Full opinion text
MEMORANDUM AND ORDER MATSUMOTO, District Judge. The government charges defendant Rodney Watts (“Mr. Watts”) with various counts of Bank Fraud, Making a False Statement, and Conspiracy to Commit Bank, Mail, and Wire Fraud. Presently before the court are the government’s and Mr. Watts’ respective pretrial requests and motions in limine to preclude evidence at trial pursuant to the Federal Rules of Evidence. For the reasons discussed below, the court hereby grants in part and denies in part the government’s and Mr. Watts’ respective motions in limine and other pretrial motions and requests. BACKGROUND Familiarity with the facts and prior opinions of this court in this matter is presumed and only the background relevant to these motions is set forth below. I. The Charges Against Mr. Watts Mr. Watts is charged in the first four counts of a five-count second superseding indictment. (See ECF No. 295, Superseding Indictment (“S-2 Indictment”).) Count One charges Mr. Watts with Conspiracy to Commit Bank, Mail, and Wire Fraud in or about and between January 2007 and July 2010 in violation of 18 U.S.C. §§ 1349, 3551 et seq. {Id. ¶¶ 18-19.) Count Two charges Mr. Watts with Bank Fraud in or about and between January 2007 and July 2010 in violation of 18 U.S.C. §§ 2, 1344, 3551 et seq.- {Id. ¶¶20-21.) Count Three charges Mr. Watts with Making a False Statement on or about January 6, 2010 by “willfully overvaluing] property and security, for the purpose of influencing the action of Amalgamated Bank upon one or more loans” in violation of 18 U.S.C. §§ 2, 1014, 3551 et seq. {Id. ¶¶ 22-23.) Count Four charges Mr. Watts with Making a False Statement on or about May 24, 2010 in violation of 18 U.S.C. §§ 2, 1014, 3551 et seq. {Id. ¶¶ 24-25.) The S-2 Indictment charges that Mr. Watts was the chief financial officer and chief investment officer of GDC Acquisitions, LLC, a holding company of related subsidiaries (collectively, “GDC”) at the center of this action. {See id. ¶ 4.) The first four counts of the S-2 Indictment arise out of an allegéd scheme to defraud Amalgamated Bank (“Amalgamated”), a federally insured financial institution, and C3 Capital, LLC (“C3”), a private equity investment firm, by obtaining, and attempting to obtain,' loans for GDC subsidiaries on the basis of fálse financial statements and other material misrepresentations between January ' 2007 and July 2010. (Id. ¶¶ 5, 6, 8.) II. The Parties’ Instant Motions and Requests Watts’ trial is currently scheduled to begin on April 29, 2013. {See Trial Management Order of Feb. 6, 2013.) The government has made nine motions in limine in advance of trial. {See generally ECF No. 608, First Mot. in Limine by USA (“Gov. Mem.”).) Watts, has likewise made nine motions in limine. (See generally. ECF No. 610, Mot. in Limine by Rodney Watts (“Watts. Mem.”).) Watts has- also filed a-request, pursuant to Federal Rule of Criminal Procedure 32.2(b)(5)(A),' that the trial jury be retained to determine the forfeitability of the property identified in the government’s Bill of -Particulars for the Forfeiture of Property. (ECF No. 609, Dft.’s Rule 32.2(b)(5)(A) Notification.) Watts further requests that the jury venire be given a questionnaire prior to the date of jury selection, if possible, and that Watts’ consulting firm be permitted to conduct internet searches of prospective jurors during jury selection, and exercise peremptory challenges the following day. (ECF No. 656, Ltr. submitting courtesy copies at 1-2; ECF No. 667, Ltr. concerning in camera submission at 2-3.) The court heard oral argument on the parties’ motions on February 1, 2013. {See Minute Entry of Feb. 1, 2013.) At oral argument, the government raised the issue of Watts’ production of Federal Rule of Criminal Procedure 26.2 material. (Tr. of Oral Argument dated Feb. 1, 2013 (“Tr.”) at 63-64.) The parties’ respective motions in limine and pretrial requests. are addressed in turn below. DISCUSSION 1. Motion in Limine Standard The purpose of a motion in limine is to allow the trial court to rule on the admissibility and relevance of certain forecasted evidence before the evidence is actually offered at trial. See Luce v. United States, 469 U.S. 38, 40 n. 2, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984); Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir.1996). “Evidence should be excluded on a motion in limine only when the evidence is clearly inadmissible on all potential grounds.” United States v. Paredes, 176 F.Supp.2d 179, 181 (S.D.N.Y.2001). Courts considering a motion in limine may reserve decision until trial so that the motion is placed in the appropriate factual context. See Nat’l Union Fire Ins. Co. of Pittsburgh v. L.E. Myers Co. Grp., 937 F.Supp. 276, 286-87 (S.D.N.Y.1996). Furthermore, the court’s ruling regarding a motion in limine is “subject to change when the case unfolds, particularly if the actual testimony differs from what was [expected].” Luce, 469 U.S. at 41, 105 S.Ct. 460. II. Admissibility of Evidence Pursuant to the Federal Rules of Evidence The Federal Rules of Evidence govern the admissibility of evidence at trial. Rule 402 requires that evidence be relevant to be admissible. Fed.R.Evid. 402. Relevant evidence is defined 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. Fed.R.Evid. 401. The court’s determination of what constitutes “relevant evidence” is guided by the nature of the charges and the defendant’s defense theories. In addition to the relevancy of the evidence that the government seeks to admit or preclude, however, such evidence is subject to the probative-prejudice balancing test of Federal Rule of Evidence 403. Rule 403 permits the exclusion of evidence, even if relevant, “if its probative value is substantially outweighed by a danger of ... unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting of time, or needlessly presenting cumulative evidence.” Fed.R.Evid. 403. The Second Circuit has stated that the “ ‘district court is obviously in the best position to do the balancing mandated by Rule 403,’ and, accordingly, this Court grants ‘broad discretion’ to the district court to admit or exclude evidence pursuant to Rule 403.” United States v. George, 266 F.3d 52, 63 (2d Cir.2001) (quoting United States v. Birney, 686 F.2d 102, 106 (2d Cir.1982)) (citation omitted). The court applies the foregoing analysis to the parties’ respective motions. III. The Government’s Motions in Li-mine 1. Application of the Law of the Case Doctrine to Watts’ Trial The government asks the court to apply the “law of the case” doctrine to all motions in limine filed in advance of Watts’ trial. (See Gov. Mem. at 1-3.) The government argues that because Watts’ trial was stayed only after he had joined in one of Dupree’s motions in limine filed in advance of the Dupree/Foley trial, the court should avoid reconsidering issues previously decided in that prior trial. (Id. at 1 (citing ECF No. 357, Ltr. Joining Dupree’s Mot. in Limine).) Indeed, the court did address several issues in advance of the Dupree/Foley trial which are again at issue in advance of Watts’ trial. See generally United States v. Dupree, 833 F.Supp.2d 255 (E.D.N.Y.2011) (government’s motions in limine), vacated in part on other grounds, 706 F.3d 131 (2d Cir.2013); United States v. Dupree, No. 10-CR-627, 2011 WL 5976006, 2011 U.S. Dist. LEXIS 139810 (E.D.N.Y. Nov. 28, 2011) (Dupree’s pretrial motions and motions