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United States v. Gibson

United States District Court, D. Delaware

February 16, 2018

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

          MEMORANDUM ORDER

         Government's Motion in Limine (D.I. 623)

         The Government moves to exclude Commercial Loan Download evidence attached to its motion as Exhibits H through J. Alternatively, the Government requests that if I admit those Exhibits, that I allow the Government to introduce Exhibit E, which contains the past due loan information Wilmington Trust submitted to the Federal Reserve in advance of the 2009 examination. (D.I. 623 at 4). At the February 12th hearing, I admitted Exhibits E, H, and I by agreement. (D.I. 655 at 19:20-21). I indicated (id. at 19:22-23), and the parties agreed (id. at 8:21-24, 9:5-8), that those Exhibits will not be admitted for the truth of the matters asserted therein. Thus, the Government's motion (D.I. 623) is DENIED as to Exhibits H and I. I also ruled that I will RESERVE JUDGMENT as to the relevance of the documents, identified at the hearing, which I understand relate to the 2008 examination with financial data from 2007. (D.I. 655 at 19:24-20:3). Further, I will RESERVE JUDGMENT as to the relevance of Exhibit J attached to the Government's motion. That Exhibit appears to relate to financial data from 2006 and 2007.

         Defendant Robert V.A. Harra's Motion in Limine (D.I. 624)

         Defendant Robert V.A. Harra moves to preclude the Government from introducing aerial and ground photographs of projects financed by Wilmington Trust. The crux of Defendant's argument is that the photographs are irrelevant and that admitting them would be unfairly prejudicial. (D.I. 624 at 2-4). At the hearing, I indicated that I do not think the photographs are relevant to the charged conduct and thus EXCLUDED them from the Government's case-in-chief.[1] (D.I. 655 at 28:20-22). Defendant's motion (D.I. 624) is therefore GRANTED.

         Defendant David R. Gibson's Supplemental Motion to Exclude Improper Testimony by Hickman Beckner (D.I. 625)

         Defendant David R. Gibson supplements Defendants' prior motion (D.I. 56l)[2] to exclude the testimony of Hickman Beckner. Defendant argues Mr. Beckner's testimony should be excluded for two principal reasons: (1) Mr. Beckner has no personal knowledge of the individual Defendants, and (2) his proffered testimony contains an impermissible legal opinion. (See D.I. 625 at 2-4).

         As to the first issue, as I explained at the hearing, I do not think Mr. Beckner's testimony is inadmissible because he does not know the individual Defendants. (D.I. 655 at 29:15-20). As I understand it, the purpose of Mr. Beckner's testimony is to explain how the SHAW program works. As to the second issue, the Government proffered at the hearing that it will not elicit testimony from Mr. Beckner in regard to the SHAW program's being designed to comply with federal law. (See Id. at 30:24-31:10). I explained that based on the Government's representations regarding the scope of Mr. Beckner's testimony, I think the testimony is relevant. (Id. at 34:4-6). Further, I indicated I do not think there is any risk of unfair prejudice to Defendants. (Id. at 34:6-7). Defendant's motion (D.I. 625) is therefore DENIED. Defendants' first motion (D.I. 561) is DISMISSED as moot.[3]

Defendant David R. Gibson's Motions in Limine (D.I. 626)

         First, Defendant moves to preclude testimony about Wilmington Trust's Allowance for Loan and Lease Losses ("ALLL"). (D.I. 626 at 2). Second, he moves to preclude testimony about the Bank's risk ratings. (Id. at 6). The core of Defendant's argument is that ALLL and risk ratings are irrelevant-the Government has failed to show that "the charged conduct... is causally tied" to the Bank's ALLL or its risk-rating determinations. (See Id. at 2, 6). Further, Defendant asserts that testimony related to ALLL and risk-ratings would be unfairly prejudicial and cause jury confusion. (Id. at 3, 7).

         For the reasons stated at the hearing (D.I. 655 at 57:3-13), Defendant's motions (D.I. 626) are DENIED. In my opinion, the probative value of the evidence related to ALLL and risk ratings is not substantially outweighed by the risk of confusion or unfair prejudice to Defendants. See Fed. R. Evid. 403.

         Defendant William B. North's Motion in Limine (D.I. 627)

         Defendant William B. North moves to preclude the Government from presenting evidence related to "supplemental financing." Defendant argues the Government cannot show a connection between the Bank's use of supplemental financing and the so-called "Waiver Practice." (D.I. 627 at 1). In particular, Defendant criticizes the Government's summary witness, Larry Hart, for not distinguishing between the different types of supplemental financing received by various loans. (Id. at 2). Defendant points specifically to the "September 2009 Supplemental Financing" schedule from Mr. Hart's analysis. (Id.).

         At the hearing, the Government represented that Mr. Hart did not in fact rely on the Supplemental Financing schedule identified by Defendant in his motion. (D.I. 655 at 68:17-21). The Government has further represented that it intends to call fact witnesses from the Bank to explain various Bank spreadsheets that include both initial interest reserves and supplemental reserves. (D.I. 646 at 7; see also D.I. 655 at 70:3-6).

         Based on the Government's representations, I think the Government has evidence, which may or may not be accepted by the jury, about the interrelatedness of the Bank's use of supplemental financing and the Waiver Practice. As I explained in my memorandum order of October 5, 2017, 1 think evidence related to supplemental financing is relevant, and the Government may introduce it subject to two limitations: "(1) the evidence must relate to conduct during the time period of the alleged conspiracy or the months leading up to it, and (2) the evidence must relate to the use of supplemental financing for the 'waived' loans that are at issue in this case." (D.I. 560 at 8). The Government has ...


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