UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

File No. 15-cr-20382-01

-vsHonorable Victoria A. Roberts

PAUL NICOLETTI, 

Defendant.

CRAIG A. WEIER (P33261) JOHN K. NEAL JAMES C. HOWARTH (P15179)

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

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

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

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

Email: craig.weier@usdoj.gov Email: john.neal@usdoj.gov Email: james-howarth@att.net

MOTION IN LIMINE TO PREVENT THE USE

 OF GOVERNMENT WIRE TAPS OF TELEPHONE

 CONVERSATIONS OF DEFENDANT PAUL NICOLETTI

Defendant PAUL NICOLETTI, by his attorney, JAMES C. HOWARTH, asks

this Court to exclude from evidence in this case a series of excerpts of telephone

conversations between Mr. Nicoletti and Alan Lucia, a former co-defendant, recorded,

without Nicoletti’s knowledge or consent, in February, 2006.

The basis of this Motion is first that these interceptions were made without the

consent of all parties to the conversations, and were made without application for a

search warrant to any court. Second, the tapes violate Mr. Nicoletti’s Fourth

Amendment right to privacy. Third, the tapes were made over thirteen years ago,

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Case 2:15-cr-20382-VAR-MKM ECF No. 118, PageID.1176 Filed 04/12/19 Page 1 of 19
without proper supervision by the government and without proper authentication. 

Fourth, even if the recordings were legally admissible, their prejudicial effect far

outweighs their probative value under F.R.E. 403. Fourth, if the Court were to reject

all of the above arguments, then fairness demands that rather than admit the selected

portions proposed by the government, the “rule of completeness” found in F.R.E. 106,

dictates that the tapes must be played in their entirety. Lastly, the tapes are not

properly authenticated under F.R.E. 901 and are largely unintelligible, thus rendering

them untrustworthy. See, attached Brief in Support.

Respectfully submitted,

/s/James C. Howarth 

JAMES C. HOWARTH (P15179)

Attorney for Defendant Nicoletti

615 Griswold, Suite 820

Detroit, Michigan 48226

Phone: (313) 963-1455

E-Mail: james-howarth@att.net 

Dated: April 12, 2019

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Case 2:15-cr-20382-VAR-MKM ECF No. 118, PageID.1177 Filed 04/12/19 Page 2 of 19
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

File No. 15-cr-20382-01

-vsHonorable Victoria A. Roberts

PAUL NICOLETTI, 

Defendant.

CRAIG A. WEIER (P33261) JOHN K. NEAL JAMES C. HOWARTH (P15179)

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

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

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

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

Email: craig.weier@usdoj.gov Email: john.neal@usdoj.gov Email: james-howarth@att.net

BRIEF IN SUPPORT OF 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. 118, PageID.1178 Filed 04/12/19 Page 3 of 19
TABLE OF CONTENTS

Page

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

STATEMENT OF ISSUE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

STATEMENT OF CONTROLLING AUTHORITY . . . . . . . . . . . . . . . . . . . . . . iv

STATEMENT OF FACTS AND ARGUMENT ...........................1

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Case 2:15-cr-20382-VAR-MKM ECF No. 118, PageID.1179 Filed 04/12/19 Page 4 of 19
TABLE OF AUTHORITIES

Page

CONSTITUTIONAL PROVISIONS

U.S. Const. Am. IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

FEDERAL CASES

City of Ontario, Cal. v. Quon, 560 U.S. 746 (2010) ........................3

Katz v. United States, 389 U.S. 347, 352 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . iv, 

Kyllo v. United States, 533 U.S. 27, 33 (2001) ............................3

Minnesota v. Carter, 525 U.S. 83, 88 (1998) .............................3

United States v. Adams, 772 F.3d 788, 826 (6th Cir, 2013) ...................9

United States v. Ford, 761 F.3d 641, 652 (6th Cir. 2014) . . . . . . . . . . . . . . . . . iv, 9

United States v. Holden, 557 F.3d 698, 705 (6th Cir. 2009) ..................9

United States v. Jenkins, 593 F.3d 480, 485-86 (6th Cir. 2010) ...............6

United States v. Merriweather, 78 F.3d 1070, 1077 (6th Cir. 1996) ............6

United States v. Schrock, 855 F.2d 327, 335 (6th Cir. 1988) ..................4

United Sates v. Smithers, 212 F.3d 306, 316 (6th Cir. 2000) . . . . . . . . . . . . . . . . . 10

