Case :-cr-000-vap Document Filed 0/0/ Page of 0 Page ID #: 0 0 JOHN NEIL McNICHOLAS, ESQ. STATE BAR #0 McNicholas Law Office Palos Verdes Blvd., Redondo Beach, CA 0 (0) -00 (0) -- FAX john@mcnicholaslawoffice.com Attorney for DAVID BELL UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, vs. DAVID WILLIAM BELL, Plaintiff, Defendant. Case No. ED CR -000-VAP DEFENDANT DAVID BELL S MOTION IN LIMINE TO EXCLUDE EVIDENCE OF PRIOR CONVICTIONS UNDER FRE 0. Date: June, 0 Time: :00 a.m. Defendant, DAVID BELL, by and through his counsel, JOHN NEIL McNICHOLAS, moves in limine to exclude evidence of prior convictions pursuant to Fed. R. Evid. 0. /// This motion is made and based on the attached Memorandum of Points
Case :-cr-000-vap Document Filed 0/0/ Page of 0 Page ID #: 0 0 and Authorities, the papers and pleadings on file herein, and any oral argument that may be heard by this Honorable Court. Dated this th day of May, 0. McNICHOLAS LAW OFFICE By: /s/ John Neil McNicholas, Esq. Palos Verdes Blvd. Redondo Beach, CA 0 (0) -00 (0) -- FAX john@mcnicholaslawoffice.com Attorney for DAVID BELL ii
Case :-cr-000-vap Document Filed 0/0/ Page of 0 Page ID #: 0 0 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Defendant David Bell ( BELL ) is charged with four counts of wire fraud in violation of USC and nine counts of mail fraud in violation of USC. BELL pled not guilty to the charges. Trial is set for August, 0. II. FACTS In the wire fraud counts (counts one through four), BELL is charged with perpetrating a scheme to defraud third party payroll companies in the following manner: BELL or a co-schemer contacted payroll companies and requested payroll services to be provided to BELL s company - UST. Such payroll services included printing payroll checks or direct depositing UST s employees payroll into bank accounts. Indictment at. The payroll companies issued payroll checks or made direct deposit transfers from the payroll companies own bank accounts instead of from UST s bank account, in reliance on representations from BELL or a co-schemer that UST actually had the funds to pay its employees. Indictment at -. However, UST did not have the funds to cover its payroll in the accounts provided to the payroll companies. Id. at. After funding all or part of the payroll of BELL s company, the payroll companies or their agents could not collect from UST s bank account funds to reimburse the payroll companies for the funds paid to UST s employees. The wire fraud scheme allegedly began in September, 00. In the mail fraud counts (counts five through thirteen), BELL allegedly created or caused to be created documents to be mailed ( mailers ) described as either an Invoice
Case :-cr-000-vap Document Filed 0/0/ Page of 0 Page ID #: 0 0 or Statement issued in the name of UST. Indictment at -. The mailers described as Invoices stated that a payment of $.00 was due to UST for Telecom Maintenance/Service Call, and included the statement Thank you for your business. Id. The mailers described as Statements stated that a payment to UST of $, $0 or $ was Due or Past Due, listed an invoice number which the mailer indicated had not been paid, and included the statement, Thank you for your business. Id. This is not a statement for services rendered but for preventative maintenance. UST allegedly had no preexisting business relationship with the recipients of the mailers. Id. Some of the recipients of the mailers paid the amounts reflected on the mailers. Id. III. LEGAL ARGUMENT A. The Government fails to carry its burden to admit BELL s prior convictions for impeachment purposes. In its trial memorandum, the government argues that [u]nder Fed. R. Evid. 0(a), a defendant s prior conviction must be admitted for the purpose of impeachment, if it was sustained or the defendant was released from confinement within the past ten years, and its probative value is not outweighed by its prejudicial effect. The relevant factors for balancing probative value against prejudicial effect are: () the impeachment value of the prior crime; () the point in time of the conviction and the witness s subsequent history; () the similarity between the past crime and the charged crime; () the importance of the defendant s testimony; and () the centrality of the credibility issue. United States v. Hursh,