in limine). Watts, however, asserts that the government’s argument for application of the law of the case doctrine is too broad. (See Watts Opp. at 3-6.) Under the law of the case doctrine, “when a court has ruled on an issue, that decision should generally be adhered to 'by that court in subsequent stages in the same case.” United States v. Carr, 557 F.3d 93, 102 (2d Cir.2009) (internal quotation marks omitted); see also United States v. Plugh, 648 F.3d 118, 123-24 (2d Cir.2011). The doctrine is “driven by considerations of fairness to the parties, judicial economy, and the societal'interest in finality.” Carr, 557 F.3d at 102. “A court’s reconsideration of its own earlier decision in a case may, however, be justified in compelling circumstances, consisting principally of (1) an intervening change in controlling law, (2) new evidence, or (3) the need to correct a clear error of law or to prevent manifest injustice.” Id. The law of the case doctrine “may be properly invoked only if the parties had a full and fair opportunity to litigate the initial determination.” Westerbeke Corp. v. Daihatsu Motor Co., 304 F.3d 200, 219 (2d Cir.2002) (internal quotation marks omitted). Lastly, application of the doctrine is “discretionary and does not limit a court’s power to reconsider its own decisions prior to final judgment.” Sagendorf-Teal v. County of Rensselaer, 100 F.3d 270, 277 (2d Cir.1996) (internal quotation marks omitted); accord Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983) (“Law of the case directs a court’s discretion, it does not limit the tribunal’s power.”); Westerbeke Corp., 304 F.3d at 219. Here, despite the fact that Watts’ trial was severed' at his request, it does not appear that Watts’ trial should be entirely governed by all rulings in the Dupree/Foley trial. Watts joined only in Dupree’s motion in limine to limit the government’s introduction of certain financial documents on October 3, 2011, just two weeks prior to the court issuing a stay of Watts’ criminal trial in order for Watts to pursue an appeal to the Second Circuit, and before the court issued its decision on that .motion. (See Ltr. Joining Dupree’s Mot. in Limine; Minute Entry of Oct. 17, 2011.) Therefore, except for the one motion that Watts joined, Watts cannot be said to have had a full and fair opportunity to litigate all of the motions in- limine at issue in the Dupree/Foley trial. Westerbeke Corp., 304 F.3d at 219; cf. United States v. Guy, 903 F.2d 1240, 1242 (9th Cir.1990) (finding doctrine inapplicable .because the case “involve[d] different parties convicted in different trials.”) Because Watts did not have the opportunity to fully litigate all of the motions in limine in the Dupree/Foley trial, and because he has now brought motions on other evidence, the court will exercise its discretion to decline to apply the law of the case doctrine to the instant pretrial motions and motions in limine. Instead, each motion will be considered in turn. 2. References to the Possible Consequences of Watts’ Conviction Both parties agree that, consistent with the court’s prior ruling in the Dupree/Foley trial, (see Dupree, 833 F.Supp.2d at 261-63), neither party shall make reference to the potential punishments Mr. Watts would face upon conviction, (see Gov. Reply at 1; Watts Opp. at 1 n. 1). Both parties also agree, however, that Mr. Watts should be able to cross-examine government witnesses about any cooperation agreements with the government and plea allocutions, and to cross-examine said witnesses about the consequences facing said witnesses as a result of their guilty pleas. (See Gov. Reply at 1; Watts Opp. at 1 n. 1.) As the Supreme Court has held, “[i]nformation regarding the consequences of a verdict is ... irrelevant to the jury’s task.” Shannon v. United States, 512 U.S. 573, 579, 114 S.Ct. 2419, 129 L.Ed.2d 459 (1994); see also United States v. Blume, 967 F.2d 45, 49 (2d Cir.1992) (“Federal courts usually instruct juries not to consider a verdict’s consequences.”); Brown v. Artus, No. 04 Civ. 3601, 2008 WL 9428119, at *9-10, 2008 U.S. Dist. LEXIS 104863, at *26 (S.D.N.Y. Dec. 24, 2008) (“ Where the jury is permitted to speculate concerning a defendant’s possible punishment, a jury cannot properly perform th[e] function’ of ‘determin[ing] guilt or innocence based upon an impartial consideration of the evidence, unswayed by emotion, fear or prejudice.’ ” (quoting United States v. Cook, 776 F.Supp. 755, 757 (S.D.N.Y.1991))), adopted by 2009 WL 1473428, 2009 U.S. Dist. LEXIS 44789 (S.D.N.Y. May 27, 2009); United States v. Maisonneuve, 954 F.Supp. 114, 116 (D.Vt.1997) (“It is well settled that juries are not to consider penalties in reaching their verdicts.”). Thus, it is well-established precedent that jurors should not be informed about the possible consequences of their verdict due to the likelihood that prejudice, unfairness, and confusion that would result. See Shannon, 512 U.S. at 579, 114 S.Ct. 2419. The parties are in agreement as to this prohibition, and further agree that Mr. Watts may cross-examine government witnesses about the consequences of their guilty pleas and allocutions. (Gov. Reply at 1; Watts Opp. at 1 n. 1.) The court therefore grants the government’s motion to exclude references to the possible consequences of Mr. Watts’ conviction. 3. Limiting Cross-Examination or Direct Testimony Concerning a Government Witness’s Treatment For Depression to the Topics Permitted in the First Trial The government asks the court to limit direct testimony and cross-examination regarding a particular government witness’s treatment for depression in the same manner as in the Dupree/Foley trial. (See Gov. Mem. at 3-4.) The court previously limited cross-examination of this witness regarding mental health treatment to: “(1) the nature and quantity of the medication prescribed; (2) the dates of use; (3) the purpose for which the witness Was ‘ prescribed the medication; and (4) whether the medication affected the witness’s ability to perceive and recall events or to testify accurately about the facts at issue in the case.” Dupree, 833 F.Supp.2d at 266. Mr. Watts responds that he does not intend to cross-examine this particular government witness regarding her/his mental health treatment beyond the limits set by the court in the Dupree/Foley trial. (See Watts Opp. at 1 n. 1.) Thus, the court grants the government’s motion to limit direct testimony and cross-examination regarding the particular government witness’s treatment for depression to the topics outlined above. In order to balance Mr. Watts’ Sixth Amendment right to confront the witness with the interests in minimizing the witness’s personal embarrassment and in preventing confusion of the issues by the jury, there shall be no other topics of cross-examination regarding the witness’s mental health history, and no documents shall be admitted with respect to prescribed medication. 4. Cross-Examination Regarding Veronica Finn’s Husband The government moves to limit Mr. Watts’ cross-examination of expected government witness Veronica Finn (“Finn”), a former employee of GDC, with regard to Finn’s husband Martin Finn, a retired FBI agent. (Gov. Mem. at 4-5.) The government’s motion in limine overlaps in sum and substance with Mr. Watts’ fifth motion in limine, although the parties advocate differing positions. (See Watts Mem. at 20-24.) The court addresses the scope of Mr. Watts’ cross-examination of Finn in Section IV.5, infra. 