Case 2:10-cr-00485-WJM Document 180

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June 13, 2011 Honorable William J. Martini United States District Court Judge Martin Luther King, Jr. Federal Building and Courthouse 50 Walnut Street Newark, New Jersey 07102 Re: United States v. Ronald Ottaviano et al. Docket No.: 10-485

Dear Judge Martini: I represent the Defendant Michael Balice in the above-captioned matter. Please accept this letter brief in lieu of a more formal submission in support of the Defendant's motion in limine to preclude the admission of his prior criminal convictions in the event that he testifies at trial. As your Honor is aware, on December 8, 2010, a 16-Count Superseding Indictment was filed against the Defendants. Mr. Balice is charged with numerous counts of Conspiracy to Defraud the United Sates in violation of 18 U.S.C. 371; Mail and Wire Fraud in violation of 18 U.S.C. 1341 and 1343, and tax evasion and evasion of payment of taxes owed in violation of 26 U.S.C. 7201. Mr. Balice may testify in his own defense.

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Mr. Balice has eleven prior criminal felony convictions and numerous other convictions for disorderly persons offenses. These convictions include various drug related charges, robbery charges, fraud charge and several charges for unauthorized use of vehicles. However, as outlined below, these convictions all occurred in or before 1983. The specific dates and charges for which Mr. Balice was convicted are as follows: January 7, 1970 - Robbery October 3, 1995 - Counterfeit License March 14, 1969 - Unauthorized Use of Vehicle March 25, 1969 - Unauthorized Use of Vehicle March 26, 1969 - Unauthorized Use of Vehicle September 8, 1972 - Robbery June 15, 1972 - Robbery; Committing crime while armed March 14, 1975 - Robbery April 4, 1977 - Drug Offense; Drug Offense January 26, 1978 - Fraud April 26, 1979 - Fraud May 1, 1980 - Fraud; Conspiracy to Commit Fraud October 12, 1978 - Larceny January 23, 1979 - Fraud (Insufficient Funds) April 18, 1983 - Drug Offense (Cocaine) On February 1, 1984, Mr. Balice was released from jail in connection with his 1983 drug offense conviction. Since 1984, Mr. Balice has had no further arrests. Given the remote dates of the convictions outlined above, the Government should be precluded from admitting evidence relating to these convictions at trial as remote under New Jersey Rule of Evidence 609. Rule 609 provides in relevant part: (a) General rule.--For the purpose of attacking the character for truthfulness of a witness, (1) . . . evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the
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probative value of admitting this evidence outweighs its prejudicial effect to the accused; and (2) evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness. (b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence. N.J.R.E. 609. Further, Rule 403 provides in relevant part that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." N.J.R.E. 403. It is well settled that a "party seeking to introduce the prior convictions evidence bears the burden of demonstrating the convictions survive the Rule 609 test." Marvel v. Snyder, F. Supp. 2d, 2003 WL 22134838 (D. Del. September 9, 2003) (citing Robinson v. Clemons, 1998 WL 151285, at *2 (D. Del. March 24, 1998) (citing United States v. Cunningham, 638 F.2d 696, 698 (4th Cir. 1981)). Under Rule 609(b), evidence of a conviction is not admissible if a period of more than ten years has elapsed since the date
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of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect." N.J.R.E. 609(b). Generally, courts have held that Rule 609(b) "made it crystalline that the District Court was only to depart from the prohibition against the use for impeachment purposes of convictions more than ten years old 'very rarely and only in exceptional circumstances.'" Grammenos v. Allstate Ins. Co., 2009 WL 1186130, at *1 (E.D. Pa. April 30, 2009) (citing United States v. Cavender, 578 F.2d 528, 530 (4th Cir. 1978). See also United States v. Shapiro, 565 F.2d 479, 481 (7th Cir. 1977); United States v. Brown, 2009 WL 728448, at *4 (S.D.N.Y. Mar. 10, 2009); United States v. D'Agata, 646 F. Supp. 390, 392 (E.D. Pa. 1986), aff'd, 826 F.2d 1057 (3d Cir. 1987)). In interpreting the application of this Rule, Courts have recognized that "the very purpose of the Rule, which is to settle the question of how old a conviction must be for its admission presumptively to prejudice a defendant." Id. at *2 (quoting United States v. Beahm, 664 F.2d 414, 418 (4th Cir. 1981). Therefore, it is clear that "[a]ny conviction of at least ten years old presumptively prejudices a defendant under the Rule." Id. at *2 (quoting Beahm, 664 F.2d 418). See also United States v. Millhouse, 2007 WL 1366974, at *4 (E.D. Pa. May 7, 2007) ("the remoteness of a conviction detracts from its probative value."). It is indisputable that the convictions at issue in this case are extremely remote. The convictions all occurred in the 1970's and early 1980's, with the last conviction
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occurring in 1983. Subsequently, Mr. Balice was released from jail in February of 1984 and has since had no arrests. Given, the remoteness of the convictions, their admission at trial has little or no probative value. In addition, it is evident that in this case any admission of these convictions at trial would be unduly prejudicial to Mr. Balice. Therefore, it is evident that probative value of these convictions does not substantially outweigh its prejudicial effect. Consequently, the presumption that evidence of these convictions is precluded at trial has not been overcome. In addition, many of these convictions include convictions for fraud-related charges. Because this case includes charges for mail and wire fraud, any reference to prior fraud convictions would be highly prejudicial. Courts have not hesitated to