Case :-cr-000-vap Document Filed 0/0/ Page of 0 Page ID #:0 0 0 F.d, (th Cir. 000) (citing United States v. Browne, F.d 0, - (th Cir. )). Here, defendant s 00, 00, and 0 convictions all fall within ten years of the charged conduct in this case, and they are highly relevant to defendant s character for truthfulness because they are offenses that relate to dishonest acts or false statements. Govt. Trial Memo at :. Notwithstanding its recitation of the relevant legal standard, the government provides this Court with little by the way of analysis to support its position. US v. Browne, F.d 0, - (th Cir. ) ( The government bears the burden of showing that the evidence s probative value substantially outweighs its prejudicial effect. [emphasis added]). In 00, 00 and 0, BELL sustained the following convictions:. felony conviction for obtaining money under false pretenses (Cal. Penal Code ) on 0//00;. felony conviction for non sufficient funds (Cal. Penal Code a) on //00;. convictions for non sufficient funds (Cal. Penal Code a) and grand theft (Cal. Penal Code ) on //00 and. two felony convictions for grand theft auto (Cal. Penal Code (d)()) on //0. This is not intended to be an exhaustive list of BELL s convictions but, based on the time periods cited in the government s trial memorandum, these convictions, and the and convictions for insufficient funds, appear to be the only convictions relevant to this motion. BELL reserves the right to argue any additional prior convictions that the government intends to offer under FRE 0 upon notice from the government.
Case :-cr-000-vap Document Filed 0/0/ Page of 0 Page ID #: 0 0 Applying the four factor test articulated in United States v. Hursh, F.d, (th Cir. 000) shows that the prior convictions should not be admitted for impeachment purposes in this case because their probative value does not substantially outweigh their prejudicial effect. US v. Browne, F.d 0, - (th Cir. ). The impeachment value of the prior crimes are very low. The government represents that, to prove up its wire fraud case, it will call some or all of the ten non-count victim companies, not just the four count victims because such witnesses are probative of intent, knowledge, absence of mistake, and lack of accident. Govt. Trial Memo. at :-. Without conceding the propriety of admitting such testimony, BELL contends that such witnesses are more probative of BELL s credibility than the prior convictions that the government intends to introduce. Unlike the prior convictions, the testimony of the non count witnesses constitutes circumstantial evidence of BELL s state of mind with respect to the charges in this case. Compared to such testimony, the impeachment value of the priors is low. In addition, the government intends to call Co-Schemer #. Such testimony would be more probative to BELL s state of mind in this case than stale prior convictions sustained in unrelated cases. Finally, the government intends to call -0 witness in its case in chief, see Govt. Trial Memo. at fn, some of whom, undoubtedly, will testify to BELL s state of mind during the relevant transactions alleged in the indictment. There is no need for the government to resort to stale prior convictions to discredit BELL given the number of witnesses the government intends to call to prove up the alleged fraud in
Case :-cr-000-vap Document Filed 0/0/ Page of 0 Page ID #: 0 0 this case. Remoteness of prior convictions and the similarity between the past crime and the charged crime. BELL concedes that the 00, 00 and 0 prior convictions fall within the 0 year time frame warranting presumptive admission under FRE 0. However, the similarity between some of BELL s past crimes; namely, the insufficient funds and obtaining money under false pretenses convictions, and the charged offenses is very close. Such priors should be excluded due to their close similarity to the charged offenses. See, e.g., United States v. Bagley, F.d, (th Cir. ) ( where, as here, the prior conviction is sufficiently similar to the crime charged, there is a substantial risk that all exculpatory evidence will be overwhelmed by a jury s fixation on the human tendency to draw a conclusion which is impermissible in law: because he did it before, he must have done it again. ). In this respect, the government fails to carry its burden of showing that the prior convictions probative value substantially outweighs its prejudicial effect. US v. Browne, F.d 0, - (th Cir. ). The importance of the defendant s testimony. The government anticipates that BELL may testify in his defense. See, e.g., Govt. Trial Memo at. The government s stated intent to use BELL s prior convictions to impeach his credibility will have a chilling effect on BELL s ability to testify in his defense. The jury should be given an opportunity to hear BELL s side of the story without having to hear about BELL s stale prior convictions which have nothing to do with the current case and are more prejudicial than probative on the issue of BELL s credibility. BELL s
