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United States of America v. Courtney Dupree

November 28, 2011

UNITED STATES OF AMERICA,
v.
COURTNEY DUPREE, THOMAS FOLEY, AND RODNEY WATTS,
DEFENDANTS.



The opinion of the court was delivered by: Matsumoto, United States District Judge:

MEMORANDUM AND ORDER

INTRODUCTION

The government charges defendant Courtney Dupree ("Dupree") with various counts of Bank Fraud, Making a False Statement, and Conspiracy to Commit Bank, Mail, and Wire Fraud. Presently before the court are certain of defendant Dupree‟s pretrial motions and motions in limine to preclude evidence at trial pursuant to the Federal Rules of Evidence. For the following reasons, the court grants in part and denies in part Dupree‟s pretrial motions and denies Dupree‟s motions in limine.

BACKGROUND*fn1

I.The Charges Against Defendants

Defendant Dupree is charged in all five counts of a five-count second superseding indictment, and Thomas Foley ("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. §§ 2, 1344, 3551 et seq. (Id. ¶¶ 20-21.) Count Three charges defendants Dupree and Watts with Making a False Statement on or about January 6, 2010 by "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. §§ 2, 1014, 3551 et seq. (Id. ¶¶ 22-23.) Count Four charges all defendants with Making a False Statement on or about May 24, 2010 in violation of 18 U.S.C. §§ 2, 1014, 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. §§ 2, 1344, 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 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 returned on March 25, 2011 (ECF No. 155, Superseding Indictment ("S-1 Indictment")), which was again superseded on August 3, 2011. Count Five of the S-2 Indictment 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.)

II.The Instant Motions

Dupree‟s pretrial motions consist of the following:

(1) a motion to physically place Dupree and his counsel at a separate table than Foley and his counsel during trial; and (2) a motion to modify the order of defendants‟ presentations at trial, allowing Dupree to make opening and closing statements, cross-examine witnesses, and present his defense after Foley. In addition to these two pretrial motions, Dupree makes three motions in limine to preclude the government (1) from introducing into evidence financial documents without specifying the fraudulent content and line item amounts deemed false in each document, (2) from calling Irma Nusfaumer as a witness or using any information gained from her statements or documents at trial, and (3) from calling three fact witnesses added to the government‟s witness list on November 18, 2011, approximately two weeks prior to trial and a month after the court‟s October 24, 2011 deadline for final witness lists. Each of these motions will be discussed in turn.

DISCUSSION

I.Motion to Physically Separate Defendants

Dupree requests that he and Foley and their respective counsel sit at separate tables during trial. (ECF No. 358-1, Dupree‟s Memorandum in Support of Motion in Limine for Physical Separation of Defendants at 1.)*fn2 Dupree argues that because his and Foley‟s interests are "diametrically opposed," they are entitled to separate tables and "any association with Foley, even sitting at the same table with him, will impair [Dupree‟s] ability to obtain a fair trial." (Id. at 2.) Additionally, Dupree asserts that "[t]he jury will also ...


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