United States v. Wesley, 417 F.3d 612, 622 (6th Cir. 2005) . . . . . . . . . . . . . . . iv, 5

United States v. Wilson, 565 F.3d 1059, 1066 (8th Cir. 2009) ................8

-iiCase 2:15-cr-20382-VAR-MKM ECF No. 118, PageID.1180 Filed 04/12/19 Page 5 of 19
Page

FEDERAL STATUTES AND COURT RULES

18 U.S.C. §2510, et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv, 3

18 U.S.C. §2511(1)(b) ...............................................3

F.R.E. 106 ........................................................9

F.R.E. 401 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...4

F.R.E. 403 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 5

F.R.E. 404(b) ......................................................4

F.R.E. 901 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...7

MICHIGAN STATUTES AND COURT RULES

M.C.L. 750.539c ...................................................3

-iiiCase 2:15-cr-20382-VAR-MKM ECF No. 118, PageID.1181 Filed 04/12/19 Page 6 of 19
STATEMENT OF ISSUES

ARE CERTAIN TAPE RECORDINGS OF TELEPHONE CONVERSATIONS BETWEEN DEFENDANT AND A FORMER CODEFENDANT, INITIATED BY THE GOVERNMENT, ADMISSIBLE IN EVIDENCE?

STATEMENT OF CONTROLLING AUTHORITY

Defendant relies on the following controlling authority:

U.S. Const. Am. IV

Katz v. United States, 389 U.S. 347, 352 (1967)

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

United States v. Ford, 761 F.3d 641, 652 (6th Cir. 2014)

18 U.S.C. §2510, et seq.

F.R.E. 106

F.R.E. 403

F.R.E. 901

M.C.L. 750.539c

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STATEMENT OF FACTS AND ARGUMENT

I. BACKGROUND

The government has indicated to defense counsel and the Court its intention to

attempt to introduce certain tape recorded telephone conversation between defendant

Paul Nicoletti and former co-defendant Alan Lucia into evidence in the trial of this

case.1

 These telephone tapes, made with the consent of Lucia, but not Nicoletti, were

created at the behest of the government and the FBI agents who are in charge of this

case. Presumably Mr. Lucia received, or expected to receive, some sentencing

consideration for his cooperation with the government by luring defendant Nicoletti

into making incriminating statements during what Nicoletti thought were innocuous,

friendly, bantering, give-and-go between old acquaintances. They were, instead,

insidious traps, designed to catch Nicoletti off guard, and possibly induce him to make

remarks capable of being misunderstood as a confession.

According to the government’s proffer, the proposed evidence will consist of

the following highlights:

“02/03/06 [February 3, 2006?] Telephone call: Nicoletti/A. Lucia: ID 2-3

includes ‘Yeah, we’re gonna be in jail together. Might as well get

started.’”

1

The government’s proposed exhibit list, item #94, contains excerpts from

several telephone calls between defendant Nicoletti and former co-defendant Alan

Lucia, intercepted at the request of the FBI in February, 2006.

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“02/03 - 06/06 (nail down date) Telephone call: Nicoletti/A. Lucia: ID

3-6: Excerpt at 29:36-30.16, Tr. at p. 5-6 includes ‘we might have to

change it and forge some signatures on it - you like how casually I say

that - Eh, that’s my job.’”

“02/06-07/06 Telephone Call: Nicoletti/A.Lucia: ID 5-6: Excerpt at

24:45-25:13, TR at pp. 1-2 includes ‘We got the dog to keep her

company when I’m in the big house.’”

“02/13/06 Telephone Call: Nicoletti/A.Lucia: ID 9-2: at 24:45-2:50, TR

at pp.1 includes ‘the fucking feds.’”

“02/13/06 Telephone Call: Nicoletti/A.Lucia ID 9-3: Full Conversation

at 4:33 to 13:14, containing, at 8:28: ‘two rules: ...nothing good ever

happens when the fucking feds show up’; 9:20: subpoena review

‘records identifying all shareholders, employees and officers of

Continental. Uh, oh. That’s not good’, at 11 :10: ‘You know, Cham,2

 it

looks like we’re all gonna be indicted’; and at 11 :40: ‘we’ll certainly

find out’ if they still bust rocks at Leveanworth.”

