The opinion of the court was delivered by: Matsumoto, United States District Judge:
The government charges defendants Courtney Dupree ("Dupree") and Thomas Foley ("Foley") with various counts of Bank Fraud, Making a False Statement, and Conspiracy to Commit Bank, Mail, and Wire Fraud. Presently before the court are the government's motions in limine to admit and preclude certain evidence at trial pursuant to Federal Rules of Evidence 401, 402, 403, 801, and 803. For the following reasons, the court grants in part and denies in part the government's motions.
I.The Charges Against Defendants
Defendant Dupree is charged in all five counts of a five-count second superseding indictment, and Foley is charged in three counts of the same indictment. (See ECF No. 295,Superseding Indictment ("S-2 Indictment").) A third co-defendant, Rodney Watts ("Watts") (together with Dupree and Foley, "defendants"), is charged in four counts of the S-2 Indictment, and his trial has been stayed pending a Second Circuit appeal. (See Minute Entry dated October 17, 2011.)
Count One charges all defendants with Conspiracy to Commit Bank, Mail, and Wire Fraud in violation of 18 U.S.C. §§ 1349, 3551 et seq. (S-2 Indictment ¶¶ 18-19.) Count Two charges all defendants with Bank Fraud in violation of 18 U.S.C. §§ 1344, 2, 3551 et seq. (Id. ¶¶ 20-21.) Count Three charges defendants Dupree and Watts with Making a False Statement in violation of 18 U.S.C. §§ 1014, 2, 3551 et seq. (Id. ¶¶ 22-23.) Count Four charges all defendants with Making a False Statement by "knowingly and intentionally mak[ing] a false statement and report, and willfully overvalu[ing] property and security, for the purpose of influencing the action of Amalgamated Bank upon one or more loans" in violation of 18 U.S.C. §§ 1014, 2, 3551 et seq. (Id. ¶¶ 24-25.) Finally, Count Five charges only defendant Dupree with an additional count of Bank Fraud in violation of 18 U.S.C. §§ 1344, 2, 3551 et seq. (Id. ¶¶ 26-27.)
The S-2 Indictment charges that Dupree was the president and chief executive officer of GDC Acquisitions, LLC ("GDC") and that Foley was GDC's outside counsel and subsequently its chief operating officer. (Id. ¶ 2-3.) Watts is charged as having been GDC's chief financial officer and chief investment officer. (Id. ¶ 4.) The first four counts arise out of an alleged scheme to defraud Amalgamated Bank ("Amalgamated"), a financial institution, and C3 Capital, LLC, a private equity investment firm, by obtaining, and attempting to obtain, loans for GDC and its subsidiaries on the basis of false financial statements and other material misrepresentations between January 2007 and July 2010. (Id. ¶¶ 5, 6, 8.)
Count Five was originally added in a superseding indictment filed on March 25, 2011 (ECF No. 155, Superseding Indictment ("S-1 Indictment")), and charges only Dupree with an additional count of bank fraud for "knowingly and intentionally execut[ing] and attempt[ing] to execute a scheme and artifice to defraud Amalgamated Bank, and to obtain moneys, funds, credits and other property owned by, and under the custody and control of, Amalgamated Bank, by means of materially false and fraudulent pretenses, representations and promises" between August 4, 2010 and March 1, 2011. (S-2 Indictment ¶ 27.)
The government's motions in limine consist of the following requests: (1) preclude references to the possible consequences of defendants' potential convictions and punishment; (2) preclude cross-examination or direct testimony concerning a government witness's treatment for depression; (3) preclude cross-examination regarding a government witness's husband, who is a former Federal Bureau of Investigation ("FBI") agent; (4) preclude evidence regarding defendants' allegations of prosecutorial misconduct; (5) admit recordings of coconspirator statements on a conditional basis at trial, subject to the later submission of the evidence needed to establish the prerequisites for admission of coconspirator statements under Federal Rule of Evidence 801(d)(2)(E); and (6) admit against Dupree a temporary restraining order issued in a related, concurrent state court proceeding. (ECF No. 359, First Motion in Limine by USA ("Mot.").)
