Memo Endorsement as to Rafael Martinez — USA v. Martinez (Dkt. 49, S.D.N.Y.)

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A government letter dated January 13, 2023 to The Honorable Lewis J. Liman in United States v. Rafael Martinez, 22 Cr. 251 (LJL), U.S. District Court for the Southern District of New York, with the court's memo endorsement granting it, filed 01/14/23 as Document 49. The defendant moved to dismiss Count One, arguing it charges a scheme to defraud the SBA of its approval to become a non-bank PPP lender, while the government says it charges a scheme to obtain millions of dollars in PPP capital and lender fees from the Federal Reserve and an insurance company. The government says it will seek a superseding indictment to clarify the charging language and asks to adjourn oral argument, over defense opposition. The endorsement reschedules the argument to February 17, 2023, while the Curcio hearing proceeds on January 17, 2023.

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[Type text] 
BY ECF 
The Honorable Lewis J. Liman 
United States District Judge 
Daniel Patrick Moynihan United States Courthouse 
500 Pearl Street 
New York, New York 10007 
Re:
United States v. Rafael Martinez, 22 Cr. 251 (LJL) 
Dear Judge Liman: 
The defendant in the above-captioned action has filed a motion to dismiss Count One of 
the Indictment.  Oral argument is scheduled for this coming Tuesday, January  18, 2023 at 10:00 
a.m.  The Government writes to request an adjournment of the argument, for the reasons set forth
below.
As the Court is aware, the defendant seeks to dismiss Count One because, in his estimation, 
it charges a scheme to defraud the Small Business Administration (the “SBA”) of its approval to 
become a non-bank lender through the Paycheck Protection Program (the “PPP”).  (Def. Rep. 
Mem. at 1).  The Government, by contrast, contends that Count One charges a scheme to obtain 
millions of dollars in PPP capital and in lender fees from both the Federal Reserve and an insurance 
company (the “Company”), a scheme effectuated, in part, by making false statements to the SBA. 
(Govt. Opp. at 12).  In his reply brief in support of the motion to dismiss, the defendant focuses on 
the precise language of the “to wit” clause contained in Count One, arguing that that language 
supports his view of the conduct at issue.  (Id. at 3-5).  As set forth in the Government’s opposition, 
the “to wit” clause need not specify all the particulars of how and from whom Martinez 
fraudulently obtained the fund at issue.   See, e.g., United States v. Bastian, 770 F.3d 212, 221 (2d 
Cir. 2014) (“[W]e have never suggested that a ‘to wit’ clause binds the government to prove the 
exact facts specified in a criminal indictment.”).  Nevertheless, in an abundance of caution, the 
Government intends to seek a superseding indictment in this matter, to clarify the language in the 
“to wit” clause in Count One.   
Because oral argument on the defendant’s motion to dismiss will no doubt involve 
discussion of the operative charging language, the Government submits that a short adjournment 
The Silvio J. Mollo Building 
One Saint Andrew’s Plaza 
New York, New York 10007
U.S. Department of Justice 
United States Attorney 
Southern District of New York 
Case 1:22-cr-00251-LJL   Document 47   Filed 01/13/23   Page 1 of 2
January 13, 2023 
REQUEST GRANTED.
The Oral Argument on the motion to dismiss previously 
set for January 17, 2023 is rescheduled  to February 17, 
2023 at 10:00AM in Courtroom 15C at the 500 Pearl 
Street Courthouse.  However, the Curcio Hearing will 
proceed as scheduled on Tuesday, January 17, 2023 at 
10:00AM in Courtroom 15C. 
1/14/2023
Case 1:22-cr-00251-LJL   Document 49   Filed 01/14/23   Page 1 of 2

 
Page 2 
of the scheduled oral argument is appropriate1.  Accordingly, the Government intends to seek a 
superseding indictment within fourteen days and respectfully requests that oral argument be 
adjourned approximately thirty days.2  The Government has conferred with defense counsel, who 
oppose the motion to adjourn the oral argument. 
 
Respectfully submitted, 
 
 
 
 
 
 
 
 
 
 
 
 
DAMIAN WILLIAMS 
United States Attorney 
 
 
 
 
 
 
 
 
 
 
 
by: ___________________________ 
Katherine Reilly 
Micah F. Fergenson 
 
 
 
 
 
 
 
 
 
 
 
 
Katherine Reilly 
 
 
 
 
 
 
 
 
 
 
 
 
Assistant United States Attorneys 
 
 
 
 
 
 
 
 
 
 
 
 
(212) 637-6521/2190 
 
 
cc:  Defense Counsel (By ECF) 
1  The Court has also indicated its intent to hold the Curcio hearing requested in the Government’s 
January 4, 2023 letter this coming Tuesday.  The Government submits that the Curcio hearing 
could also be adjourned to the date of any rescheduled argument. 
2  As the Court is aware, AUSA Fergenson is scheduled to begin a trial before Judge Abrams on 
February 18, 2023.  The Government expects that trial to take approximately two weeks. 
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Katherine Reilly
Case 1:22-cr-00251-LJL   Document 47   Filed 01/13/23   Page 2 of 2
Case 1:22-cr-00251-LJL   Document 49   Filed 01/14/23   Page 2 of 2

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