United States District Court, S.D. New York
ORDER AND OPINION
S. ROMAN UNITED STATES DISTRICT JUDGE.
Joseph Scali ("Defendant") is charged in a
ten-count indictment with (1) mail fraud in violation of 18
U.S.C. § 1341; (2) structuring to evade currency
transaction reports in violation of 31 U.S.C. §
5342(a)(3); (3)-(4) false statements in violation of 18
U.S.C. § 1001; (5) corruptly endeavoring to obstruct and
impede the due administration of the Internal Revenue Laws in
violation of 26 U.S.C. § 7212(a); (6) tax evasion for
the year 2011 in violation of 26 U.S.C. § 7201; (7) tax
evasion for the year 2012 in violation of 26 U.S.C. §
7201; (8) obstruction of justice in violation of 18 U.S.C.
§ 1503; (9) perjury in violation of 18 U.S.C. §
1623; and (10) mail fraud in violation of 18 U.S.C. §
1341. (Superseding Indictment 2 ("S2") ECF Dock.
No. 80.) Before the Court is the Government's first
motion in limine. (Government's Motion In
Limine ("Govt. Mot.") 1, ECF Dock. No. 89.)
For the reasons set forth below, the Government's motion
is GRANTED in part and DENIED in part
district court's inherent authority to manage the course
of its trials encompasses the right to rule on motions in
limine." Highland Capital Mgmt., L.P. v. Schneider,
551 F.Supp.2d 173, 176-77 (S.D.N. Y.2008) (citing Luce v.
United States, 469 U.S. 38, 41 n. 4 (1984)). An in
limine motion is intended "to aid the trial process
by enabling the Court to rule in advance of trial on the
relevance of certain forecasted evidence, as to issues that
are definitely set for trial, without lengthy argument at, or
interruption of, the trial.” Palmieri v.
Defaria, 88 F.3d 136, 141 (2d Cir.1996). “Because
a ruling on a motion in limine is ‘subject to
change as the case unfolds, ' this ruling constitutes a
preliminary determination in preparation for trial.”
United States v. Perez, No. 09-cr-1153 (MEA), 2011
WL 1431985, at *1 (S.D.N.Y. Apr. 12, 2011) (quoting
Palmieri, 88 F.3d at 139 (quoting Luce, 469
U.S. at 41, 105 S.Ct. at 163)).
Federal Rules of Evidence provide that only relevant evidence
is admissible. Fed.R.Evid. 402. Evidence is relevant if
“it has any tendency to make a fact more or less
probable than it would be without the evidence . . . and the
fact is of consequence in determining the action.”
Fed.R.Evid. 401 (a)-(b). Relevant evidence may still be
excluded by the Court “if its probative value is
substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading
the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Fed.R.Evid. 403. Though the
“standard of relevance established by the Federal Rules
of Evidence is not high, ” United States v.
Southland Corp., 760 F.2d 1366, 1375 (2d Cir.1985), the
Court has “broad discretion to balance probative value
against possible prejudice” under Rule 403. United
States v. Bermudez, 529 F.3d 158, 161 (2d Cir.2008).
may also be admitted as “other act” evidence
under Rule 404(b). The Second Circuit adopted an
“inclusionary' approach to other acts evidence.
United States v. Scott, 677 F.3d 72, 79 (2d Cir.
2012) (citing United States v. LaFlam, 369 F.3d 153,
156 (2d Cir.2004) (per curiam)). Under 404(b), this Court
“may admit evidence of prior bad acts if the evidence
‘is relevant to an issue at trial other than the
defendant's character, and if the probative value of the
evidence is not substantially outweighed by the risk of
unfair prejudice.'” United States v.
Garcia, 291 F.3d 127, 136 (2d Cir. 2002). The
inclusionary rule, however, is not “a carte blanche to
admit prejudicial extrinsic act evidence when, as here, it is
offered to prove propensity.” Id.
Court assumes familiarity with the facts and allegations in
this case. See United States v. Scali, 16-CR-466,
2018 WL 369195 (S.D.N.Y. Jan. 9, 2018). The Government raises
ten issue in their first motion in limine. The Court
takes each in turn.
Evidence relating to the Defendant's Bar
Government seeks to introduce evidence relating to the
suspension and subsequent attempted resignation of the
Defendant from the New York State Bar as a combination of
both direct evidence of charged offenses and other acts
evidence under Rule 404(b). (Govt. Mot. 1, 4.) The
Government's request pertains to two sets of evidence.
With respect to the first set, they argue that the Court
"should permit the Government to call as witnesses the
attorneys who handled Scali's disciplinary proceedings
before the NY Grievance and SDNY Grievance Committees who
will testify about the origin, nature, and the factual bases
for the disciplinary proceedings against Scali."
(Id. at 10.) The second set of evidence consists of
seven "relevant pleadings, filings, and orders filed in
the disciplinary proceedings." (Id.) These two
sets of evidence are purportedly direct evidence of the
obstruction of justice, perjury, and the mail fraud offenses
charged in Count Eight, Nine and Ten of the Second
Superseding Indictment. (Id. at 10,
respect to the testimony of attorneys who handled Scali's
disciplinary proceedings before the New York and S.D.N.Y.
