United States v. Dimora (843 F. Supp. 2d 799, 2012)

OPINION & ORDER

SARA LIOI, District Judge.

Before the Court are a series of motions in limine filed by the government and the defendants, James C. Dimora and Michael D. Gabor. (Doc. Nos. 532-537 and 561.) The Court conducted a motion hearing on December 16, 2011.

I. Background

The facts of this particular action have been set forth previously in numerous opinions and orders by this Court. Familiarity with those facts is therefore presumed, and only a brief review of the most salient facts is necessary to frame these in limine motions. On September 14, 2010, the grand jury returned a multi-count indictment against Dimora, Gabor, and five other individuals. The indictment was one in a string of indictments growing out of an expansive federal investigation, conducted over a number of years, into allegations of public corruption and conspiracy in Cuyahoga County, Ohio. The. Third Superseding Indictment charges both defendants with, among other things, RICO conspiracy, conspiracy to commit mail fraud and honest services mail fraud, Hobbs Act conspiracy and Hobbs Act substantive violations, conspiracy to commit bribery in programs receiving federal funds, and conspiracy to obstruct justice. Dimora is also charged with conspiracy to commit wire fraud and honest services wire fraud; destruction, alteration or falsification of records in a federal investigation; mail fraud; and false statements on tax returns.

At all times relevant to the Indictment, Dimora was one of three County Commissioners who had day-to-day responsibilities for the administration of the Cuyahoga County government. During this same period, Gabor was employed by the County Auditor’s Office. It is alleged that Dimora and Gabor conspired with other public officials and private citizens to engage in a pattern of racketeering and fraudulent activities for the purpose of receiving things of value in exchange for the performance of official acts.

II. Legal Standards

A. Motion in Limine Standard

Although not explicitly authorized by the Federal Rules of Evidence or the Federal Rules of Criminal Procedure, the practice of ruling on motions in limine “has developed pursuant to the district court’s inherent authority to manage the course of trials.” Luce v. United States, 469 U.S. 38, 41 n. 4, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). Motions in limine allow the court to rule on evidentiary issues prior to trial in order to avoid delay and to allow the parties to focus remaining preparation time- on issues that will in fact be considered by the jury. See United States v. Brawner, 173 F.3d 966, 970 (6th Cir.1999); Jonasson v. Lutheran Child & Family Servs., 115 F.3d 436, 440 (7th Cir.1997).

Courts should exclude evidence on a motion in limine only when it is clearly inadmissible. Indiana Ins. Co. v. General Elec. Co., 326 F.Supp.2d 844, 846 (N.D.Ohio 2004). If the court is unable to determine whether certain evidence is clearly inadmissible, it should defer ruling until trial so that questions of foundation, relevancy, and potential prejudice can be evaluated in proper context. Id. Ultimately, the determination whether to grant or deny a motion in limine is within the sound discretion of the trial court. Goldman v. Healthcare Mgmt. Sys., Inc., 559 F.Supp.2d 853, 858 (W.D.Mich.2008) (citing United States v. Certain Land Situated in the City of Detroit, 547 F.Supp. 680, 681 (E.D.Mich.1982)). In limine rulings are preliminary, and the district court may change its ruling at trial for any reason it deems appropriate. United States v. Yannott, 42 F.3d 999, 1007 (6th Cir.1994).

B. Federal Rules of Evidence

All relevant evidence is admissible and evidence that is not relevant is not admissible. Fed.R.Evid. 402. “Evidence is relevant if (a) it has a tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Fed.R.Evid. 401. The relevancy standard is liberal. Daubert v. Merrell Dow Pharm., 509 U.S. 579, 587, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Relevant evidence, however, may be excluded if its “probative value is substantially outweighed by the danger of one of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed.R.Evid. 403.

III. Government’s Motion in Limine (Doc. No. 532)

By its motion, the government seeks permission to: (1) have two case agents and an expert witness present during trial; (2) divide FBI Special Agent R. Michael Massie’s testimony into segments; and (3) introduce evidence of uncharged criminal activity. The government also seeks to preclude the defendants from: (1) presenting irrelevant defenses; (2) presenting evidence of lawfulness; and (3) arguing or discussing the consequences of a guilty verdict.

A. Two Case Agents and an Expert Witness Present at Trial

In anticipation of the Court’s witness sequestration order pursuant to Fed. R.Evid. 615, the government requests permission for two case agents and an expert witness to remain in the courtroom during trial. The government anticipates designating FBI Special Agent Massie as its party representative pursuant to Rule 615(b). Further, pursuant to Rule 615(c), the government requests that FBI Special Agent Christine Oliver be permitted to remain at counsel table, as her familiarity with the case and exhibits is essential to aid the government’s presentation of evidence at trial. Finally, the government asserts that, pursuant to Rule 615(c), its expert tax witness, IRS Special Agent Kelly Fatula, should be permitted to remain in the courtroom to hear the evidence presented at trial so that she may testify as to whether the bribes and kickbacks defendant Dimora allegedly received should have been classified as taxable income. Id.

As to SA Massie, the defendants offer no opposition to his presence as the government’s designated representative. Indeed, Rule 615(b) expressly permits the government, who is “not a natural person,” to designate “an officer or employee ... as its representative,” and further provides that person may not be excluded from the courtroom during trial.

Defendant Dimora objects, however, to SA Oliver and SA Fatula’s presence in the courtroom during trial. He asserts that while SA Oliver’s presence is convenient, it is not “essential to the presentation” of the government’s case. (Doc. 547 at 2.) Further, he argues that SA Massie is equally familiar with the evidence and exhibits in this case and is equally competent to assist the government therewith. As to SA Fatula, Dimora argues that Rule 615(c) does not support the government’s purported justification for the request. He asserts that, because the government has already disclosed to Fatula the information she needs to formulate her expert opinion, it is not necessary for her to hear the testimony at trial.

Rule 615 of the Federal Rules of Evidence provides, in relevant part:

At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding: ... (b) an officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney; (c) a person whose presence a party shows to be essential to presenting the party’s claim or defense ....

