Case 3:16-cr-00048-MMH-JBT Document 30 Filed 06/08/16 Page 1 of 9 PageID 104 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION UNITED STATES OF AMERICA v. CASE NO. 3:16-cr-48-J-34JBT REGINALD FULLWOOD a/k/a Reggie Fullwood UNITED STATES’ RESPONSE IN OPPOSITION TO DEFENDANT’S AMENDED MOTION IN LIMINE (Doc. 29) In an effort to minimize the breadth of his fraud scheme, Defendant seeks a pre-trial evidentiary ruling from this Court to prohibit the United States from contending that “the Florida Department of State Division of Elections is the victim or ‘someone else’ that the Defendant allegedly intended to defraud.” Doc. 29 at 1. Defendant’s motion is misguided. It is premature, it is an incorrect statement of law, and it incorrectly conflates the “honest services” fraud standards with the more routine wire fraud standards. Accordingly, the United States respectfully requests this Court to deny Defendant’s motion. MEMORANDUM OF LAW A. Defendant’s Motion is Premature As a basic precept of federal courts’ inherent authority, federal courts may consider and exclude certain evidence pursuant to properly filed Motions in Limine. See, e.g., Luce v. United States, 469 U.S. 38, 41, 105 S.Ct. 460, 83 L.Ed.2d 443(1984) (federal district courts have authority to make in limine rulings Case 3:16-cr-00048-MMH-JBT Document 30 Filed 06/08/16 Page 2 of 9 PageID 105 pursuant to their authority to manage trials). However, while this authority is inherent to the courts, it is not without limits. As the Supreme Court dictated in Luce, a court has the power to exclude evidence in limine only when evidence is clearly inadmissible on all potential grounds. Id. More to the point, though, district courts in this jurisdiction and elsewhere have recognized that “evidentiary rulings [presented in Motions in Limine] must be deferred until trial to allow questions of foundation, relevancy, and prejudice to be resolved in context.” Stewart v. Hooters of America, Inc., No. 8:04-cv-40-T- 17-MAP, 2007 WL 1752841 (M.D. Fl. June 18, 2007) (emphasis in original); see also Hawthorne Partners v. AT & T Technologies, 831 F.Supp. 1398, 1400 (N.D. Ill. 1993) (same). As Judge Kovachevich noted in her opinion in Stewart, a “[d]enial of a Motion In Limine does not insure evidence contemplated by the motion will be admitted at trial. Instead, denial of the motion means the court cannot determine whether the evidence in question should be excluded outside the trial context.” Stewart, 2007 WL 1752841 at *1; see also United States v. Connelly, 874 F.2d 412, 416 (7th Cir. 1989) (same). The idea that a district court would defer ruling on a Motion in Limine until trial makes sound sense. Admissibility questions should be ruled upon as they arise at trial. Only at trial, in part of a greater context, can a court fully appreciate the probative value and potential prejudice of certain evidence. By ruling on the instant motion at this early stage, this Court would be making evidentiary decisions without a full picture of the Government’s expected case and the 2 Case 3:16-cr-00048-MMH-JBT Document 30 Filed 06/08/16 Page 3 of 9 PageID 106 Defendant’s possible defenses. And, to be sure, there is no harm in simply denying Defendant’s motion and revisiting this motion later. As the Court noted in Stewart, “even if nothing unexpected happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling.” Stewart, 2007 WL 1752841 at *1. Lastly, for good measure, Defendant’s exhortation to immediately rule on the Motion in Limine is unavailing. Defendant contends that his Motion is an “effort to identify and clarify what the Government is really charging here so as to better illuminate what the Defendant believes are deficiencies in the Government’s theory.” Doc. 29 at 4. Defendant further suggests that this Motion in Limine will help “form a predicate for a Motion to Dismiss.” Id. Respectfully, the proper method to “identify and clarify what the Government is really charging” is by petitioning for a Bill of Particulars – something the Defendant did. Doc. 19. In that Motion, Defendant noted that he sought one “single additional bit of factual information” – “from whom or what were the funds allegedly ‘embezzled.’” Id. at 3. The Court granted a slightly different order requiring the government to identify the “someone else” who Defendant allegedly intended to defraud, doc. 23, and the Government responded shortly thereafter. Doc. 25. Now, after having received a Bill of Particulars, Defendant seeks an evidentiary trial ruling – purportedly to help support a Motion to Dismiss. Yet, if the Defendant needs more