ORDER RE: MOTIONS IN LIMINE

Re: Dkt. Nos. 120-126

LUCY H. KOH, District Judge.

Before the Court are the motions in limine of Plaintiff United States ("government"), ECF Nos. 122, 123, 124, 125; the motions in limine of Defendant Vilasini Ganesh ("Ganesh"), ECF Nos. 120, 121; and the motions in limine of Defendant Gregory Belcher ("Belcher"), ECF. 126. After reviewing the parties' briefing, the case law, and the record in this case, and balancing the considerations set forth in Federal Rule of Evidence ("Fed. R. Evid.") 403, the Court rules as follows:

Government's Motions in Limine ("MIL")

MIL #1A: Dr. Levinson should be precluded from testifying.

Ruling: Denied.

MIL #1B: Lay opinion about Ganesh's mental health should be precluded.

Ruling: Granted. Lay witnesses may testify as to facts observed, but may not testify as to their opinions. Fed. R. Evid. 701 provides that lay witness opinion must be "(a) rationally based on the witness's perception; (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." Fed. R. Evid. 701. Lay witness opinion testimony rarely meets that standard. "Lay witnesses are normally not permitted to testify about their subjective interpretations or conclusions as to what has been said." United States v. Cox, 633 F.2d 871, 875 (9th Cir. 1980). The Court therefore holds that while the defendants' lay witnesses may testify about what conduct they observed, they may not give opinions about what that conduct means for either defendant's mental state. United States v. Dashner, 2015 WL 3660331, at *3 (N.D. Cal. June 2, 2015) ("When the issue is a party's knowledge, in most instances, lay opinion will not meet the requirements of Rule 701."); see United States v. Hauert, 40 F.3d 197, 201-02 (7th Cir. 1994).

Moreover, because Fed. R. Evid. 701(c) precludes lay witnesses from giving testimony that is not based on scientific, technical or other specialized knowledge within the scope of Fed. R. Evid. 702, lay witnesses cannot give opinions on whether a defendant suffers from a mental disease or defect, which is the proper subject of expert testimony.

MIL #1C: No expert witness may state an opinion about whether defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone. Expert witnesses may not testify as to whether defendant did or did not possess the requisite mens rea.

Ruling: Granted. Fed. R. Evid. 704(b) precludes such testimony.

MIL #2: Ganesh Cannot Introduce "State of Mind" Testimony from Lay Witnesses.

Ruling: See above MIL #1B ruling. The government's pretrial statement requests that the Court "preclude the defendants from presenting any testimony from lay witnesses regarding their opinions of what they think the defendants knew or believed about their submission of claims to insurers, including whether they think either defendant did so knowingly, intentionally, or fraudulently. Such evidence is not admissible under either Rule 701 or Rule 803(3)." Though framed in terms of "state of mind" and "intent," the dispositive question is whether the lay witnesses can give their opinions about what Defendants were thinking. For this issue, the above MIL #1B ruling applies. Witnesses can testify as to facts regarding defendants' actions, behavior, and appearance, but may not give opinions as to Defendants' intent or thoughts.

MIL #3: Robert Bustamante Cannot Testify without a Waiver of the Attorney-Client Privilege.

Ruling: Granted. Ganesh says Bustamante will waive privilege, but Ganesh must also waive the privilege. Ganesh must provide informed consent and a knowing, voluntary waiver on the record of any attorney-client privilege, work product doctrine protection, and protection from Bustamante's duty of loyalty and duty of confidentiality before Bustamante testifies. Before the waivers are stated on the record, Bustamante must provide a detailed proffer of his testimony. Will Bustamante testify about factual impressions or substantive communications with Ganesh? Does the government want this to be done ex parte?

MIL #4: Belcher should supplement his list of 80 witnesses by proffering anticipated testimony.

Ruling: Denied. Belcher subsequently supplemented his witness list with proffers of anticipated testimony.