The exclusion of witnesses is a matter of right subject to narrowly defined exceptions. United States v. Phibbs, 999 F.2d 1053, 1073 (6th Cir.1993). The “essential” person exception “contemplates such persons as an agent who handled the transaction being litigated or an expert needed to advise counsel in the management of the litigation.” Id. at 1073 (citing Fed.R.Evid. 615, Advisory Committee Notes). The decision to permit a witness to remain in the courtroom is within the sound discretion of the trial court. United States v. Mohney, 949 F.2d 1397, 1404 (6th Cir.1991).

1. FBI Special Agent Oliver

The government requests that the Court permit SA Oliver to assist it at counsel table during trial. Counsel for the government anticipates several boxes of documentary exhibits, in addition to demonstrative exhibits and electronic evidence. The government maintains that an additional agent at counsel table is essential in order for it to organize, maintain, and track the evidence and to present it a coherent and efficient manner. According to the government, SA Oliver is most suited to provide this assistance, as: (1) she and SA Massie were the two primary agents assigned to this complex investigation; (2) she prepared and organized the exhibits; and (3) she is intimately familiar with the evidence. Further, the government contended at oral argument that, due to the large volume of exhibits in this case, it is necessary to have one agent responsible for the organization and presentation of its paper exhibits and another dedicated to the electronic presentation of exhibits. Additionally, the government argues that it needs a second agent at counsel table— one who is at least as familiar as SA Massie with the voluminous evidence in this case — to assist when Massie, a critical government witness, takes the stand. Finally, at oral argument, the government indicated that it is not likely to call SA Oliver as a witness and that even if it does call her to testify, her testimony is not likely to overlap SA Massie’s. It is thus unlikely that defendants will suffer any unfair prejudice as a result of Oliver’s presence.

“When the government wants to have two agent-witnesses in attendance throughout a trial, ‘it is always free to designate one agent as its representative under subpart [ (b) of Rule 615] and to try to show under subpart [ (c) ] that the presence of the second agent is ‘essential’ to the presentation of its case.’ ” Phibbs, 999 F.2d at 1072 (quoting United States v. Pulley, 922 F.2d 1283, 1286 (6th Cir.1991)). “[C]ertain prosecutions may be complex enough that aid of more than one law enforcement officer is needed to sort through extensive, technical evidence, and to help ‘map out strategy.’ ” Id. at 1072 (quoting United States v. Martin, 920 F.2d 393, 397 (6th Cir.1990)). The burden of demonstrating that an additional agent is “essential,” however, is “no easy task” and must be balanced against a criminal defendant’s interest in “discouraging and exposing fabrication, inaccuracy, and collusion” related to in-court testimony. Id. at 1073. To satisfy the exception, the government “must show ... that ‘the witness’s presence is ‘essential’ rather than simply desirable.’ ” Kozlowski v. Hampton Sch. Bd., 77 Fed.Appx. 133, 152 (4th Cir.2003) (quoting United States v. Jackson, 60 F.3d 128, 135 (2d Cir.1995)).

In Phibbs, the Sixth Circuit affirmed a district court’s decision to permit the government to have two agent-witnesses in attendance at trial pursuant to the “essential witness” exception in Rule 615(c), noting:

We are persuaded that [the second agent] fell within this category due to the particular circumstances of the case at bar. This was a trial that was scheduled for approximately one month, involving several defendants and a great deal of evidence, not all of which was readily accessible. After [a case agent] was designated the government’s representative in accordance with Rule 615( [b]), the court determined that [the second agent], who was intimately familiar with portions of the evidence, was also needed to advise the government in its handling of the prosecution. As [both agents] were, for the most part, responsible for distinct aspects ... of a far-flung investigation, this was not an abuse of discretion.

999 F.2d at 1073 (emphasis added). Further, the court noted that the trial court had taken additional steps to guarantee that the agent-witnesses did not “parrot each other’s testimony” or coach other witnesses, including requiring that neither agent be present for the other’s testimony. Id. at 1073. Finally, the Court noted that any concerns the defendants had about witness coaching were adequately addressed by the trial court’s order that the agents not discuss the case with other witnesses and by the defense’s ability to freely cross-examine the agents and allegedly-coached witnesses regarding such coaching. Id.

The circumstances in this case are considerably more compelling than those in Phibbs. As set forth above, the present indictment grew out of one of the most expansive federal investigations into public corruption in recent history, lasting nearly three years and involving numerous government agencies. To date over 60 individuals — including politicians, judges, and other public officials, as well as private businessmen — have been indicted. Many have entered into plea agreements and have been sentenced or are awaiting sentencing. Unlike Phibbs, which was limited to a single, albeit complex, narcotics distribution conspiracy, the defendants here are charged with multiple conspiracies. The RICO conspiracy, itself, alleges fifteen different schemes. Additionally, the trial in this case is anticipated to last three months; the trial in Phibbs was much shorter.

The present case is further complicated by the extensive discovery involved, by the quantity and complexity of the anticipated exhibits, and by the number of witnesses expected to testify. Additionally, each defendant has been provided with two terabytes of electronic information, which includes over 44,000 recorded communications that were captured during ten months of court-authorized wiretaps. While not all of the evidence unearthed during the investigation will be utilized in this trial, the fact remains that Dimora was one of the main targets of the investigation, and much of it — including hundreds, if not thousands, of recorded telephone calls — will be. Further, the Court has been advised that the government intends to offer an enormous number of other exhibits, both documentary and electronic, at trial. As was the case in Phibbs, only agents who possess a thorough understanding of the entire investigation will be able to expeditiously access these exhibits at trial.

Given the scope of this case and the sheer enormity of the evidence to be presented at trial, the Court concludes that the presence of two agents is essential to sort through the voluminous exhibits and to provide strategic advice to the prosecutors. SAs Massie and Oliver were the two lead agents in this case, were largely responsible for overseeing the entire investigation, and are, therefore, best equipped to organize and access this evidence. SA Massie is the government’s key witness and is expected to give critical testimony as to each scheme alleged. He will obviously be unable to assist with exhibits and evidence while testifying. It is therefore essential that the government have someone in addition to SA Massiesomeone whose familiarity with the case rivals Massip’s — at counsel table. Only SA Oliver meets these criteria. Thus, the Court finds that the government has met its burden of demonstrating that SA Oliver’s presence is essential to the government’s presentation of its case. See, e.g., United States v. Cooper, 283 F.Supp.2d 1215, 1226 (D.Kan.2003) (permitting two agents to remain in courtroom during “document-intensive and complex” trial involving “numerous witnesses and exhibits,” where second agent was needed to manage evidence, assist with electronic presentation, and advise on trial strategy, and his testimony was not likely to overlap with other agent’s testimony).

