United States District Court, E.D. Michigan, Southern Division
ORDER DENYING GOVERNMENT'S MOTION IN LIMINE TO
BAR EVIDENCE, EXAMINATION, AND ARGUMENT SUGGESTING THAT THE
UNINSURED STATUS OF FIFTH THIRD MORTGAGE MI, LLC PRECLUDES A
FINDING OF GUILT (DOC. #117)
HONORABLE VICTORIA A. ROBERTS
United States charged Paul Nicoletti
(“Nicoletti”) in a four-count indictment with
conspiracy to commit and aiding and abetting bank fraud. The
government filed a motion in limine to prevent
Nicoletti from arguing that the uninsured status of Fifth
Third Mortgage MI, LLC (“Fifth Third Mortgage”)
precludes a finding of guilt; it says that- because it is
only seeking to convict Nicoletti under 18 U.S.C. §
1344(2)-Fifth Third Mortgage's uninsured status is
irrelevant. Further, the government says that allowing
Nicoletti to argue that Fifth Third Mortgage's uninsured
status precludes a finding of guilt would serve only to
mislead and confuse the jury.
Court DENIES the government's motion.
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 aiding and abetting counts is for
separate multi-million dollar loans that Nicoletti allegedly
secured under materially false and fraudulent pretenses and
indictment alleges that Nicoletti and his co-conspirators
employed straw buyers to serve as mortgage loan applicants
for the purchase of real property. The conspirators also
allegedly provided false information in the loan
applications; they allegedly falsified 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 the indictment, Nicoletti knowingly facilitated the
fraudulent real estate transactions by acting as title agent,
coordinating and conducting real estate closings, preparing
HUD-1 Settlement Statements, and disbursing the proceeds of
the mortgage loans.
STANDARD OF REVIEW
courts have broad discretion over matters regarding the
admissibility of evidence at trial. United States v.
Seago, 930 F.2d 482, 494 (6th Cir. 1991).
“Although the Federal Rules of Evidence do not
explicitly authorize in limine rulings, the practice
has developed pursuant to the district court's inherent
authority to manage the course of trials.” Luce v.
United States, 469 U.S. 38, 41 n. 4 (1984). “A
ruling on a motion in limine is no more than a
preliminary, or advisory opinion that falls entirely within
the discretion of the district court.” United
States v. Yannott, 42 F.3d 999, 1007 (6th Cir. 1994).
Motions in limine may promote “evenhanded and
expeditious management of trials by excluding evidence that
is clearly inadmissible for any purpose.” Indiana
Ins. v. Gen. Elec. Co., 326 F.Supp.2d 708, 712 (6th Cir.
1975). Courts should rarely grant motions in limine
that “exclude broad categories of evidence.”
Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d
708, 712 (6th Cir. 1975). The “better practice is to
deal with questions of admissibility when they arise.”
response to the government's motion, Nicoletti says that
his only real defense is that the complainant is not
federally insured; he wants to demonstrate that the real
lender was Fifth Third Mortgage. The Court will not preclude
Nicoletti from asserting this defense.
bank fraud statute, in relevant part, imposes liability on
“[w]hoever knowingly executes, or attempts to execute,
a scheme or artifice . . . (2) to obtain any of the moneys,
funds, credits, assets, securities, or other property owned
by, or under the custody or control of, a financial
institution, by means of ...