Opinion and Order on Motion in Limine — USA v. Ilori et al. (Dkt. 48, S.D.N.Y.)

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U.S. District Court for the Southern District of New York · No. 1:21-cr-00746-MKV · Doc. 48 · 2022-07-05 · Docket on CourtListener

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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF NEW YORK 
UNITED STATES OF AMERICA, 
-v-
 ADEDAYO ILORI, 
Defendant. 
21-cr-00746 (MKV)
OPINION AND ORDER  
ON MOTION IN LIMINE 
MARY KAY VYSKOCIL, United States District Judge: 
Defendant Adedayo Ilori was charged in a six-count Indictment with committing, inter 
alia, major fraud against the United States and aggravated identity theft.  Mr. Ilori was arraigned 
on this Indictment in December 2021 and a trial in this matter is scheduled to begin on July 13, 
2022.  On June 15, 2022, the government moved the Court for rulings in limine on certain 
evidentiary issues in advance of the trial.1 
Subsequent to the filing of its motion, the government filed a Superseding Indictment in 
this case, which charges Mr. Ilori with the same six counts that were charged in the original 
Indictment.  However, the Superseding Indictment includes allegations triggering the statutory 
enhancement under 18 U.S.C. § 3147, which applies where individuals commit federal offenses 
while on federal bail, and clarifies the alleged unlawful activities involved in the money 
laundering conspiracy charged in Count Six.  Moreover, Chris Recamier, who was named in the 
original Indictment as a co-defendant, is not charged in the Superseding Indictment as he pleaded 
guilty on June 15, 2022 to one count of the six-count Indictment.  Mr. Ilori will be arraigned on 
the Superseding Indictment prior to the scheduled final pretrial conference on July 6, 2022. 
1 In support of its motion, the Government filed a memorandum of law.  (Gov’t Br. [ECF No. 42]).  In opposition to 
the government’s motion, Defendant filed an Affirmation in Opposition.  (Def. Aff. [ECF No. 46]). 
7/5/2022
USDC SDNY 
DOCUMENT 
ELECTRONICALLY FILED 
DOC #: 
 
 
 
DATE FILED: 
 
 
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BACKGROUND 
Mr. Ilori is charged in a six-count Superseding Indictment with (1) major fraud against 
the United States, in violation of 18 U.S.C. § 1031 (Count One); (2) conspiracy to commit wire 
and bank fraud, in violation of 18 U.S.C. § 1349 (Count Two); (3) wire fraud, in violation of 18 
U.S.C. § 1343 (Count Three); (4) bank fraud, in violation of 18 U.S.C. § 1344 (Count Four); (5) 
aggravated identity theft, in violation of 18 U.S.C. § 1028A (Count Five); and (6) conspiracy to 
commit money laundering, in violation of 18 U.S.C. § 1956(h) (Count Six).  Specifically, the 
Superseding Indictment alleges that from in or about August 2020 until his arrest in October 
2021, Mr. Ilori, who at that time was on pretrial release in connection with another fraud and 
identity theft case in this district,2 was involved in a scheme to utilize stolen identities to, inter 
alia, fraudulently claim millions of dollars in Covid-19 relief loans through the federal Paycheck 
Protection Program (the “PPP”) and the Economic Injury Disaster Loan (“EIDL”) Program, 
programs administered by the United States Small Business Administration (“SBA”).  
(Superseding Indictment [ECF No. 44] ¶ 1; Complaint [ECF No. 1] ¶ 11).  The Government 
alleges that, during the course of this scheme, the Defendant made multiple loan applications 
using the stolen identities of multiple identity theft victims.  (Superseding Indictment ¶¶ 1, 4, 14; 
Complaint ¶ 11).  Many of these applications were submitted in the name of two particular 
victims (hereinafter referred to as “Identity Theft Victim-1” and “Identity Theft Victim-2”).  
 