MIL #5: Belcher Cannot Elicit Improper Character Evidence.

Ruling: Denied without prejudice. Government may object to specific questions or testimony. Fed. R. Evid. 405(a) provides that "[w]hen evidence of a person's character or character trait is admissible, it may be proved by testimony about the person's reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person's conduct. Fed. R. Evid. 405(b) provides that "[w]hen a person's character or character trait is an essential element of a charge, claim or defense, the character or trait may also be proved by relevant specific instances of the person's conduct."

The government's brief is unclear about the FBI 302's regarding Belcher's untruthfulness to his staff and colleagues. Why aren't they being produced now? Are they solely for impeachment?

MIL #6: Ganesh Cannot Introduce Hearsay Unless an Exception to the Hearsay Rule Applies.

Ruling: Granted. The mental health articles were not relied upon by the experts. The curriculum vitae of the experts and the reports of Drs. Levinson and Friedman are hearsay and will not be admitted as evidence. However, the experts can testify about their qualifications and their opinions. Fed. R. Evid. 803(18) pertains to a statement in a learned treatise if the statement is called to the attention of an expert witness on cross-examination and the publication is established as a reliable authority by the expert's admission, by another's expert's testimony or by judicial notice. If admitted, the statement may be read into evidence, but not received as an exhibit.

MIL #7: Belcher's Irrelevant and Inadmissible Hearsay Exhibits Should Be Excluded.

Ruling: Granted. However, Belcher can testify that he received a Certificate of Appreciation from Barack Obama and a Certificate of Retirement from the Armed Forces.

MIL #8: Defendants cannot call expert witnesses when they have not complied with Rule 16 with regard to those witnesses.

Ruling: Denied without prejudice. At the pretrial conference, the Court will set a deadline for the expert reports of Mr. Arrigo for both defendants, a deadline for the expert report of Ms. Kinsel for Belcher, and a deadline to brief motions in limine regarding these experts and their reports.

MIL #9: Bank records and spreadsheets are properly authenticated and business records.

Ruling: Granted. Ganesh does not object to the bank records, but objects to the spreadsheets. Bank records and spreadsheets may be authenticated and found to be business records at trial without a custodian of record. A Fed. R. Evid. 902(11) certification of a custodian of record that the document meets the requirements of Fed. R. Evid. 803(6)(A)-(C) will suffice. Defendants may still contest the admissibility of these documents by disputing relevance, Fed. R. Evid. 403 balancing, or other evidentiary issues.

Belcher also objects to the spreadsheets on Confrontation Clause grounds. The Confrontation Clause forbids "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Crawford v. Washington, 541 U.S. 36, 53-54 (2004). Belcher argues that the spreadsheets are "testimonial" statements because they "were prepared in response to a grand jury subpoena and were at all times intended by the government for later use at trial." However, the spreadsheets are composed of entries from databases of claims submissions kept by various health insurers, and thus the entries themselves are business records. As the United States Supreme Court explained in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), business records generally do not run afoul of the Confrontation Clause because they are "created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial" and are therefore "not testimonial." Id. at 324. Thus, even if the spreadsheets were intended by the government for use at trial, the spreadsheets are merely compilations of business records and therefore are admissible absent confrontation. See United States v. Man Nei Lui, 402 F. App'x 235, 237 (9th Cir. 2010) ("There is no support, however, for the proposition that by summarizing the contents of admissible, non-testimonial statements, a witness converts the calls into testimonial statements in violation of the Confrontation Clause.").

MIL #10: Judicial notice that Bank of America, Bank of the West, and Wells Fargo were insured by the FDIC from 2010-2015.

Ruling: Granted. Ganesh and Belcher do not object to this motion. The Court takes judicial notice that Bank of America, Bank of the West, and Wells Fargo were insured by the FDIC from 2010-2015.

MIL #11: Motion to admit evidence of defendants' other fraudulent acts.

