Court filing
Indictment - United States v. Maurice Fayne related docket
Record facts
| Court | U.S. District Court for the Northern District of Georgia |
|---|---|
| Filed | 2022-06-23 |
U.S. District Court for the Northern District of Georgia · No. 1:20-cr-00228-MHC-JKL · Doc. 269 · 2022-06-23 · Docket on CourtListener
Summary
Motions in limine filed June 23, 2022 by defendant Daniel Eric Jay in United States v. Daniel Eric Jay, No. 1:20-cr-00228-MHC-JKL, in the U.S. District Court for the Northern District of Georgia (Doc. 269), before a jury trial scheduled for July 19, 2022. Jay asks the court to exclude racial epithets he is alleged to have used, allegations about a giant ruby investment scheme, materials obtained in violation of the attorney-client privilege, and single-party recorded calls made in violation of state laws. He renews a request for Brady material, including impeachment evidence about government witnesses. He also moves to bar witnesses the government could reasonably suspect of being likely to commit perjury, naming codefendant Maurice Fayne among them. The motions are signed by counsel L. Burton Finlayson.
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
UNITED STATES OF AMERICA
)
)
)
v.
) 1:20-CR-228-2 (MHC) (JKL)
)
)
DANIEL ERIC JAY
)
____________________________
)
MOTIONS IN LIMINE
COMES NOW the Defendant, DANIEL ERIC JAY, and submits the
following motions in limine to be considered by this Honorable Court prior to his
jury trial, scheduled to begin on July 19, 2022. In support of this request, the
Defendant shows as follows:
I) Motion to exclude racial epithets.
As the Court may recall, Daniel Jay was indicted with a codefendant,
MAURICE FAYNE and charged with several counts of bank fraud, wire fraud and
wire fraud conspiracy. Mr. Fayne pled guilty to running a trucking company
which turned out to be a “ponzi scheme.” Mr. Fayne also pled guilty to obtaining
a PPP loan through fraudulent pretenses, purportedly to allow his trucking
company to continue operating during the COVID-19 pandemic. (Doc. 96, 2nd
Case 1:20-cr-00228-MHC-JKL Document 269 Filed 06/23/22 Page 1 of 11
superseding indictment); (Doc. 186-1, Fayne guilty plea). The evidence at trial
will show that Mr. Fayne was the recipient and beneficiary of almost all of the
funds from the alleged “Ponzi scheme,” and Mr. Fayne used almost all of the PPP
loan for his own, non-business related, purposes.
The Rule 16 discovery materials provided by the government in this case
contain witness statements, emails, texts messages, (and perhaps even digital
recordings) wherein Dan Jay, who is white, is alleged to refer to Mr. Fayne, who is
African American, in a disparaging manner using the “N-word.”
The Defendant moves in limine to exclude any and all such racial epithets
from the upcoming trial as they would unduly prejudice Mr. Jay in the eyes of the
jury, and they would unfairly place his moral character into evidence. “There is no
place in a criminal prosecution for gratuitous reference to race, especially when a
defendant’s life hangs in the balance. Elementary concepts of equal protection
and due process alike forbid a prosecutor to seek to procure a verdict on the basis
of racial animosity.” United States v. Bowman, 302 F.3d 1228, 1240 (11th Cir.
2002).
Any possible probative value possessed by these racial epithets is far
outweighed by the unfair prejudice such evidence would create. Such matters
must be weighed in accordance with Rules 401 and 403. For such evidence to be
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admitted, first, the evidence must be relevant to an issue other than the defendant's
character. United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc),
cert. den. 440 U.S. 920, 99 S.Ct. 1244 (1979), adopted in part by in Huddleston v.
United States, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988). See also United States v.
Miller, 959 F.2d 1535, 1538 (11th Cir.), cert.den. 113 S.Ct. 382 (1992), (applying
Beechum and Huddleston). Second, the court must determine whether the
probative value of the evidence is substantially outweighed by undue prejudice
under Federal Rule of Evidence 403. United States v. Miller, 959 F.2d at 1538;
Beechum, 582 F.2d at 911.
