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United States v. Scali

United States District Court, S.D. New York

January 23, 2018

UNITED STATES OF AMERICA,
v.
JOSEPH SCALI, Defendant,

          ORDER AND OPINION

          NELSON S. ROMAN, UNITED STATES DISTRICT JUDGE.

         Defendant 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 ("S2") 2, ECF No. 80.) Before the Court is the Defendant's motions in limine. (Defendant's First Motion In Limine ("Def. Mot.1'), ECF No. 91; Defendant's Second Motion In Limine ("Def. Second Mot."), ECF No. 126.) For the reasons set forth below, the Defendant's motions are denied or otherwise moot.[1]

         LEGAL STANDARD

         "A 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, 5 this ruling constitutes a preliminary determination in preparation for trial." United States v. Perez, No. 09-cr-l 153 (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)).

         The 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).

         DISCUSSION

         The 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); United States v. Scali, 16CR-466, 2018 WL 461441 (S.D.N.Y. Jan. 18 2018). The Court consolidates the Defendant's two Motions which, in aggregate, raise four issues. The Court takes each in turn.

         Government's Witnesses The Defendant moves to preclude the "general testimony" and expert testimony of three witnesses: attorneys Matthew Lee-Renert, Julie Allsman, and Christine Fecko. (Def. Mot. 7.)[2]For the following reasons, the Defendant's motion is denied.

         A Lay witness may testify to matters as to which they have personal knowledge. Fed.R.Evid. 602. A lay witness may also offer opinion testimony when it is: (1) "rationally based on the witness's perception"; (2) "helpful to clearly understanding the witness's testimony or to determining a fact in issue"; and (3) "not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." Fed.R.Evid. 701. Rule 702 governs the parameters of expert testimony.

         In this case, the Government intends to use the three witnesses in question to provide factual or lay opinion testimony. (Govt. Opposition to Def. Motions In Limine (Govt. Opp.) 2, ECF No. 93.) The Government specifically noted that they do not wish to use the witnesses as experts. (Id.)[3] The first witness in question, Lee-Renert, is the Principal Attorney for the New York State Grievance Committee for the Ninth Judicial District. Lee-Renert has served as counsel to the New York Grievance Committee for about twenty-two years and is responsible for investigating complaints of professional misconduct made against attorneys. (Id.) The Government expects him to testify generally about the process by which attorneys become members of the New York State Bar, the relevant Rules of Professional Conduct, the disciplinary process for attorneys in New York, and restrictions placed on suspended or disbarred attorneys. Lee-Renert is also expected to testify from his own personal knowledge about the relevant facts of the New York Grievance Committee proceedings against the Defendant. (Id. 2-4.)

         The second witness, Julie Allsman, has served as counsel to the S.D.N.Y. Grievance Committee since 2011. The government intends to offer Allsman's testimony concerning the general background of the S.D.N.Y. Grievance Committee procedures, her role in receiving, investigating, and presenting disciplinary referrals to the committee, how such referrals are handled generally, and is expected to testify about her own personal knowledge concerning the relevant facts of the S.D.N.Y. disciplinary proceedings against the Defendant. (Id. 4-5.)

         The third witness, Fecko, has served as general counsel of the Interest on Lawyers Account ('TOLA") Fund of New York ('TOLA Fund") since 2011. The Government expects Fecko to testify about IOLA accounts generally, and from her own personal knowledge about the facts of the case including the records maintained by the IOLA Fund for the Defendant's Attorney Trust Account and how the IOLA fund allegedly received interest "sweeps" from the Defendant's account from at least January 2010 through July 2013. (Govt. Mot. 5-6.)

         The Defendant objects to the Government's use of the three witnesses to obtain general testimony. Specifically, he argues that the witnesses should not testify as to how the agencies which employ them function, nor should they provide expert opinions about the Defendant's conduct. (Def. Mot. 7.) This general testimony, the Defendant posits, is irrelevant to the federal criminal prosecution. (Defendant's Reply in Further Support of First Motion In Limine ("Def. First Reply") 7, ECF Dock. No. 97)

         The Defendant's motion is denied. First, the testimony concerning how the agencies which employ the witnesses function is relevant to the charges in the Second Superseding Indictment. 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). Here, the testimony provides background information and context concerning the New York and S.D.N.Y. grievance proceedings. The general testimony would also provide background information and context for IOLA accounts. The grievance proceedings and IOLA accounts are subjects that are typically unknown to the common juror and certainly require explanation and context. As a result, this general testimony from attorneys with personal knowledge of IOLA accounts and the New York and ...


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