5. Direct Testimony or Cross-Examination Regarding Any of the Allegations of Prosecutorial Misconduct in the Dupree/Foley Trial The government moves to preclude any testimony regarding potential allegations of prosecutorial misconduct on the basis that this court has previously found such allegations to be meritless. (Gov. Mem. at 5.) Mr. Watts has indicated that he does not intend to examine witnesses or raise allegations of prosecutorial misconduct that were addressed and precluded by the court prior to the Dupree/Foley trial. (Watts Opp. at 1 n. 1 (citing Dupree, 833 F.Supp.2d at 270).) Accordingly, the court grants the government’s motion to preclude Mr. Watts from presenting evidence or eliciting testimony during direct or cross-examination regarding potential allegations of prosecutorial misconduct. 6. Admissibility of the Recordings of Mr. Watts as Admissions, and Conditional Admissibility of Recordings of Emilio Serrano and Frank Patello as Non-Hearsay The government argues that audio recordings of Mr. Watts should be admitted pursuant to Federal Rule of Evidence 801(d)(2)(A). (Gov. Mem. at 6-7.) Rule 801(d)(2)(A) provides that a statement is not hearsay when it is offered against an opposing party and “was made by the party in an individual or representative capacity.” Fed.R.Evid. 801(d)(2)(A); United States v. Russo, 302 F.3d 37, 43 (2d Cir.2002) (“Statements made by the defendant may be introduced by the government in a criminal trial to prove the truth of the facts stated in them, because they are admissions of an adverse party.”); United States v. Reed, No. 10-CR-826, 2012 WL 928259, at *2, 2012 U.S. Dist. LEXIS 36947, at *6 (E.D.N.Y. Mar. 19, 2012) (granting motion in limine to admit recorded phone calls by defendant as party admissions.) The government notes that tapes 1-7, 3-5, 9-1, 12-7, and parts of tapes 12-5 and 16-7 include statements made by Mr. Watts. (Gov. Mem. at 7.) Mr. Watts does not specifically dispute the government’s argument regarding the admissibility of recordings of him as party admissions. (See generally Watts Opp.; Watts Mem.) Mr. Watts does, however, argue that recordings of him having conversations about documents that have not been produced by the government should be precluded, infra, Section IV.2. As discussed in Section IV.2, the court disagrees. Based on established law regarding the admissibility of an opposing party’s out-of-court statements, the court grants the government’s motion in limine with regard to the admissibility of recordings of Mr. Watts. See Russo, 302 F.3d at 43. The government’s motion in limine also addresses the admissibility of recordings between Emilio Serrano (“Serrano”) and Frank Patello (“Patello”), two former GDC employees, and overlaps in sum and substance with Mr. Watts’ first motion in limine. (See Gov. Mem. at 5-7; Watts Mem. at 4-9.) The court therefore addresses the admissibility of the recordings between Serrano and Patello in Section IV.l, infra. 7. Admissibility of the Testimony of Martha Xenakis, Mark Jozefowski, and Irma Nusfaumer Regarding Pre-Billing in 2007, Fictitious Billing in 2008, and Fictitious Accounts Receivable in 2009 The government’s seventh motion in limine involves evidence that is substantially similar to the evidence at issue in the government’s eighth motion in limine. Specifically, both motions in limine involve the expected testimony of Irma Nusfaumer (“Nusfaumer”), and the seventh motion in limine also involves expected testimony of Martha Xenakis (“Xenakis”) and Mark Jozefowski (“Jozefowski”). Accordingly, the court addresses both the seventh and eighth motions in the instant section. The government moves to admit the testimony of Xenakis, Jozefowski, and Nusfaumer, former employees of GDC and GDC subsidiaries, regarding Mr. Watts and Dupree’s alleged “pre-billing” in 2007 during GDC’s relationship with PNC Bank (“PNC”), a previous lender to GDC, and testimony by Nusfaumer about fictitious billing in 2008 prior to GDC’s relationship with Amalmagated, and fictitious accounts receivable created in 2009 for the purpose of obtaining financing from another company, possibly Siemens. (See Gov. Mem. at 7-10.) The 2007 dealings between GDC and PNC are not alleged in the indictment, nor are the 2008 pre-Amalgamated fictitious billing or the 2009 attempt to obtain financing from another company. (See generally S-2 Indictment.) The government initially argued for the admissibility of this evidence of uncharged conduct on two bases: (1) pursuant to Federal Rule of Evidence 404(b), and (2) that this conduct is “inextricably intertwined” with the charged offenses. (See id. at 8-9.) Rule 404(b) permits the admission of evidence of uncharged crimes or other wrongful acts for the purpose of proving motive, opportunity, intent, preparation, knowledge, identity, absence of mistake, or lack of accident. Fed.R.Evid. 404(b)(2). Moreover, “evidence of uncharged criminal activity is not considered other crimes evidence under Fed.R.Evid. 404(b) if it arose out of the same transaction or series of transactions as the charged offense, if it is inextricably intertwined with the evidence regarding the charged offense, or if it is necessary to complete the story of the crime on trial.” United States v. Carboni 204 F.3d 39, 44 (2d Cir.2000). The government, in its reply brief and at oral argument, altered its previous argument, additionally contending that the testimony by Xenakis, Jozefowski, and Nusfaumer about pre-billing in 2007, fictitious billing in 2008, and fictitious accounts receivable created in 2009 is evidence of the charged conduct. (Gov. Reply at 9-10, 18; Tr. at 77-78.) The government asserts that the three witnesses are expected to testify that pre-billing in late 2007, prior to the start of the relationship between the GDC subsidiaries and either Amalgamated or C3, was incorporated into the GDC subsidiaries’ loan application materials to GDC in 2008. (See Gov. Reply at 9-10.) According to the government, these witnesses will also testify that Mr. Watts and Dupree were aware of and, in fact, directed this pre-billing, and that they knowingly submitted this information in loan application materials to Amalgamated. (See id. at 10.) The government next' argues that testimony about fictitious billing in 2008 is evidence of charges in the indictment; (Id. at 18.) Lastly, the government argues that testimony about fictitious accounts receivable in 2009 is evidence both of charged conduct ■ and uncharged conduct regarding attempts to obtain financing from Siemens, and that the evidence “completes the story of the crime on trial.” (Id. at 19.) Mr. Watts opposes the admissibility of expected testimony by Xenakis, Jozefowski, and Nusfaumer regarding 2007 pre-billing and 2008 fictious sales, contending that such testimony is neither evidence of charged conduct, nor admissible pursuant to Rule 404(b). (See Tr. at 78-86; Watts Opp. at 9-24.), As detailed below, the court disagrees with Mr. Watts’ arguments. that this testimony is not evidence of charged conduct. At oral argument on the motion in limine, Mr. Watts argued that the Second Circuit’s recent decision'in United States v. Nkansah, 699 F.3d 743 (2d Cir.2012), dictates that Xenakis, Jozefowski, and Nusfaumer’s testimony about 2007 pre-billing is inadmissible because this conduct occurred before GDC became involved with Amalgamated in 2008, and therefore