Ruling: Granted. The superseding indictment alleges a health care fraud conspiracy from January 2008 through January 2015. The Court finds that Ganesh's alleged health care fraud in 2004-2006 is not inextricably intertwined with the crimes charged in the superseding indictment. The Ninth Circuit recognizes "two categories of cases in which we have concluded that `other act' evidence is inextricably intertwined with the crime with which the defendant is charged and therefore need not meet the requirements of Rule 404(b)." United States v. Loftis, 843 F.3d 1173, 1177 (9th Cir. 2016) (quoting United States v. Vizcarra-Martinez, 66 F.3d 1006, 1012 (9th Cir. 1995)). First, the Ninth Circuit has "sometimes allowed evidence to be admitted because it constitutes a part of the transaction that serves as the basis for the criminal charge." Id. at 1178 (quoting Vizcarra-Martinez, 66 F.3d at 1012). Second, the Ninth Circuit has "allowed `other act' evidence to be admitted when it was necessary to do so in order to permit the prosecutor to offer a coherent and comprehensible story regarding the commission of the crime." Id. (quoting Vizcarra-Martinez, 66 F.3d at 1012).

The Court finds neither basis for applying the inextricably intertwined exception to Rule 404(b) applies here. The `same transaction' category applies to evidence that is temporally close to the charged conduct. See Vizcarra-Martinez, 66 F.3d at 1012 (citing contemporaneous drug transactions as example). The Ninth Circuit has even said that evidence "which occurred six months after the charged conduct took place, is arguably too far removed in time to constitute a part of the charged transaction." United States v. Anderson, 741 F.3d 938, 950 (9th Cir. 2013); United States v. DeGeorge, 380 F.3d 1203, 1220 (9th Cir. 2004) (past evidence tending to prove charged fraud too temporally removed to be part of same transaction). In a similar vein, conspiracy cases admitting evidence under the `same transaction' category indicate that the evidence must fall within the temporal scope of the charged conspiracy. United States v. Yagi, 2013 WL 10570994, at *9 (N.D. Cal. Oct. 17, 2013) (evidence falling outside the temporal scope of the charged conspiracy is not inextricably intertwined with the conspiracy); see United States v. Montgomery, 384 F.3d 1050, 1062 (9th Cir. 2004) ("We conclude that each action was `inextricably intertwined' with the conspiracy, and therefore not subject to Rule 404(b), because each occurred within the temporal scope of the conspiracy and comprised the conspiracy." (emphasis added)). The charged conduct here ran from 2009 to 2014, and the evidence at issue is from 2004 to 2006. Given the years-long gap between the evidence and the charged conduct, the Court finds the evidence does not fall under the `same transaction' aspect of the inextricably intertwined exception to Rule 404(b).

The Court likewise finds that the evidence does not fall under the `coherent and comprehensible story' aspect of the inextricably intertwined exception to Rule 404(b). The proffered evidence simply moves the scheme's starting point back from 2009 to 2004. That shift in dates has no meaningful effect on the prosecution's ability to tell "a coherent and comprehensible story regarding the commission of the crime." DeGeorge, 380 F.3d at 1220 (quoting Vizcarra-Martinez, 66 F.3d at 1012).

However, such evidence is admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or lack of accident pursuant to Fed. R. Evid. 404. Under Rule 404(b), if a defendant so requests, the Government must "provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial." Fed. R. Evid. 404(b)(2)(A). This notice is "designed to reduce surprise and promote early resolution of admissibility issues." United States v. Vega, 188 F.3d 1150, 1153 (9th Cir. 1999). A district court has discretion in deciding whether the Government has satisfied the Rule's notice requirement. See United States v. Peyton, 28 F. App'x 655, 657-58 (9th Cir. 2002) (holding in the context of a Rule 404(b) motion that "[a] district court's evidentiary rulings during trial are reviewed for an abuse of discretion"); Fed. R. Evid. 404, Advisory Committee Notes on 1991 Amendments ("The court in its discretion may, under the facts, decide that the particular request or notice was not reasonable, either because of the lack of timeliness or completeness."). In the instant case, the Court finds that the government's notice was timely.

