Opinion
No. S2 01 Crim. 420 (LAK)
August 1, 2002
ORDER
The government moves in limine to (1) admit evidence of defendant's possession of additional fictitious obligations as direct evidence of the charges or, alternatively, as evidence of intent, knowledge, plan and absence of mistake; (2) admit evidence regarding the defendant's true identity as used in connection with a prior conviction for the purpose of proving his fraudulent representations in this case; (3) preclude evidence of defendant's rejection of a prior plea offer on a "consciousness of innocence" theory; and (4) preclude reference by defendant during the trial to the government's dismissal of charges against a co-conspirator.
1. The Court is not persuaded that the additional fictitious obligations recovered from the hotel in Hong Kong is inextricably intertwined with the evidence of the charged offense or necessary to complete the story. It is persuaded, however, that the evidence is highly probative to show at least knowledge and intent in this case and, moreover, that it is more probative than unfairly prejudicial. Accordingly, this branch of the government's motion is granted to the extent that the evidence will be admitted, subject to a limiting instruction, pursuant to Fed.R.Evid. 404(b).
2. The government may prove that defendant used his true name — Edilberto Manabat Del Carmen — when arrested in California in 1987 in light of the fact that he repeatedly represented, during the course of the conspiracy alleged in this indictment, that he was the son of Ferdinand Marcos and that he obtained the fictitious gold certificates that underlie these charges as a result of that familial relationship.
3. So much of the government's motion as seeks to preclude evidence of defendant's rejection of a prior plea offer is not opposed by defendant and is granted. The evidence would have minimal probative value, and its unfair prejudicial effect would substantially outweigh it.
4. So much of the government's motion as seeks to preclude reference to the dismissal of the complaint against David Castro, an unindicted co-conspirator, is granted. The evidence is wholly irrelevant. Even if it were not, the unfair prejudicial effect of inviting the jury to speculate as to why the government did not proceed against Castro would substantially outweigh any probative value.
Accordingly, the government's in limine motion is granted to the extent set forth above.
SO ORDERED.
ORDER
With respect to the government's in limine motion to admit the redacted transcript of the allocution of William B. Barrow, the parties are invited to brief the question whether the receipt of that evidence would violate defendant's rights under Bruton in light of the facts that (1) Count Three of the indictment charges that defendant and Barrow committed the substantive offense, and (2) Barrow allocuted to that charge, implicating another unnamed person. The submissions should address also the question whether any such problem could be avoided by a limiting instruction and whether the allocution should be excluded under Fed.R.Evid. 403 on the ground that the risk of unfair prejudice with respect to Count Three exceeds its probative value with respect to Count One.
Submissions shall be filed not later than August 15, 2002.
SO ORDERED.