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 MOTION IN LIMINE TO BAR 

DEFENDANT’S “HOPES AND DREAMS” EVIDENCE

 The government anticipates that part of the defense and possible proofs 

at trial will include the claim that the participants in the charged 

conspiracy/scheme always intended that the fraudulently obtained mortgage 

loans they obtained would be repaid in full after improvements/resales were 

completed, and that, but for Fifth Third Bank’s detection of the scheme and 

recall of the loans, Fifth Third Bank would have experienced no losses. The 

government anticipates that this argument will be made to the jury as a defense 

to the crimes charged in the indictment and that evidence in the form of 

testimony (through cross-examination or directly) will be proffered. 

Such testimony, argument and evidence is improper. In United States v. 

Daniels, 329 F.3d 480 (6th Cir. 2003) the defendant argued that “though he 

admittedly intended to deprive [the victim] of money in the short-term by 

taking improper loans, he did so in hopes of benefitting them in the long-term 

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by repaying the loans and retaining the stock.” Id. at 488. Because he meant 

the victim no harm, defendant argued, he lacked the requisite intent to commit 

wire fraud. Id. The Sixth Circuit disagreed and affirmed the jury verdict for 

wire fraud. The court held that defendant’s argument constituted an improper 

invitation for the jury to “look beyond his bad conduct to his overall motives.” 

Id. Such a focus, the court held, misconstrued the critical inquiry – that is, 

whether the defendant “by material misrepresentations intends the victim to 

accept a substantial risk that otherwise would not have been taken.” Id. The 

Sixth Circuit held that, applying this standard, “The government had only to 

establish that Daniel intended to deprive Century of money in the short-term, 

and it presented sufficient evidence for the jury so to find. 

If the defendant offers such evidence of the ultimate hopes and dreams, 

it would amount to nothing but a diversion, an invitation to – in the words of 

the Sixth Circuit – “have the jury look beyond his bad conduct to his overall 

motives.” Id. Absolutely nothing about such evidence, or about Nicoletti’s and 

his co-conspirators’ plans and aspirations, concerns the only relevant inquiry: 

whether Nicoletti, by lying, manipulating transactions to mislead, and aiding 

and abetting bank fraud by knowingly facilitating fraudulent transactions, 

intended for it “to accept a substantial risk that otherwise would not have been 

taken.” Id. See also, United States v. Koh, 199 F.3d 632 (2nd Cir. 1999); United

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States v. Berkovich, 168 F.3d 64 (2nd Cir. 1999).1 Worse, such evidence risks 

misleading the jurors on the frolic and detour that was the focus of the Sixth 

Circuit’s holding in Daniels. Any nominal probative value of such evidence is 

thus dwarfed by the very real danger of misleading the jury, among the other 

dangers codified in Federal Rule of Evidence 403. 

CONCLUSION

 For these reasons, the Court should bar such evidence. 

 Respectfully submitted, 

MATTHEW SCHNEIDER

United States Attorney 

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 

Dated: February 7, 2019

 

1 In United States v. John Bravata, Docket No. 11-20314, (R. 224, pg. 12-13), the 

government filed a virtually identical motion which was granted by the 

Honorable Paul D. Borman on the record during trial.

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