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United States of America v. F. Harvey Whittemore

May 10, 2013

UNITED STATES OF AMERICA, PLAINTIFF,
v.
F. HARVEY WHITTEMORE DEFENDANT.



The opinion of the court was delivered by: Larry R. Hicks United States District Judge

ORDER

Before the court are defendant F. Harvey Whittemore's ("Whittemore") motion in limine regarding the subjective state of mind of the third-party campaign contributors (Doc. #80*fn1 ); motion in limine re charitable donations and/or disgorgement of campaign contributions (Doc. #82); motion in limine to permit evidence of spoliation of exculpatory evidence (Doc. #84); motion in limine to admit evidence of the government's prior investigation (Doc. #93); and motion in limine to permit evidence of witness intimidation (Doc. #97). The United States filed oppositions to the motions to which Whittemore replied.

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"). Doc. #1. Following his indictment, Whittemore filed the various motions in limine. Doc. ##80, 82, 84, 93, 97.

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, , 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, rulings on these motions are not binding on the trial judge, and they may be changed in response to developments at trial. See Luce v. United States, 469 U.S. 38, 41 (1984).

Generally, all relevant evidence is admissible. FED. R. EVID. 402. Evidence is relevant if it has "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 determination of whether evidence is relevant to an action or issue is expansive and inclusive. See Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384-87 (2008). However, the court may exclude otherwise relevant evidence "if its probative value is substantially outweighed the danger of unfair prejudice. FED. R. EVID. 403. Evidence may be excluded when there is a significant danger that the jury might base its decision on emotion or when non-party events would distract reasonable jurors from the real issues in a case. See Tennison v. Circus Circus Enterprises, , 244 F.3d 684, 690 (9th Cir. 2001); U.S. v. Layton, 767 F.2d 549, 556 (9th Cir. 1985).

Motion in Limine Regarding the Subjective State of Mind of the Third-party Campaign Contributors (Doc. #80)

In this motion, Whittemore seeks to exclude evidence of the state of mind of his alleged conduit donors. In particular, Whittemore asks the court to exclude these donors' testimony that felt pressured or in some way compelled by Whittemore to donate to the campaign as irrelevant and unfairly prejudicial.

Specifically, Whittemore argues that the donors' "subjective feelings" are irrelevant because "have no factual support regarding actual conduct by [Whittemore] that may have any bearing on the case." Doc. #80, p. 6:12-13. But, as the government points out, Whittemore's intent behind the alleged transfers of money to the conduit donors is directly at issue under Count 2, making campaign contributions in the name of another in violation of 2 U.S.C. § 441f. Therefore, testimony that the donors felt pressured or compelled to donate after receiving money from Whittemore is relevant to the issue of Whittemore's intent.

Whittemore further argues that these subjective impressions are irrelevant because these impressions are not based upon a proper foundation. However, a witness's testimony as to his or her own feelings-discomfort, for instance-does not require the witness to lay a foundation justifying these feelings. By definition, testimony about such feelings is well-founded because it is based on "personal knowledge." Fed. R. Evid. 602. And to the extent such testimony expresses an opinion about Whittemore's intent, this testimony is admissible so long as it is (1) rationally based on the witness' perceptions, (2) helpful to the finder of fact, and (3) not based on scientific, technical or other specialized knowledge. Fed. R. Evid. 701. At this stage, the court cannot conclude that all such testimony by all the alleged conduit donors is not "rationally based on the [donor's] perceptions." See United States v. Yeung, 468 F. App'x 692, 693 (9th Cir. 2012) (admitting "a witness's lay opinion regarding his understanding of statements made during a conversation with [the defendant] ...


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