information to “clarify what the Government is really charging,” he may make a Renewed motion for a Bill of Particulars. And if he 3 Case 3:16-cr-00048-MMH-JBT Document 30 Filed 06/08/16 Page 4 of 9 PageID 107 wishes to dismiss the case, he may file an appropriate motion. Seeking an evidentiary trial ruling – at this stage – however is procedurally improper and premature. As such, the motion should be denied. B. Defendant’s Motion Misstates the Required Elements of the Wire Fraud Statute Even if this Court were to reach the merits of Defendant’s motion – which it should not – Defendant is no more successful. Defendant’s motion – seeking a rule to bar reference to the State of Florida as a “victim” of Defendant’s fraud scheme – misstates the applicable law of wire fraud. As this Court knows, the venerable wire fraud statute, 18 U.S.C. § 1343, is remarkable in its simplicity. To prevail, the government needs to prove four elements: (1) that the defendant voluntarily and intentionally devised or participated in a scheme to defraud another out of money; (2) that the defendant did so with the intent to defraud; (3) that it was reasonably foreseeable that interstate wire communications would be used; and (4) that interstate wire communications were in fact used. See, e.g., United States v. Bradley, 644 F.3d 1213 (11th Cir. 2011). In no part of the wire fraud statute did Congress seek to identify the panoply of possible victims. Nor did Congress ever articulate a “someone else” requirement as suggested by the Magistrate Judge in his May 17, 2016 Order requiring a Bill of Particulars. Doc. 23. Presumably, the Magistrate Judge’s invocation of the “someone else” requirement stems from the Eleventh Circuit 4 Case 3:16-cr-00048-MMH-JBT Document 30 Filed 06/08/16 Page 5 of 9 PageID 108 Pattern Jury Instructions.1 However, the required elements of a conviction stem from the statutory text, not the jury instructions. See, e.g., United States v. Kowalewski, No. 2:13–CR–00045–RWS, 20 15 WL 1951810 at *3 (N.D. Fl. April 29, 2015) (interpreting the requirements of the federal wire statute and siding with the statutory text where there existed a conflict between the pattern jury instructions and the statute). Moreover, even if this Court were to construe an implicit requirement that the Government need to identify the “someone else” implicated in a wire fraud case, the inclusion of the State of Florida is appropriate. As various courts have held, in a wire fraud case, the government does not have to prove that the fraud involves deception of the same person or entity whose money or property is the intended object of the scheme. United States v. Seidling, 737 F.3d 1155 (7th Cir. 2013); United States v. Christopher, 142 F.3d 46, 54 (1st Cir. 1998) (“We see no reason to read into the statute an invariable requirement that the person deceived be the same person deprived of the money or property by the fraud.”); United States v. McMillan, 600 F.3d 434, 449 (5th Cir. 2010). Put another way, there may be several persons or entities that were tricked, deceived, or defrauded. 1 The Eleventh Circuit Pattern Jury Instructions note, in introductory language prior to the inclusion of the required elements that, “It’s a Federal crime to use interstate wire, radio, or television communications to carry out a scheme to defraud someone else.” The instructions then provide the four elements of wire fraud, without any further reference to the “someone else” language. 5 Case 3:16-cr-00048-MMH-JBT Document 30 Filed 06/08/16 Page 6 of 9 PageID 109 With that framework, it is easy to see how both the State of Florida and campaign contributors were both “victims” of Defendant’s scheme. In the instant case, as described in the Indictment, doc. 1 at 5, the Defendant “submit[ted] or cause[d] to be submitted false and fraudulent campaign expenditure reports to the State of Florida.” It was through these false and fraudulent reports to the State of Florida that the Defendant was then able to obtain ill-gotten money from “solicited individuals and entities” who thought they were contributing “money to the ‘Reggie Fullwood Campaign’ for the stated purpose of supporting his election and reelection to the Florida House of Representatives.” Id. at 4. Seen in this light, Defendant’s suggestion that the Government should be precluded from suggesting that the Florida Department of State Division of Elections is the “victim” or the “someone else” is unavailing. At best, Defendant seeks to exalt the prefatory language of the pattern jury instructions to impose a requirement that does not appear in the statute.