UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

UNITED STATES OF AMERICA, 

 Plaintiff, 

Case No. 15-cr-20382

D-1 PAUL NICOLETTI, HON. VICTORIA A. ROBERTS

 Defendant. 

_______________________________________________________________

Craig A. Weier (P33261) John K. Neal James C. Howarth

Assistant U.S. Attorney Assistant U.S. Attorney Attorney for Defendant

211 W. Fort Street, Ste. 2001 211 W. Fort Street, Ste. 2001 615 Griswold, Suite 820

Detroit, Michigan 48226 Detroit, Michigan 48226 Detroit, Michigan 48226

(313) 226-9678 (313) 226-9644 (313) 963-1455

craig.weier@usdoj.gov jneal2@usdoj.gov james-howarth@att.net

_______________________________________________________________

GOVERNMENT’S RESPONSE AND SUPPORTING BRIEF 

IN OPPOSITION TO DEFENDANT’S MOTION IN LIMINE 

TO PREVENT THE USE OF GOVERNMENT WIRE TAPS OF 

TELEPHONE CONVERSATIONS OF DEFENDANT PAUL NICOLETTI

Case 2:15-cr-20382-VAR-MKM ECF No. 119 filed 04/19/19 PageID.1195 Page 1 of 21
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TABLE OF CONTENTS

 Page

Index of Authorities................................................................. iii

Statement of Issues.................................................................. iv

Statement of Controlling Authority.............................................. v

Response............................................................................... 1

Brief in Opposition to Motion in Limine.......................................... 2

Relevant Facts .................................................................................... 3

Argument........................................................................................... 5

Conclusion/Relief Sought......................................................... 15

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iii

TABLE OF AUTHORITIES

 

FEDERAL CASES

Page

United States v. White, 401 US 745, 751-53 (1971) ................................. 6

United States v. Schrock, 855 F.2d 327, 335 (6th Cir. 1988) ....................... 7

United States v. Mendez-Ortiz, 810 F.2d 76, 79 (6th Cir. 1986)................... 7

United States v. Wesley, 417 F.3d 612, 622 (6th Cir. 2005) ........................ 8

United States v Turner, 718 F.3d 226, 232 (3rd Cir. 2013)....................... 11

United States v. Mallory, 902 F.3d 584, 595 (6th Cir. 2018)..................... 11

United States v. Robinson, 707 F.2d 872, 876 (6th Cir. 1983 .................... 12

United States v. Costner, 684 F.2d 370, 373 (6th Cir.1982) ..................... 13

United States v. Vallejos, 742 F.3d 902, 905 (9th Cir. 2014) ..................... 13

United States v. Price, 516 F.3d 597, 604 (7th Cir. 2008) ......................... 14

FEDERAL RULES AND STATUTES

18 U.S.C. § 2511(1)(b)......................................................................... 5

18 U.S.C. § 2511(1)(c) and (d) ............................................................. 5

F.R.E. 403.......................................................................................... 7

F.R. E. 901(a)................................................................................... 11

F.R.E. 901(b)(1)................................................................................ 11

F.R.E. 106........................................................................................ 13

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STATEMENT OF ISSUES

1. Does federal law prohibit one-party consensual recording of telephone 

conversations, despite the fact that 18 U.S.C. 2511(2)(c) expressly 

permits such recording?

2. Should consensually recorded tapes of the defendant’s statements be 

excluded under Federal Rule of Evidence 403, when the defendant has 

identified no unfair prejudice that would result from the tapes’ 

admission, and where the defendant’s statements are highly probative 

of key disputed issues in the case? 

3. Should consensually recorded statements of the defendant be excluded 

for lack of authentication pursuant to Federal Rule of Evidence 901, 

when both the creator of the tapes and the agent who supervised the 

recording are available to testify, and the tapes are audible?

4. Does Rule 106 of the Federal Rules of Evidence require playing 13 

hours of consensually recorded conversations instead of the 

govenrment’s selected excerpts, when defendant has identified no 

misleading impressions that would be created by playing the 

government’s excerpts, and the balance of the tapes contains 

numerous irrelevancies and inadmissible hearsay?

