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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 is defendant F. Harvey Whittemore's ("Whittemore") motion to exclude or "other acts" evidence, or in the alternative, for a separate trial of Count 4 of the Indictment. Doc. #120.*fn1 The United States has filed an opposition. Doc. #136.

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 U.S.C. § 441a(a)(1) ("Count 1"); (2) making contributions in the name of another in violation of 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 present motion to exclude or limit "other acts" evidence, or in the alternative, for a separate trial of Count 4 of the Indictment. Doc. #120.

Discussion

In his motion, Whittemore seeks an order from the court either (1) excluding "other acts" evidence, or (2) bifurcating this action and having a separate trial on Count 4. See Doc. #120. The court shall address both arguments below.

A. Motion to Exclude

The United States has notified Whittemore and the court of its intention to introduce "other evidence pursuant to Federal Rule of Evidence 404(b).*fn2 See Doc. #87. In response, Whittemore filed the present motion arguing that the "other acts" evidence identified by the United States should be excluded because it is unfairly prejudicial under Federal Rule of Evidence 403.

Doc. #120. Rule 403 provides in pertinent part that "[t]he court may exclude relevant evidence if its probative value is substantially outweighed by . . . unfair prejudice." FED. R. EVID. 403.

Whittemore contends that the "other acts" evidence identified by the government is highly prejudicial to his defense because it would allow the jury to infer his guilt simply based on similar acts and not the acts charged in the indictment.

In opposition, the United States argues that the "other acts" evidence is highly probative of Whittemore's intent and makes it more probable than not that he asked the conduits to make political contributions he or she would not otherwise have made without the defendant providing money to cover the contributions. See FED. R. EVID. 401 (stating the evidence is relevant if it has

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."). Further, the mere fact that these contributions spanned a number of years makes it more probable than not that Whittemore's conduct was not just a one-time mistake, ...


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