There has been no showing that SA Oliver has knowledge of some of the evidence that SA Massie does not have or that, like the investigators in Phibbs, the two agents were responsible for distinct aspects of the investigation. But the government has assured the Court that, in the unlikely event that SA Oliver testifies, her testimony is not likely to overlap with SA Massie’s testimony. Consequently, the risk of prejudice to the defendants is low. Even so, recognizing the defendants’ interest in the accurate and fair presentation of testimony at trial, the Court will not permit SA Oliver to remain in the courtroom during any portion of SA Massie’s testimony — or during any portion of testimony by any other government witness which is likely to overlap with Oliver’s testimony— unless SA Oliver’s testimony precedes that testimony. The Court believes that this restriction is necessary to safeguard the fact-finding process. Subject to this restriction, the Court will permit SA Oliver to be present in the courtroom during trial. The overwhelming amount of evidence, including the number of potential witnesses and exhibits, the complexity of the case, and the unlikelihood that SA Oliver’s assistance at counsel table will unfairly prejudice the defendants all weigh strongly in favor of allowing SA Oliver to be present. See Kosko, 870 F.2d at 164 (noting that where agents’ testimony does not overlap, their mutual presence during trial does not undermine integrity of fact-finding process).

2. IRS Special Agent Fatula

At the hearing, the government indicated that SA Fatula would testify: (1) as a summary witness with respect to defendant Dimora’s bank accounts and credit card charges; (2) as an expert witness with respect to the taxable nature of Dimora’s transactions; and (3) as a fact witness with respect to her participation in a single act of surveillance. As to SA Fatula’s fact testimony, the government stated that it will not overlap with that of any other agent but that it may overlap with the testimony of a lay witness.

“[W]here a party seeks to except an expert witness from exclusion under Rule 615 on the basis that he needs to hear firsthand the testimony of the witnesses, the decision whether to permit him to remain is within the discretion of the trial judge.” Morvant v. Construction Aggregates Corp., 570 F.2d 626, 630 (6th Cir. 1978). In Morvant, the Sixth Circuit recognized that

the presence in the courtroom of an expert witness who does not testify to the facts of the case but rather gives his opinion based upon the testimony of others hardly seems suspect and will in most cases be beneficial, for he will be more likely to base his expert opinion on a more accurate understanding of the testimony as it evolves before the jury.

Id. at 629. “Therefore, ‘where a fair showing has been made that the expert witness is in fact required for the management of the case, and this is made clear to the trial court, ... the trial court is bound to accept any reasonable, substantiated representation to this effect by counsel.’ ” Mohney, 949 F.2d at 1404 (quoting Morvant, 570 F.2d at 630) (affirming trial court’s decision to permit expert witness to remain in courtroom where his calculations of individual tax returns depended on testimony of another witness as to calculations of corporate tax returns).

Insofar as SA Fatula’s testimony consists of expert witness testimony, her presence at counsel table is permissible, as the government has made a “fair showing” that her presence is “required for the management of the case.” If SA Fatula were sequestered, the government would be required to repeat previous testimony in the form of lengthy hypothetical questions. SA Fatula’s presence will thus serve the interests of expediency and efficiency. Given that SA Fatula will render an opinion as to whether a particular thing of value Dimora received should be classified as taxable income, the Court finds that it would be beneficial for her to be present in the courtroom to hear the testimony as to the things of value allegedly received by Dimora that the government believes should have been claimed by him as taxable income. Thus, the Court further finds that the government has established that SA Fatula’s presence in the courtroom is necessary for the management of the case. See United States v. Callan, 22 Fed.Appx. 434, 449-50 (6th Cir.2001) (no abuse of discretion where trial court permitted federal agent with specialized knowledge of subject matter at issue to remain in court and to testify against defendant after government made “reasonable, substantiated representation” that agent’s testimony was essential to the government’s presentation of the case); see also United States v. Kosko, 870 F.2d 162 (4th Cir.1989) (not improper to allow DEA agent and IRS agent to remain in courtroom where IRS agent testified as expert and where testimony of two agents did not overlap as to any matter on which they had personal knowledge); Opus 3 v. Rentage Park, 91 F.3d 625, 629 (4th Cir.1996) (“Because Rule 615 is designed to preclude fact witnesses from shaping their testimony based on other witnesses’ testimony, it does not mandate the sequestration of expert witnesses who are to give only expert opinions at trial. Indeed, an expert who ... only assumes facts for purposes of rendering opinions, might just as well hear all of the trial testimony ....”); Mohney, 949 F.2d at 1405 (no abuse of discretion where district court permitted IRS agent to remain in courtroom and to testify as to his calculation of taxes due based on testimony and documents in evidence). Accordingly, to the extent she will testify as an expert witness, the Court will permit Agent Fatula to remain in the courtroom during trial.

As with SA Oliver, however, to the extent that SA Fatula will testify as a fact witness, and where that testimony will overlap with portions of the testimony of any other government witness, the Court will require sequestration of SA Fatula during those portions of any such witness’s testimony.

B. Dividing Case Agent’s Testimony into Segments

The government moves the Court to allow SA Massie to testify in segments at trial. The government argues segmentation of SA Massie’s testimony serves the interest of efficiency and will minimize the risk of jury confusion, especially in light of the complexity of this case, which, again, involves multiple alleged criminal schemes spanning more than ten years. According to the government, if SA Massie is not permitted to testify at the introduction of each new scheme, then it anticipates it will be necessary for it to extend trial by presenting more witnesses and conducting lengthier examinations of presently-anticipated witnesses.

Dimora opposes the government’s motion. He argues there is no support for the government’s contention that preventing SA Massie from segmenting his testimony will prolong trial. Further, he contends that whether SA Massie or another witness testifies at each stage of the trial, the government cannot present the same evidence or testimony twice as that would be unnecessarily repetitive. Finally, Dimora asserts that no rule or legal precedent authorizes SA Massie to testify in stages.