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STATEMENT OF CONTROLLING AUTHORITY

The government relies on the following controlling authority:

United States v. White, 401 US 745, 751-53 (1971)

United States v. Schrock, 855 F.2d 327, 335 (6th Cir. 1988)

United States v. Mallory, 902 F.3d 584, 595 (6th Cir. 2018)

United States v. Costner, 684 F.2d 370, 373 (6th Cir.1982)

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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

UNITED STATES OF AMERICA, 

 Plaintiff, 

Case No. 15-cr-20382

D-1 PAUL NICOLETTI, HON. VICTORIA A. ROBERTS

 Defendant. 

_________________________________/

GOVERNMENT’S RESPONSE TO DEFENDANT’S MOTION IN 

LIMINE TO PREVENT THE USE OF GOVERNMENT WIRE TAPS OF

TELEPHONE CONVERSATIONS OF DEFENDANT PAUL NICOLETTI

The United States of America, for the reasons set forth in the accompanying 

brief, respectfully requests that the Court deny the defendant’s Motion in 

Limine.

Respectfully submitted,

MATTHEW SCHNEIDER

UNITED STATES ATTORNEY

s/John K. Neal

John K. Neal

Assistant U.S. Attorney

s/Craig A. Weier

Craig A. Weier 

Assistant U.S. Attorney

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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

UNITED STATES OF AMERICA, 

 Plaintiff, 

Case No. 15-cr-20382

D-1 PAUL NICOLETTI, HON. VICTORIA A. ROBERTS

 Defendant. 

_________________________________/

GOVERNMENT’S BRIEF IN OPPOSITON TO DEFENDANT’S MOTION 

IN LIMINE TO PREVENT THE USE OF GOVERNMENT WIRE TAPS OF

TELEPHONE CONVERSATIONS OF DEFENDANT PAUL NICOLETTI

The United States of America, by and through its attorneys, respectfully 

opposes defendant Paul Nicoletti’s Motion in Limine To Prevent the Use of 

Government Wire Taps of Telephone Conversations of Defendant Paul 

Nicoletti. Nicoletti’s motion argues that: (1) recorded telephone conversations 

between Nicoletti and a cooperating witness were illegally obtained; (2) that 

Federal Rule of Evidence (FRE) 403 requires the conversations be excluded, as 

they are more prejudicial than probative; (3) that the telephone conversations 

cannot be properly authenticated, and (4) that FRE 106 (the “rule of 

completeness”) requires that the entire 13 hours of recorded conversations be 

played, as opposed the government’s selected excerpts. 

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Defendant’s motion is meritless. The recorded conversations were not 

“wire taps” but were rather consensually recorded calls. The government’s use 

of such recordings is perfectly legal, as plain statutory text and Supreme Court 

authority make clear. Defendant has identified no “unfair prejudice” that 

would result from playing the recorded calls, and they are highly probative of 

key issues in the case. The government intends to provide a more than 

adequate foundation establishing the authenticity of the tapes, as both the 

cooperating witness who made the tapes and the FBI agent overseeing their 

creation will be testifying at trial. And finally, the “rule of completeness” does 

not require playing hours of tape beyond the government’s proposed excerpts, 

especially when the defendant has identified no specific concerns with the 

completeness of the government’s submissions, and when the remainder of the 

tapes are filled with material that is otherwise inadmissible. Defendant’s 

motion should be denied in its entirety.

RELEVANT FACTS

 No government wiretaps were conducted during the investigation of this 

case. Rather, at the inception of the investigation, a cooperating target and 

friend of Nicoletti’s agreed to record telephone conversations between himself 

and Nicoletti at the request of the F.B.I. in order to advance the investigation. 

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From Februray 3, 2006 to February 22, 2006 approximately 62 conversations 

between them were tape-recorded, and the tapes turned over to the case agent. 

