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Loften v. Diolosa

United States District Court, M.D. Pennsylvania

May 29, 2014

JIMMIE E. LOFTEN, Plaintiff
v.
FRANCINE DIOLOSA, et al., Defendants

MEMORANDUM

MALACHY E. MANNION, District Judge.

Pending before the court are: (1) the plaintiff's "Motion in limine as to the Plaintiff's Criminal Record, " (Doc. 186); (2) the plaintiff's "Motion in limine as to the Automobile Purchaser/Lessee's Statement, " (Doc. 188); (3) the "Motion in limine of Defendants, Jean A. Innamorati and Robert Innamorati to Preclude the Appraisal Reports and Testimony of Fred Gilbert and Michelle Williams of Williams Appraisal Services at Trial, " (Doc. 190); (4) the "Motion in limine of Defendants Jean A. Innamorati and Robert Innamorati to Preclude the Introduction and Use of the Appraisal Reports of Fred Gilbert and Williams Appraisal Services at Trial, " (Doc. 195); and (5) the "Motion in limine of Defendants Jean A. Innamorati and Robert Innamorati to Preclude the Introduction and Use of All Documents and Testimony Regarding the Appraisal of a Property Purchased by Mary Shirley Golphin, " (Doc. 200). Evidentiary rulings on motions in limine are subject to the trial judge's discretion and are therefore reviewed for an abuse of discretion. Abrams v. Lightolier, Inc. , 50 F.3d 1204, 1213 (3d Cir. 1995) (citations omitted); Bernardsville Bd. of Educ. v. J.H. , 42 F.3d 149, 161 (3d Cir. 1994) (reviewing in limine rulings for abuse of discretion).

In considering motions in limine, "[t]he Federal Rules of Evidence can aptly be characterized as evidentiary rules of inclusion, which are designed to broadly permit fact-finders to consider pertinent factual information while searching for the truth." Univac Dental Co. v. Dentsply Int'l, Inc., 268 F.R.D. 190, 196 (M.D. Pa. 2010). This inclusiveness is demonstrated by way of Rule 401's expansive definition of relevant evidence, Rule 402's definition of the admissibility of relevant evidence in sweeping terms, and Rule 403's description of the grounds for exclusion as an exception to the general rule favoring admission of relevant evidence. Id. at 196-97. These broad principles define the court's discretion in considering motions in limine .

(1) Plaintiff's Motion in Limine as to his Criminal Record

In his motion to exclude any evidence of his criminal history at trial, the plaintiff provides that he was convicted in 1980 of "narcotics offenses and conspiracy" and was released from incarceration in June 1995. According to the plaintiff, he has not been convicted of any crimes since his release from prison. The plaintiff believes that the defendants' attempt to admit his criminal history into evidence at trial will unfairly prejudice the jurors' view of him. Plaintiff argues that any such evidence is excludable under Rules 403, 404(a)(1), 404(b)(1), 608(a), 608(b), and 609(b) of the Federal Rules of Evidence.

In considering the plaintiff's motion, the court finds the provisions of Rule 404(a)(1) and (b)(1) to be inapplicable here. Under 404(a)(1), character evidence is not being used to show that he acted in accordance with his character or a character trait on a particular occasion. Nor is the plaintiff's criminal history being offered under Rule 404(b)(1) to demonstrate the plaintiff's character in order to show that he acted in accordance with his character on a particular occasion. Instead, the defendants seek to use the plaintiff's criminal history to attack his credibility and truthfulness.

The court further finds that Rule 608(a) and (b) are inapplicable in that 608(a) relates to reputation or opinion evidence, which is not at issue here, and Rule 608(b) specifically carves out an exception for a criminal conviction under Rule 609.

Plaintiff concedes that Fed.R.Evid. 609(a)(2) mandates the admission of all convictions of any crime involving dishonesty or false statements. He argues that his conviction on narcotics charges is not a crime which involves dishonesty or false statements. However, what the plaintiff fails to discuss in his motion in limine is that, in addition to his narcotics offenses, he was also convicted under the criminal RICO statute and for tax evasion.