The government’s proposed method of presenting SA Massie’s testimony is neither unheard of nor unsupported by the Federal Rules of Evidence or legal precedent. The mode and order of interrogation and presentation of evidence are matters placed within the discretion of the trial court. Brinlee v. United States, 496 F.2d 351, 355 (8th Cir.), cert. denied, 419 U.S. 878, 95 S.Ct. 142, 42 L.Ed.2d 118 (1974) (citing Fed.R.Evid. 611(a)). Rule 611(a) provides, in relevant part that, “The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1) make those procedures effective for determining the truth; [and] (2) avoid wasting time ....” “Spelling out detailed rules to govern the mode and order of interrogating witnesses and presenting evidence is neither desirable nor feasible.” Fed.R.Evid. 611, Advisory Committee Notes. “The ultimate responsibility for the effective working of the adversary system rests with the judge. The rule sets forth the objectives which [the Court] should seek to attain.” Id.

Other courts have approved of the practice of recalling witnesses to testify to discrete incidents in cases involving complex conspiracies or activities occurring over a long period. See United States v. Edelin, 128 F.Supp.2d 23, 47 (D.D.C.2001) (permitting government to present case in chronological order by recalling witnesses); United States v. DeLuna, 763 F.2d 897 (8th Cir.), cert. denied, 474 U.S. 980, 106 S.Ct. 382, 88 L.Ed.2d 336 (1985) (no abuse of discretion in permitting government to present key witness’s testimony in installments); United States v. Butera, 677 F.2d 1376, 1381 (11th Cir.1982), cert. denied, 459 U.S. 1108, 103 S.Ct. 735, 74 L.Ed.2d 958 (1983) (finding no error by trial court when it permitted sequential presentation by case agent); United States v. Jackson, 549 F.2d 517, 528-29 (8th Cir.), cert. denied, 430 U.S. 985, 97 S.Ct. 1682, 52 L.Ed.2d 379 (1977). As recognized by the court in Edelin, this method of presentation will provide a clear and orderly trial and will aid the jury’s understanding of the evidence, which will be beneficial to the defendants. Edelin, 128 F.Supp.2d at 47. Further, in Jackson, the court held that while the interest in orderly presentation does not outweigh a defendant’s right to a fair trial, a defendant’s Sixth Amendment rights are appropriately safeguarded by allowing the defendant to cross-examine the witness after each appearance as to the matters covered on direct and as to credibility issues. Jackson, 549 F.2d at 528-29.

In light of this case law and because Rule 611(a) authorizes the Court to control the order of interrogation and the presentation of evidence, the Court finds that in order to facilitate an orderly and comprehensible presentation of this complex case, avoid inefficient use of court time, and avoid jury confusion (and thereby prevent prejudice to the defendants), the government will be permitted to allow SA Massie to testify in segments related to specific schemes during its case-in-chief. Further, as in the cases cited, supra, the Court shall permit the defendants to cross-examine SA Massie after each appearance with respect to the testimony covered on direct during that appearance and as to issues of credibility.

C. Admission of Uncharged Criminal Activity

The government states that it has provided defendants with notice of its intent to offer “other acts” evidence and now seeks leave to offer such evidence at trial. More precisely, the government indicates that it may offer evidence of acts not specifically pleaded in the Indictment but nevertheless relevant establishing the existence of the RICO conspiracy. Rule 404(b) states:

Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must: provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.

Fed.R.Evid. 404(b) (internal numerals and letters omitted). Rule 404(b) is “ ‘actually a rule of inclusion rather than exclusion, since only one use is forbidden and several permissible uses of such evidence are identified.’ ” United States v. Vance, 871 F.2d 572, 575 (6th Cir.1989) (quoting United States v. Blankenship, 775 F.2d 735, 739 (6th Cir.1985)).

The government suggests that such evidence would be “background” evidence. “Background” evidence, often referred to as the “res gestae” of the case, does not implicate Rule 404(b) because such evidence is intrinsic to the crime charged. United States v. Hardy, 228 F.3d 745, 748 (6th Cir.2000) (citing 2 Jack B. Weinstein, Margaret A. Berger & Joseph M. McLaughlin, Weinstein’s Federal Evidence § 404.20[2][c]). Crimes or other wrongs that are unrelated to the charged offense are considered “extrinsic,” and are generally not admissible, except under limited circumstances. Intrinsic acts, or those “inextricably intertwined” with the crime charged, United States v. Everett, 270 F.3d 986, 992 (6th Cir.2001), or “part of a single criminal episode,” however, are admissible and beyond the reach of Rule 404(b). United States v. Barnes, 49 F.3d 1144, 1149 (6th Cir.1995); see also United States v. Ellisor, 522 F.3d 1255, 1269 (11th Cir.2008) (evidence of an unpaid bill incurred during the episode of alleged mail fraud was inextricably intertwined because it was “a necessary part of the evidence relating to the charged offense”); United States v. Daulton, 266 Fed.Appx. 381, 384 (6th Cir.2008) (in tax fraud case, other act evidence, including statements of clients from years not charged in the indictment, was intrinsic as part of a “continuing criminal episode”). As the Sixth Circuit has explained:

Proper background evidence has a causal, temporal or spatial connection with the charged offense. Typically, such evidence is a prelude to the charged offense, is directly probative of the charged offense, arises from the same events as the charged offense, forms an integral part of a witness’s testimony, or completes the story of the charged offense.

Hardy, 228 F.3d at 748. See Daulton, 266 Fed.Appx. at 384 (quoting United States v. Williams, 900 F.2d 823, 825 (5th Cir.1990)) (background evidence can be “necessary preliminaries to the crime charged”). In addition, the Sixth Circuit has held that evidence that “constitutes ‘a continuing pattern of illegal activity’ ” is not considered an “other act” and, therefore, is not governed by Rule 404(b). United States v. Buchanan, 213 F.3d 302, 311 (6th Cir. 2000) (quoting Barnes, 49 F.3d at 1149). While such evidence is not subject to Rule 404(b) analysis, before admitting such evidence, the Court must still satisfy the traditional Rule 403 balancing test. See Hardy, 228 F.3d at 750.

