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United States v. Wilmington Trust Corp.

United States District Court, D. Delaware

October 6, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
WILMINGTON TRUST CORPORATION, DAVID R. GIBSON, ROBER V. A. HARRA, WILLIAM B. NORTH, and KEVYN RAKOWSKI, Defendants.

          MEMORANDUM ORDER

         Government's Motion in Limine #1 (D.I. 425)

         The Government moves to preclude any evidence or argument regarding third party charging decisions. For the reasons stated at the pretrial conference (D.I. 545 at 62:10-63:3), that motion is DENIED without prejudice.

         Government's Motion in Limine #2 (D.I. 426)

         The Government moves to recall case agents. At the pretrial conference, I indicated that based on the Government's representations, I will GRANT that motion, but Defendant may raise its objection at an appropriate time during trial. (Id. at 67:2-5).

         Government's Motion in Limine #3 (D.I. 427)

         The Government moves to introduce at trial the proffer statements of Defendants Kevyn Rakowski and William B. North. As I indicated at the pretrial conference, I understand the proffer agreements to say that only the presentation of contradictory evidence, not argument, triggers the Government's ability under those agreements to introduce inconsistent statements made by Ms. Rakowski or Mr. North. (See Id. at 78:21-25). Further, I believe Wilmington Trust has a confrontation clause right, but I will defer ruling on that issue until it arises during trial. (Id. at 78:3-6). The Government's Motion in Limine #3 is therefore DISMISSED as premature.

         Government's Motion in Limine #4 (D.I. 428)

         The Government moves to admit guilty pleas, plea agreements, and other grants of immunity. That motion is GRANTED as to guilty pleas and plea agreements, and for the reasons stated in my ruling on Defendant Wilmington Trust Corporation's Motion in Limine #3 (D.I. 432), it is DENIED as to grants of immunity.[1]

         Government's Motion in Limine #5 (D.I. 431)

         The Government moves to preclude arguments designed to elicit jury nullification. Specifically, it seeks to preclude any reference to: (1) prosecutorial motives, (2) potential punishment, (3) current health problems of Defendants, their family members, or counsel, and (4) other biographical details of Defendants. That motion is GRANTED as to (2) and (3), DENIED as to (4), and DISMISSED as premature as to (1).

         As I indicated at the pretrial conference (D.I. 545 at 91:8-11), I will exclude argument related to current health problems of Defendants, their family members, or their counsel. I also explained (id. at 91:16-22) that I will allow general biographical details of Defendants, including whether they have children, whether they are married, and where they were employed, if at all, before Wilmington Trust Corporation. As for other biographical details that Defendants wish to provide in the event they testify, I requested that the Government first be notified of those details. (Id. at 92:2-6). Further, I stated that Defendants may not argue to the jury potential punishment, though I acknowledged that the jury may get some idea of potential punishment from the cross-examinations of Mr. Bailey and Mr. Terranova. (Id. at 92:7-15). Finally, I indicated that I would reserve judgment on prosecutorial motives because it is unclear what exactly is meant by that. (Id. at 92:16-28).

         Government's Motion in Limine #6 (D.I. 434)

         The Government moves to admit evidence of Wilmington Trust's payment of witnesses' legal fees. As I understand it, the Government does not intend to suggest that Wilmington Trust's payment of witnesses' legal fees is any way improper (see Id. at 97:12-13), rather, the Government seeks to introduce this evidence to show witness bias. (D.I. 434 at 2-3). As I indicated at the pretrial conference (D.I. 545 at 99:16-20), I will RESERVE JUDGMENT on this motion until I have a proposed limiting instruction and I have provided to me, with appropriate citation, legal authority showing that this is a proper practice under Delaware law.

         Government's Motion in Limine #7 (D.I. 436)

         The Government moves to admit evidence of the common interest agreement between Defendants and witnesses. For the reasons stated at the pretrial conference (Id. at 105:13-106:6), that motion is DENIED.

         Government's Motion in Limine #8 (D.I. 438)

         The Government moves to declare nine former and current bank employees as identified with an adverse party and hostile witnesses pre-trial. For the reasons stated at the pretrial conference (Id. at 107:8-14, 16-18), that motion is DENIED with leave to renew at trial.

         Government's Motion in Limine #9 (D.I. 439)

         The Government moves to designate during trial former and current bank employees as hostile witnesses. At the pretrial conference, I DISMISSED that motion as premature. (Id. at 109:11-12).

         Government's Motion in Limine #10 (D.I. 441)

         The Government moves to preclude lay witnesses from presenting opinions consisting of legal conclusions. As I indicated at the pretrial conference (see Id. at 112:15-22), that motion is GRANTED as to lay witnesses' use of the word "conspiracy." I stated that I will rule on witnesses' use of other terms or phrases on an objection-by-objection basis at trial. (Id.).

         Government's Motion in Limine #11 (D.I. 444)

         The Government moves to admit prior grand jury testimony pursuant to Federal Rule of Evidence 801(d)(1)(A). As I indicated at the pretrial conference (Id. at 114:7-9), that motion is DISMISSED as premature.

         Government's Motion in Limine #12 (D.I. 447)

         The Government moves to preclude Defendants from misusing memoranda of witness interviews. As I indicated at the pretrial conference (id. at 115:13-14), that motion is DISMISSED as premature.

         Government's Motion in Limine #13 (D.I. 451)

         The Government moves to preclude Defendants from presenting any evidence or argument that Defendants reasonably relied on the advice of auditors or accountants. As I indicated at the pretrial conference, that motion is DENIED. (Id. at 117:13-18).

         Government's Motion in Limine #14 (D.I. 482)

         The Government moves to exclude evidence of Joseph Terranova's extramarital affairs, Mr. Terranova's DUI arrest in 2013, and Brian Bailey's use of a derogatory remark. In its response, Defendant stated that it does not intend to offer evidence of Mr. Bailey's derogatory remark. (D.I. 528 at 24). For the reasons I stated at the pretrial conference (D.I. 545 at 119:11-21), this motion is DENIED as to the evidence of Mr. Terranova's DUI arrest in 2013. Further, I explained that I would RESERVE DECISION on the admissibility of evidence related to Mr. Terranova's alleged extramarital affairs until the issue is raised at trial. (Id. at 124:14-125:4).

         Government's Motion in Limine #15 (D.I. 453)

         The Government moves to preclude improper character evidence. As I stated at the pretrial conference (id. at 125:10-14), that motion is DISMISSED as premature.

         Government's Motion in Limine #16 (D.I. 456)

         The Government moves to exclude miscellaneous questioning regarding Mr. Librock's prior employment. As I stated at the pretrial conference (id. at 125:15-18), that motion is GRANTED with no objection by Defendant.

         Defendant Wilmington Trust Corporation's Motion in Limine #1 (D.I. 429)

         Defendant moves to exclude evidence of drops in Wilmington Trust stock price absent reliable expert testimony. For the reasons stated at the pretrial ...


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