.Evid. 403.

         IV. ...


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