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Western Alliance Bank v. Jefferson

United States District Court, D. Arizona

May 3, 2016

Western Alliance Bank, Plaintiff,
Richard Jefferson, Defendant. Richard Jefferson, Counter-claimant,
Western Alliance Bank, Counter-defendant. Richard Jefferson, Third-party plaintiff,
Theodore Kritza & Michelle Lee Kritza, Third-party defendants.




Before the court are three motions in limine filed by third-party defendants Theodore Kritza and Michelle Lee Kritza (collectively, “Kritza”) at dockets 267, 269, and 270. Third-party plaintiff Richard Jefferson (“Jefferson”) opposes these motions at dockets 277, 278, and 279, respectively. Oral argument was not requested and would not assist the court.


The district courts exercise broad discretion when ruling on motions in limine.[1] In order for evidence to be excluded under such motions, it must be “clearly inadmissible on all potential grounds.”[2] “Unless evidence meets this high standard, evidentiary rulings should be deferred until trial so that questions of foundation, relevancy and potential prejudice may be resolved in proper context.”[3]

“It is settled law that in limine rulings are provisional. Such ‘rulings are not binding on the trial judge [who] may always change his mind during the course of a trial.’”[4] “Denial of a motion in limine does not necessarily mean that all evidence contemplated by the motion will be admitted to trial. Denial merely means that without the context of trial, the court is unable to determine whether the evidence in question should be excluded.”[5]


A. Kritza’s Motion to Exclude Evidence and Argument Regarding the FBI’s Investigation

In or around October 2013 Jefferson asked the FBI to investigate Kritza “to make right what was wrong.”[6] As part of the FBI’s investigation, Special Agent Kyle Armstrong (“Armstrong”) arranged for the recording of a phone conversation between Jefferson and Kritza.[7] Jefferson claims that during this conversation Kritza admitted to using the line of credit (“LOC”) at the heart of this case without Jefferson’s knowledge or permission;[8] Kritza denies this.[9]

In March of last year Jefferson requested a stay of proceedings in this case because Jefferson was told that he would not be able to obtain the FBI’s recording of his phone call with Kritza while the FBI’s investigation is ongoing.[10] The court denied Jefferson’s motion, and to date Jefferson has not been able to obtain the recording.

Jefferson has named Armstrong as a witness whom he may call at trial[11] to testify about the “criminal investigation involving Theodore Kritza, ” including “interviews and recorded statements [from] Kritza.”[12] Kritza now moves pursuant to Federal Rules of Evidence 402 and 403 to exclude “any evidence or argument at trial regarding the fact that an investigation has been done or is ongoing, ” including “any reference to the fact that the FBI may have recorded a telephone conversation between Jefferson and Kritza.”[13]

1. Federal Rule of Evidence 402

Pursuant to Federal Rule of Evidence 402, relevant evidence is generally admissible and irrelevant evidence is inadmissible. Evidence is relevant if (1) “it has any tendency to make a fact more or less probable than it would be without the evidence;” and (2) “the fact is of consequence in determining the action.”[14] Kritza argues that the FBI’s investigation is irrelevant because the fact that “the FBI is trying to find out whether Kritza misappropriated” Jefferson’s funds does not make it more or less probable that Kritza has done so.[15] Jefferson does not dispute that the investigation itself is irrelevant; he instead argues that the FBI’s recording of his telephone call with Kritza is relevant evidence.[16]

Both parties’ arguments are well taken. The pertinent “fact of consequence” here is whether Kritza misappropriated funds from the LOC. If Kritza admitted to doing so, that fact would obviously be relevant and Jefferson’s evidence of that admission, in the form of testimony from a witness to that conversation or a recording of the conversation itself, would be admissible under Rule 402. Whether the FBI was involved in gathering that evidence, however, has no bearing on whether Kritza misappropriated LOC funds. Jefferson essentially concedes as much in his opposition.[17] The court concludes that the mere fact that the FBI investigated Kritza is irrelevant.

2. Federal Rule of Evidence 403

Kritza also argues that references to the FBI investigation should be barred under Rule 403, which provides in pertinent part that relevant evidence may be excluded where its “probative value is substantially outweighed by a danger of . . . unfair prejudice.” The court agrees.

Evidence that the FBI has investigated Kritza invokes the “prestige and authority of the FBI and the United States Department of Justice, ”[18] and could likely lead a jury to unfairly conclude that the investigation itself conclusively establishes that Kritza has committed a crime. Thus, Jefferson is free to characterize himself as a victim of crimes committed by Kritza, as he has done many times in the briefs he has submitted to this court, but because the FBI has never publicly connected Kritza to any crimes it would be unfairly prejudicial to allow him to assert that the FBI is actively investigating or considering whether to prosecute Kritza. Further, at trial Jefferson will not be allowed to reference the “criminal case, ” ...

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