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 Defenders 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 401, 402, 403, 404, and the due process clause of 20 the United States Constitution, hereby moves this Court in limine for an order 21 22 23 24 25 26 27 28 precluding the government from introducing the following testimony or evidence at trial: 1) Any information pertaining to past or present civil or administrative actions involving Ms. Wilcher, including, but not limited to, the following: a) civil law suits (including but not limited to Gillaspie v. Sansea et. al.,CV99-1733-PHX-SRB), b) administrative proceedings (including but not limited to 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 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

The preceding request is supported by the following Memorandum of Points and Authorities incorporated herein. Respectfully submitted: November 14, 2005. JON M. SANDS Federal Public Defender s/ Deborah L. Euler-Ajayi DEBORAH L. EULER-AJAYI Asst. Federal Public Defender

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MEMORANDUM OF POINTS AND AUTHORITIES Factual Overview Jeanette Wilcher is facing an eight-count indictment for alleged violations of 18 U.S.C. §§ 1343, 1956(a)(1)(A)(i), and 1957. Simply stated, the

7 government alleges that Ms. Wilcher as trustee for Life Foundation Trust (LFT) 8 defrauded Connie Gillaspie out of $3.3 million, and then converted that money to her 9 10 own purposes. More specifically, the government claims that Ms. Wilcher enlisted 11 an "innocent" third party (Sansea Inc.) to entice Gillaspie into a bogus high yield 12 13 investment program through a series of misrepresentations about the program. 14 There are five sets of participants in this case. The first is the alleged 15 16 victim, Connie Gillaspie. Gillaspie is an 80+ year old woman who contracted with 17 18 20 21 23 24 25 Wilcher as its trustee, separately contracted with Sansea for investment purposes. 26 27 28 and Richard Gonzales. They operate out of Florida and have done previous
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Sansea, Inc., to invest $3.3 million in a high yield investment program. The second

19 is Rex Allen. Mr. Allen is the nephew of Gillaspie. He orchestrated his aunt's investment with Sansea. The third, Sansea Inc., consists of Robert Ponikvar and J.D.

22 Surber. Sansea contracted with Ms. Gillaspie to invest her money in a high yield investment program. The fourth, Life Foundation Trust (LFT), with Jeanette

The fifth is Carr & Associates/Royalty Products, which consists of Larry Carr

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1 business with Rex Allen (who brought them into his aunt's investment with Sansea). 2 3 Carr also became involved in Gillaspie's subsequent efforts to recoup her money. 4 5 6 Gonzales in Phoenix. She signed a contract with Sansea, agreeing to enter their 7 investment program , and subsequently wired $3.3 million to their account in Nevada. 8 Subsequently, the principals of Sansea contracted with LFT/Wilcher for investment 9 10 purposes and they wired $3.3 million to an LFT account in New Jersey. 11 12 14 15 16 Ponikvar, Surber, LFT, and Ms. Wilcher (Gonzales was later added as a defendant). 17 18
2 19 Complaint in the Central District of California, relating to alleged securities violations

In January 1999, Gillaspie met with Allen, Ponikvar, Surber, Carr, and

By May 1999, Gillaspie became dissatisfied with the program and

13 demanded the return of her principal and her expected proceeds generated by the investment. In October 1999, Gillaspie filed a federal civil suit1 against Sansea,

In November 2001, the Securities and Exchange Commission (SEC) also filed a

20 involving a company called Hitsgalore.com/Stephen Bradford, and LFT/Wilcher. 21 22 23 24 25 26 27 28
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On September 11, 2003, Gillaspie was awarded judgment against LFT/Wilcher. Previously, Sansea and its principals stipulated to judgment and were dismissed from the case, and Gonzales and his company were dismissed from the case. On July 29, 2002, the SEC was granted summary judgment and a permanent injunction against LFT/Wilcher. Previously, Hitsgalore.com/Bradford consented to entry of a permanent injunction.
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It does not appear that the government has filed any Notice3 of its intent to introduce "bad acts" evidence; however, this motion is filed out of an abundance