In total, there are approximately 13 hours of recorded conversations. Copies 

of all of these conversations, along with their written transcriptions, were 

provided to the defense on August 11, 2016. On Januray 25, 2019 the 

government advised Nicoletti by email, with great particularity, of the specific 

excerpts of the tapes that it might offer at trial. The excerpts concerned various 

topics, including (1) Nicoletti’s expectation of indictment and conviction; (2) 

Nicoletti’s destruction of computer files pertaining to the loans; (3) Nicoletti’s 

receipt of a grand jury subpoena and shredding of documents in response; (4) 

Nicoletti’s consideration of creating evidence (bogus “seller’s concessions”) to 

exculpate himself; and (5) Nicoletti’s admission that the borrowers did not 

bring down payments to closing as he represented to the lender.

At trial, the government intends to use the cooperating witness himself 

to lay the proper foundation for the admission of the audio excerpts. Prior to 

trial, he will have listened to not only the excerpts, but all of the recorded 

conversations to insure that they are genuine. 

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ARGUMENT

1. The Recorded Conversations Were Legally Obtained.

Nicoletti’s first argument to keep the jury from hearing these 

conversations is that they were illegally obtained because only one party to the 

conversations consented to their recording. (Doc.118: Motion at 2-3). He 

argues that one-party consensual monitoring is “forbidden” by federal law, 

citing 18 U.S.C. § 2511(1)(b), and the Court should therefore bar them from 

evidence. What he fails to tell the Court, however, is that §2511(1)(b) starts 

with the phrase “[e]xcept as otherwise specifically provided in this chapter” 

and that the same statute specifically provides for the exception presented by 

the facts of this case:

(c) it shall not be unlawful under this chapter for 

a person acting under the color of law to intercept a 

wire, oral, or electroinc communication, where such 

person is a party to the communication or one of the 

parties to the communication has given prior consent 

to such interception;

(d) it shall not be unlawful under this chapter for 

a person not acting under the color of law to intercept 

a wire, oral, or electroinc communication, where such 

person is a party to the communication or one of the 

parties to the communication has given prior consent 

to such interception unless such communication is 

intercepted for the purpose of committing any criminal

or tortious act in violation of the Constitution or laws 

of the United States or of any State.

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18 U.S.C. § 2511(1)(c) and (d). And if these provisions were not clear 

enough, the United States Supreme Court long ago upheld the legality of 

consensual monitoring in the context of a criminal investigation. United States 

v. White, 401 US 745, 751-53 (1971)(testimony of government agents who 

monitored conversation by way of radio transmission was admissible because 

the informant consented to wear the transmitter and was a party to the 

conversation with the defendant). The proffered recordings were legally 

obtained. Defendant’s argument to the contrary borders on the frivolous and 

should be rejected by this court. 

2. Rule 403 Is No Bar to Admission of the Proposed 

Tapes, as Nicoletti Articulates No Unfair Prejudice 

that Would Result From Admission, and the Tapes are 

Probative of Key Issues in the Case 

Nicoletti argues that the recorded conversations should be excluded 

under FRE 403 because their probative value is “substantially outweighed” by 

the danger of unfair prejudice. Nicoletti does not specify the unfair prejudice 

that will result from the admission of these conversations; rather, he argues 

that they will be interpreted by the jury in a manner that suggests guilt, when 

in fact, they reflect nothing more than innocuous banter among friends.

Nicoletti’s argument fails. The “danger” that the jury will interpret the 

tapes differently from the way Nicoletti believes they should be interpreted is 

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not “unfair prejudice” under the framework of Rule 403. Moreover, the tapes 

are highly probative of a number of the core issues in the case. Given these 

facts, Rule 403 should not be used to exclude these tapes from evidence in the 

government’s case-in-chief, and defendant’s argument on this point is without 

merit. 