WHEREBY, Dan Jay requests that the government be directed to instruct its
witnesses to omit or redact any such racial epithets, “the N-word,” and that the
government redact all written documents and recordings to prevent the jury from
being exposed to any such racial epithets allegedly uttered by Mr. Jay.
II) Motion to exclude allegations about a giant ruby investment scheme.
The Rule 16 discovery materials provided by the government in this case
also contain some vague allegations and nefarious suggestions about an investment
program to purchase shares in a large ruby gemstone. These matters are not
charged in the indictment or related to the charges in the indictment.
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Furthermore, there is no evidence that the giant ruby investment plan was criminal
in nature or that Mr. Jay was criminally involved. Last, these matters are not
sufficiently similar to allow their introduction at trial. Thus, in an abundance of
caution, Mr. Jay moves in limine to exclude them.
Admission of the giant gemstone investment plan improperly places Mr.
Jay’s character into evidence before the jury in violation of Rule 404(a). The thin
allegations surrounding the giant ruby and its provenance are not sufficiently
relevant. Any probative value possessed by the evidence is outweighed by the
unfair prejudice created. Such matters must be weighed in accordance with Rules
401 and 403. Rule of Evidence 404(b) provides in pertinent part:
Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to
show that he acted in conformity therewith. It may,
however, be admissible for other purposes, such as proof
of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.
Fed. R. Evid. 404(b).
This court must determine whether the probative value of the extrinsic act is
substantially outweighed by undue prejudice under Federal Rule of Evidence 403.
United States v. Miller, 959 F.2d at 1538; Beechum, 582 F.2d at 911. Where the
traits that the charged and prior offenses have in common are traits common to the
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commission of those type offenses so that none of the traits could be called a
"signature" trait, the uncharged offenses are not relevant. Miller 959 F.2d at 1540
(Kravitch, J., concurring)(noting the similarities between the prior act constituted
"the modus operandi of every drug dealer"). In this case, there are no signature
traits which would make the defendant sufficiently, more likely to have committed
the bank and wire frauds charged in the indictment.
Introduction of the ruby investment program, through testimony from law
enforcement officers, alleged victims, coconspirators or former codefendants, will
unduly extend, delay and belabor this trial. Furthermore, these matters are likely
to confuse the jury in what is already going to be a very confusing case.
WHEREBY, Dan Jay requests that these matters be excluded from his trial.
III) Motion to exclude any emails, text messages or documents to which Dan
Jay was a party, which the government obtained in violation of the
attorney-client privilege.
In an abundance of caution, Mr. Jay moves in limine to exclude any emails,
text messages or documents which were seized in violation of the attorney-client
privilege.
5
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IV)
Motion to exclude single-party recorded conversations made in
violation of state laws.
The Rule 16 discovery materials provided by the government in this case
contain several recorded phone conversations of Dan Jay made with “single-party”
consent, where the consent was given by the person / witness who recorded the
call. While single-party consent is allowed in many states including Georgia, it is
not allowed in several states. That is, several states require that both (all) parties
consent to recording a phone call. Thus, in an abundance of caution, Mr. Jay
moves to exclude any single-party recorded calls which were made in violation of
the laws of the state in which they were recorded.
V) Renewed request for Brady material.
Mr. Jay renews his request for any all Brady material, including but not limited
evidence revealing or reflecting that he was unaware that Maurice Fayne and
others were running a “Ponzi scheme” or otherwise committing fraud. Mr. Jay
requests production of any and all impeachment materials including prior
inconsistent statements made by government witnesses, or summaries of witness
statements, and evidence of drug, alcohol or gambling abuse or addiction, or
evidence mental illness which could cast doubt on the credibility of the
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government’s trial witnesses. This request seeks such impeachment evidence for
all lay, expert and law enforcement witnesses.
Dan Jay requests production of all recorded jail calls made by government
witness which are in the possession of the government or its agents. The
Defendant also requests production of information or reports revealing the
payment of funds or financial benefits to any government witnesses other than
standard employee salaries and witness appearance fees. This request includes
any expert witness fees, cash awards or bonuses or charitable assistance given to
government witness. Last, the Defendant requests production of all information
related to pending (or recently resolved) criminal charges against any government
witness, whether or not actual benefit has been or will be provided to said witness
by the United States government.
