The opinion of the court was delivered by: DuBOIS, J.
This case concerns allegations of a long-term scheme to defraud, in which defendant Lee E. Davis, Jr. ("Davis"), purportedly victimized a number of individuals and entities by taking cash in return for fraudulent surety bonds and certificates of workers' compensation insurance over a period of five-and-a-half years. Presently before the Court are two motions in limine -- the Government's Motion in Limine to Admit Evidence of Crimes and Acts as Part of the Charged Scheme to Defraud, or, in the Alternative, to Admit Evidence of Similar Crimes and Acts Pursuant to Rule 404(b) of the Federal Rules of Evidence and Defendant's Motion in Limine to Exclude Evidence Under Rule 403 of Federal Rules of Evidence -- and responses, addressing the admissibility of several types of evidence relating to the charged scheme. Also before the Court are two motions filed by defendant -- Defendant's Motion for Production of Evidence and Defendant's Request to Subpoena Documents Under Rule 17 of the Federal Rules of Criminal Procedure and Motion in Limine to Admit Impeachment Evidence for Government Witnesses -- and a letter from the government, dated October 9, 2009, responding to these motions.
In its letter of October 9, 2009, the government states that it is "in the process of providing the defendant with any documents or information not already disclosed to which he is legally entitled." As a result, the Court denies Defendant's Motion for Production of Evidence as moot. The government also states in its letter that it does not object to defendant's request for Rule 17 subpoenas, with the caveat that it opposes certain uses of the subpoenaed evidence at trial. The Court therefore grants Defendant's Request to Subpoena Documents Under Rule 17 of the Federal Rules of Criminal Procedure, by agreement of the parties. The Court denies defendant's related Motion in Limine to Admit Impeachment Evidence for Government Witnesses on the present state of the record, without prejudice to the right of defendant to seek reconsideration if warranted by evidence or argument presented at trial.
The remainder of this memorandum will address evidentiary issues raised in the motions in limine filed by the government and defendant. For the reasons set forth below, the Government's Motion in Limine is denied as moot. On the present state of the record, Defendant's Motion in Limine is granted in part and denied in part.
On May 21, 2009, the government filed a six-count Indictment charging Davis with five counts of wire fraud, in violation of 18 U.S.C. § 1343, and one count of mail fraud, in violation of 18 U.S.C. § 1341, relating to a scheme to defraud occurring between June 2003 and January 2009. Specifically, the Indictment charged that, as part of the scheme, Davis: (1) solicited and obtained premium payments from clients for surety bonds and workers' compensation insurance;
(2) kept the money for his own use and did not purchase the bonds or insurance as agreed; and
(3) provided his clients with fraudulent surety bonds, certificates of insurance, and powers of attorney. (Indict. ¶¶ 5(b)-5(d).) The Indictment further charged that after Davis was confronted by some of his victims and informed that his activities were the subject of an investigation, he made various misrepresentations to investigators and victims regarding his fraudulent conduct, including a promise to one victim that he would "repay the fraudulently obtained insurance premiums if the victim would keep the offer a private matter and not take any legal action against the defendant." (Indict. ¶¶ 6(a)-6(e).) The Indictment detailed five specific wire transfers and a single specific instance of mail fraud covered by the six counts, providing dates and money amounts for each of the six transactions. (Indict. ¶ 7.)
Subsequently, on October 22, 2009, the government filed an eight-count Superceding Indictment charging Davis with the above-described counts of wire and mail fraud and two additional counts of wire fraud, in violation of 18 U.S.C. § 1343. (Sup. Indict. ¶ 7.) Paragraph Five of the Superceding Indictment -- under the section entitled "Manner and Means" -- expands its pleading regarding the charged scheme to defraud, adding the following two allegations under 5(e) and 5(f): (1) that defendant "fraudulently obtained money from a client, for whom he actually purchased surety bonds, by falsely telling the client that the insurer required collateral in addition to the premium, and kept the money for his own use," and (2) that "while employed at an insurance agency, [defendant] instructed a client to wire a portion of its insurance premium deposit to an account controlled by him, did not forward the money to the insurer, and kept the money for his own use." (Sup. Indict. ¶¶ 5(e)-5(f).) Aside from these two allegations and the additional two counts of wire fraud (with corresponding date and transmission information), the Superceding Indictment is identical to the original Indictment.
A. Government's Motion in Limine
On September 16, 2009, the government filed a motion in limine in which it sought to admit evidence of the same two instances of fraud covered in Paragraphs 5(e) and 5(f) of the Superceding Indictment. The filing of the Superceding Indictment moots the issues presented in the motion. The acts which were the subject of the motion are now charged as part of defendant's scheme to ...