Here, the government argues that other evidence supporting the RICO conspiracy charged in Count 1 would be proper background evidence supporting the existence of the conspiracy because it completes the story, arises out of the same events, or is evidence of a continuing pattern of criminal activity charged in the RICO conspiracy. In fact, the government represents that “any evidence of bribery schemes that fall [sic] within the ambit of Count 1 is admissible res gestae, and should be admissible in the Government’s case-in-chief.” (Doc. No. 532 at 12.)

Courts regularly apply this evidentiary exception in conspiracy cases where the uncharged crimes fall within the parameters of the conspiracy and tend to prove the existence of the conspiracy. See United States v. Rice, 90 Fed.Appx. 921, 924 (6th Cir.2004). “Evidence which is probative of the crime charged and does not solely concern uncharged crimes is not ‘other crimes’ evidence.” United States v. DeClue, 899 F.2d 1465, 1472 (6th Cir.1990). For example, in Buchanan, the defendant was charged with participating in a drug conspiracy from 1990 to 1997. The district court admitted evidence that the defendant sold drugs to an informant in 1994, which was not specifically charged in the indictment. The Sixth Circuit held that this evidence was res gestae and thus Rule 404(b) did not apply because the evidence showed a continuing pattern of illegal activity associated with the charged drug conspiracy. Buchanan, 213 F.3d at 311; see also United States v. Long, 450 Fed. Appx. 457, 462-63 (6th Cir.2011) (in conspiracy to unlawfully discharge industrial wastewater, evidence of prohibited discharges occurring before those charged in the indictment was properly admitted as res gestae as part of a continuing pattern of illegal activity); United States v. Cornell, 162 Fed.Appx. 404, 411 (6th Cir.2006), cert. denied, 549 U.S. 828, 127 S.Ct. 44, 166 L.Ed.2d 47 (2006) (in drug conspiracy case, evidence that the defendant possessed a firearm and robbed two of the government’s witnesses during the period of the conspiracy was proper res gestae because it demonstrated the defendant’s continued involvement in the conspiracy); United States v. Comer, 93 F.3d 1271, 1277-78 (6th Cir.1996) (finding that evidence that defendant engaged in an ongoing scheme to steal jewelry using the mails directly related to the crime charged and thus did not pose a rule 404(b) problem).

The government also argues that this proposed evidence may be admissible under Rule 404(b) because it goes to the defendants’ knowledge and intent. In United States v. Allen, the Sixth Circuit set forth the familiar three-part test for determining the admissibility of evidence under Rule 404(b):

Prior to admitting Rule 404(b) evidence, the district court must: (1) make a preliminary finding as to whether sufficient evidence exists that the prior act occurred; (2) determine whether the evidence is admissible for one of the proper purposes outlined in Rule 404(b); and (3) apply Rule 403 balancing to determine whether the evidence’s probative value is substantially outweighed by the danger of unfair prejudice or the other concerns embodied in Rule 403.

619 F.3d 518, 523 (6th Cir.2010) (citing United States v. Mack, 258 F.3d 548, 553 (6th Cir.2001)); see United States v. Trujillo, 376 F.3d 593, 605 (6th Cir.2004) (quoting United States v. Jenkins, 345 F.3d 928, 937 (6th Cir.2003)); United States v. Merriweather, 78 F.3d 1070, 1074 (6th Cir.1996).

To be admissible under Rule 404(b), the other act “must also be ‘substantially similar and reasonably near in time to the offense for which the defendant is being tried.’ ” United States v. Love, 254 Fed.Appx. 511, 515 (6th Cir.2007) (citing United States v. Carney, 387 F.3d 436, 451 (6th Cir.2004)). With regard to the “substantially similar” requirement, the Sixth Circuit has held that “when the prior bad acts evidence is being offered for the purpose of showing intent, it ‘need not duplicate exactly the instant charge, but need only be sufficiently analogous to support an inference of criminal intent.’ ” Love, 254 Fed.Appx. at 515-16 (quoting United States v. Benton, 852 F.2d 1456, 1468 (6th Cir.1988);) see also United States v. Johnson, 27 F.3d 1186 (6th Cir.1994) (where the crime charged is one requiring specific intent, the government may use Rule 404(b) evidence to prove that the defendant acted with the requisite specific intent). Finally, should the court find that admission of “other acts” evidence is proper under Rule 404(b), the court should instruct the jury on the limited purpose for which the evidence is being offered. See Merriweather, 78 F.3d at 1077.

There are eleven categories (or items) of “other acts” evidence that the government wishes to introduce.

1. Session No. 396DCT

The first piece of evidence in question is a call between Dimora and then-Cuyahoga County Auditor Frank Russo, wherein Dimora contemplates refusing to assist a person, whom the government represents was a potential judicial candidate, because that person has not extended favors to Dimora and Russo in the past. The government desires to offer this evidence to show that when Dimora performs a “favor,” he expects to receive something in return. According to the government, this evidence goes directly to proving the charge in Count 1 that “Dimora, Russo, and others used and agreed to use the powers of their County offices ... to receive things of value,” as well as to show Dimora’s intent for Counts 2 through 27, the bribery and honest services counts.

The defendants argue that this is not res gestae evidence, as it relates to action Dimora was contemplating as the Chairman of the Cuyahoga County Democratic Party. They insist that the schemes set forth in the Indictment are confined to official action Dimora took (or did not take) as Cuyahoga County Commissioner and that this politic act as party chairman in no way explains, or grew out of, the charged conspiracies. There is some appeal to this argument. The Count 1 language relied upon by the government to support admission of this evidence as res gestae alleges that Dimora and others used “the powers of their County offices to influence” official actions. (Doc. No. 444 at ¶ 95.) In this particular instance, it appears that Dimora was being asked as Chairman of the Cuyahoga County Democratic Party to support a potential judicial candidate. This would not relate to his duties as county commissioner. Thus, the Court finds that this evidence cannot be considered res gestae.