Mr. Watts could not have specifically intended to defraud Amalgamated at the time this conduct took place. (See Tr. at 79.) As the Nkansah court noted, convictions for bank fraud are limited to situations where the defendant “(1) engaged in a course of conduct designed to deceive a federally chartered or insured financial institution into' releasing property; and (2) possessed an intent to victimize the institution by exposing it. to actual or potential loss.” 699 F.3d at 748 (internal quotation marks omitted). The court also noted that in the Second Circuit, “where the direct legal exposure to losses is sufficiently well known, a jury may infer that, the defendant intended to expose the bank to loss.” Id. at 750; United States v. Barrett, 178 F.3d 643, 648 (2d Cir.1999); United States v. Jacobs, 117 F.3d 82, 93 (2d Cir.1997). Thus, Mr. Watts is correct that in order for testimony about 2007 pre-billing to be admissible as evidence of the offenses with which he is charged, that testimony must bear on Mr. Watts’ intent to defraud Amalgamated or C3. Mr. Watts, however, misconstrues the timing and nature of the fraudulent intent at issue in this case. Although the 2007 pre-billing occurred some months before GDC applied for loans from Amalgamated in 2008, the question with regard to Mr. Watts’ criminal liability for fraud against Amalgamated is what his intent was at the time that he is alleged to have submitted what he allegedly knew to be the falsified 2007 pre-billing data to Amalgamated in connection with the loan. Thus, the fact that the 2007 pre-billing is thought by the government to have originally been undertaken for purposes of an uncharged fraud against PNC is not dispositive of admissibility. What determines the admissibility of testimony about 2007 pre-billing is whether it bears on Mr. Watts’ intent to use the purportedly falsified 2007 pre-billing to obtain financing from Amalgamated in 2008. In Nkansah, the government was unable to “prove beyond a reasonable doubt that appellant intended to expose the banks to loss.” Id. at 750. Here, the expected testimony of Xenakis, Jozefowski, and Nusfaumer’s about 2007 pre-billing is relevant to the government’s attempt to prove beyond a reasonable doubt Mr. Watts’ intent to defraud Amalgamated as of the time that the allegedly fraudulent 2007 pre-billing data was submitted to Amalgamated in connection with the loan application, and in connection with obtaining funds once the loan was consummated. Nkansah does not militate against the admissibility of this evidence. Mr. Watts also argues that the expected testimony of Xenakis, Jozefowski, and Nusfaumer “contains no specifics,” and that the government has failed to provide “documentary support for its vague assertions.” (Watts Opp. at 11; see id. at 11-14.) According to Mr. Watts, without reference to specific documents that relate to the testimony of Xenakis, Jozefowski, and Nusfaumer, it will be impossible for Mr. Watts to effectively cross-examine these witnesses about the 2007 pre-billing and 2008 falsified billing, and that the prejudicial effect of this testimony will therefore far outweigh its probative value. (See id. at 11; Tr. at 82-86.) However, “[a]ny lack of corroboration goes only to the weight of the evidence, not to its sufficiency.” United States v. Hamilton, 334 F.3d 170, 179 (2d Cir.2003) (internal quotation marks omitted); see also id. (“The weight of the evidence is a matter for argument to the jury, not a ground for reversal on appeal.”). Contrary to Mr. Watts’ contention, the Second Circuit’s decision in United States v. Lyles does not preclude evidence of similar acts in the absence of documentary proof. Although the Second Circuit, noted that similar acts are “typically” established by documentary proof, it further noted that “[i]n the case of first-hand testimony, the jury can reach a decision as to the occurrence of the similar act by evaluating the credibility of witnesses, aided by their observation of direct and cross examination.” United States v. Lyles, 593 F.2d 182, 195 (2d Cir.1979). Further, Lyles says nothing about the admissibility of testimony as evidence of charged conduct, as opposed to as similar uncharged acts. Therefore, even if there is a lack of documentation of 2007 pre-billing, 2008 fictitious billing, and 2009 fictitious accounts receivable, the expected testimony of Xenakis, Jozefowski, and Nusfaumer about these acts is- admissible. Additionally, the S-2 Indictment charges Mr. Watts with having participated in the alleged fraud scheme from January of 2007 to July of 2010, a period which encompasses the 2007 pre-billing, the 2008 fictitious billing, and the 2009 fictitious accounts receivable. (S-2 Indictment ¶ 8). Thus, this case is distinguishable from others in which courts have precluded evidence from time periods outside the span of the charged offenses. Cf. Lyles, 593 F.2d at 195 (finding inadmissible evidence of uncharged conduct that occurred three years after the charged conspiracy); United States v. Kahale, 789 F.Supp.2d 359, 384-85 (E.D.N.Y.2009) (finding inadmissible evidence of conduct that occurred several years before the charged conspiracy). The testimony by Xenakis, Jozefowski, and Nusfaumer about pre-billing in 2007 and the creation of fictitious sales in 2008 is directly relevant to Mr. Watts’ knowledge of and involvement in conduct charged in the S-2 indictment. During oral argument on the motions in limine, the government agreed that it would not mention PNC or other sources of financing other than Amalgamated and C3, the only lenders at issue in this case. (Tr. at 78.) The government’s concession was stated in response to the court’s concern that evidence of uncharged fraud against PNC or other unrelated lenders could delay Mr. Watts’ trial and confuse the jury. (See Tr. at 77.) Consequently, during Mr. Watts’ trial, the government shall not discuss or elicit testimony about PNC or Siemens. (See Watts Mem. at 9-10 (regarding admissibility of Nusfaumer’s testimony about a possible attempt to obtain financing from Siemens in 2009).) Nor may the .government elicit testimony from Nusfaumer about the defendants’ alleged original purpose for creating fraudulent accounts receivable for the School Construction Authority in 2009 in connection with Siemens, which .the government admits is uncharged criminal activity. (See Gov. Reply at 19-20). The government may elicit Nusfaumer’s testimony that the fraudulent accounts receivable were created and presented to Amalgamated. For the foregoing reasons, the government’s motion to admit testimony by Xenakis, Jozefowski, and Nusfaumer about pre-billing in 2007, the creation of fictitious sales in 2008, and fictitious accounts receivable in 2009 is granted as evidence relevant to the instant charged offenses regarding Mr. Watts and his alleged role in fraudulently obtaining funds from Amalgamated and C3. Because the expected testimony from these three witnesses is admissible as evidence of the charged offenses, the court declines at this time to address' the admissibility of the same evidence pursuant to Rule 404(b). The government’s motion to admit testimony by Nusfaumer about uncharged fraudulent acts that are specifically related to PNC, Siemens or lenders other than Amalgamated and C3, is denied. 