Grievance Committees, the Government argues that the
witnesses will speak to the origin, nature and the factual
bases for the disciplinary proceedings against the Defendant.
This testimony will be submitted as direct evidence proving
that a statement Defendant made in his affidavit to the
S.D.N.Y. District Court was false. (Id. 10-11.) The
Defendant faced disciplinary proceedings before the New York
Bar after several complaints were filed against him, alleging
professional misconduct, including the Defendant's
improper use of his Attorney Trust Account, oversight in his
law practice and record-keeping, and handling of client
matters. (Id. at 4-5.) The Defendant further faced
disciplinary actions in the Southern District of New York,
during which he was disbarred and subsequently submitted an
affidavit (the "Scali Affidavit") claiming that his
temporary suspension from the New York Bar had "nothing
to do with" his law practice. (Id. 7-8.)
Defendant eventually submitted an affidavit in the New York
State Appellate Division through which he voluntarily
resigned from the New York Bar, and acknowledged his
responsibility with regards to specific charges in the
underlying disciplinary action. (Id. at 8.)
Defendant argues that the testimony of the attorneys who
handled the New York disciplinary proceedings is wholly
unnecessary. (Def. Response to Govt. Mot. In Limine
("Def. Resp.”) 4-6, ECF Dock. No. 94.) In order to
establish that statement made by Defendant in the affidavit
to the disciplinary committee was allegedly false, the
Government need only to "adduce the subject matter under
investigation, nothing more." (Id. at 5.)
Government's motion to admit this testimony is granted.
The relevancy of attorney's testimony and exhibits
relating to the New York and S.D.N.Y. grievance committees is
apparent to the obstruction of justice and perjury offenses
because they have the tendency to make the allegation of
Defendant Scali's alleged false statement more or less
probable than it would be without the evidence. The
testimony, according to the Government, would prove that the
statement made by Scali in his affidavit to the S.D.N.Y.
Grievance Committee-that his suspension from the New York Bar
for non-cooperation in the investigation that had nothing to
do with his law practice-was false. (Govt. Mot. 10.) This is
certainly true here, where the testimony will allegedly show
that the suspension did in fact have to do with his law
practice since the grievance complaints stemmed from various
the Court determines that the probative value of the
testimony is not substantially outweighed by a danger
enumerated in Rule 403. While there are situations in which
testimony concerning disbarment may be impermissible, this is
not one of them. See United States v. D'Auria,
672 F.2d 1085, 1094 (2d Cir. 1982). Any concerns of the jury
confusing issues or misleading the jury, would be ameliorated
by narrowly tailored testimony and a proper limiting
instruction, if the Defendant so requests.
Court next turns to the second set of evidence: the pleadings
relating to the New York and S.D.N.Y. Grievance Committee
proceedings. The Government argues that the exhibits are
relevant because they show the nature of the disciplinary
proceeding against Scali, and specifically that it pertained
to Scali's law practice. They further note that these
exhibits are essential to proving that the statement in the
Scali Affidavit was false.
motion to admit the New York Grievance Petition (Govt. Mot.,
Exh. 1) and the Amended Petition (Govt. Mot., Exh. 3)
(collectively “Petitions”) is granted. The
Petitions are relevant to prove that Defendant Scali's
disbarment was due to his law practice because the
Petitions' contents portray the myriad complaints
relating to his law practice. The probative value of the
evidence is not substantially outweighed by a danger
enumerated in Rule 403. The Petitions are straight forward
and unlikely to mislead a jury. Further, the admission of the
Petitions is not barred by the rule against hearsay because
they are not being admitted for the truth of the matter
asserted, but rather, to prove the Defendant's knowledge
of the nature of the New York grievance proceedings. (Govt.
motion to admit the Order to Show Cause and Affirmation (Gov.
Mot., Exhibit 2) is denied. Although the Government alleges
that the exhibit is relevant to show the nature of the
proceedings, the Court is unpersuaded. The testimony of at
least one attorney and the Petitions are sufficient to
establish the nature of the proceedings. There is also a
likelihood of confusing the issues and misleading the jury.
The Order has facts and references to issues that are not
particularly relevant to this case. Further, the operative
information of the order-the fact that Defendant Scali had
not responded to the Petitions-is evident from the Suspension
Order. As a result, it would be imprudent to submit the Order
to Show Cause and Affirmation in light of the substantial
danger of misleading the jury and confusing the issue.
motion to admit Defendant Scali's filings with the
Grievance Committee (Gov. Mot., Exh. 4-6) is likewise denied.
The filings are relevant to establishing that the New York
Grievance proceedings against Defendant Scali did involve his
law practice. However, the probative value is substantially
outweighed by the danger of confusing the issues. Exhibits 4,
5, and 6 contain Defendant's responses to the New York
State Grievance Petitions. Contained therein are his
counterarguments and explanations concerning the multiple
accusations against him. There is a substantial risk of a
Jury fixating on whether or not he committed the underlying
acts contained within the Petition, thus diverting attention
from the question ...