Opinion
8:20-cr-207-CEH-MRM
04-03-2023
UNITED STATES OF AMERICA v. PHILLIP ROY WASSERMAN
ORDER
Charlene Edwards Honeywell, Judge.
This matter comes before the Court on several motions in limine filed by Defendant and the Government's responses in opposition, as well as a motion in limine filed by the Government, to which Defendant responded. The Court heard argument on these motions on December 28, 2022, and January 4, 2023, at which point oral rulings were issued. This Order serves to memorialize the Court's oral pronouncements.
DISCUSSION
Defendant Phillip Wasserman filed numerous motions in limine in anticipation of trial, and the Court has issued oral rulings on three of them (Docs. 538, 604, 605).The Court also ruled on a motion in limine filed by the Government that asked for several different categories of evidence to be excluded (Doc. 569).
Defendant withdrew several other motions in limine at the two hearings. Additionally, the Court previously denied seven of his motions in limine by written order on October 12, 2022. See Doc. 518. These motions were denied without prejudice for failure to include a memorandum of law as required by this District's Local Rules.
“A Motion In Limine presents a pretrial issue of admissibility of evidence that is likely to arise at trial, and as such, the order, like any other interlocutory order, remains subject to reconsideration by the court throughout the trial.” Stewart v. Hooters of Am., Inc., No. 8:04-CV-40-EAK-MAP, 2007 WL 1752843, at *1 (M.D. Fla. June 18, 2007) (citation omitted). “The real purpose of a Motion In Limine is to give the trial judge notice of the movant's position so as to avoid the introduction of damaging evidence which may irretrievably effect the fairness of the trial. A court has the power to exclude evidence in limine only when evidence is clearly inadmissible on all potential grounds.” Id. (quoting Luce v. United States, 469 U.S. 38, 41 (1984) (federal district courts have authority to make in limine rulings pursuant to their authority to manage trials)).
Rule 402 of the Federal Rules of Evidence prohibits the introduction of evidence that is not relevant. Rule 403 requires the Court to balance the probative value of evidence against the danger of “unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Under Rule 404(b), a party may not introduce evidence of a prior bad act in order to show that on a particular occasion the person acted in accordance with the character demonstrated by the bad act.
1. Defendant's Commingling of Funds
Wasserman moves the Court to restrict the Government from alleging that he “committed a crime or wrongdoing” by commingling investor funds with regular business funds. Doc. 538 at 1. He argues that the evidence would be unfairly prejudicial under Federal Rule of Evidence 403(b) and that the Government seeks to accuse him of a crime that does not exist. Id.
In its response, the Government indicated that Defendant's argument was contrary to the law of conspiracy, and that overt acts need not be criminal in and of themselves to be part of a conspiracy. Doc. 550 at 1-2. At the hearing, the Government rested on its written submission.
Motions in limine can only be granted where there is no reason the evidence or testimony would otherwise be admissible. In this case, the alleged commingling of funds may be relevant to the Government's case at trial. Thus, for the reasons discussed at the December 28, 2022, hearing, the motion in limine is denied without prejudice.
2. The Government's Motion to Exclude Inadmissible and Irrelevant Evidence
The Government moves under Federal Rules of Evidence 402 and 403 to prevent the introduction of five categories of evidence that it claims are inadmissible or irrelevant. See Doc. 569. Specifically, the Government seeks to exclude evidence regarding: (1) the penalties associated with the charged offenses; (2) general good character and specific instances of good conduct; (3) any matter that could invite or promote jury nullification; (4) the defendant's formal complaints of agent misconduct, for the truth of the matter asserted within those complaints; and (5) victim/investors' fault or accredited status. Id. at 1.
In his Response (Doc. 593), Defendant states that he does not intend to inform the jury of the penalties associated with the charged offenses. Id. at 1. As to the second category of evidence, he argues that the Government has made his good character an issue here, and that he intends to present evidence of his previous battles with the SEC to show that the investigating agents in this case were biased against him. Id. at 5. He also argues that he should be allowed to rebut evidence that the Government has put forth related to his character. Id. at 6.