2 In March 2020, prior to the allegations at issue here, Mr. Ilori had been arrested and charged in the Southern 
District of New York with, inter alia, fraud, identity theft, and money laundering.  See United States v. Chancy, No. 
20-CR-378 (LJL) (S.D.N.Y.).  That case was assigned to the Honorable Lewis J. Liman.  After his arrest on those 
charges, Mr. Ilori was released on bail.  Thereafter, on April 8, 2021, Mr. Ilori pleaded guilty to count one of the 
Indictment charging conspiracy to commit mail and wire fraud in violation of 18 U.S.C. § 1349.  At the change of 
plea hearing, Mr. Ilori’s sentencing was scheduled for October 13, 2022.  All of the conduct charged in this case was 
committed while Mr. Ilori was on supervised release and much of it after he had pleaded guilty and was awaiting 
sentencing in the Chancy case.  Mr. Ilori was detained for violations of the conditions of his release in the Chancy 
case based on the charges in this indictment and sentencing in that case was adjourned by Judge Liman to a later 
date.  Mr. Ilori was subsequently sentenced to 63 months’ imprisonment based on the charges in that case. 
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(Complaint ¶¶ 11, 17(a)(iii), 18(a)(iii), 21(a)(ii), 22(a)(iii)).  It is alleged that the representations 
on these applications were all false.  The Government maintains that the Defendant utilized the 
fraudulently obtained proceeds for his own benefit, including for cryptocurrency investments, 
securities, cash withdrawals, and personal expenses.  (Complaint ¶¶ 12, 24).   
LEGAL STANDARD 
 
The purpose of a motion in limine is to enable the trial court to rule on specific evidence 
in advance of the trial.  See Luce v. United States, 469 U.S. 38, 41 n. 4 (1984); Palmieri v. 
Defaria, 88 F.3d 136, 141 (2d Cir. 1996).  Evidence challenged in a motion in limine “should 
only be precluded when it is clearly inadmissible on all possible grounds.”  S.E.C. v. Tourre, 950 
F. Supp. 2d 666, 675 (S.D.N.Y. 2013) (quotation omitted).  Moreover, “a court’s decision on the 
admissibility of evidence on a motion in limine may be subject to change when the case unfolds 
. . . because the actual evidence changes from that proffered by the movant.”  Wilder v. World of 
Boxing LLC, 220 F. Supp. 3d 473, 479 (S.D.N.Y. 2016) (quotation omitted). 
DISCUSSION 
 
