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 ("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
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)).
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).
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
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.)For the following reasons, the
Defendant's motion is denied.
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.
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.) 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.
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.)
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.)
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)
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 ...