United States District Court, S.D. New York
OPINION AND ORDER
PAUL A. CROTTY, District Judge.
Defendant moves in limine for the following relief:
(1) production in advance of trial of co-conspirators' statements, as well as a government description of why the declarant is a co-conspirator-and how the statement furthered the conspiracy;
(2) preclude use of portions of recorded conversations in which the Defendant states his anticipation to invoke the Fifth Amendment or to retain counsel and urges others to do the same;
(3) preclude the Government from offering opinion testimony from the New York City Campaign Finance Board without (a) complying with the pretrial disclosure of expert witnesses, and (b) qualifying such witnesses as experts;
(4) preclude Defendant's statements made as part of the charged witness tampering offense;
(5) preclude witnesses' statements that Defendant was "nervous" when he discussed inquiries concerning campaign donations with certain witnesses; and
(6) leave to file additional in limine motions when Defendant receives the Government's exhibits and 3500 material.
The motions are DENIED.
(1) The Production of Co-Conspirators' Statements, and Accompanying Explanations
The Government has already provided substantial discovery to Defendant, including the grand jury testimony of the straw donors, and the names of the co-conspirators and aiders and abettors. Nonetheless, Defendant seeks the identification of the specific co-conspirators' statements and a written explanation of the basis for admitting the statements in furtherance of the conspiracy. Apparently, Defendant questions the continuing validity of U.S. v. Geaney , 417 F.2d. 1116, 1120 (2d Cir. 1969), or is laying a foundation for an appellate attack on the Geaney rule. Until the Second Circuit changes the requirements for the admissibility of co-conspirators' statements, however, Geaney is still good law. See U.S. v. Tracy , 12 F.3d. 1186, 1199 (2d Cir. 1993); see also, U.S. v. Miller, 12 Cr. 0368 (PAC), 2012 WL 4791992 at *4. (S.D.N.Y. October 9, 2012). The legal question aside, Defendant already knows what the co-conspirators are alleged to have said, based on the production of the straw donors' grand jury testimony, as well as production of records from the Agency of Children Services and the Department of Buildings.
The motion is DENIED.
(2) Preclude Certain Portions of Recorded Conversations
Defendant seeks to preclude statements made in a recorded conversation with the Confidential Source ("CS") that he intended to invoke the Fifth Amendment; that he would retain counsel; and that others should do the same. The Government does not intend to use these statements in its case in chief (but ...