The terms "dishonesty or false statement" in Rule 609(a)(2) are descriptive of convictions peculiarly probative of credibility, " such as those for "perjury, false statement, criminal fraud, embezzlement, or false pretense, or any other offense in the nature of crimen falsi the commission of which involves some element of dec[e]it, untruthfulness, or falsification bearing on [a witness's] propensity to testify truthfully." Sanders v. Ritz-Carlton Hotel Company, LLC, 2008 WL 4155635, *3 (S.D.N.Y., Sept. 9, 2008) (citing H.R.Rep. No. 93-1597, at 9 (1974) (Conf.Rep.), reprinted in 1974 U.S.C.C.A.N. 7098, 7103).

According to the plaintiff's judgment and commitment order, (Doc. 212)[1], as well as his own deposition testimony, the plaintiff was convicted of RICO violations pursuant to 18 U.S.C. §1962(d), as well as tax evasion pursuant to 26 U.S.C. §7201. While the court has no information before it relating to the factual circumstances of the plaintiff's RICO conviction[2], the plaintiff's conviction for tax evasion satisfies the requirements of Rule 609(a)(2). See Sanders, supra (conviction for tax evasion satisfies the requirements of Rule 609(a)(2)); Hicks v. U.S., 89 Fed.Cl. 243, 262 (2009) (conviction for tax evasion pursuant to 26 U.S.C. §7201(1) satisfied requirements of Rule 609(a)(2)); U.S. v. Lewis , 2009 WL 1307458, at *17 (W.D. Pa., May 8, 2009) (conviction under 26 U.S.C. §7201 satisfies requirements of Rule 609(a)); U.S. v. Serot , 648 F.Supp. 494, 495 (E.D.Pa. 1985) (same)).

When a criminal conviction involves dishonesty or false statement, the conviction is automatically admissible under Rule 609(a)(2). Having determined that the plaintiff's conviction for tax evasion satisfies Rule 609(a)(2), the court must also consider the timeliness of the conviction under Rule 609(b) before it can be admitted. Rule 609(b) bars a conviction more than ten years old to attack a witness's credibility unless "the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect." Convictions which fall outside of the ten-year limitation period should only be admitted in rare circumstances. See Sanders (citing Zinman v. Black & Decker, Inc. , 983 F.2d 431, 434 (2d Cir. 1993) (citing Senate Report that convictions over ten years old should only be admitted "very rarely and only in exceptional circumstances" but affirming admission of old conviction where conviction bore heavily on credibility)). The ten-year limitation period is measured from the later of the date of conviction or the date of release.

Here, the plaintiff was convicted in 1980 and released from incarceration in June of 1995. Thus, the ten-year limitation period began to run from the date of his release. The plaintiff's release occurred more than ten years ago and may only be admitted if the court finds that the probative value of the conviction substantially outweighs the prejudicial effect.

While evidence of convictions over ten years old should only be admitted in rare circumstances, the court finds that the facts of this case warrant the admission of the plaintiff's criminal history. Specifically, the plaintiff has alleged through the instant action that the defendants engaged in predatory lending and defrauded him into purchasing a property at an inflated price. The jury will be called upon to assess the plaintiff's credibility as to this claim. The plaintiff's criminal history, which admittedly includes numerous real estate transactions and tax evasion, bears directly on his credibility in this case.

Whether the plaintiff was an innocent purchaser of property unaware of the "ins and outs" of real estate transactions and was defrauded into purchasing the property at issue is directly at the heart of this matter. The plaintiff's conviction for tax evasion which, by the plaintiff's own admission, involved his active participation in numerous real estate transactions goes directly to the plaintiff's credibility in the present action. The court finds therefore that any prejudice to the plaintiff by allowing in evidence of his criminal history is substantially ...


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