Free Motion in Limine - District Court of Arizona - Arizona

1 JON M. SANDS Federal Public Defender 2 District of Arizona 3 850 West Adams Street, Suite 201 Phoenix, Arizona 85007 4 Telephone: (602) 382-2747 5 DEBORAH L. EULER-AJAYI, #010537 Asst. Federal Public Defender 6 Attorney for Defendant 7 [email protected] IN THE UNITED STATES DISTRICT COURT 8 9 10 11 12 13 14 15 16 17 18 Jeanette Wilcher, by and through undersigned counsel, and pursuant to 19 Federal Rules of Evidence, Rules 401through 404, the due process clause of the 20 United States Constitution, and the Memorandum of Law previously filed on 21 November 14, 2005, again moves this Court in limine for an order precluding the 22 government from introducing the following testimony or evidence at trial: 23 1) Any and all information pertaining to past or 24 present civil or administrative actions involving Ms. Wilcher, including, but not limited to, the following: 25 a) civil law suits (including but not limited to Gillaspie v. Sansea 26 et. al.,CV99-1733-PHX-SRB), 27 b) administrative proceedings (including but not limited to 28 Securities & Exchange Commn. v. Hitsgalore.com, Inc., et. al., vs. Jeanette B. Wilcher, Defendant. United States of America, Plaintiff, No. CR03-1098-PHX-EHC MOTION IN LIMINE RE. CERTAIN EVIDENCE & EXHIBITS DISTRICT OF ARIZONA

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SAW01-1133 GLT(ANX), and related civil contempt proceedings), c) bankruptcy proceedings (including but not limited to In re. Wilcher, BK02-3860-JMM); and Other alleged bad acts or crimes not Noticed by the Government or precluded by the Court

7 The afore-mentioned matters were discussed at the December 12, 2005, hearing and 8 the government agreed not to present evidence on those matters. 9 Having now received the government's intended trial exhibits, the 10 defense further objects to, and moves in limine to preclude, the following documents. 11 Most of these documents are encompassed in bank records subpoenaed during the civil 12 13 14 15 which are listed as Government witnesses). 1) Exhibit 36: this exhibit includes all records from Ms. Wilcher's lawsuit or otherwise produced by financial institutions (the records custodians of

16 accounts at Schroders in New York. The defense has several objections to specific 17 groups of these documents. 18 (a) Bates numbers 1791-1913, 1930-31, 1954-59. The statements 19 and checks contained therein reach back to June 2000 and extend into 2001; however, 20 the indictment encompasses only the period December 1998 through October 1999. 21 Therefore, they are irrelevant to this case. 22 (i) Bates numbers 1837-58 relate to the Hitsgalore matter 23 24 (Count 8 of the indictment, which has been severed) and to Mrs. Gillaspie's civil 25 lawsuit against Ms. Wilcher. The government previously agreed that neither 26 Hitsgalore nor the civil litigation would be discussed at trial. Moreover, the 27 government has not noticed and has expressly stated that no 404(b) evidence would 28
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1 be presented. Therefore, as previously raised by the defense in the November 2005 2 motion in limine, these documents should be precluded as stipulated and pursuant to 3 Rule 404(b). 4 (b) Bates numbers 1921, 7552, 7537 also relate to Hitsgalore. 5 These documents should be precluded for the above-stated reasons. 6 (c) The above-listed documents, as well as pages 1917 and 19227 8 23, are objectionable as encompassing multiple layers of hearsay. 9 2. Exhibit 37: this exhibit includes records from the Wilcher Financial 10 Services account at Bank One. Bates numbers 0-47 and 100-145 cover periods before 11 and after the scope of the indictment (1998, and post-October 1999 through 2002). 12 13 14 15 1999, the documents are irrelevant to this case. 3. Exhibit 38: this exhibit includes records from the Life Foundation Since the indictment encompasses only the period December 1998 through October

16 Trust account at Bank One. Bates numbers 146-223, 316, 322-24 cover periods in 17 1997-98 and beyond October 1999. Since the indictment encompasses only the period 18 December 1998 through October 1999, the documents are irrelevant to this case. 19 4. Exhibit 39: this exhibit includes records from the Jeanette B. Wilcher 20 21 22 23 25 account at Wells Fargo Bank (account no. 267479). Bates numbers 804-810 and 829-36 cover periods from mid-1998 through November 1998, and November 1999 through October 2001. Since the indictment encompasses only the period December

24 1998 through October 1999, the documents are irrelevant to this case. 5. Exhibit 41: this exhibit includes records from the Wells Fargo account 26 belonging to Ms. Wilcher's daughter Natasha. There is one discrete period of time in 27 which certain checks and/or money orders referenced in the indictment appear. 28
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1 Beyond that time period, these records are irrelevant. Moreover, Ms. Wilcher's 2 daughter is not a defendant and therefore should maintain some privacy interest in the 3 remainder of her records. 4 6. Exhibit 42: this exhibit includes records from First American Title 5 Insurance Co. Included in these records are a civil subpoena issued during the civil 6 7 litigation (Bates number 12663), as well as the entire escrow file relating to Ms. 8 Wilcher's former house on Laurel Lane in Scottsdale (Bates 12678-12778). Other 9 than the documents reflecting checks/money orders referenced in the indictment, the 10 remainder of the escrow file has no relevance to this case. 11 7. Exhibit 43: this exhibit includes IRS records (Certifications of Lack 12 13 14 31, 2003. The records also reflect a variety of taxpayer/employer identification 15 numbers (social security numbers) in connection with Ms. Wilcher's name. Almost 16 all of the records encompass periods not involved in the indictment; therefore, they are 17 irrelevant. Insofar as the records reflect that no federal tax returns were filed, and that 18 multiple social security numbers are attributed to Ms. Wilcher, these records should 19 also be precluded under Rule 404(b). 20 21 22 23 As previously discussed in the November 14, 2005, motion in limine, Federal Rule of Evidence 402 prohibits the admission of irrelevant evidence. Rule 401 defines relevant evidence as "evidence having any tendency to make the existence of Record) for Ms. Wilcher for the tax periods December 31, 1999 through December

