United States District Court, E.D. California
GARLAND E. BURRRELL JR. SENIOR UNITED STATES DISTRICT JUDGE
are in limine motions Defendant John Michael DiChiara filed
on May 16, 2017. Def. Mot., ECF No. 138. Defendant George B.
Benson filed a joinder in the motions. Joinder, ECF No. 131.
The United States filed a reply opposing the motions.
Gov't Reply, ECF No. 155.
motions are summarily denied, except Defendants' motion
made under Federal Rule of Evidence 404(b), since they are
utterly devoid of the concreteness necessary to justify
consideration and analysis. Defendants argue in their Rule
404(b) motion that the Government has not sustained its
burden applicable to having the following noticed prior act
evidence admitted during trial: evidence that DiChiara
engaged in a “similar mortgage elimination scheme . . .
predat[ing] his involvement in the charged scheme.”
Def. Mot. 2:21-24.
first argue that “the Rule 404[(b)(2)(A)] notice
provided by the government[ should be considered ineffective,
because it] does not meet the long-standing requirements of
[United States v. Mehrmanesh, 689 F.2d 822 (9th Cir.
1982), ] and merely provides the defense with a boilerplate
statement of the Rule 404 exceptions.” Def. Mot.
5:18-20. Rule 404(b)(2)(A) prescribes the following notice
requirement: “On the request by a defendant in a
criminal case, the prosecutor must . . . provide reasonable
notice of the general nature of [the proffered] evidence [of
a crime, wrong, or other act] that the prosecutor intends to
offer at trial.” The subject notice is quoted in the
motion as follows:
The government intends to introduce evidence that DiChiara
was engaged in a similar mortgage elimination scheme in the
Sacramento area that predated his involvement in the charged
scheme. DiChiara used his church, Shon-te-East, to recruit
distressed homeowners with a promise that their mortgage
loans would be cleared from title and their mortgage debt
would be eliminated. This earlier scheme ended in
approximately 2009. Evidence of this earlier scheme will
include, without limitation, the testimony of homeowners
involved in the earlier scheme, testimony and documentary
evidence from county recorders, testimony and documentary
evidence from financial institutions, and statements made by
Def. Mot. 5:10-16 (quoting Gov't Notice 1:22-2:3, ECF No.
reliance on Mehrmanesh is unavailing. Mehrmanesh does not
discuss this notice issue. Mehrmanesh discusses “[t]he
Government['s] . . . burden of showing how the proffered
[prior act] evidence is relevant to one or more [Rule 404(b)]
issues in the case . . . .” Mehrmanesh, 689 F.2d at
830. Further, the Government's reply more specifically
proffers the nature of the prior act evidence it intends to
offer at trial. Gov't Reply, ECF No. 155. Defendants have
not shown that the prior act evidence notice information they
received fails to satisfy the “reasonable notice”
principle in Rule 404(b)(2)(A). Therefore, this portion of
the motion is denied.
[T]he government does not establish how this [Rule 404(b)
prior act] evidence will help to establish any material facts
in [its] case against DiChiara[, and contends] this evidence
will likely be used by the government for the improper
purpose of proving that DiChiara has a criminal propensity
[contrary to what is proscribed in Rule 404(b)(1)].
Def. Mot. 5:20-23. Rule 404(b)(1) prescribes: “Evidence
of a crime, wrong, or other act is not admissible to prove a
person's character in order to show that on a particular
occasion the person acted in accordance with the
character.” Defendants further argue the Rule 404(b)
prior act evidence should be excluded under Rule 403 because
if the jury sees or hears evidence that DiChiara
“participat[ed] in and [had] knowledge of uncharged
criminal acts[, then that] will cause the jury to be unfairly
prejudiced against [Defendants].” Def. Mot. 6:24-25.
Government counters, inter alia, that the Rule 404(b) prior
act evidence is admissible to rebut the
anticipate[d] . . . defense that [DiChiara] did not have . .
. the intent to defraud. DiChiara filed a notice under Fed.
R. Crim. P. 12.2. Evidence that DiChiara operated a similar
fraud scheme using the Shon-te-East church prior to joining
the conspiracy in this case is probative evidence that he was
able to form the required mens rea.
Gov't Reply 3:11-15 (citations omitted). The Government
In its case-in-chief, the government present [sic] evidence
of the statements DiChiara made during his May 23, 2011
interview with law enforcement. The government may seek to
present a small number of documents from the first
Shon-te-East scheme, as well as one or two homeowner
witnesses who were recruited into the first Shon-te-East
scheme. The government intends to call only homeowner
witnesses that actually spoke with DiChiara. The government
estimates that the total length of its ...