Pursuant to Rule 403, a district court may exclude relevant evidence “if 

its probative value is substantially outweighed by the danger of unfair 

prejudice, confusion of the issues, or misleading the jury, or by considerations 

of undue delay, waste of time, or needless presentation of cumulative 

evidence.” F.R.E. 403. “Courts have routinely rejected the claim that a party 

was unfairly prejudiced under Rule 403 because the challenged evidence was 

contrary to his view of the facts.” United States v. Schrock, 855 F.2d 327, 335 (6th

Cir. 1988) (collecting cases). The Schrock court went on to note that “Unfair 

prejudice, as used in Rule 403, does not mean the damage to defendant’s case 

that results from the legitimate probative force of the evidence; rather it refers 

to evidence which tends to suggest decision on an improper basis.” Id, citing 

United States v. Mendez-Ortiz, 810 F.2d 76, 79 (6th Cir. 1986). 

The only “unfair prejudice” Nicoletti identifies that is associated with 

the tapes is the danger that the jury will interpret conversations he describes as

“fairly obvious banter” or “gallows humor” as admissions of guilt. Doc. 118; 

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Def’s Motion at 4-5. Nicoletti is certainly free to argue his position that the 

tapes are nothing but a series of dark jokes to the jury, but that is a question of 

the weight the jury should give the tapes, not a question of their underlying 

admissibility. Nicoletti does not argue that the tapes will lead the jury to decide 

key issues on extraneous, improper bases, but rather that the jury may construe 

the tapes differently from the way he thinks they ought to be construed. This is 

precisely the sort of claim that the Sixth Circuit and other courts have rejected; 

as the court noted in Schrock, unfair prejudice does not result from the 

admission of evidence “contrary to [defendant’s] view of the facts.” Schrock, 

855 F.2d at 335. 

In his brief, Nicoletti cites United States v. Wesley, 417 F.3d 612, 622 (6th

Cir. 2005) as an instance where a relevant recorded statement from a defendant 

was held to be excludable on Rule 403 grounds. Doc. 118, Def’s Motion at 5. 

Wesley is readily distinguishable from the instant case. In the recorded 

statement at issue in Wesley, the defendant referenced his prior incarceration, a 

highly prejudicial fact that would otherwise not have been before the jury at 

trial. The “unfair prejudice” in that case came from the danger that the jury 

would use the defendant’s prior incarceration to decide his guilt – the very 

definition of the sort of “improper basis” for a decision that Rule 403 is 

designed to protect against. Nicoletti points to nothing similarly prejudicial in 

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his own statements, and Wesley thus provides no support for the defendant’s 

position. 

Nicoletti’s failure to identify unfair prejudice alone is fatal to his claim 

that FRE 403 should bar the admission of this relevant evidence. However, in 

addition to the absence of unfair prejudice, it is also noteworthy that the tapes 

in question are admissions of a party that are highly probative of key issues in 

the case. For example, Nicoletti will presumably dispute that he had any 

criminal intent with respect to the mortgage transactions at issue in the case. 

His position is forcefully rebutted by the fact that the relevant tape excerpts, 

transcripts of which will be provided to the Court on April 19, 2019, are replete 

with evidence of consciousness of guilt on Nicoletti’s part. He repeatedly talks 

about the likelihood of being indicted and going to jail.1 Nicoletti also 

discusses shredding documents and computer files and otherwise obstructing 

justice, which is likewise highly probative of consciousness of guilt.2

Finally, a key aspect of the scheme to defraud involved the use of “straw 

buyers,” whose documentation was falsified in order to make it appear, among 

other things, that they had the assets to make a down payment on expensive 

 1 See, e.g., Government Exhibits 105, 99A. 2 See, e.g., Government Exhbit 100A (Nicoletti: “I’m shredding those directories because I’ll tell ya if 

somebody. If somebody got a hold of those fucking soft pro directories. You know that showed all the multiple 

changes to those those changes the track the history to those HUDs and all the changes that were made . . . 

And that wouldn’t be good.”)