The Government seeks rulings in limine on certain evidentiary issues.  First, the 
Government seeks a ruling that, under Rule 801(d)(2)(E) of the Federal Rules of Evidence, out 
of court statements made by certain purported co-conspirators of Mr. Ilori are admissible.  
Second, The Government seeks a ruling that evidence of alleged contemporaneous fraud and 
identity theft conduct is admissible as either direct evidence of the charged offenses or, 
alternatively, under Rule 404(b).  Third, the Government seeks a ruling that evidence of the 
Defendant’s criminal history is admissible either under Rule 404(b) to show knowledge or intent 
or, alternatively, for impeachment purposes should the Defendant testify.  Last, the Government 
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moves to preclude the Defendant from making any argument or presenting any evidence 
concerning the possible consequences of conviction.  (Def. Br. at 1). 
I. 
Co-Conspirator Statements 
The Government moves in limine for blanket permission to admit out of court statements 
made by certain purported co-conspirators of Mr. Ilori, specifically co-defendant Mr. Recamier 
and an unnamed co-conspirator (“CC-1”).  (Def. Br. at 5).  Many such statements likely will be 
admissible at trial because they are “not hearsay” under Rule 801(d)(2) of the Federal Rules of 
Evidence, and there is no other reason to keep the statement from the jury.  However, with 
respect to any particular out of court statement the government seeks to introduce during the 
course of the trial, the defense remains free to object that the statement does not meet the 
conditions for the relevant hearsay exclusion, should be precluded based on another evidentiary 
rule, or violates the Defendant’s constitutional rights.  The Court cannot make blanket rulings in 
advance of hearing the proffered evidence and any objection or knowing the context in which the 
statement is offered. 
In general, hearsay is an out of court statement offered for the truth of the matter asserted, 
and such a statement is not admissible at trial unless it falls into an exclusion or exception to the 
hearsay rule.  Fed. R. Evid. 801(c), 802.  However, the Rules provide that “[a] statement is not 
hearsay if . . . the statement is offered against an opposing party and was made by the party’s 
coconspirator during and in furtherance of the conspiracy.”  Fed. R. Evid. 801(d)(2)(E).  To 
admit a statement pursuant to this rule, a district court must find by a preponderance of the 
evidence: (1) that a conspiracy that included the defendant and the declarant existed; and (2) that 
the statement was made during the course and in furtherance of that conspiracy.  United States v. 
Coppola, 671 F.3d 220, 246 (2d Cir. 2012). 
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Although only co-conspirator statements made “in furtherance” of the conspiracy are 
admissible under Rule 801(d)(2)(E), the standard for what qualifies as a statement “in 
furtherance” of a conspiracy is not very restrictive.  The requirement that the challenged 
statement be “in furtherance of” the conspiracy is satisfied if the statement’s objective is 
“designed to promote or facilitate achievement of the goals of the conspiracy.”  United States v. 
Rivera, 22 F.3d 430, 436 (2d Cir. 1994); see also United States v. Graham, 477 F. App’x 818, 
822 (2d Cir. 2012).  “[S]tatements between coconspirators that may be found to be in furtherance 
of the conspiracy include statements that provide reassurance, or seek to induce a coconspirator’s 
assistance, or serve to foster trust and cohesiveness, or inform each other as to the progress or 
status of the conspiracy.”  United States v. Maldonado-Rivera, 922 F.2d 934, 958–59 (2d Cir. 
1990) (internal citations and alterations omitted); see also United States v. Plaza, 826 F. App’x 
60, 64 (2d Cir. 2020). 
The government explains that it expects to offer various communications between Mr. 
Ilori and Mr. Recamier and Mr. Ilori and CC-1.  (Gov’t Br. at 6–7).  As an example, the 
government proffers that it will produce communications made over a Telegram app “to 
exchange stolen identities, to advance the creation of counterfeit IDs and bank cards, and to 
further the fraud scheme.”  (Gov’t Br. at 6).  Mr. Ilori contends that the government will be 
unable to satisfy the elements of the co-conspirator hearsay exception with respect to messages 
received on a Samsung phone found in the passenger compartment of the car within which Mr. 
Ilori was arrested.  Mr. Ilori contends that the communications on the Samsung phone should not 
be admitted because (1) the government’s proffered evidence is insufficient to establish that Mr. 
Ilori owned the Samsung phone, and (2) that it is speculative that the conversations on the 
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Telegram App on the Samsung phone were between Mr. Ilori and CC-1, and Mr. Ilori and Mr. 
Recamier.  (Def. Aff. at 2–4). 
These statements may well be admissible as statements of co-conspirators.  But the 
Defendant is free to object that any particular statement does not meet the tests described above, 
and the Court cannot rule until it has the information necessary to do so.  See Nat’l Union Fire 
Ins. Co. v. L.E. Myers Co. Group, 937 F. Supp. 276, 283 (S.D.N.Y. 1996).  Accordingly, the 
Court will reserve decision on the admission of potential co-conspirator statements until trial.  
The motion is therefore denied without prejudice. 
II. 
Uncharged Instances Of Identity Theft And Fraud 
The Government moves in limine with respect to the admissibility of evidence 
concerning Mr. Ilori’s other contemporaneous fraud and identity theft conduct at the time he is 
alleged to have committed the crimes charged in this case, as well as evidence that he benefited 
from contemporaneous fraud and identity theft conduct committed by Mr. Recamier.  (Gov’t Br. 
at 9).  Specifically, the Government seeks a ruling on the admissibility of evidence with respect 
to four categories of contemporaneous conduct.  First, the Government seeks a ruling with 
respect to evidence that Mr. Recamier rented an apartment in Long Island City under the name of 
Identity Theft Victim-2 and that Mr. Ilori frequently used this apartment, including at times to 
access investment accounts in the name of Identity Theft Victim-1.  Second, the Government 
seeks a ruling with respect to evidence that Mr. Ilori used a bank card in the name of Identity 
Theft Victim-1 to purchase items at a Manhattan coffeeshop.  Third, the Government seeks a 
ruling with respect to evidence that Mr. Ilori rented an apartment in Brooklyn under the name of 
a third identity theft victim (“Identity Theft Victim-3”), whose identity Mr. Ilori also used to 
apply for a COVID-19 relief loan.  And fourth, the Government seeks a ruling with respect to 
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evidence that Mr. Recamier leased a 2021 Mercedes Benz S580 under the name of another 
identity theft victim (“Identity Theft Victim-4”), which Mr. Ilori was observed driving later when 
he was arrested and from which items were seized at the time of his arrest.3   
The government proffers that this uncharged conduct involves the use by Messrs. Ilori 
and Recamier of identities, entities, accounts, or documents that, according to the government, 
they also utilized in the charged crimes.  Moreover, the Government also proffers that these four 
instances of fraud involve either the use of funds that are directly traceable to fraudulently 
obtained funds, or the use of cash payments at the same time that Messrs. Ilori and Recamier 
withdrew large amounts of cash proceeds of the charged scheme.   
This evidence may well be admissible.  Under the Federal Rules of Evidence, uncharged 
criminal conduct or other bad acts can be admissible either as direct evidence or pursuant to Rule 
404(b).  Evidence of uncharged criminal conduct or other bad acts can be admitted as direct 
evidence if the conduct or act “arose out of the same transaction or series of transactions as the 
charged offense, if it is inextricably intertwined with the evidence regarding the charged offense, 
or if it is necessary to complete the story of the crime on trial.”  United States v. Kaiser, 609 F.3d 
556, 570 (2d Cir. 2010) (quoting United States v. Carboni, 204 F.3d 39, 44 (2d Cir. 2000).  Thus, 
a “trial court may admit evidence that does not directly establish an element of the offense 
charged, in order to provide background for the events alleged in the indictment.”  United States 
v. Gonzalez, 110 F.3d 936, 941 (2d Cir. 1997) (quotations omitted); see also United States v. 
Blanco, 811 F. App’x 696, 704 (2d Cir. 2020).  This admissible background evidence includes, 
for example, “the circumstances surrounding the events or to furnish an explanation of the 
understanding or intent with which certain acts were performed.”  Id. (quotations omitted).  
 
