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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

Case No. 15-20382

v. Honorable Victoria A. Roberts

PAUL NICOLETTI,

Defendant.

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ORDER DENYING GOVERNMENT’S MOTION IN LIMINE TO BAR EVIDENCE, 

EXAMINATION, AND ARGUMENT SUGGESTING THAT THE UNINSURED STATUS 

OF FIFTH THIRD MORTGAGE MI, LLC PRECLUDES A FINDING OF GUILT (Doc. 

#117)

I. INTRODUCTION

The United States charged Paul Nicoletti (“Nicoletti”) in a four-count indictment with 

conspiracy to commit and aiding and abetting bank fraud. The government filed a 

motion in limine to prevent Nicoletti from arguing that the uninsured status of Fifth Third 

Mortgage MI, LLC (“Fifth Third Mortgage”) precludes a finding of guilt; it says that—

because it is only seeking to convict Nicoletti under 18 U.S.C. § 1344(2)—Fifth Third 

Mortgage’s uninsured status is irrelevant. Further, the government says that allowing

Nicoletti to argue that Fifth Third Mortgage’s uninsured status precludes a finding of guilt 

would serve only to mislead and confuse the jury.

The Court DENIES the government’s motion.

II. BACKGROUND

Nicoletti, an attorney licensed in the State of Michigan and President of Continental 

Title Insurance Agency, Inc., was indicted on one count of conspiracy to commit bank 
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fraud in violation of 18 U.S.C. § 1349 and three counts of aiding and abetting bank fraud 

in violation of 18 U.S.C. §§ 1344 & 2.

The indictment alleges that Nicoletti willfully conspired with and aided and abetted

others to execute and attempt to execute a scheme to defraud and obtain money

from Fifth Third Bank. Each of the three aiding and abetting counts is for separate 

multi-million dollar loans that Nicoletti allegedly secured under materially false and 

fraudulent pretenses and representations.

The indictment alleges that Nicoletti and his co-conspirators employed straw

buyers to serve as mortgage loan applicants for the purchase of real property. The 

conspirators also allegedly provided false information in the loan applications; they 

allegedly falsified the income and assets of the straw buyers, the source of the down

payments for the loans, and the intentions of the purported purchasers.

According to the indictment, Nicoletti knowingly facilitated the fraudulent real

estate transactions by acting as title agent, coordinating and conducting real estate

closings, preparing HUD-1 Settlement Statements, and disbursing the proceeds of the 

mortgage loans.

III. STANDARD OF REVIEW

District courts have broad discretion over matters regarding the admissibility of 

evidence at trial. United States v. Seago, 930 F.2d 482, 494 (6th Cir. 1991). “Although 

the Federal Rules of Evidence do not explicitly authorize in limine rulings, the practice 

has developed pursuant to the district court’s inherent authority to manage the course of 

trials.” Luce v. United States, 469 U.S. 38, 41 n. 4 (1984). “A ruling on a motion in limine 

is no more than a preliminary, or advisory opinion that falls entirely within the discretion 
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of the district court.” United States v. Yannott, 42 F.3d 999, 1007 (6th Cir. 1994). Motions 

in limine may promote “evenhanded and expeditious management of trials by excluding 

evidence that is clearly inadmissible for any purpose.” Indiana Ins. v. Gen. Elec. Co., 

326 F.Supp.2d 708, 712 (6th Cir. 1975). Courts should rarely grant motions in limine that 

“exclude broad categories of evidence.” Sperberg v. Goodyear Tire & Rubber Co., 519 

F.2d 708, 712 (6th Cir. 1975). The “better practice is to deal with questions of 

admissibility when they arise.” Id.

IV. ANALYSIS

In response to the government’s motion, Nicoletti says that his only real defense is 

that the complainant is not federally insured; he wants to demonstrate that the real 

lender was Fifth Third Mortgage. The Court will not preclude Nicoletti from asserting this 

defense.

The bank fraud statute, in relevant part, imposes liability on “[w]hoever knowingly 

executes, or attempts to execute, a scheme or artifice . . . (2) to obtain any of the 

moneys, funds, credits, assets, securities, or other property owned by, or under the 

custody or control of, a financial institution, by means of false or fraudulent pretenses, 

representations, or promises.” 18 U.S.C. § 1344(2). 

The parties have a fundamental disagreement over who actually loaned the funds to 

Nicoletti. The government says the lender was Fifth Third Bank, which was federally 

insured. Nicoletti says the lender was Fifth Third Mortgage. The parties agree that Fifth 

Third Mortgage was not federally insured.
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Notwithstanding the government’s assertion that Fifth Third Bank was the actual 

lender, it seems to state otherwise in its revised jury instructions; the government refers 

to Fifth Third Mortgage as the “mortgage lender.”

Nicoletti believes that the government will fail to prove that Fifth Third Bank was the 

actual lender; thus, Nicoletti argues that the government will fail to prove that the funds 

that flowed to him were controlled by a federally insured bank. The insured status of the 

lender is an essential element of the case that the government must prove.

Ultimately, the Court cannot determine whether Fifth Third Mortgage’s uninsured 

status is relevant until it is clear which entity was the actual lender, and the Court 

declines to weigh the sufficiency of the evidence on that issue at this juncture. The 

determination of the identity of the actual lender is clearly the kind of fact-intensive

inquiry that is entrusted to the jury. See United States v. Jones, 542 F.2d 661, 664 (6th 

Cir. 1976) ([t]he Court “may make preliminary findings of fact necessary to decide the 

questions of law presented by [a] pre-trial motion,” but its findings must “not invade the 

province of the ultimate finder of fact.”).

V. CONCLUSION

The government’s motion is DENIED. The Court will not bar Nicoletti from presenting 

evidence and argument that his real lender was Fifth Third Mortgage, which was 

uninsured. In fact, it appears the parties could even stipulate that Fifth Third Mortgage is 

not insured, if Nicoletti’s argument pertains to who the real lender is.
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IT IS ORDERED.

S/ 

Victoria A. Roberts

United States District Judge

Dated: April 26, 2019