8. Admissibility of Nusfaumer’s Expected Testimony About. Other Acts of Fraud During GDC’s Relationship with PNC Bank and Her Testimony About Acts of Fraud to Obtain Financing from Another Financing Source in the Fall or Winter of 2009 For the reasons discussed in Section III.7, supra, the government’s motion is denied insofar as it relates to. testimony by Nusfaumer about uncharged fraudulent acts that are specifically related to PNC or Siemens; however, the government may elicit Nusfaumer’s testimony that fraudulent accounts receivable were created in the fall or winter of 2009 and presented to Amalgamated or C3. 9. Admissibility of Evidence that Mr. Watts Had a Good-Faith Belief That the Loans Would Ultimately be Repaid The government moves to preclude Mr. Watts from presenting evidence or making arguments that he had a good-faith belief that Amalgamated or C3 ultimately would be repaid any money loaned. (See Gov. Mem. at 10-11.) Mr. Watts opposes the government’s motion, arguing that it would prevent him from presenting a good-faith defense at trial, and that such an. exclusion would be contrary to Second Circuit law. (See Watts Opp. at 6-9.) In order to establish a scheme to defraud, the government must prove “(i) the existence of a scheme to defraud, (ii) the requisite scienter (or fraudulent intent) on the part of the defendant, and (iii) the materiality of the misrepresentations.” United States v. Pierce, 224 F.3d 158, 165 (2d Cir.2000) (internal citations omitted). The government’s proof of fraudulent intent must “demonstrate that the defendant had a conscious knowing intent to defraud ... [and] that the defendant contemplated or intended some harm to the property rights of the victim.” United States v. Guadagna, 183 F.3d 122, 129 (2d Cir.1999) (internal quotation marks omitted) (alterations in original); see also United States v. Bijulco, 127 Fed.Appx. 548, 550 (2d Cir.2005) (“Only a showing of intended harm will satisfy the element.of fraudulent intent.”). Mr. Watts argues that he should be permitted to present a good faith defense at trial, and objects to what he describes as the “government’s draconian request for a wholesale pretrial preclusion of a good faith defense.” (Watts Opp. at 8.) Mr. Watts argues that because the “nebulous” line between a defendant’s intent to cause “no harm” and “no ultimate harm,” as discussed by the Second Circuit in United States v. Rossomando, 144 F.3d 197 (2d Cir.1998), the issue of intent must be decided by the jury based on the trial evidence. (Id.) Mr. Watts intends to present as evidence of his good faith that he had no equity in the companies for which he worked, and received no profit from the loans. (Id. at n. 3.) Mr. Watts, however, does not indicate whether he intends to present evidence that he had a good faith belief that the statements he submitted to Amalgamated and C3 were truthful and accurate, and therefore that he had no intent to expose the institutions to actual or potential loss. The government replies that it is not moving to preclude all good faith defenses but, rather, seeks to preclude evidence that the loans Mr. Watts obtained or attempted to obtain from Amalgamated and C3 would be repaid. (Gov. Reply at 3.) It is correct that a defendant’s good-faith belief that his or her statements or representations were truthful may refute the intent to defraud required to sustain a fraud conviction. See, e.g., United States v. Alkins, 925 F.2d 541, 550 (2d Cir.1991) (“If an individual believes that the information set forth in a mailing is true, it follows that he cannot have the requisite intent to defraud.”). Yet, a defendant’s good-faith belief in the truth of his statements or representations is very different from a defendant’s belief that his untrue statements or representations will ultimately cause no harm. See, e.g., Unit ed States v. Berger, 188 F.Supp.2d 307, 329 (S.D.N.Y.2002) (noting that if a securities fraud defendant was found by a jury to have intentionally caused others to issue false or misleading statements, and that defendant knew that this conduct was illegal, “he properly would be found guilty, even if he ‘firmly believed’ that, in the end, his strategy would ‘work out’ ”); United States v. Gole, 21 F.Supp.2d 161, 166 (E.D.N.Y.1997) (“The definition of good faith ‘addresses the defendant’s belief in the truth of the representations, and not the defendant’s belief as to the ultimate success of the plan .... ” (quoting 1A Sand, et al., Modern Federal Jury Instructions, ¶ 44.01)). A defendant’s criminal liability for fraud does not necessarily depend upon a victim having sustained actual financial or property loss; rather, the government need only establish that the defendant intended to expose the victim to actual or potential loss or harm. See Nkansah, 699 F.3d at 750; see also United States v. Wallach, 935 F.2d 445, 461 (2d Cir.1991) (“[T]he government is not required to show that the intended victim was actually defrauded. The government need only show that the defendants contemplated some actual harm or injury.”). The Second Circuit has recognized that concrete harm can include depriving a party of material information. See United States v. Dinome, 86 F.3d 277, 284 (2d Cir.1996), “To be material, the information withheld either must be of some independent value or must bear on the ultimate value of the transaction.” Id. (internal quotation marks omitted). Thus, where a defendant intentionally withholds or falsifies material information on a loan application, even if the defendant intends that the lender will be made whole at some future juncture, the defendant will have already exposed the lender or investor to “immediate harm by denying [the lender] the right to control [its] assets by depriving [the lender] of the information necessary to make discretionary economic decisions.” United States v. Levis, 488 Fed.Appx. 481, 486 (2d Cir.2012) (internal quotation marks omitted) (alterations in original); see also Rossomando, 144 F.3d at 201 n. 5 (“[T]he value of credit .,.. transactions inherently depend^] on the ability of banks ... to make refined, discretionary judgments on the basis of full information .... ”); id. at 201 (noting with approval scenario in which if a defendant supplies .false information to obtain a bank loan, “the defendant’s good-faith intention to pay back the loan is no defense because he intended to inflict a genuine harm upon the bank — ie., to deprive the bank of the ability to determine the actual level of credit risk and to determine for itself on the basis of accurate information whether, and at what price, to extend credit to the defendant.”). Accordingly, if the jury concludes that Mr. Watts intentionally deceived Amalgamated and C3 in seeking loans, his good-faith belief that the loans would' ultimately be repaid would be irrelevant because “intent to harm is inextricably bound to' the intent to deceive.” United States v. Chandler, 98 F.3d 711, 716 (2d Cir.1996). Under the foregoing Second Circuit decisions, in situations in which a defendant has improperly presented evidence of his good-faith belief in the ultimate success or repayment of a fraud scheme, the Second Circuit has upheld an instruction to the jury, that provides in sum and substance, that “[n]o amount of honest belief on the part of a defendant that the scheme will ultimately make a profit for the investors will excuse fraudulent actions or false representations by [the defendant].” See Levis; 488 Fed.Appx. at 486 (upholding instruction even though defendant, who had made' misrepresentations regarding an independent valuation of his company to investors, “meant to cause no ultimate harm to investors”); United States v. Ferguson, 676 F.3d 260, 280 (2d Cir.2011) (“The ‘no ultimate harm’ instruction givén in the present case ensured that jurors would not acquit if they found that the defendants knew the [representation] was a sham but thought it beneficial for the stock price in the long run.”); United States v. Leonard, 529 F.3d 83, 91, (2d Cir.2008) (upholding instruction in case where defendants were found to have mislead investors about how investment monies would be spent). Mr. Watts primarily relies upon two cases to oppose the government’s motion: Nkansah, 699 F.3d 743, and United States v. Cleary, 565 F.2d 43 (2d Cir.1977). These cases, however, are factually distinguishable from Mr. Watts’ case and thus not controlling. In Nkansah, the criminal defendant appealed his convictions for, inter alia, bank fraud. 