4 of caution. The court should preclude evidence relating to these extraneous matters. 5 II. LAW 6 7 8 9 11 12 13 A. Overview Pursuant to Rule 402, Federal Rules of Evidence, "[E]vidence which is

10 not relevant is not admissible." Rule 401 defines "relevant evidence" as: Evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

14 Id. Moreover, under Rule 403, even relevant evidence may be excluded if its 15 probative value is substantially outweighed by the "danger of unfair prejudice." 16 Situations in this area call for balancing the probative value of and need for the 17 evidence against the harm likely to result from its admission. Slough, Relevance 18 Unraveled, 5 Kan.L.Rev. 1, 12-15 (1958). "Unfair prejudice" within its context means 19 an undue tendency to suggest decision on an improper basis, commonly an emotional 20 one. See Advisory Committee's Note, 56 F.R.D. 183, 218. 21 B. This Court Should Preclude Any Information Pertaining to Past or Present Civil or Administrative Actions Involving 22 Ms. Wilcher. 23 1. Rule 402 prohibits the admission of this evidence, as it has no 24 relevance to any count in the Federal indictment. 25 26 27 28
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The defense has separately requested specific notice of the Government's intent to offer "bad acts" evidence under Rule 404(b).
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Ms. Wilcher has been involved in numerous other civil lawsuits, in

2 addition to the federal cases listed above, and nothing about those proceedings or their 3 outcomes have any relevance to or bearing on the issues of this case. The prior 4 proceedings did not go to trial, and the mere existence of judgments, bankruptcies, or 5 injunctions has no bearing on this case. 6 7 8 9 2. Rule 403 prohibits the admission of this evidence because any claimed probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, and considerations of undue delay.

Even if the information concerning the other proceedings was related to

10 the allegations in this case, and relevant to any fact at issue, the probative value of this 11 information would be substantially outweighed by unfair prejudice and the potential 12 to confuse and mislead the jury. 13 14 15 16 17 18 19 20 Such evidence will also cause an inordinate amount of delay in the already lengthy proceedings. The issues involved in the other proceedings involve complicated principals of bankruptcy law, securities law, tax law, and civil law that are totally unrelated to any issue the jury must decide in this matter. To inject these other complicated issues into an already complicated fraud and money laundering case would be unnecessarily confusing to any average juror. Moreover, the defense would be forced to call witnesses (either fact witnesses or experts) to confront and address

21 the issues raised in those extraneous proceedings. In short, adding this irrelevant 22 evidence to the mix has the potential to subject the jury to additional days, if not 23 weeks, of unnecessary testimony. 3. Rule 404 prohibits character evidence and other bad acts of the 24 defendant for purposes of showing that she is a bad person. 25 Generally, Rule 404(b) precludes evidence of other crimes, wrongs, or 26 acts of the defendant offered prove a defendant' s bad character. The government 27 cannot resort to evidence of the defendant' s bad character to establish a probability 28
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1 of her guilt. Michelson v. United States, 335 U.S. 469, 475-76 (1948). Such prior 2 bad act evidence may only be admitted if it "bears upon a relevant issue in the case 3 such as motive, opportunity or knowledge." Huddleston v. United States, 485 U.S. 4 681, 685 (1988). The government must articulate precisely the evidentiary 5 hypothesis by which relevant facts may be inferred from prior act evidence. United 6 7 8 9 10 11 12 States v. Mehrmanesh, 689 F.2d 822, 830 (9th Cir. 1982); United States v. Hernandez-Miranda, 601 F.2d 1104, 1108 (9th Cir. 1979). In addition to establishing relevance, the government must also demonstrate that the probative value of the proferred evidence is not substantially outweighed by the danger of unfair prejudice, confusion of issues or misleading the jury under Rule 403, F.R.Ev. United States v. Miller, 874 F.2d 1255, 1268 (9th Cir.

