United States District Court, D. Nevada
R. HICKS UNITED STATES DISTRICT JUDGE.
United States of America brings two motions in limine before
the court. It first moves in limine to admit certified
business records under Federal Rule of Evidence 902(11). ECF
No. 84. It then moves in limine to admit evidence of
additional victims under the inextricably intertwined
doctrine or under Federal Rule of Evidence 404(b). ECF No.
86. Defendant Jihad Anthony Zogheib opposed both motions. ECF
Nos. 107, 108. The United States then filed replies. ECF Nos.
matter arises from an alleged fraudulent scheme created by
Zogheib for the purpose of obtaining money and property from
multiple persons through false pretenses, representations,
and promises. ECF Nos. 1, 23. Through the scheme, Zogheib
allegedly defrauded multiple victims into lending him funds
for purported business investments. ECF No. 23. But Zogheib
did not use the funds for business purposes. Id. He
instead used the funds for personal matters. Id. He
then defrauded additional victims in order to repay the
previously defrauded victims. Id.
superseding indictment charges Zogheib with several counts of
wire fraud in violation of 18 U.S.C. § 1343 and of money
laundering in violation of 18 U.S.C § 1957. ECF No. 23.
To do so, it includes “[a]llegations pertaining to some
of the people from whom Zogheib fraudulently obtained money
as part of the scheme, ” including K.L., K.W., and P.N.
Id. The superseding indictment does not name any
other specific victims. See Id. It does however
reference Zogheib's alleged use of local casinos to
advance the fraudulent scheme. Id.
United States now moves in limine to admit certified business
records. ECF No. 84. It produced the business records it
intends to use at trial to Zogheib in 2016. Id. at
5; see also ECF No. 107 (failing to dispute the
production of the documents). The United States also moves in
limine to admit evidence of victims not described in the
superseding indictment. ECF No. 86. As part of such evidence,
it seeks to admit Zogheib's state-court conviction for
submitting bad checks to local casinos in order to fund his
gambling addiction. Id. His bad-check scheme
occurred during and after the alleged period for the charged
scheme herein. Id.
evidence is generally admissible at trial. 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). A court must resolve “any preliminary
question about whether … evidence is
admissible.” Fed.R.Evid. 104.
may bring a motion in limine 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). Alternatively, a party may
bring a motion in limine to confirm the admissibility of
evidence in advance of trial. See United States v.
Williams, 939 F.2d 721, 723 (9th Cir. 1991) (affirming a
ruling in limine that certain evidence could be admitted for
specific purposes). The decision on a motion in limine is
entrusted to the district court's discretion, including
the decision of whether to rule on the motion prior to trial.
See Hawthorne Partners v. AT&T Techs., 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., Ind. Ins. Co. v. Gen. Elec. Co., 326
F.Supp.2d 844, 846 (N.D. Ohio 2004). Even then, rulings on
pretrial motions in limine are not binding on the court, and
the court may amend, renew, or reconsider such rulings in
response to developments at trial. See Luce v. United
States, 469 U.S. 38, 41 (1984).
court first decides the motion regarding the admissibility of
the business records. It then decides the motion regarding
evidence related to victims not specified in the superseding
United States first moves in limine to admit certified
business records under Rule 803(6) and Rule 902(11). ECF No.
84. Rule 902 outlines items of evidence that are
self-authenticating, meaning the items of evidence
“require no extrinsic evidence of authenticity in order
to be admitted.” Fed.R.Evid. 902. The list includes
“[t[he original or a copy of a domestic record that
meets the requirements of Rule 803(6)(A)-(C), as shown by a
certification of the custodian or another qualified person
that complies with a federal statute or a rule prescribed by
the Supreme Court.” Subsections A to C of Rule 803
require that the record must have been: (1) made at or near
the time of the event by someone with knowledge of the event,
(2) kept in the course of a business' regularly conducted
activity, and (3) made as a regular practice. Fed.R.Evid.
803(6)(A)-(C). Further, the party offering the evidence
“must give an adverse party reasonable written notice
of the intent to offer the record-and must make the record
and certification available for inspection-so that the party
has a fair opportunity to challenge them.” Fed.R.Evid.
United States argues that it has satisfied the requirements
for the business records to be self-authenticating under Rule
902 because it attached certifications from the respective
custodians of records for each document. ECF No. 84. It moves
for an order declaring that the certifications satisfy Rule
902(11), thereby relieving the United States from needing to
subpoena twenty-three custodians of records to prove
authenticity of the records at trial. ECF Nos. 84, 86.
Zogheib argues that the motion is premature and requests the
court to delay the decision until it can be ...