699 F.3d at 746. Defendant was convicted of bank fraud as part of a group scheme in which fraudulent tax returns were filed with the-IRS, resulting in tax refund checks for some of the fraudulent returns being electronically deposited by the Treasury Department into bank accounts controlled by members of the criminal scheme. See id. at 746-47. The Second Circuit first noted that convictions for bank fraud are limited to situations where “the defendant (1) engaged in a course of conduct designed to deceive a federally chartered or insured financial institution into releasing property; and (2) possessed an intent to victimize the institution by exposing it to actual or potential loss.” Id. at 748. The court thus overturned Nkansah’s bank fraud conviction, finding that “there is not the well-known exposure to loss that might support a finding beyond a reasonable doubt of appellant’s intent to victimize [the banks].” Id. at 750. In contrast to Amalgamated and C3 in Mr. Watts’ case, the banks at issue in Nkansah were never at a risk of loss because the Treasury checks were genuine and the criminal defendants were authorized signatories to the bank accounts; therefore, “until alerted by the Treasury to the scheme, the banks may well have been holders in due course with the risk of loss borne entirely by the Treasury.” Id. In other words, although the banks in Nkansah were used as an intermediary in the scheme to defraud the Treasury, there was no evidence that Nkansah intended to expose, or did expose, the banks to potential losses, and thus Nkansah could not have been found guilty of bank fraud. Mr. Watts, however, is alleged to have directly caused Amalgamated to iiicur millions of dollars in losses from fraudulently obtained loans. Thus, Nkansah does not support Mr. Watts’ position. Cleary is likewise distinguishable from this case. Cleary, an assistant manager of a bank, was charged with and convicted of misapplication of bank funds for approving loans to third-parties while knowing that the loan proceeds were in fact going in whole or in part to a man named Passarelli. See 565 F.2d at 45-46. Passarelli applied for the loans on behalf of the third-parties using falsified documents. See id. The Second Circuit overturned Cleary’s conviction because the record was “devoid of proof that Cleary was aware of the forgeries and false statements” made by Passarelli. Id. at 46. Thus, the Circuit concluded that “[t]he interests of justice require that another jury be given the opportunity to determine the question of Cleary’s criminal intent.” Id. at 48 (emphasis added). The court agrees with the government that Mr. Watts’ alleged conduct is more akin to that of Passarelli than of Cleary. (Gov. Reply at 7-8.) Mr. Watts, like Passarelli, is alleged to have been involved in the original creation and submission of falsified loan application materials to Amalgamated. To the extent that Mr. Watts intends to present evidence that he, like Cleary, was unaware of false statements made to Amalgamated, or that he had a good-faith belief that the application materials were accurate, he may do so; however, his belief that the Amalgamated loans would ultimately be repaid has no bearing on these separate and distinct defenses. See Chandler, 98 F.3d at 716 (“Chandler (1) obtained credit from the bank and (2), in doing so, intended to deceive the bank. Notwithstanding Chandler’s protestations that she intended to repay, her intentionally deceptive conduct is inexplicable other than as a means of intentionally exposing [the bank] to an unwanted risk.”). Thus, Cleary also does not support Mr. Watts’ position. Mr. Watts has every right to present evidence that he, like Cleary, had a good-faith belief that the application materials submitted to Amalgamated were in fact truthful and accurate, and thereby attempt to refute the element of fraudulent/criminal intent; however, he has no right to present evidence regarding the irrelevant issue of his good-faith belief that the fraudulently obtained loans would ultimately be paid back. See Alkins, 925 F.2d at 550; cf. Cleary, 565 F.2d at 47-48. The government’s motion to preclude Mr. Watts from presenting evidence or arguing that he had a good-faith belief that the Amalgamated loans would ultimately be repaid is therefore granted. IV. Mr. Watts ’ Motions in Limine 1. Admissibility of Recordings of Serrano and Patello Based on Hearsay Exception for Co-Conspirators Watts argues that the recordings of telephone conversations between Serrano and Patello are inadmissible because they were recorded after Patello withdrew from the bank fraud conspiracy and, thus, are not subject to the hearsay exception for co-conspirators pursuant to Federal Rule of Evidence 801(d)(2)(E). (Watts Mem. at 4-8.) At the time of the conversations at issue in May and June of 2010, Serrano was a government cooperator who was working at GDC as an assistant controller, and Patello, a former controller and chief financial officer at GDC, had left the company in March of 2010 and was not aware that Serrano was a cooperator, or that Serrano was recording their conversations. See Dupree, 833 F.Supp.2d at 273. The government asserts that Patello had not yet withdrawn from the conspiracy, (Gov. Opp. at 1-5), and that the court should either conditionally admit the recordings at trial, or unconditionally admit the recordings prior to trial, pursuant to United States v. Geaney, 417 F.2d 1116 (2d Cir.1969), (Gov. Mem. at 6, 7). In Geaney, the Second Circuit established the practice of deferring ruling on whether there is sufficient independent corroborating evidence of a party’s participation in a conspiracy for out-of-court co-conspirator statements to be admitted until the conclusion of the government’s case. 417 F.2d at 1120. The Geaney court noted that “[w]hile' the practicalities of a conspiracy trial may require that hearsay be admitted ‘subject to connection,’ the judge.must determine, when all the evidence is in, whether in his view the prosecution has proved participation in the conspiracy, by the defendant against whom the hearsay is offered, by a fair preponderance of the evidence independent of the hearsay utterances.” Id. The tapes at issue here include those designated by the government as 1-7, 3-4, 3-5, 3-6, 9-1, 10-5, 10-6, 12-7, 14-1, and 16-7. (Gov. Mem. at 5-6.) Rule 801(d)(2)(E) provides that an out-of-court statement offered against an opposing party which is “made by the party’s coconspirator during and in furtherance of the conspiracy” is admissible as non-hearsay. Fed.R.Evid. 801(d)(2)(E); see also United States v. Farhane, 634 F.3d 127, 161 (2d Cir.2011). “To admit an out-of-court declaration under this rule, the district court must find by a preponderance of the evidence ‘(a) that there was a conspiracy, (b) that its members included the declarant and the party against whom the statement is offered, and (c) that the statement was made during the course of and in furtherance of the conspiracy.’ ” Farhane, 634 F.3d at 161 (quoting United States v. Al-Moayad, 545 F.3d 139, 173 (2d Cir.2008)). .Despite the court’s findings in the Dupree/Foley trial as to the first and third factors, and strong evidence presented at the Dupree/Foley trial that Mr. Watts was a member of the charged conspiracy, the court will defer ruling as to Mr. Watts’ membership in the conspiracy until the conclusion of the government’s case-in-chief in accordance with the • long-established procedures followed in the Second Circuit after Geaney. See Dupree, 833 F.Supp.2d at 273. With regard to the third factor, the Second Circuit has held: As the “in furtherance” term implies, the statements must in some way have been designed to promote or facilitate achievement of the goals of the ongoing conspiracy, as by, for example, providing reassurance to a coconspirator, seeking to induce a coconspirator’s assistance, serving to foster trust and cohesiveness, or informing coconspirators as .to the progress or status of the conspiracy, or by prompting the listener — who need not be a coconspirator — to respond in a way that promotes or facilitates the carrying out of a criminal activity. United States v. Tracy, 12 F.3d 1186, 1196 (2d Cir.1993) (internal, citations omitted); see also In re Terrorist Bombings of U.S. Embassies in E. Afr., 552 F.3d 93, 139 (2d Cir.2008); United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181, 1199 (2d Cir.1989) (“The principal question in the ‘in furtherance’ issue is whether the statement promoted, or was intended to promote, the goals of the conspiracy. ‘Idle chatter’ does not meet the test, nor does a ‘merely narrative’ description by one co-conspirator of the acts of another. Coconspirator statements may be found to be ‘in furtherance’ ... if they ‘prompt the listener to respond in a way that facilitates the carrying out of criminal activity.’” (citations omitted)). “[0]nce a party withdraws from a conspiracy subsequent statements by a coconspirator do not fall within this exemption.” United States v. Nerlinger, 862 F.2d 967, 974 (2d Cir.1988). ‘Withdrawal from a conspiracy requires ‘affirmative action ... to disavow or defeat the purpose’ of the conspiracy.” Id. (quoting United States v. James, 609 F.2d 36, 41 (2d Cir.1979)). Such an affirmative action or disavowal may be either “the making of a clean breast to the authorities, or communication of the abandonment in a manner reasonably calculated to reach co-conspirators.” United States v. Sadiki Komunyaka, 658 F.3d 140, 143 (2d Cir.2011). Generally, the burden of establishing withdrawal from a conspiracy rests “firmly on the defendant regardless of when the purported withdrawal took place.” Smith v. United States, — U.S. -, 133 S.Ct. 714, 719, 184 L.Ed.2d 570 (2013); see also Sadiki Komunyaka, 658 F.3d at 143 (“[Wjithdrawal from a conspiracy is an affirmative defense for which the defendant bears the burden of proof at trial.”). In the context of admitting co-conspirator statements, the offering party has the burden of establishing the existence of the conspiracy, that the declarant and the party against whom the statement is offered were members of the conspiracy at the time of the statement, and that the statement was made during and in furtherance of the conspiracy. See Al-Moayad, 545 F.3d at 173. “[A] statement is not made during the course of the conspiracy when it is made after the main objective of the conspiracy has been accomplished.” United States v. Lombardozzi, No. S102 CR 273, 2003 WL 1956290, at *2, 2003 U.S. Dist. LEXIS 6859, at *4 (S.D.N.Y. Apr. 24, 2003) (citing Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949)). Mr. Watts correctly argues that Serrano cannot have been a conspirator at the time of the recordings because he withdrew and was cooperating with the government. (Watts Mem. at 5.) This fact, however, does not affect the admissibility of the conversations if Patello’s statements nonetheless satisfy the requirements .of Rule 801(d)(2)(E). Farhane, 634 F.3d at 160-62 (affirming district court’s admission of tape-recorded conversations between a co-defendant, on the one hand, and a confidential informant or undercover agent, on the other hand, under Rule 801(d)(2)(E)); In re Terrorist Bombings, 552 F.3d 93 at 139 (“Though [Rule 801(d)(2)(E) ] requires that both the declarant and the party against whom the statement is offered be members of the conspiracy, there is no requirement that the person to whom the statement is made also be a member.”); United States v. Sanin, Nos. 96-1417(L), 96-1481, 96-1482, 1997 WL 280083, at *3, 1997 U.S.App. LEXIS 12280, at *10-11 (2d Cir. May 23, 1997) (“[Statements made to a non-co-conspirator can still be admitted under Rule 801(d)(2)(E) if the purpose of making the statements is to facilitate achievement of the conspiracy’s goal.’’) Regarding Mr. Watts’ and the government’s arguments as to whether Patello’s statements were made during the course of and in furtherance of the conspiracy, -the court first addresses Mr. Watts’ citation to the government’s opening statements and closing arguments. As jurors are, and will be, instructed, a lawyer’s opening statements and closing arguments are not evidence, United States v. Arboleda, 20 F.3d 58 (2d Cir.1994) (.“A summation is not evidence. It is simply an attorney’s argument to the jury on the circumstances of the case.”); 1 Sand, et al, Modern Federal Jury Instructions ¶ 5.02 (2010) (“[Statements by counsel are not evidence.”); see also United States v. Burden, 600 F.3d 204, 222 (2d Cir.2010) (noting with approval district court instruction to jury that closing arguments are not evidence). Therefore, the court disregards the parties’ contentions as to the substance and meaning of the government’s opening and closing statements in the Dupree/Foley trial, as these statements have no bearing on whether Patello did or did not withdraw from the conspiracy before Serrano recorded conversations with him. (See, e.g., Watts Mem. at 7-8; Gov. Opp. at 3-4; Watts Reply at 3.) Moreover, Patello cannot be said to have withdrawn from the conspiracy prior to his recorded conversations with Serrano. Rather, although Patello resigned from his position at GDC in March of 2010, he remained actively involved with the conspiracy thereafter. (Dupree/Foley Tr. at 2503-04.) For example, in the recordings at issue, Patello (1) inquires about what is happening at GDC, including Amalgamated’s audit of GDC and the submission of another falsified Borrowing Base Certificate; (2) explains to Serrano how GDC created a company to conceal information from Amalgamated; (3) recounts a recent conversation, with co-conspirator Dupree, regarding a call Patello received from an Amalgamated representative and Dupree’s advice on how to respond to conceal the fraud; (4) discusses how Patello called an Amalgamated representative after business hours, presumably to maintain the appearance