As to the third issue, Defendant states that he does not intend to present a jury nullification argument and will instead ask the jury to follow the law, as instructed by the Court. Id. at 6-9. On the fourth point, he argues that the Court should not exclude his written allegations of misconduct at this time, because he may be able to crossexamine the agents for bias using this information. Id. at 9-12. As to the final issue of the accredited status of certain investors, Defendant states that he intends to put such evidence before the jury, that such evidence is relevant, and that he should be allowed to present it. Id. at 13-14.
As to the first issue, the Court agrees that evidence related to the penalties associated with the charged offenses is not within the province of the jury. As such, for the reasons discussed at the January 4, 2023, hearing, the motion in limine is granted.
As to evidence of general good character and specific instances of good conduct, the Government's motion is overly broad. The Court's decisions on any challenges to this evidence will depend on the specific character evidence presented at trial. As such, the Court cannot address this issue in limine, and this part of the Government's motion is denied without prejudice.
As to evidence or testimony regarding jury nullification, the Parties both agree that this issue is not to be presented at trial, and the Government's motion is granted as it relates to this issue.
As to the portion of the Government's motion dealing with Defendant's written allegations of government misconduct, the Court finds that a ruling on this issue would be premature, as the Court does not know which documents will be introduced, for what purpose, and whether a hearsay exception may apply. As a result, the motion will be denied without prejudice as to this issue.
Finally, as to the portion of the Government's motion dealing with the accredited status of investors in this case, the Court finds that this motion is also premature, and any challenges would be more suitable for individual consideration at trial. Thus, for the reasons discussed at the January 4, 2023, hearing, the motion in limine is denied without prejudice as to this issue.
3. Defendant's Spending and Lifestyle
Wasserman also moves to exclude evidence of his spending and lifestyle, arguing that what he spent money on is irrelevant to the elements of the offense and that such evidence would be unfairly prejudicial. See Doc. 604.
The Government responds that such evidence is probative of Defendant's knowledge and intent because his expenditures conflict with his representations to investors, and that this information is also relevant to his motive for the charged offenses. See Doc. 639.
At the hearing, Defendant argued that it would be prejudicial for the Government to bring up certain items and activities he spent money on, such as playing poker. He argued that such evidence should be excluded under Rule 403. The Government responded that Wasserman could use voir dire as an opportunity to find out whether any potential jurors would be biased by the fact that he played poker, and that the evidence of how the investor money was spent is highly relevant to the case.
The Court notes that how Defendant spent the victim-investor funds appears to be a central aspect of the case, as per the Superseding Indictment. For the reasons discussed at the hearing on January 4, 2023, Defendant's motion is thus denied without prejudice to any objections at trial.
4. Prior Bad Acts
Wasserman moves to prohibit the Government from introducing evidence related to a real estate investment fund, a hedge fund investment, and personal loans that he claims the Government seeks to introduce as prior “bad acts” evidence under Federal Rule of Evidence 404(b) (Doc. 605). The Government responds (Doc. 640) that it will not introduce this evidence to show that Defendant committed prior bad acts, and that it is instead direct evidence of his material omissions to investors and his misuse of investor funds. Id. at 1. The Government further argues that the hedge fund and real estate fund transactions are related to FastLife, Defendant's company, in that he failed to disclose outstanding debts related to those transactions to investors, and because he used FastLife investor money to make payments to investors in the hedge fund and real estate fund. Id. at 4.
At the hearing, Defendant argued that allowing the Government to introduce evidence of these three allegedly unrelated transactions would create a trial within a trial and that the Government hoped to show his bad character using this evidence. The Government again responded that the evidence would be introduced to show how investor money was spent, not to show prior bad acts or prove Defendant's character.
For the reasons discussed at the January 4, 2023, hearing, this motion is denied without prejudice to objections being raised at trial.
DONE and ORDERED.