Still, as the government suggests, the statement could be properly admitted as “other acts” evidence pursuant to Rule 404(b) to prove such things as motive and intent. In this case, the government suggests that this evidence demonstrates that Dimora expects something that benefits him personally — a favor — in return for performing an official act (e.g., endorsing a candidate). While the Court acknowledges that Count 1 charges that Dimora used the powers of his county commissioner office to influence official actions, this evidence would become relevant if he raises the defense that he always acted in the best interest of the county and the public. Thus, in balancing its probative value against the danger of unfair prejudice, the Court is inclined to allow this evidence to rebut any such defense raised by Dimora, and, if requested, will give a Rule 404(b) limiting instruction to the jury.

2. Session No. 6749KCT

This recorded conversation on Kevin Kelley’s cellular telephone involves a discussion between Kelley and Dimora during which, according to the government, Dimora agrees to delay a contract award to a company because the company refused to purchase a table at a Democratic Party function. The government represents that this call supports Count 1 allegations that Dimora awarded public business in exchange for things of value and also demonstrates intent relative to Counts 2 through 27.

Like the prior call, this evidence touches on Democratic Party concerns. It differs from Session No. 396DCT, discussed above, however, because it clearly involves an instance during the conspiracy period where Dimora’s official action as County Commissioner was allegedly, at times, influenced by the receipt of (or in this case the failure to receive) things of value, including political contributions, as charged in the Indictment. This call tends to show, relative to Count 1, that “D[imora], Russo, and others used and agreed to use the powers of their County Offices and of certain public entities ... to influence official actions, including actions in connection with: (1) awarding public business” as it was part of an allegedly-continuing pattern of illegal activity where official action was prefaced on the receipt of benefits by various public officials, including Dimora. The Court finds that this call may be properly offered as res gestae relative to the charged conspiracy and is beyond the reach of the 404(b) exclusion.

Of course, even if Rule 404(b) applied in this situation, such evidence is probative of Dimora’s alleged criminal intent charged in Count 1 and Counts 2 through 27 of the indictment. See, e.g., United States v. Hopper, 436 Fed.Appx. 414, 421 (6th Cir.2011) (approving of admission of evidence of other robberies committed by the defendant immediately prior to the offenses charged in the conspiracy to prove intent because “conspiracy is a specific intent crime” in that “the government must prove that the defendant had the specific intent to further the common unlawful objective of the conspiracy”). Given the fact that this is a discrete event, for which sufficient evidence exists to establish that it occurred and can be easily compartmentalized by the jury, the Court finds that the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice to the defendants or confusion to the jury. The Court shall permit the government to offer evidence of this call at trial.

3. Session No. 194DCT

This call, captured on Dimora’s cellular telephone between Dimora and an individual identified as BE29 in the Indictment, is offered in connection with testimony that BE29 gave things of value to Dimora to influence the award of work to BE29’s company. In addition to the call, the government intends to offer testimony that BE29 provided Dimora with free meals in return for Dimora trying to influence the Cuyahoga County Engineer’s Office to award work to BE29’s company. The government indicates that this goes to establishing intent for Counts 2 through 27 and to proving the allegation in Count 1 that, “at times, Dimora and Russo acted as intermediaries and through intermediaries.” (Doc. No. 444 at ¶ 100.) According to the government, BE29 acted as an intermediary between Steve Pumper, President of DAS Construction, and other co-conspirators following Pumper’s meeting with the FBI. The call also includes a reference to the County Engineer who wanted to “spread things around,” instead of just rewarding friends with public contracts. Dimora challenges this evidence, noting that BE29 did not actually receive any work and that there is no indication that Dimora did anything wrong.

The Court disagrees with Dimora’s assessment, and finds this evidence is properly admitted as res gestae because it provides important background on the relationship between Dimora and BE29, who is alleged to have served as the intermediary in the Count 28 obstruction charge. See United States v. Paulino, 935 F.2d 739, 755 (6th Cir.), cert. denied, 502 U.S. 914, 112 S.Ct. 315, 116 L.Ed.2d 257 (1991) (internal quotations and citation omitted) (In a drug conspiracy, evidence of prior drug dealing was properly admitted for the “legitimate purpose of showing the background and development of a conspiracy.”). Even if it did not qualify as res gestae, admission of the call would still be proper under Rule 404(b), because it evidences Dimora’s alleged criminal intent in soliciting things of value in exchange for performing official acts, such as awarding public contracts or intervening with another public official regarding the rewarding of public contracts. The call also provides sufficient evidence to support a finding that the prior actions (the attempts to solicit and/or receive things of value in exchange for official action) took place. Given that these events took place during the charged conspiracies and are very similar to several of the charged schemes, the evidence is highly probative and it cannot be said that the probative value is substantially outweighed by the risk of unfair prejudice. Further, a limiting instruction can cure any possible prejudice that the admission of this evidence would pose. The Court will permit the introduction of such evidence.

4. Session No. 667KCT

This December 28, 2007, call between Dimora and Kelley discusses the “free” party that Dimora could attend at a local restaurant named “Dante’s” owing to the fact that the restaurant’s owner wanted a favor from the County Engineer. The government indicates that this call is relevant to Count 1 and Counts 2 through 27, and that it proves Dimora believed that a free meal has value. Again, Dimora notes that there is no evidence that he did anything wrong in connection with a free party he did not attend.

Dimora misunderstands the purpose for which the government would like to offer the evidence. It is not offered for the improper purpose of establishing action in conformity with Dimora’s character. Instead, the Court finds that this is proper res gestae evidence because the jury could find that it is part of a pattern of criminal activity, as it tends to prove that Dimora conspired with others to obtain things of value in exchange for official action. The Court also finds that it is admissible Rule 404(b) “other acts” evidence that the government may offer to demonstrate Dimora’s alleged criminal intent in connecting things of value, such as meals, with official action, such as favorable zoning of property for restaurant parking. It also demonstrates the quid pro quo nature of the charged schemes. In this respect, based upon the evidence it has already reviewed, the Court finds that there is sufficient evidence to preliminarily find that Dimora and Kelley conspired to commit Hobbs Act and RICO violations, even if the acts did not ultimately result in a completed fraudulent scheme. In light of the highly probative nature of this evidence, the government may offer such evidence.