Defendant Nicoletti objects to the introduction of all or any of the above

excerpts for several legal reasons. The first of which is that the conversations are

clearly more prejudicial than probative.

II. THE TAPED CONVERSATIONS WERE INTERCEPTED

ILLEGALLY.

Paul Nicoletti, in February, 2006, had a reasonable expectation of privacy

during telephone conversations he engaged in with his friend, Alan Lucia, which

expectations were violated by the government tap on Mr. Lucia’s phone. “ [A] Fourth

2

According to Paul Nicoletti, “Cham” is a particular term of endearment,

used interchangeably, between himself and Alan Lucia.

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Case 2:15-cr-20382-VAR-MKM ECF No. 118, PageID.1184 Filed 04/12/19 Page 9 of 19
Amendment search occurs when the government violates a subjective expectation of

privacy that society recognizes as reasonable.” Kyllo v. United States, 533 U.S. 27,

33 (2001). Therefore, Mr. Nicoletti must establish that he had a reasonable

expectation of privacy in talking to his friend, Alan Lucia, on his own telephone. 

Minnesota v. Carter, 525 U.S. 83, 88 (1998). Society has recognized that a privacy

expectation in a telephone conversation is reasonable. Katz v. United States, 389 U.S.

347, 352 (1967). Apparently the expectation extends to cellular phones as well as

land lines. City of Ontario, Cal. v. Quon, 560 U.S. 746 (2010).

Both federal law (18 U.S.C. §2511(1)(b)) and Michigan law (M.C.L. 750.539c)

forbid interception, without warrant, of private telephone conversations without the

consent of all parties. Whether or not Alan Lucia consented to the intercept search is

not material, inasmuch as Paul Nicoletti did not.

If the Federal Bureau of Investigation, whom the government will readily admit

set up and monitored the phone taps, wanted to see if they could intrigue Nicoletti into

confessing guilt, they had a the viable option of securing a court ordered intercept

under Title III of the Omnibus Safe Streets Act of 1968. (18 U.S.C. §2510, et seq.).

III. THE GOVERNMENT’S PROPOSED EVIDENCE IS

INADMISSIBLE UNDER F.R.E. 403.

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Defendant assumes that the questioned tapes are offered as admissions of a

party opponent.3

 Whereas defendant does not concede the relevance of the offered

testimony, he argues that regardless of relevancy under F.R.E. 401, the evidence

should be excluded under F.R.E. 403 because its probative value “is substantially

outweighed” by the danger of unfair prejudice.

First, it should be noted that no where in the government’s rendition of the

intercepted conversations does Nicoletti admit that he committed fraud or intended to

commit any crime. His words are a fairly obvious banter with not only a codefendant, but, more importantly, with someone he (wrongfully) thought was a friend. 

Unfortunately for defendant, the use of the cleverly edited excerpts conveys the unfair

and untrue impression that Nicoletti is confessing guilt, rather than ridiculing the

charge which he foresees in the future. As the Sixth Circuit explained the argument

against admitting such evidence, unfair prejudice “does not mean the damage to a

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.” United

States v. Schrock, 855 F.2d 327, 335 (6th Cir. 1988). If one knows the whole story,

3

It is possible, though unlikely, that the government considers them to be

other wrongful acts under F.R.E. 404(b), but if so, the government has failed to file

proper notice of that allegation. It is also possible that the government considers

them statements by a co-conspirator during the course of, and in furtherance of the

conspiracy. However, neither explanation has been forthcoming.

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Case 2:15-cr-20382-VAR-MKM ECF No. 118, PageID.1186 Filed 04/12/19 Page 11 of 19
it is clear that Nicoletti is not admitting guilt, but really is engaging in a form of

“gallows humor” with a sadly traitorous friend.

In a case exceptionally similar to the matter before the Court, the government

was allowed at trial to introduce tape recorded conversations between defendant and

a person he believed was a co-conspirator. On a secretly recorded videotape the

defendant tells his wired cohort, “Yeah. I’ve been knowin’ this brother all my life. 