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pieces of property. These straw buyers were supposed to bring money for the 

down payment, from their own private resources, to closing. On several 

occasions on the tapes, Nicoletti acknowledges knowing that straw buyers did 

not bring money for the down payment to closing, and did not have the assets 

to support the down payments. See, e.g., Government Exhibit 102B (Nicoletti: 

“you know, the fact is that Scottie (a straw buyer) didn’t have a million two in 

the bank I mean is, is one thing enough to submarine the whole deal I mean so 

what I mean.”; Government Exhibit 105 Nicoletti: “ . . . you know the jur, the 

jury ever gonna fuckin’ believe that and it, and it looks so bad that on, on two 

or three of the transactions the fuckin’ seller the fuckin’ uh buyers didn’t bring 

money to the closing . . . .” These admissions of knowledge on Nicoletti’s 

part go to one of the most critical issues in the case, and their probative value 

far outweighs any unfair prejudice that could possibly be linked to these 

admissions. Nicoletti’s arguments under Rule 403 are unsupported and 

unsupportable, and the Court should reject them.

3. The Government is Able to Authenticate the Tapes

Nicoletti further challenges the admission of the tapes on authenticity 

grounds, arguing that the taped conversations lack an adequate chain of 

custody, are “unitelligible,” and are otherwise unable to be authenticated. Dkt 

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118, Def’s Motion at 7-8. Nicoletti’s argument is without merit, for the reasons 

set forth below. 

Federal Rule of Evidence 901(a) requires that the proponent of a piece 

evidence “produce evidence sufficient to support a finding that the item is what 

the proponent claims it is.” F.R. E. 901(a). The burden is not a heavy one; 

Rule 901 simply requires a “slight” showing of “some competent evidence to 

support authentication.” United States v Turner, 718 F.3d 226, 232 (3rd Cir. 

2013); see also United States v. Mallory, 902 F.3d 584, 595 (6th Cir. 2018) 

(describing the burden of establishing authenticity as a “relatively low 

hurdle”). Rule 901(b) provides a non-exhaustive list of ways to satisfy the 

authenticity requirement. One such method of establishing authenticity the 

“testimony of a witness with knowledge that an item is what it is claimed to 

be” F.R.E 901(b)(1). 

In this case, the government intends to call a particular cooperating 

witness in its case-in-chief. This cooperating witness, working under the 

direction of the FBI, made the recordings at issue. His testimony will establish 

that he recorded the tapes and that the tapes consist of conversations that he 

had with defendant Nicoletti. He will have listened (again) to all of the tapes 

prior to his trial testimony, and will be able to verify that the tapes are an 

accurate recording of conversations he had with Nicoletti during the relevant 

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timeframe. The government anticipates that he will also describe what he did 

with the tapes after they were made. The government further expects to be

calling Special Agent Christine Taylor, who oversaw the creation of the tapes.

Special Agent Taylor can address questions about the maintenance of the tapes 

since their creation or other chain-of-custody questions. In short, the 

government intends to supply more-than-adequate witness testimony, from 

witnesses with knowledge, that the tapes are what they purport to be. There is 

no factual basis for suggesting otherwise, and this foundation is more than 

sufficient to overcome the “low hurdle” for authentication of evidence 

established by FRE 901. 

Nicoletti also asserts that the tapes are “unintelligible” and of “poor 

quality.” The Sixth Circuit does require, as a prerequisite for admission, that a 

tape recording “be audible and sufficiently comprehensible for the jury to 

consider the contents.” United States v. Robinson, 707 F.2d 872, 876 (6th Cir. 

1983). The excerpts of the recordings that the government plans to admit and 

play at trial have imperfect sound quality, but they are comprehensible and 

audible. The government anticipates that its cooperating witness will testify 

that he has recently reviewed the tapes and moreover, has reviewed the 

transcripts of the tapes (which the government intends to use as a visual aid for 

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the jury at trial) and can confirm their accuracy. Nicoletti’s bald assertion that 

the tapes are “unintelligible” is belied by the recordings themselves.

In sum, there is no genuine authentication issue with the tape recordings, 

and Nicoletti’s argument should be rejected. 