"Rule 404(b) provides that the district court may admit evidence of prior bad acts if it (1) tends to prove a material point; (2) is not too remote in time; (3) is based upon sufficient evidence; and, (4) in some cases, is similar to the offense charged." United States v. Lozano, 623 F.3d 1055, 1059 (9th Cir. 2010). If these four elements are satisfied, a court must balance the probative value of the evidence against its prejudicial effect to determine whether it is admissible under Rule 403. United States v. Curtin, 489 F.3d 935, 957 (9th Cir. 2007) (en banc). Under Rule 403, a court may exclude otherwise admissible evidence if its probative value is substantially outweighed by unfair prejudice, confusion, delay, or other factors.

The Court finds that the government's evidence satisfies all four Lozano elements. First, this evidence proves many material points in issue: opportunity, intent, preparation, plan, knowledge, absence of mistake, and lack of accident. Second, this evidence is not too remote in time from the commission of the crimes charged in the superseding indictment. Fed. R. Evid. 404(b) evidence may include both prior and subsequent acts. United States v. Hinostroza, 297 F.3d 924, 928 (9th Cir. 2002). The Ninth Circuit has upheld the admission of thirteen-year-old Fed. R. Evid. 404(b) evidence. See United States v. Vo, 413 F.3d 1010, 1018 (9th Cir. 2005) (upholding admission of thirteen-year-old Fed. R. Evid. 404(b) evidence); United States v. Ross, 886 F.2d 264, 267 (9th Cir. 1989) (upholding admission of thirteen-year-old Fed. R. Evid. 404(b) evidence). The other acts evidence in the instant case is 2-4 years old, so it is not too remote in time from the charged offenses. Third, there is sufficient evidence to allow the jury to conclude that the defendant committed the other acts. In United States v. Romero, 282 F.3d 683, 688 (9th Cir. 2002), the Ninth Circuit described the sufficiency element as a "low threshold" and held that the testimony of one witness about the defendant's prior act satisfied the threshold. See also United States v. Decinces, 808 F.3d 785, 790-91 (9th Cir. 2015) (statement from a defendant's securities broker remarking that defendant had "exhibited uncanny timing in buying stocks of companies being acquired and selling stocks of companies doing the acquiring," combined with defendant's associate's access to insider information, was sufficient to support a determination that defendant and defendant's associate engaged in insider trading for 404(b) purposes). Finally, the acts are essentially identical to the crimes charged in the indictment.

Under Fed. R. Evid. 403 balancing, the Court finds the probative value substantially outweighs any danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time or needlessly presenting cumulative evidence.

The parties shall prepare a limiting instruction which instructs the jury that the other acts evidence can be considered only to the extent that it is probative of opportunity, intent, preparation, plan, knowledge, absence of mistake, and lack of accident. See United States v. Minyard, 461 F.2d 931, 934 (9th Cir. 1972) ("It is the general rule that where evidence pertaining to another crime is introduced for the purpose of showing the general intent of defendant in committing the offense charged, the jury should be instructed as to the limited probative effect of the testimony admitted.").

Ganesh's Motions in Limine

Ganesh MIL#1: Switch counsel tables, so that defense counsel can be close to the jury and witness stand.

Ruling: Denied. The Court will ensure that all witnesses speak into the microphone. Ganesh's counsel could see and hear the witnesses during the competency hearings such that Ganesh's counsel made effective direct and cross examinations and objections.

Ganesh MIL #2: Motion to narrow government's witness list and limit government's time.

Ruling: Denied. The Court can extend the trial if necessary. The government says it will need 8 days. The Court limits trial time in all civil cases, but does not impose time limits on criminal cases. However, the Court invites the parties to file narrowed witness lists and would like to set a date to do so at the pretrial conference.