We went to prison together. We did something together. We got caught, we went to

trial. Ain’t nobody tell on nobody. You know what I’m saying? I ain’t going, hell,

no. I ain’t no fool.” Defendant argued that the above, recorded conversation must be

excluded under F.R.E. 403. Relying in part on Schrock, supra, the Sixth Circuit in

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

While the statements were relevant to show defendant's intent, it was

hardly the only or the strongest evidence in that regard. As the district

court recognized in deciding to give a cautionary instruction, reference

to defendant's prior incarceration presents a classic danger of unfair

prejudice—that the jury may decide guilt based on the fact that the

defendant has a prior conviction. This is particularly a concern where the

evidence presents a close question on the sufficiency of the evidence.

Although the cautionary instruction reduces the danger of unfair

prejudice, we find that the probative value of the evidence in this case

was substantially outweighed by the danger of unfair prejudice and,

therefore, defendant is entitled to a new trial.

The spirit of the Wesley case is clearly applicable in the case before the Court. 

Defendant Nicoletti does not admit guilt in this case, instead he jokes about it with a

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Case 2:15-cr-20382-VAR-MKM ECF No. 118, PageID.1187 Filed 04/12/19 Page 12 of 19
person whom he believes will be a co-defendant. However, the jury may easily

misconstrue this, and then the effect will become catastrophic. That is the purpose of

Rule 403 - to keep the jury from being misled by evidence that is marginally

probative, but overwhelmingly prejudicial.

Another factor to be considered in a Rule 403 analysis is whether the

government is capable of proving its point with other, less objectionable evidence. 

Certainly, to put before the jury evidence which was obtained when one party to a

conversation believed he spoke with a good friend, in earnest, wherein he could “let

his hair down” and joke, even about such a serious subject as possible incarceration,

while the other party acted as a police agent, using cunning and false good will to trick

his unsuspecting confidant into an embarrassingly silly statement, stretches the

concepts of fair play and reliable evidence.

It is for the above reason that the Sixth Circuit has strongly suggested that the

government, when faced with a situation like the present one, look to other evidence

to prove its point. See, United States v. Jenkins, 593 F.3d 480, 485-86 (6th Cir. 2010)

(“One factor in balancing unfair prejudice against probative value under Rule 403 is

the availability of other means of proof”) (citing, United States v. Merriweather, 78

F.3d 1070, 1077 (6th Cir. 1996).

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In summary, the relevancy of the evidence contained in Nicoletti’s conversations with Lucia is, at best, marginal. The prejudice, especially if the jury may take

defendant literally, when it is clear beyond peradventure that he is speaking “tonguein-cheek”, is overwhelming. The clear purpose of Rule 403 is to take a long, hard

look at evidence which is otherwise admissible, and then determine whether the

danger of unfair prejudice renders it simply “unfair.” Such is the case here, and,

therefore the rigged phone conversation evidence should be suppressed.

IV. THE TAPES IN QUESTION ARE INADMISSIBLE FOR

LACK OF AUTHENTICATION.

The tapes in question were recorded over thirteen (13) years ago, with, at best,

minimal oversight by the FBI, on poor grade equipment. They are largely unintelligible. Added to the above, there are questions about chain of custody.

F.R.E. 901 sets forth the basic rule that the proponent of evidence must first put

forward proof “sufficient to support a finding that the item is what the proponent

claims it is.” F.R.E. 901(a).

Further, the burden is on the government to show an unbroken and untainted

chain of custody. “In order for evidence to be admissible, a chain of custody must

exist that shows a reasonable probability that the evidence has not been changed or

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Case 2:15-cr-20382-VAR-MKM ECF No. 118, PageID.1189 Filed 04/12/19 Page 14 of 19
altered.” United States v. Wilson, 565 F.3d 1059, 1066 (8th Cir. 2009) (internal

citations omitted).

These objections are not mere speculation or conjecture. If the Court wishes

to listen to any appreciable portion of the full tapes, the poor quality of them will

adequately confirm defendant’s misgivings. The taping was not monitored directly

by the FBI. In fact, Mr. Lucia was left to his own discretion in choosing when and

how to catch Mr. Nicoletti in what appear to be incriminating comments, and we have

no way of knowing why the communications are so rigged. Therefore, the tapes

should be ruled inadmissible.

V. IF THE GOVERNMENT IS ALLOWED TO INTRODUCE

ANY EXCERPT OR EXCERPTS OF THE SURREPTITIOUS TAPES, THEN THE JURY MUST BE ALLOWED

TO HEAR ALL OF THE RECORDINGS.