13 1989), reh. den.; United States v. Conners, 825 F.2d 1384, 1390 (9th Cir. 1987); 14 United States v. Alfonso, 759 F.2d 728, 739 (9th Cir. 1985); The district court must 15 adequately weigh the probative value of the evidence against its prejudicial effect. 16 United States v. Sangrey, 586 F.2d 1312, 1315 (9th Cir. 1978). 17 19 20 21 22 23 24 25 27 28
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The Ninth Circuit applies a four-part test to determine whether the prior

18 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; (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.

26 Miller, 874 F.2d at 1268.

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Because of the extreme danger that admission of other bad act evidence

2 will lead a jury to convict not on the basis of the evidence that the defendant 3 committed the crime charged, but because of what he or she had done in the past, the 4 Ninth Circuit has emphasized that such evidence "is not looked upon with favor" and 5 "must be narrowly circumscribed and limited." United States v. Hodges, 770 F.2d 6 7 8 9 10 11 12 1475, 1479 (9th Cir. 1985). The Ninth Circuit has not hesitated to reverse district courts for improperly admitting 404(b) evidence. See e.g. United States v. Brown, 873 F.2d 1265, opinion amended and superseded, 880 F.2d 1012 (9th Cir. 1989). The voluminous discovery included many of the documents generated in the course of other litigation (discussed above). Those documents were subpoenaed from and/or produced by numerous other parties, and the source is not always clearly

13 indicated. Regardless of the source, however, throughout the documents there are 14 suggestions and allegations of other bad acts and/or crimes including but not limited 15 to those listed above. Some of the allegations are made by people who were 16 interviewed by various law enforcement agencies, and the source for and basis of the 17 allegations are unclear. It appears that many of the allegations made during those 18 interviews were/are the product of two or more levels of hearsay. Moreover, many of 19 the allegations relate to matters that would have occurred many years ago and most if 20 not all have no relation to this case. 21 As previously discussed, testimony or evidence concerning other civil 22 and/or administrative actions, or allegations of other bad acts, concerning Ms. Wilcher 23 have no relevance to the charged offenses and would serve no other purpose but to 24 paint her as a bad person. Although the government may argue that one or more of the 25 exceptions apply, for reasons previously stated the "bad acts" evidence would still be 26 excludable under Rule 403. The introduction of such evidence could easily lead a 27 28
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1 jury to decide the issues in this case based on passion and prejudice, rather than 2 relevant evidence. 3 C. This Court Should Preclude Any Information Pertaining to Allegations of Uncharged Misconduct As "Other Bad Acts." 4 On March 15, 2005, this Court denied the Government's motion to cross 5 6 examine Ms. Wilcher, pursuant to F.R.Ev. 608,with uncharged and severed 7 misconduct ­ specifically, alleged fraud involving Wells Fargo Bank, false identity, 8 and Hitsgalore.4 Separate pleadings were filed relating to tax information, but defense 9 counsel does not know the outcome of those motions. 10 No Rule 404(b) Notice has been filed by the government; accordingly, 11 no "bad acts" evidence should be allowed at trial. 12 III. CONCLUSION 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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For the reasons set forth above, Ms. Wilcher hereby respectfully requests that this Court preclude the government from introducing evidence relating to any/all other civil lawsuits, administrative proceedings, bankruptcy proceedings, and allegations of other bad acts/crimes. Respectfully submitted: November 14, 2005. JON M. SANDS Federal Public Defender

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

The Hitsgalore issues relate to Count 8, which has been severed for a separate trial.
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1 Copy of the foregoing transmitted by CM/ECF for filing this 14th day 2 of November, 2005, to: 3 CLERK'S OFFICE United States District Court 4 Sandra Day O'Connor Courthouse 5 401 W. Washington Phoenix, Arizona 85003 6 JOHN LOPEZ 7 Assistant United States Attorney Two Renaissance Square 8 40 North Central Avenue Suite 1200 9 Phoenix, Arizona 85004-4408 10 Copy mailed to: 11 JEANETTE B. WILCHER Defendant 12 13 s/ Deborah L. Euler-Ajayi 14 Deborah L. Euler-Ajayi Counsel for Defendant 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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