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United States v. Zogheib

United States District Court, D. Nevada

May 17, 2018




         The 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. 109, 110.

         I. BACKGROUND

         This 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.

         The 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.

         The 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.


         Relevant 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.

         A party 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).


         The 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 indictment.

         A. Business Records

         The 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. 902(11).

         The 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 ...

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