It appears from the volume of the recordings which have been provided by the

discovery given by the government to former counsel that there are approximately

thirteen (13) hours of recorded phone calls between Nicoletti and Lucia. The problem

for the defense is that substantially all of the excerpts the government wants admitted

are explained, modified or otherwise have their derogatory imprint altered by hearing

all of the conversations.

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Case 2:15-cr-20382-VAR-MKM ECF No. 118, PageID.1190 Filed 04/12/19 Page 15 of 19
The Federal Rules of Evidence provide for this contingency in F.R.E. 106

which states that:

If a party introduces all or part of a writing or recorded statement, an

adverse party may require the introduction, at that time, of any other

part—or any other writing or recorded statement—that in fairness ought

to be considered at the same time.

“The ‘rule of completeness’ allows a party to correct a misleading impression

created by the introduction of part of a writing or conversation by introducing

additional parts of it necessary to put the admitted parts in proper context.” United

States v. Holden, 557 F.3d 698, 705 (6th Cir. 2009) (cited in United States v. Ford, 761

F.3d 641, 652 (6th Cir. 2014)).

The only pertinent exception to the above rule is that it does not allow the

admission of otherwise inadmissible hearsay. See United States v. Adams, 772 F.3d

788, 826 (6th Cir, 2013).

Defendant Nicoletti argues that statements, particularly like those suggesting

that he may find out about “breaking rocks” at “Leveanworth” or “we might have to

. . . forge some signatures . . .”, are explainable in the whole context of the many

conversations in two, separate ways. First, when the entirety of the phone calls are

heard, it eventually becomes apparent that Nicoletti is given to laughing off the fact

that he is being investigated by the FBI, with a long series of ridiculous jokes about

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a situation he just doesn’t think is serious. Second, statements about forgery are only

properly understood with a full hearing about what documents are being discussed and

why he would even consider alterations.4

The government set out to get defendant to incriminate himself by selecting a

modern day Brutus to play the role of a friend, while really desperately trying to trick

his good pal, Nicoletti, into incriminating himself. The government wants all the

wheat that came from the entrapment mill, but refuses to also accept the grist which

was a component of their plan. The Court, if it chooses to give the government the

best excerpts, must, in common fairness allow the bad with the good. The entirety of

the tapes should be admitted.

4

The government may well complain that to spend the necessary trial time to

listen to the full conversations will unnecessarily tax the Court and the jury with

hours of listening to uninspiring conversation. The answer to any such anticipated

complaint is two-fold. First, it was the government, and their agents (the FBI and

Alan Lucia) who dictated the length and breadth of the tapes, and, hence, they have

no right to complain about their time consumption before a jury. Second, if there

is a legitimate argument about the senseless use of time in listening, then the

solution is simply to not play them at all. See, e.g. United Sates v. Smithers, 212

F.3d 306, 316 (6th Cir. 2000) (explaining F.R.E. 403's exclusion of evidence for

“waste of time”).

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CONCLUSION

WHEREFORE, Defendant Paul Nicoletti, requests this Honorable Court grant

this motion.

Respectfully submitted,

/s/James C. Howarth 

JAMES C. HOWARTH (P15179)

Attorney for Defendant Nicoletti

615 Griswold, Suite 820

Detroit, Michigan 48226

Phone: (313) 963-1455

E-Mail: james-howarth@att.net 

Dated: April 12, 2019

-11-

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

File No. 15-cr-20382-01

-vsHonorable Victoria A. Roberts

PAUL NICOLETTI, 

Defendant.

CERTIFICATE OF SERVICE

I, JAMES C. HOWARTH, hereby certify that on the 12th day of April 2019,

I electronically filed Motion in Limine to Prevent the Use of Government Wire

Taps of Telephone Conversations of Defendant Paul Nicoletti with the Clerk of the

Court using the ECF system which will send notification of such filing to the

following: Honorable Victoria A. Roberts and AUSA Craig Weier. 

Respectfully submitted,

/s/James C. Howarth 

JAMES C. HOWARTH (P15179)

Attorney for Defendant Nicoletti

615 Griswold, Suite 820

Detroit, Michigan 48226

Phone: (313) 963-1455

E-Mail: james-howarth@att.net 

Dated: April 12, 2019

Case 2:15-cr-20382-VAR-MKM ECF No. 118, PageID.1194 Filed 04/12/19 Page 19 of 19