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United States v. Whittemore

United States District Court, D. Nevada

May 10, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
F. HARVEY WHITTEMORE, Defendant

Page 1004

For F. Harvey Whittemore, Defendant: Dominic P. Gentile, LEAD ATTORNEY, Gordon & Silver, Ltd., Las Vegas, NV; Vincent Savarese, LEAD ATTORNEY, Gordon Silver, Las Vegas, NV; Justin J. Bustos, Gordon Silver, Reno, NV.

For USA, Plaintiff: Steven W. Myhre, LEAD ATTORNEY, U.S. Attorney's Office, Las Vegas, NV; Eric Olshan, Washington, DC; Sue Fahami, U.S. Attorney's Office, Reno, NV.

OPINION

LARRY R. HICKS, UNITED STATES DISTRICT JUDGE.

Page 1005

ORDER

Before the court is defendant F. Harvey Whittemore's Motion in Limine Regarding (1) the Admissibility of Evidence of Whittemore's Reasonable Interpretation of 2 U.S.C. § 441f; and (2) the Admissibility of Testimony of Whittemore's Expert Witness (#79 [1]). The government has responded (#111), and Whittemore has replied (#130).

I. Facts and Background

In 2007, defendant Whittemore allegedly promised to raise $150,000 in campaign contributions for a candidate's re-election campaign for the United States Senate. To make good on his promise, Whittemore allegedly used employees of his real estate development company, various family members, and their spouses as conduit donors to the candidate's campaign in order to bypass the individual campaign contribution limits under federal law. Whittemore then allegedly transferred the combined contributions to the candidate's campaign committee.

In keeping with federal law, the campaign committee filed a required contribution report with the Federal Election Commission (" FEC" ) on April 15, 2007. This report allegedly contained false information identifying Whittemore's employees and family members, rather than Whittemore himself, as the source of the campaign funds.

On June 6, 2012, the Grand Jury returned a four (4) count indictment against defendant Whittemore charging him with: (1) making excessive campaign contributions in violation of 2 U.S.C. § 441a(a)(1) (" Count 1" ); (2) making contributions in the name of another in violation of 2 U.S.C. § 441f (" Count 2" ); (3) false statement to a federal agency in violation of 18 U.S.C. § 1001(a)(2) (" Count 3" ); and (4) false statement to a federal agency in violation of 18 U.S.C. § 1001(a)(2) (" Count 4" ). (Indictment #1.)

Page 1006

II. Discussion

Whittemore seeks to admit evidence regarding his reasonable interpretation of 2 U.S.C. § 441f, [2] the statute undergirding Count 2. This evidence includes the testimony of linguistics professor Valerie Fridland as well as a post-2007 judicial opinion interpreting § 441f. This evidence purports to show that § 441f is reasonably interpreted to allow conduit contributions like the ones charged against Whittemore. The court finds that admission of this evidence is inappropriate under the Federal Rules of Evidence.

A. Legal Standard

A motion in limine is used to preclude prejudicial or objectionable evidence before it is presented to the jury. Stephanie Hoit Lee & David N. Finley, Federal Motions in Limine § 1:1 (2012). The decision on a motion in limine is consigned to the district court's discretion--including the decision of whether to rule before trial at all. See Hawthorne Partners v. AT& T Technologies, Inc., 831 F.Supp. 1398, 1400 (N.D.Ill. 1993) (noting that a court may wait to resolve the evidentiary issues at trial, where the evidence can be viewed in its " proper context" ). Motions in limine should not be used to resolve factual disputes or to weigh evidence, and evidence should not be excluded prior to trial unless " the evidence [is] inadmissible on all potential grounds." See, e.g., Indiana Insurance Co. v. General Electric Co., 326 F.Supp.2d 844, 846 (N.D. Ohio 2004). Even then, ...


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