that nothing is wrong and to hide the fact that he had left GDC; (5) comments on how he is still waiting for his severance payment from GDC; (6) makes several statements indicating that he hopes GDC will survive financially and that the conspiracy will remain concealed so that he does not get caught; and (7) reassures Serrano that, in the event the conspiracy is exposed, he will protect Serrano. Dupree, 833 F.Supp.2d at 274-75 (summarizing content of tapes after court review); see also Dupree/Foley Tr. at 2507-08 (Patello testifying about conspiracy-related conduct after his resignation). Patello’s statements, which describe conversations and contact with, and directions by, alleged co-conspirator Dupree, as well as contact with Amalgamated to conceal the conspiracy, are sufficient to establish Patello’s continued participation in the conspiracy. See United States v. Friesel, 224 F.3d 107, 118 (2d Cir.2000) (“[R]esignation from a criminal enterprise, standing alone, does not constitute withdrawal as a matter of law; more is required. Specifically, the defendant must not take any subsequent acts to promote the conspiracy ... and must not receive any additional benefits from the conspiracy.” (internal citations omitted)). Although several of the recorded statements involve narratives relating to past events, such statements “meet the in-furtherance test, if they serve some current purpose in the conspiracy.” United States v. Thai, 29 F.3d 785, 813 (2d Cir.1994). Patello’s statements, described above, served to inform Serrano about the history of the conspiracy, advise Serrano of his knowledge of the progress or status of the conspiracy, solicit information regarding the same from Serrano, and reassure Serrano that he is still adhering to Dupree’s directives to conceal the conspiracy from Amalgamated. In addition, although Patello counseled Serrano • to avoid involvement in the ongoing conspiracy, he also reassured Serrano on many occasions that they and the others were less likely to get caught as more time had passed since their direct involvement in the conspiracy and the aging of the financial information submitted to Amalgamated: Thus, Patello was reassuring Serrano and encouraging him to avoid exposing the ongoing conspiracy. See United States v. Eisen, 974 F.2d 246, 269 n. 8 (2d Cir.1992) (finding that withdrawal from the conspiracy was not achieved by resignation from the firm because defendant was still a member of the conspiracy at the time of these efforts, “and, clearly, acts or statements designed to conceal an ongoing conspiracy are in furtherance of that conspiracy.”); Beech- Nut Nutrition Corp., 871 F.2d at 1198-99 (finding co-conspirator statements admissible because they were designed to “cover up” the conspiracy and encourage the -listener “to not [ ] reveal incriminating information”). Furthermore, irrespective of how Patel-lo or any other witness may characterize his resignation from GDC,, on September 24, 2010, Patello pleaded guilty before this court to an information charging him with being a member of the instant conspiracy from March of 2008 until July of 2010. (See United States v. Patello, Docket No. 10-CR-709, ECF No. 6, Tr. of Guilty Plea at 23-27.) That is, Patello specifically allocuted to having been an active member of the conspiracy from March of 2008 until September of 2010. (See id.) The court accepted Patello’s plea • after determining that Patello was fully aware of his rights and the consequences of his plea, that he was acting voluntarily, and that there was a factual basis for his plea. (Id. at 28.) Even if the court disregarded the substance of the recordings regarding Patel-lo’s involvement in the conspiracy after his resignation from GDC, his guilty plea alone would provide the court with an adequate basis on which to find that Patello recorded conversations with Serrano “during the course of and -in furtherance of the conspiracy.” Farhane, 634 F.3d at 161. Therefore, consistent with Geaney, the court will conditionally admit the recorded conversations during the government’s case-in-chief, pending the government’s presentation of evidence, including of Mr. Watts’ membership in the conspiracy. The government’s request to unconditionally admit the recorded evidence prior to trial is denied. Although the government proved at the Dupree/Foley trial the first factor (the existence of a conspiracy), and the third factor (that the statements were made during the course of and in furtherance of the conspiracy), at the conclusion of the government’s case at the Watts trial, the court will re-examine whether the government has established by a preponderance of the evidence the three factors, including whether Mr. Watts was a member of the conspiracy. See id. In making these findings, the court will consider the statements themselves, as well as any independent corroborating evidence. See United States v. Mulder, 273 F.3d 91, 103 (2d Cir.2001). If the requisite. findings cannot be made for a particular statement, the court will instruct the jury to disregard the statement. To minimize the risk of unfair prejudice to Mr. Watts from the conditional admission of the recorded statements, and to expedite trial while the jury is in session, after the conclusion of each' trial day, the government shall provide the court and Mr. Watts with a transcript of the recorded statements that it intends to offer into evidence during the next trial day. This procedure will enable the court to determine in advance whether a particular statement is not admissible prior to its disclosure to the jury to the extent it is possible to make such a finding prior to its presentation. 2. Admissibility of Recordings Made By Serrano Where the Government Failed to Preserve and Identify the Documents Referred to in the Recordings Mr. Watts moves to preclude the government from introducing recordings made by Serrano in which participants discuss documents that the government has not identified and preserved, and alternatively moves to have a spoliation adverse inference instruction given to the jury. (Watts Mem. at 9.) Mr. Watts argues that the FBI failed to adequately supervise Serrano during the roughly three-week period of time during which he made some 44 recordings of his conversations with GDC employees, the majority of which feature conversations with Mr. Watts. (See id.) Mr. Watts asserts that the FBI’s failure to supervise Serrano resulted in a failure by Serrano to copy or retain many documents discussed by Mr. Watts and Serrano on the recordings. (See id. at 9-13.) Mr. Watts argues that the government’s failure to preserve and produce relevant documents warrants either prohibiting the government from introducing recordings for which copies of the subject documents are unavailable, or permitting a spoliation adverse inference instruction to the jury. (See id..at 14-17.) The government counters that there is no basis in law for precluding recordings on the basis that the physical documents discussed therein may not have been seized or gathered for submission into evidence. (See Gov. Opp. at 5-11.) The court agrees that there is no basis in law to require the government to have ordered Serrano to copy or retain any of the documents discussed on recordings between him and other defendants in order to admit those recordings into evidence. “Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.” West v. Goodyear Ti