preclude the admission of prior convictions, where, as here, the alleged acts are of a similar nature. See Shapiro, 565 F.2d at 481. Courts have recognized that in such situations where the prior convictions involved similar acts, then the prejudicial effect is increased. See id. In such a situation, a "jury is more likely to misuse the evidence for purposes other than impeachment, that is, to regard the prior convictions as evidence of a propensity to commit crime or of guilt, despite instructions to the contrary." Id. See also Beahm, 664 F.2d at 418-19 ("[a]dmission of evidence of a similar offense often does little to impeach the credibility of a testifying defendant while undoubtedly prejudicing him.... The generally accepted view ... is that evidence of similar offenses for impeachment purposes under Rule 609 should be admitted sparingly if at all.") (footnote omitted); See also United States v. Brown, 2009 WL 728448, at *5 ("The danger
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of unfair prejudice is particularly present where, as here, the prior conviction ... involves precisely the same activity as the [present offense].") (quotations omitted). Therefore, as outlined above, it is clear that given the similar nature of these offenses and given the remoteness of these convictions, admission of these prior convictions at trial would be unduly prejudicial and could serve to confuse the jury. Consequently, the Government should be precluded from admitting evidence of Mr. Balice's prior convictions at trial to impeach his credibility.

Respectfully submitted,

Joseph R. Donahue

cc:

All counsel of record (via ECF only)

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UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY UNITED STATES OF AMERICA, v. RONALD OTTAVIANO, MICHAEL BALICE, HARRIET FOSTER, WILSON CALLE, and ANGEL DONE, Defendants. Cr. No. 10-485 (WJM) NOTICE OF MOTION IN LIMINE

TO:

Christopher Kelly, AUSA Gurbir Grewal, AUSA U.S. Attorneys Office 970 Broad Street, Suite 700 Newark, New Jersey 07102

PLEASE TAKE NOTICE THAT Defendant Michael Balice, through his attorneys, Brickfield & Donahue, Joseph R. Donahue, Esq. appearing, shall move before the Honorable William J. Martini, U.S.D.J. in the United States District Court for the District of New Jersey on June 13, 2011, or as soon thereafter as Defendant may he heard, for an Order: (1) precluding any inquiry into Michael Balice's prior criminal history

in the event he testifies at trial. In support of this Motion, Michael Balice shall rely upon the attached memorandum of law and will further rely upon oral argument and, where necessary, the taking of testimony under Fed. R. Evid. 104.

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Dated:

June 12, 2011

BRICKFIELD & DONAHUE By: _/s/ Joseph R. Donahue_ Joseph R. Donahue 70 Grand Avenue, Suite 102 River Edge, New Jersey 07661 (201) 488-7707 Attorneys for Michael Balice

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UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY UNITED STATES OF AMERICA, v. RONALD OTTAVIANO, MICHAEL BALICE, HARRIET FOSTER, WILSON CALLE, and ANGEL DONE, Defendants. I, Joseph R. Donahue, hereby certify that on June 12, 2011, I caused to be filed and served upon all counsel of record Defendant Michael Balices Motion in Limine to Preclude Inquiry into Defendant's Criminal History via ECF filing. I hereby certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false I am subject to punishment. /s/ Joseph R. Donahue/s/ Joseph R. Donahue, Esq. Dated: June 12, 2011 Cr. No. 10-485 (WJM) CERTIFICATION OF SERVICE

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