United States District Court, D. Delaware
Motion in Limine (D.I. 623)
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.
Robert V.A. Harra's Motion in Limine (D.I.
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. (D.I. 655 at 28:20-22). Defendant's
motion (D.I. 624) is therefore GRANTED.
David R. Gibson's Supplemental Motion to Exclude Improper
Testimony by Hickman Beckner (D.I. 625)
David R. Gibson supplements Defendants' prior motion
(D.I. 56l) 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).
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.
Defendant David R. Gibson's Motions in Limine
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).
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.
William B. North's Motion in Limine (D.I.
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
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).
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 ...