Mr. Jay submits he is entitled to the information requested by this
motion pursuant to Rule 16 of the Federal Rules of Criminal Procedure, Brady v.
Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 105 (1972).
[T]he individual prosecutor has a duty to learn of any
favorable evidence known to the others acting on the
government's behalf in the case, including the police.
But whether the prosecutor succeeds or fails in meeting
this obligation (whether, that is, a failure to disclose is in
good faith or bad faith, (citation omitted)) the
prosecution's responsibility for failing to disclose known,
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favorable evidence rising to a material level of
importance is inescapable.
. . .
[T]he prosecutor has the means to discharge the
government's Brady responsibility if he will, any
argument for excusing a prosecutor from disclosing what
he does not happen to know about boils down to a plea
to substitute the police for the prosecutor, and even for
the courts themselves, as final arbiters of the
government's obligation to ensure fair trials.
Kyles v. Whitley, 115 S.Ct at 1568.
Furthermore, disclosure of information impeaching witnesses' credibility
must be timed to enable effective preparation for trial. United States v. Polisi, 416
F.2d 573, 578 (2nd Cir. 1969); United States v. Baxter, 492 F.2d 150, 173-174
(9th Cir. 1973), cert. denied 417 U.S. 940 (1974). The appropriate time for
disclosure is as early as possible to enable defense counsel effectively to use the
information in preparing the case for trial. Compare United States v.
Campagnuolo, 592 F.2d 852 (5th Cir. 1979) with United States v. Opager, 589
F.2d 799 (5th Cir. 1979). Indeed, even when the favorable information takes the
form of a witness' statement otherwise protected from pretrial discovery by the
Jencks Act (18 U.S.C. §3500), the prosecution must nonetheless disclose it as far
in advance of trial as Due Process may practically require for the defense to make
fair use of it. United States v. Campagnuolo, supra.
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VI. Duty not to call witnesses who are likely to commit perjury.
Mr. Jay anticipates that the government will call several witnesses who are
former codefendants or alleged coconspirators of Mr. Jay. Some of these
witnesses, such as MAURICE FAYNE, MICHAEL SARGENT and CARRIE
CAPPONE have extensive histories of lying to other people, as well as prior
convictions for fraud involving the making of numerous false statements. Thus,
Mr. Jay moves in limine to exclude from the witness stand any witnesses whom
the government could reasonably foresee or suspect of being likely to commit
perjury. A Giglio error occurs when undisclosed evidence demonstrates that the
prosecution used perjured testimony and that the prosecution knew, or should have
known, of the perjury. Ford v. Hall, 546 F.3d 1326, 1331 (11th Cir. 2008).
The Defendant does not mean to suggest the prosecutors in this case would
intentionally present perjured testimony. However, given the cast of characters
involved in this case, extra caution should be exercised in this area.
WHEREBY, DANIEL ERIC JAY requests that his motions in limine be
granted and the he be proved the requested relief as well as the requested Brady
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materials.
Dated: This 23rd day of June, 2022.
Respectfully submitted,
s/ L. Burton Finlayson
L. BURTON FINLAYSON
Attorney For DANIEL JAY
Georgia Bar Number: 261460
LAW OFFICES OF
L. BURTON FINLAYSON, LLC
931 Ponce de Leon Avenue, NE
Atlanta, Georgia 30306
(404) 872-0560
lbfcourts@aol.com
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CERTIFICATE OF SERVICE
This is to certify that I have this day electronically filed the foregoing
Motions in Limine with the Clerk of Court using the CM/ECF system which will
automatically send email notifications of such filing to all counsel of record
including the following:
Mr. Russell Phillips .
Assistant United States Attorney
600 U.S. Courthouse
75 Ted Turner Drive, S. W.
Atlanta, Georgia 30303
DATED: This 23rd day of June, 2022.
s/ L. Burton Finlayson
L. BURTON FINLAYSON
ATTORNEY FOR DANIEL JAY
State Bar Number: 261460
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