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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

UNITED STATES OF AMERICA, 

 

 Plaintiff, Case No: 15-20382 

 Hon. Victoria A Roberts 

v. 

PAUL NICOLETTI, 

 Defendant. 

 / 

ORDER OVERRULING DEFENDANT’S 

OBJECTIONS TO THE MAGISTRATE JUDGE’S ORDER 

Paul Nicoletti (“Nicoletti”) seeks to compel the United States Government to 

produce evidence generated from its investigations into mortgage fraud. He says it is 

relevant to prove that Fifth Third Bank systematically approved fraudulent loan 

applications to generate profits. Given Fifth Third Bank’s misconduct, Nicoletti says that 

“materiality” is an essential element of the bank fraud and bank fraud conspiracy 

charged in this case, and that any misrepresentations he may have made were not 

material to Fifth Third’s decision to approve his loan applications. 

Nicoletti filed objections to Magistrate Judge Majzoub’s Order Denying 

Defendant’s Motion for Discovery. The objections are fully briefed. 

When reviewing objections to a magistrate judge’s order on a non-dispositive 

matter, a district court must modify or set aside any part of the order that is “clearly 

erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a); United 

States v. Curtis, 237 F.3d 598, 602-03 (6th Cir. 2001). 

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Nicoletti makes a pure legal argument in his objections, which merely reiterates 

his earlier argument: he says the Sixth Circuit’s objective standard to measure 

materiality is contrary to Supreme Court precedent, particularly Neder v. United States, 

527 U.S. 1, 22 (1999). Nicoletti argues Neder applies a subjective standard and defines 

materiality with regard to the actual decisionmaker. These objections lack merit. 

First and foremost, Nicoletti expects this Court to ignore Sixth Circuit precedent. 

The Sixth Circuit has well-settled law that the Court applies an objective standard to 

determine the materiality element in fraud cases. See United States v. Bravata, 636 F. 

App’x 277, 283 (6th Cir. 2016) (“to satisfy the materiality requirement, the fraudulent 

scheme must ‘be credible enough to deceive persons of ordinary prudence and 

comprehension.’”); citing United States v. Jamieson, 427 F.3d 394 (6th Cir. 2005). 

The test for materiality was not before the Neder Court. The issues presented in 

Neder were: (1) whether the court’s omission of an element in jury instructions is subject 

to harmless error; and (2) whether materiality is an element of federal mail fraud, wire 

fraud, and bank fraud. Neder v. United States, 527 U.S. 1, 2. 

Importantly, the Jamieson Court did not interpret Neder to indicate that the Sixth 

Circuit should not apply an objective test to determine materiality. Jamieson, 427 F.3d 

394, 415-416 (“We do not read Neder to indicate that we must change the requirement 

in this circuit that a mail fraud scheme be credible enough ‘to deceive persons of 

ordinary prudence and comprehension.’”). 

An independent review of the Magistrate Judge’s order shows that none of her 

legal conclusions is clearly erroneous or contrary to Sixth Circuit law.

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The Court OVERRULES Nicoletti’s objections and UPHOLDS Magistrate Judge 

Majzoub’s order. 

IT IS ORDERED. 

 s/Victoria A. Roberts 

 Victoria A. Roberts 

 United States District Judge 

Dated: February 17, 2017 

The undersigned certifies that a copy of this 

document was served on the attorneys of 

record by electronic means or U.S. Mail on 

February 17, 2017. 

s/Linda Vertriest 

Deputy Clerk 

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