Belcher's Motions in Limine

Belcher MIL #1: Exclude bank accounts not referenced in the indictment because they are irrelevant under Fed. R. Evid. 401 and 402.

Ruling: Denied. No law requires the government to identify all of its trial exhibits in the indictment. Money laundering and conspiracy to commit money laundering has been charged in this case, so the flow of money is highly relevant. Under Fed. R. Evid. 403 balancing, the probative value substantially outweighs the other considerations set forth in Fed. R. Evid. 403.

Belcher MIL #2: Belcher should be allowed to present evidence of Ganesh's mental disability.

Ruling: Denied without prejudice. The motion is too vague.

Belcher MIL #3: Preclude testimony about veracity of defendants.

Ruling: Denied without prejudice. The Ninth Circuit has "held that opinion evidence regarding a witness' credibility is inadmissible." United States v. Sanchez-Lima, 161 F.3d 545, 548 (9th Cir. 1998). Thus, a witness cannot testify about whether a previous witness was telling the truth. Id.; United States v. Geston, 299 F.3d 1130, 1136 (9th Cir. 2002) ("These questions were improper because they compelled Groot and Garrett to offer opinions regarding the veracity of the government witnesses."). However, that does not mean the government is prohibited from eliciting all testimony that may be probative of Belcher's truthfulness and credibility. For example, if Belcher were to testify, the government would be allowed to test the truth of Belcher's testimony on cross examination. Further, as the government points out, Fed. R. Evid. 608(b) allows the government to cross-examine a witness with specific bad act evidence in order to demonstrate that the witness has a character for untruthfulness. Thus, Belcher's motion to preclude any questioning that may relate to Belcher's veracity is overbroad.

Belcher MIL #4: Preclude improper vouching by the government.

Ruling: Granted. Neither a prosecutor nor a testifying government agent may express a personal opinion as to the credibility or reliability of a witness. United States v. Williams, 989 F.2d 1061, 1071 (9th Cir. 1993) ("As a general rule, a prosecutor may not express . . . his belief in the credibility of government witnesses."); United States v. Rudberg, 122 F.3d 1199, 1204 (9th Cir. 1997). However, the Court notes that if a defendant probes into a witness's credibility, he "opens the door" to government questioning that may relate to that witness's credibility. For example, in United States v. Nobari, 574 F.3d 1065 (9th Cir. 2009), the Ninth Circuit held that a defendant who "attempt[ed] on direct examination to impeach" a government informant "through references to [the informant's] plea agreement . . . opened the door to questions by the prosecution about the agreement." Id. at 1078.

Belcher MIL #5: Preclude documents not yet produced and witnesses not yet named.

Ruling: Denied. These documents pertain to defendant's bank accounts and constitute defendants' bank records. Although it would have been the better practice for the government to produce these earlier, defendants were offered the opportunity to inspect the documents, but chose not to do so. The Court finds no bad faith on the part of the government or prejudice to defendants. Exclusion is a disproportionate sanction. However, the government is precluded from seeking to introduce the 889 pages of bank statements produced on 9/22/2017 until the week of November 7, 2017.

Belcher MIL #6: Preclude government witnesses that are irrelevant, including all government witnesses not listed in the indictment.

Ruling: Denied.

Belcher MIL #7: Preclude Carlene Kikugawa from testifying.

Ruling: Denied.

Belcher MIL #8: Preclude admission of Fed. R. Evid. 404(b) evidence.

Ruling: See ruling on government's motion in limine #11.

Belcher MIL #9A &B: Compel production of grand jury transcripts before trial.

Ruling: Granted. The government represents that it has produced all grand jury transcripts.

Belcher MIL #9C: Compel early production of rough notes by government agents that would be discoverable under Federal Rule of Criminal Procedure 26.2 and the Jencks Act.