Dupree and Foley both filed responses opposing the government's
motions in limine. (ECF No. 382, Foley's Response in Opposition to
First Motion in Limine by USA ("Foley Opp'n"); ECF No. 383, Dupree's
Response in Opposition to First Motion in Limine by USA ("Dupree
Opp'n").) The government filed a reply to Foley's and Dupree's
opposition papers. (ECF No. 403, Reply to Response in Opposition to
First Motion in Limine by USA ("Reply").) Finally, Foley filed an
unauthorized sur-reply to the government's reply papers.*fn2
(ECF No. 417, Motion in Limine
Sur-Reply ("Foley Sur-Reply").) The court has considered all of the
foregoing submissions, and each of the government's motions in limine
will be discussed in turn.
I.Standard for a Motion in Limine
The purpose of a motion in limine is to allow the trial court to rule on the admissibility and relevance of certain forecasted evidence before the evidence is actually offered at trial. See Luce v. United States, 469 U.S. 38, 40 n.2 (1984); Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996). "Evidence should be excluded on a motion in limine only when the evidence is clearly inadmissible on all potential grounds." United States v. Paredes, 176 F. Supp. 2d 179, 181 (S.D.N.Y. 2001). Courts considering a motion in limine may reserve decision until trial so that the motion is placed in the appropriate factual context. See Nat'l Union Fire Ins. Co. v. L.E. Myers Co. Grp., 937 F. Supp. 276, 286-87 (S.D.N.Y. 1996). Furthermore, the court's ruling regarding a motion in limine is "subject to change when the case unfolds, particularly if the actual testimony differs from what was [expected]." Luce, 469 U.S. at 41.
II.Admissibility of Evidence Pursuant to the Federal Rules of Evidence
The Federal Rules of Evidence govern the admissibility of evidence at trial. Rule 402 requires that evidence be relevant to be admissible. Fed. R. Evid. 402. Relevant evidence is defined as evidence "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401. The court's determination of what constitutes "relevant evidence" is guided by the nature of the charges and the defendants' defense theories.
In addition to the relevancy of the evidence that the government seeks to admit or preclude, however, such evidence is subject to the probative-prejudice balancing test of Federal Rule of Evidence 403. Rule 403 permits the exclusion of evidence, even if relevant, "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed. R. Evid. 403. The Second Circuit has stated that the "district court is obviously in the best position to do the balancing mandated by Rule 403, and, accordingly, this Court grants 'broad discretion' to the district court to admit or exclude evidence pursuant to Rule 403." United States v. George, 266 F.3d 52, 63 (2d Cir. 2001) (quoting United States v. Birney, 686 F.2d 102, 106 (2d Cir. 1982)) (internal citation and quotation marks omitted). The court applies the foregoing analysis to the government's pending motions.
III.The Government's Motions in Limine
A.Preclusion of References to the Possible Consequences of Conviction
The government moves to preclude the defense from making any references at trial to the possible consequences of any punishment the defendants may receive if they are convicted. (Mot. at 1.) Dupree argues in response that "[i]f the government believes that a statement or question by the defense is inappropriate due to a reference to the consequences of conviction, it should exercise its right to object at that time," and that a ruling at this time precluding such references would be "unfair and prevent Mr. Dupree from putting on a vigorous defense." (Dupree Opp'n at 1.) Foley only opposes this motion to the extent it seeks to restrict cross-examination of prosecution witnesses on issues relating to their cooperation agreements. (Foley Opp'n at 1.) Because the government's motion only seeks preclusion of references to the possible consequences of defendants' potential convictions and not any other witnesses, the court does not consider Foley's objection to this particular motion.*fn3
It is firmly established law that the jury has a limited function - to determine guilt or the lack thereof - and that the jury has no role in sentencing with the exception of certain types of cases, such as capital cases, that are not relevant here. In Shannon v. United States, 512 U.S. 573 (1994), the Supreme Court stated the following about a jury's role at trial and whether jurors should hear evidence of the possible consequences of a defendant's convictions:
It is well established that when a jury has no sentencing function, it should be admonished to reach its verdict without regard to what sentence might be imposed. The principle that juries are not to consider the consequences of their verdicts is a reflection of the basic division of labor in our legal system between judge and jury. The jury's function is to find the facts and to decide whether, on those facts, the defendant is guilty of the crime charged. The judge, by contrast, imposes sentence on the defendant after the jury has arrived at a guilty verdict. Information regarding the consequences of a verdict is therefore irrelevant to the jury's task. Moreover, providing jurors sentencing information invites them to ponder matters that are not within their province, distracts them from their factfinding responsibilities, and creates a strong possibility of confusion.
Id. at 579 (emphasis added) (internal citations and quotation marks omitted).