Case :-cr-000-vap Document Filed 0/0/ Page of 0 Page ID #: 0 0 testimony is important because it is the best evidence of his state of mind. The centrality of the credibility issue. Credibility is not central to this case. The strength of the government s case lies in the large number of fact witnesses and transactional documents that will be used to prove up the government s fraud claims against BELL. The government intends to call as many as 0 fact witnesses, including BELL s alleged co-schemer and other victims of the alleged fraud, to prove that BELL is a fraud who is not to be trusted or believed. The government need not resort to stale prior convictions for the same purpose. This case is unlike US v. Browne, F.d 0 (th Cir. ) where a prior conviction for bank robbery was admitted to impeach the defendant, Browne, because Browne had testified that he did not commit the crime and that he had an alibi. No other witness could confirm or disprove the alleged alibi. Browne s credibility was certainly central to his defense. Id. at. Here, the fraud schemes that BELL allegedly committed do not turn on one witness. The government s trial memorandum identifies scores of witnesses and documents that will be used to prove up its fraud case against BELL. Accordingly, credibility is not a central issue in this case. B. BELL s criminal convictions that are over 0 years old should be excluded. The Government contends that [e]ven where defendant s conviction or release from confinement is over ten years old, Rule 0(b)() provides that a conviction offered to impeach the witness s character for truthfulness is admissible if its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect. Fed. R. Evid. 0(b)(). The government submits that
Case :-cr-000-vap Document Filed 0/0/ Page of 0 Page ID #: 0 0 the probative value of evidence of defendant s convictions for check fraud in and, substantially outweighs their prejudicial effect because they were convictions for dishonest acts or false statements, and therefore they bear heavily on defendant s character for truthfulness. Govt. Trial Memo. at -0. However, BELL s prior convictions for non sufficient funds in and should be excluded due to their close similarity to the charged offenses. See, e.g., United States v. Bagley, F.d, (th Cir. ) ( where, as here, the prior conviction is sufficiently similar to the crime charged, there is a substantial risk that all exculpatory evidence will be overwhelmed by a jury's fixation on the human tendency to draw a conclusion which is impermissible in law: because he did it before, he must have done it again. ). The sheer temporal distance of the and convictions from the current offense conduct warrant their exclusion under FRE 0. In addition, the use of such prior convictions will unfairly prejudice BELL in the eyes of the jury. See United States v. Bradley, F.d, 0 (th Cir.) ( guilt or innocence of the accused must be established by evidence relevant to the particular offense being tried, not by showing that the defendant has engaged in other acts of wrongdoing. ). In light of the foregoing, the and convictions for non sufficient funds should be excluded because such convictions are more prejudicial than probative on the issue of BELL s credibility. US v. Browne, F.d 0, - (th Cir. ) ( The government bears the burden of showing that the evidence s probative value substantially outweighs its prejudicial effect. [emphasis added]).
Case :-cr-000-vap Document Filed 0/0/ Page 0 of 0 Page ID #: 0 0 V. CONCLUSION Wherefore, defendant, DAVID BELL, respectfully requests that this Honorable Court preclude the government from introducing evidence of BELL s prior convictions under FRE 0. DATED this th day of May, 0. Respectfully submitted, McNICHOLAS LAW OFFICE By: /s/ JOHN NEIL MCNICHOLAS, ESQ. Attorney for DAVID BELL