24 of any fact that is of consequence to the determination of the action more probable or 25 less probable than it would be without the evidence." Moreover, under Rule 403, even 26 relevant evidence may be excluded if its probative value is substantially outweighed 27 by the "danger of unfair prejudice." Unfair prejudice refers to an undue tendency to 28
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1 suggest decision on an improper basis, commonly an emotional one. See Advisory 2 Committee's Note, 56 F.R.D. 183, 218. 3 Rule 404(b) precludes evidence of other crimes, wrongs, or acts of the 4 defendant offered prove a defendant' s bad character. The government cannot resort 5 to evidence of the defendant' s bad character to establish a probability of her guilt. 6 7 Michelson v. United States, 335 U.S. 469, 475-76 (1948). Other bad act evidence 8 may only be admitted if it "bears upon a relevant issue in the case such as motive, 9 opportunity or knowledge." Huddleston v. United States, 485 U.S. 681, 685 (1988). 10 The government must articulate precisely the evidentiary hypothesis by which 11 relevant facts may be inferred from other bad act evidence. United States v. 12 Mehrmanesh, 689 F.2d 822, 830 (9th Cir. 1982); United States v. Hernandez13 Miranda, 601 F.2d 1104, 1108 (9th Cir. 1979). 14 Once it clears the hurdle of showing relevancy, the government must 15 16 also demonstrate that the probative value of the proferred evidence is not substantially 17 outweighed by the danger of unfair prejudice, confusion of issues or misleading the 18 jury under Rule 403, F.R.Ev. United States v. Miller, 874 F.2d 1255, 1268 (9th Cir. 19 1989), reh. den.; United States v. Conners, 825 F.2d 1384, 1390 (9th Cir. 1987); 20 21 22 23 24 26 27 28
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United States v. Alfonso, 759 F.2d 728, 739 (9th Cir. 1985); The district court must adequately weigh the probative value of the evidence against its prejudicial effect. United States v. Sangrey, 586 F.2d 1312, 1315 (9th Cir. 1978). The Ninth Circuit applies a four-part test to determine whether the prior

25 act evidence is admissible under Rule 404(b): (1) There must be sufficient evidence to support the jury' s finding that the defendant committed the other crime or act;

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(2) The prior conduct must not be too remote in time from the commission of the crime charged; (3) The prior conduct must often be similar to the offense charged; and (4) The prior conduct must be introduced to prove an element of the charged offense that is a material issue in the case.

7 Miller, 874 F.2d at 1268. Because of the extreme danger that admission of other bad act evidence 8 9 will lead a jury to convict not on the basis of the evidence that the defendant 10 committed the crime charged, but because of what he or she had done in the past, the 11 Ninth Circuit has emphasized that such evidence "is not looked upon with favor" and 12 13 14 1475, 1479 (9th Cir. 1985). The Ninth Circuit has not hesitated to reverse district 15 courts for improperly admitting 404(b) evidence. See e.g. United States v. Brown, 16 873 F.2d 1265, opinion amended and superseded, 880 F.2d 1012 (9th Cir. 1989). 17 As previously discussed, no Rule 404(b) Notice has been filed and the 18 government previously stipulated that no 404(b) evidence would be offered. The 19 government specifically agreed, on December 12, 2005, not to go into the items raised 20 21 22 23 in the November motion in limine. II. CONCLUSION For the reasons set forth above, Ms. Wilcher hereby respectfully "must be narrowly circumscribed and limited." United States v. Hodges, 770 F.2d

24 requests that this Court preclude the government from introducing evidence relating 25 to any/all other civil lawsuits, administrative proceedings, bankruptcy proceedings, 26 27 28
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1 and allegations of other bad acts/crimes, as well as the portions of exhibits discussed 2 above. 3 4 5 6 7 8 9 10 Copy of the foregoing transmitted CM/ECF for filing this 3d day 11 by April, 2006, to: of 12 CLERK'S OFFICE 13 United States District Court Sandra Day O'Connor Courthouse 14 401 W. Washington 15 Phoenix, Arizona 85003 16 JOHN LOPEZ/STEPHEN LARAMORE Assistant United States Attorney 17 Two Renaissance Square 40 North Central Avenue 18 Suite 1200 19 Phoenix, Arizona 85004-4408 20 Copy mailed to: 21 JEANETTE B. WILCHER Defendant 22 23 s/ Deborah L. Euler-Ajayi 24 Deborah L. Euler-Ajayi Counsel for Defendant 25 26 27 28
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Respectfully submitted: April 3, 2006. JON M. SANDS Federal Public Defender

s/Deborah L. Euler-Ajayi DEBORAH EULER-AJAYI Asst. Federal Public Defender

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