Ruling: Denied. Fed. R. Crim. P. 26.2(a), which substantially incorporated the Jencks Act, 18 U.S.C. § 3500, states that "[a]fter a witness other than the defendant has testified on direct examination, the court, on motion of a party who did not call the witness," must order the party who called the witness to produce "any statement of the witness that is in their possession and that relates to the subject matter of the witness's testimony." Belcher correctly points out that the rough notes taken by a government agent during an interview of a witness can constitute a "statement" by the witness if the rough notes are "a substantially verbatim, contemporaneously recorded recital of the witness's oral statement" during the interview. Fed. R. Crim. P. 26.2(f)(2); see United States v. Griffin, 659 F.2d 932, 938 n.5 (9th Cir. 1981) (recognizing that interview notes may contain a verbatim "statement" by a witness for purposes of the Jencks Act). Even so, Rule 26.2(a) requires the Court to order such witness "statements" only "after [the] witness . . . has testified on direct examination." Further, although the government correctly recognizes that it has an obligation to promptly disclose any Brady material it finds in the government agents' rough notes—including "witness statement information in the notes that is materially different from the memoranda of interview prepared by the agents"— the government does not agree to early production of rough notes that would be discoverable under Rule 26.2, but not pursuant to Brady. As a result, the Court denies Belcher's request for the Court to compel early production of any rough notes that would be discoverable as witness statements solely under Rule 26.2.

Although the Court does not compel early production of the rough notes, the Court encourages the government to voluntarily produce such notes early. The Court would like to set a deadline to do so at the pretrial conference.

Belcher MIL #10: Exclude witnesses during trial.

Ruling: Granted except government's primary case agent and the lead investigator for each defendant may remain in the courtroom during trial regardless of whether these three individuals testify during the trial.

Belcher MIL #11: Allow jurors to have individual copies of the jury instructions during deliberations.

Ruling: Granted. That is the Court's practice in all cases.

Belcher MIL #12: Read the indictment to the jury, but do not send the indictment into the jury room during deliberations.

Ruling: Granted. The Court's practice is not to send the indictment into the jury room during deliberations. However, it is also the Court's practice not to read the indictment to the jury. Do the parties want the Court to read the indictment to the jury?

Belcher MIL #13: Add trial days to the calendar.

Ruling: The Court will not limit any party's trial time. How many days do the parties want to add to the trial?

Belcher MIL #14: Grant leave to raise further issues orally at the pretrial conference.

Ruling: Trial management issues may be raised at the pretrial conference. Additional evidentiary objections must be raised during trial.

Government's Pretrial Statement

In its pretrial statement, the government raises a number of evidentiary issues that may arise during trial. ECF No. 101. The government does not seek a ruling on these issues at this time. However, the Court rules on issues raised in Legal Issue #1 above in response to the government's motion in limine #2 and below to facilitate trial efficiency. The ruling below is based on consideration of the parties' briefing, the case law, and the record in this case, and the balancing of the considerations set forth in Fed. R. Evid. 403.

Legal Issue #1: Defendants' out-of-court statements are admissible if offered by the United States, but defendants may not offer portions of their own prior statements without testifying.

Ruling: Granted as to the following:

The United States may admit defendants' out-of-court statements because such statements are not hearsay and constitute an opposing party's statements pursuant to Fed. R. Evid. 802(d)(2)(A).

The United States also may introduce the statements of defendants' agents or employees pursuant to Fed. R. Evid. 802(d)(2)(D), which provides that a statement offered against an opposing party is not hearsay if "made by the party's agent or employee on a matter within the scope of that relationship and while it existed."

Denied without prejudice as to the following:

Although defendants generally may not offer portions of their own prior statements without testifying, Fed. R. Evid. 106 ("Rule of Completeness") may apply to some statements. Thus, the government may make objections to specific statements.

IT IS SO ORDERED.