5. Evidence that Dimora Solicited or Accepted Things of Value from Pat Gallina (2006-2008)

Though not charged in the Indictment, the government argues that evidence that Dimora solicited and accepted things of value from Pat Gallina in return for promising and performing official acts related to public contracts and personnel decisions “is part and parcel of the RICO conspiracy.” (Doc. No. 532 at 24.) The government contends that this evidence tends: to prove that Dimora agreed with another conspirator that a conspirator would commit a racketeering act, namely bribery or fraud; to prove intent; and to establish that Dimora accepted a “stream of benefits” from Gallina, and Gallina asked for a “stream of favors” in return. (Id.)

These alleged transactions, occurring during the conspiracy period, are highly probative in that they are very similar to the schemes charged in the Indictment and are alleged to have taken place during the conspiracy. This similarity makes it more probable that Dimora’s alleged actions in the charged schemes were influenced by his desire to receive things of value. See Ellisor, 522 F.3d at 1269 (quoting United States v. Ramirez, 426 F.3d 1344, 1354 (11th Cir.2005)) (“A similarity between the other act and the charged offense will make the other offense highly probative with regard to a defendant’s intent in the charged offense.”). As such, evidence of such events would constitute proper res gestae evidence. Further, the uncharged “Gallina schemes” would likely be admissible as “other acts” evidence under Rule 404(b), because they demonstrate Dimora’s intent relative to Count 1 and Counts 2 through 27. Moreover, the acts are discrete and, with a proper limiting instruction, could be considered by the jury without the risk of undue prejudice. While the Court is inclined to permit the introduction of this evidence, because the government did not set forth the precise nature of the evidence it intends to offer, the Court cannot definitively rule on this issue. Thus, the Court will require the government to make a more substantial proffer before it attempts to introduce this evidence.

6. Evidence that Dimora Solicited or Accepted Things of Value from Robert DiGeronimo

Likewise, evidence that, during the period of the conspiracy, Dimora received event tickets and parking passes from Robert DiGeronimo in return for Dimora promising to perform official acts related to a public land sale would be highly probative res gestae evidence tending to show a pattern of alleged criminal activity associated with the charged conspiracy. It is also likely that such evidence may be properly offered as Rule 404(b) evidence to demonstrate criminal intent by tying official action to the receipt of personal benefits. To lessen the potential for unfair prejudice and jury confusion, the government has represented that it will limit this evidence to that directly relating to one particular land sale. Again, because the government did not set forth the precise nature of the evidence it intends to offer, the Court cannot adequately perform a Rule 404(b) analysis. Specifically, the Court cannot determine preliminarily if there is sufficient evidence that the prior acts in question actually took place. Thus, in an abundance of caution, the Court will require the government to make a more substantial proffer prior to the introduction of such evidence.

7. Evidence related to Pumper and DAS Construction

The government represents that this category of evidence includes evidence that alleged co-conspirator Pumper provided free or discounted home improvements at Dimora’s residence in exchange for Dimora performing official actions. According to the government, this evidence is similar to that charged in Count 17 but pre-dates the conduct charged by two years (though still within the conspiracy period). The government argues that this is background evidence, detailing the relationship between Dimora and Pumper. The Court agrees that evidence tending to prove this alleged uncharged scheme would qualify as background evidence. See United States v. Reyes, 51 Fed.Appx. 488, 494 (6th Cir.2002) (“Evidence that shows the circumstances from which the conspiracy arose, such as a description of the personal relationships and events in which the conspiracy took root, is proper background evidence.”). It would also likely be properly admitted as “other acts” evidence under Rule 404(b) as probative of intent relative to Count 1 and Counts 2 through 27. Further, chances are relatively slim prejudice would result from the introduction of such evidence. The government represents that there will be other evidence offered at trial as to the charged offenses involving Pumper and DAS Construction. Thus, Rule 403 would support the introduction of this evidence.

8. Television Ferris Kleem provided to Dimora in 2005

The television in question was allegedly offered in return for Dimora promising to perform official acts (outside the conspiracies charged in Counts 4 through 7 but still within the RICO conspiracy period set forth in Count 1). The government argues that this “[e]vidence is critical for the jury to understand the charged conduct [involving Kleem offering additional things of value in exchange for County work] that followed.” (Doc. No. 532 at 27.) The government fails to edify the Court as to the specific nature of the evidence it intends to offer. But assuming that the evidence in question would be otherwise admissible, it would constitute proper res gestae evidence, as it would complete the story of (or set the scene for) the 2008 trip to Las Vegas, attended by Dimora, Kelley, and others, and allegedly paid for by Ferris Kleem in exchange for favorable official action. It also provides important background evidence regarding the relationship between Kleem and Dimora. As was the ease with the earlier Pumper schemes, given the expected amount of evidence as to Kleem and the 2008 Las Vegas trip, little prejudice would be likely to result from the introduction of this evidence. Assuming that the government can make a sufficient proffer as to this category of evidence, the Court will permit this evidence to be introduced.

9. Evidence of Dimora Seeking to Influence Judicial Proceedings

The government cites eight instances where the defendants appear to be attempting to influence judicial proceedings on behalf of others. The government seeks to introduce evidence of these “other acts” to show that “Dimora, Gabor, and other RICO conspirators worked together to try to influence court cases, such as the cases influenced in Judge Terry’s court and Judge McCafferty’s court[.]” (Doc. No. 532 at 30.) The government states that “judicial corruption” evidence is important to Count 1, in that it establishes that Defendants Dimora and Gabor agreed that a conspirator would commit one racketeering act, and that “us[ed] the power and authority of public officials for the personal and financial benefit of Dimora and Gabor” by “expediting, facilitating, and influencing judicial action in pending litigation.” (Doc. No. 444 at ¶¶ 92A, 95.) According to the government, the evidence also tends to rebut Gabor’s anticipated defense that he was only involved in isolated events, rather than acts that were part of a pattern of racketeering activity. Dimora argues that these are wholly unrelated and uncharged schemes, which do not show him doing anything wrong.

The Court begins with some general principles that are applicable to the admission of these uncharged “judicial schemes.” The Court will then address the probative value and admissibility of the evidence offered in support of each individual uncharged scheme. At the outset, the Court finds that Dimora misunderstands the intended purpose of the proffered evidence. While it would be impermissible to offer this evidence to show conformity with certain criminal behavior, these uncharged “judicial schemes” took place during the charged RICO conspiracy and tend to prove the existence of the conspiracy itself. As a general matter, therefore, they represent proper res gestae evidence that the government may use to demonstrate a continuing pattern of illegal conduct as charged' in the Indictment.