Applying Shannon, which held that a district court is not required to instruct the jury regarding the consequences to the defendant of an acquittal by reason of insanity, the Second Circuit found that Shannon "makes clear that defendant had no legal right to a charge informing the jury of the sentencing consequences of its decisions." United States v. Pabon-Cruz, 391 F.3d 86, 94 (2d Cir. 2004) (holding that defendant was not entitled to a jury instruction on the sentence he could receive). More recently, the Second Circuit reaffirmed that Shannon and Pabon-Cruz remain controlling precedent and reversed a district court's finding that the defendant had a Sixth Amendment right to have the jury instructed on the applicable mandatory minimum sentence. United States v. Polouizzi, 564 F.3d 142, 160-61 (2d Cir. 2009).
Because of the jury's limited role in fact-finding, the possible consequences of a defendant's conviction are irrelevant and potentially confusing and misleading to the jury. See United States v. Blume, 967 F.2d 45, 49 (2d Cir. 1992) ("Federal courts usually instruct juries not to consider a verdict's consequences." (citation omitted)); Brown v. Artus, No. 04 Civ. 3601 (DLC)(KNF), 2008 U.S. Dist. LEXIS 104863, at *26 (S.D.N.Y. Dec. 24, 2008) ("'Where the jury is permitted to speculate concerning a defendant's possible punishment, a jury cannot properly perform th[e] function' of 'determin[ing] guilt or innocence based upon an impartial consideration of the evidence, unswayed by emotion, fear or prejudice.'" (quoting United States v. Cook, 776 F. Supp. 755, 757 (S.D.N.Y. 1991))); United States v. Maisonneuve, 954 F. Supp. 114, 116 (D. Vt. 1997)("It is well settled that juries are not to consider penalties in reaching their verdicts.").
While the Second Circuit has left open the possibility that "in some, albeit limited, circumstances it may be appropriate to instruct the jury regarding th[e] consequences" of its verdict, Polouizzi, 564 F.3d at 161, the court finds that this is not one of those limited circumstances.*fn4 Because of the established precedent that jurors should not be informed about the possible consequences of their verdict and the potential prejudice, unfairness, and confusion that could result from allowing defense counsel to refer to defendants' possible punishments, the court grants the government's motion to exclude any references to the possible consequences of defendants' convictions.
B. Preclusion of Cross-Examination or Direct Testimony Concerning a Government Witness's Treatment for Depression
The government moves to preclude any testimony, whether by direct testimony or on cross-examination, of a government witness's treatment for depression while employed by the defendants. (Mot. at 2.)*fn5 Specifically, according to materials disclosed by the government in compliance with its obligations under the Jencks Act, 18 U. S. C. § 3500 ("Jencks Materials"), the witness has stated that she visited a psychiatrist approximately three times from 1993 to 1994 for depression, and that in 2009, she took anti-anxiety medication prescribed by a general practitioner for approximately six months. (Reply at 2-3.) The witness characterized the anti-anxiety medication as "a very mild drug."*fn6 No other information regarding the witness's medical history is known by the parties, which do not have the witness's medical records in their possession and do not seek in their papers to introduce any of the witness's medical records as evidence at trial. (See Dupree Opp'n at 5, 7; Reply at 2.)
The government asserts that any testimony regarding the witness's treatment for or diagnosis of depression should be precluded because such information "is irrelevant, far more prejudicial than probative, would serve only to harass and embarrass the witness, and would constitute an invasion of the witness's privacy." (Mot. at 2.) Furthermore, the government contends that "[t]here is no indication that the witness's ability to perceive and recall events or to testify accurately was affected by depression." (Id. at 2.) Dupree argues in response that precluding such testimony would violate the defendants' Sixth Amendment Right of Confrontation because the mental condition or treatment of the government witness during the dates of the alleged conspiracy, from January 2007 to July 2010, is relevant and may have affected the witness's ability to perceive or to recall events or to testify accurately. (Dupree Opp'n at 3, 7.)*fn7 Foley also objects on the basis that "[p]sychological disorders, including depression, may influence a witness's perception and motivation and should properly be considered by a jury in evaluating the credibility of the witness's testimony." (Foley Opp'n at 2.)
The Sixth Amendment of the United States Constitution guarantees the right of an accused in a criminal prosecution to be confronted with the government's witnesses against him, which includes the right to cross-examine the witness. United States v. Vitale, 459 F.3d 190, 195 (2d Cir. 2006) (citations omitted). A judge may, however "impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the ...