4. FRE 106 Does Not Require the Jury to Endure 13 Hours of 

Irrelevant, Inadmissible Recordings In Order to Hear the Relevant 

Excerpts 

Nicoletti finally argues that the “rule of completeness” requires playing 

the entirety of the 13 hours of recorded audio recordings between Nicoletti and 

Lucia. FRE 106, which codifies the doctrine of completeness, requires no such 

thing. 

The doctrine of completeness permits a party prejudiced by the 

introduction of part of a “document, or a correspondence, or a conversation,” 

to enter so much of the remainder as is necessary to explain or rebut a 

misleading impression caused by the “incomplete character” of that evidence. 

United States v. Costner, 684 F.2d 370, 373 (6th Cir.1982). The doctrine does not 

apply when completing the statement would not correct a misleading 

impression, or are not explanatory or relevant to the admitted portions of the 

statement. See United States v. Vallejos, 742 F.3d 902, 905 (9th Cir. 2014) 

(rejecting admission of statements offered under the Rule that “humanize” 

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defendant to jury, or that show his “character.”). Importantly, “Rule 106 

covers an order of proof problem; it is not designed to make something 

admissible that should be excluded.” Costner, 684 F.2d at 373 (6th Cir.1982). 

Self-serving hearsay statements do not become admissible just because they are 

offered under the rubric of Rule 106. Id.

Nicoletti has had the excerpts of the tapes that the government plans to 

admit for some four months at this point. He does not identify any additional 

portions of the tapes that are necessary to rebut any allegedly misleading 

impressions caused by the “incomplete character” of the government’s 

proposed excerpts. Rather, he simply states that playing the entirety of the 13 

hours of tapes is necessary for context. This position is not supportable and 

should be rejected by the Court, for several reasons. First, the tape recordings 

contain, among other things, hours of irrelevancies and substantial amounts of 

self-serving hearsay. Pursuant to the Costner case, cited above, this material is 

inadmissible, and is not rendered admissible by Rule 106. Moreover, the 

burden is on the party seeking admission to demonstrate that additional 

portions of the statement are necessary to clarify or explain the admitted 

portions. See United States v. Price, 516 F.3d 597, 604 (7th Cir. 2008). Nicoletti 

demonstrates nothing of the kind. He has not explained what is unfair about 

the admission of the government’s proposed excerpts, and what misleading 

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impressions would be created by their purportedly “incomplete character.” He 

simply makes sweeping assertions. Given Nicoletti’s failure to meet his burden 

to explain why additional portions of the tapes are necessary to “clarify or 

explain the admitted portions,” the Court should reject his argument. 

CONCLUSION

For the foregoing reasons, the Defendant’s Motion in Limine should be 

denied in its entirety. 

 Respectfully submitted, 

MATTHEW SCHNEIDER

United States Attorney 

s/John K. Neal

Assistant United States Attorney

211 W. Fort Street, Suite 2001

Detroit, MI 48226

Phone: (313) 226-9644

E-Mail: john.neal@usdoj.gov

s/Craig A. Weier (P33261)

Assistant United States Attorney

211 W. Fort Street, Suite 2001

Detroit, MI 48226

Phone: (313) 226-9678

E-Mail: craig.weier@usdoj.gov

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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

UNITED STATES OF AMERICA, 

 Plaintiff, 

Case No. 15-cr-20382

D-1 PAUL NICOLETTI, HON. VICTORIA A. ROBERTS

 Defendant. 

_________________________________/

CERTIFICATE OF SERVICE

On April 19, 2019, the undersigned filed the GOVERNMENT’S 

RESPONSE AND BRIEF IN OPPOSITON TO DEFENDANT’S MOTION IN 

LIMINE TO PREVENT THE USE OF GOVERNMENT WIRE TAPS OF 

TELEPHONE CONVERSATIONS OF DEFENDANT PAUL NICOLETTI using 

the Court’s Electronic Filing System which automatically serves a copy to all 

counsel of record.

s/John K. Neal

Assistant United States Attorney

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