Additionally, the government may properly use these uncharged schemes to show Dimora’s access to judicial officers and their staff, and his ability to use his influence to affect the outcomes of judicial proceedings to benefit himself, other co-conspirators, and their designees, as charged in Count l. See, e.g., United States v. U.S. Infrastructure, Inc., 576 F.3d 1195, 1210 (11th Cir.2009) (internal quotation omitted) (approving of trial court’s admission of evidence that coconspirator county commissioner awarded a public contract as a reward to a contractor who provided free plumbing and electrical work for the public officials’ personal business for the stated reasons that such uncharged conduct “tended to be evidence of a common plan, scheme and design of how business was being carried out in the Environmental Services Department at that time.”).

Further, several of the uncharged judicial schemes qualify as proper “other acts” evidence under Rule 404(b) because they are substantially similar to the judicial scheme alleged in Count 18 of the Indictment (wherein Dimora is alleged to have attempted to influence a proceeding in Judge McCafferty’s court) and, therefore, would be relevant to prove Dimora’s intent and knowledge when he contacted Judge McCafferty’s bailiff to give Pumper an advantage in the case pending in Judge McCafferty’s court. Such evidence is also permissible for use in proving the specific intent required to establish Gabor and Dimora’s involvement in the RICO conspiracy. Moreover, because the calls tend to document the progression of each uncharged scheme from inception to completion, there is sufficient evidence to establish that the prior acts occurred. Given the similarity of the conduct discussed in the calls to the charged offenses, the significant probative value is not substantially outweighed by unfair prejudice. If such evidence is offered by the government, the Court will consider any request for a limiting instruction to insure that the jury does not consider this evidence for an improper purpose.

The Court will now address each individual scheme. With respect to each scheme that the Court will permit to be introduced at trial, the government shall provide counsel for the defendants with advance notice of any evidence it intends to offer in support of the uncharged scheme, including the excerpts from any calls the government intends to play for the jury. Defense counsel will then have an opportunity to test the particular evidence on relevancy, completeness, or other appropriate grounds.

a. Gary Johnson’s DUI

Evidence of the first scheme identified by the government involves a 2008 call between Gabor and Dimora wherein Gabor informed Dimora that Gary Johnson “got all good” with his DUI in Garfield, Ohio. (Doc. No. 532 at 27.) Dimora instructed Gabor to advise Gabor that Johnson “owes an early Christmas present.” (Id.)

The Court has reviewed this recorded communication and determines that the factors in favor of and against admission of the evidence are nearly evenly balanced. While the call clearly demonstrates that Dimora and Gabor have knowledge regarding how this judicial proceeding was handled, and by whom, there is no direct connection to any intervention by either defendant. As such, the Court is inclined to prohibit the government from introducing this call.

b. Christine Blasko Poundage Fee

The next scheme involves Dimora allegedly intervening in a domestic relations matter. In the first call, Session No. 2403DCT, Dimora speaks with a member of his staff, who relayed a message that Christine Blasko’s husband was in arrears on the poundage fee and that the judge did not follow the child support enforcement agency’s recommendation. During the call, Dimora states that he will call the judge’s bailiff and have him fix it. In the second call, Session No. 2626DCT, the staff member updates Dimora on the situation. The staff member is heard to resist Dimora’s suggestion that he attempt to influence the agency to cut the fees out of concern that “word [would] get out on the street that you can reduce child support by calling Jimmy Dimora.”

The Court is not clear on the purpose for which this evidence is being offered. Thus, the Court will afford the government an opportunity at trial to explain how it intends to use this evidence before it rules on the admissibility of this evidence.

c. John Corsi, Jr. Request

In this scheme, the government offers another 2008 call between Dimora and a staff member. During the call, the staff member relays a message from John Corsi, Jr., who is purportedly seeking Dimora’s assistance in an action pending before a certain judge identified in the call. Dimora states that he does not want to intervene in a matter before the identified judge because “she is crazy.” (Doc. No. 532 at 28.) Dimora directs his staff member to contact Corsi and advise him to contact another individual who is close to the judge’s bailiff. Dimora explains that the judge identified is not the type of judge you can approach.

The Court finds that this call, taking place during the period of the conspiracy, constitutes admissible Rule 404(b) evidence because it demonstrates Dimora’s intent to influence proceedings with judges that he does choose to approach. Moreover, the call, itself, provides sufficient evidence that the prior acts occurred. Given the highly probative nature of this evidence, the Court finds that the probative value is not substantially outweighed by any unfair prejudice.

d. E-mail Regarding Ropchok Divorce

On September 4, 2006, Mark Ropchok allegedly wrote an email to Peter Lawson Jones, one of the three County Commissioners, asking Jones to see if Dimora could expedite Ropchok’s divorce. In his reply, Jones wrote that he would discuss the matter with Dimora and noted in the email “Jimmy, another note re: Mark’s case with AR. Thanx [sic] for all of your help and intervention.” The government represents that this evidence was seized from Dimora’s residence.

The government did not produce this email for the Court’s review. At this point, the Court cannot say that the evidence necessarily tends to prove the conspiracy that Dimora and other coconspirators sought to influence judicial proceedings, or that there is sufficient evidence that these alleged events actually took place. Therefore, for now, the Court rules that the government may not rely on this alleged scheme. The government may, however, renew its request at trial.

e. Mort Weisberg Request

This scheme involves a series of calls between Dimora, Mort Weisberg, and Pat Smock. Mort Weisberg contacted Dimora because Kevin Millstein had a case pending in Judge Corrigan’s court, and he was concerned that neither the judge nor the law clerk would take the time to read his summary judgment motion. He asked Dimora to see if he could speak to the judge or the judge’s bailiff to convince the judge to give serious consideration to granting the summary judgment motion. After directing Weisberg to contact Dimora’s staff member with the information on the case, Dimora directs the staff member, Pat Smock, to obtain the name of the judge’s bailiff.

Th