3 The Court previously denied Mr. Ilori’s Motion to Suppress items seized from that vehicle.  [ECF No. 39]. 
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Moreover, when “a conspiracy is charged, uncharged acts may be admissible as direct evidence 
of the conspiracy itself.”  United States v. Baez, 349 F.3d 90, 93 (2d Cir. 2003) (quotations 
omitted). 
The evidence may also be admissible under Rule 404(b).  Under Rule 404(b)(1), 
“[e]vidence of any other crime, wrong, or act” is inadmissible “to prove a person’s character in 
order to show that on a particular occasion the person acted in accordance with the character.”  
Fed. R. Evid. 404(b)(1).  However, the “evidence may be admissible for another purpose, such as 
proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, 
or lack of accident.”  Fed. R. Evid. 404(b)(2).  “The Second Circuit’s inclusionary rule allows the 
admission of such evidence for any purpose other than to show a defendant’s criminal 
propensity, as long as the evidence is relevant and satisfies the probative-prejudice balancing test 
of Rule 403 of the Federal Rules of Evidence.”  United States v. Greer, 631 F.3d 608, 614 (2d 
Cir. 2011) (quotations omitted).  In addition, “upon request, the district court must give an 
appropriate limiting instruction to the jury.”  United States v. Pitre, 960 F.2d 1112, 1119 (2d Cir. 
1992).  “Even under th[e] [inclusionary] approach, however, district courts should not presume 
that [other act] evidence is relevant or admissible.”  United States v. Curley, 639 F.3d 50, 56 (2d 
Cir. 2011).  Rather, such evidence “is relevant only if the jury can reasonably conclude that the 
act occurred and that the defendant was the actor.”  Huddleston v. United States, 485 U.S. 681, 
689 (1988). 
At bottom, all evidence of “intrinsic act[s] offered as direct proof of the crime charged 
will, by definition, satisfy Rule 404(b).”  United States v. Shin, No. 19 CR. 552 (JPC), 2022 WL 
153184, at *4 (S.D.N.Y. Jan. 15, 2022) (quoting United States v. Nektalov, 325 F. Supp. 2d 367, 
372 (S.D.N.Y. 2004)).  The only practical benefit of admitting evidence as intrinsic, as opposed 
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to under Rule 404(b), is that the Government escapes Rule 404(b)’s notice requirement and the 
Court need not give a limiting instruction cautioning the jury against making an improper 
inference of criminal propensity.  Id.  Accordingly, “where it is not manifestly clear that the 
evidence in question is intrinsic proof of the charged crime, the proper course is to proceed under 
Rule 404(b).”  United States v. Johnson, 469 F. Supp. 3d 193, 204 (S.D.N.Y. 2019). 
Regardless, whether uncharged conduct constitutes direct evidence or “other crimes” 
evidence under Rule 404(b), the uncharged conduct must survive scrutiny under the Rule 403 
balancing test to be admissible.  Rule 403 provides that a court “may exclude relevant evidence 
if its probative value is substantially outweighed by a danger of,” inter alia, “unfair prejudice.”  
Fed. R. Evid. 403.  However, the Second Circuit has declined to find probative evidence which is 
properly used at trial unduly prejudicial under Rule 403 where it “did not involve conduct more 
inflammatory than the charged crime.”  United States v. Paulino, 445 F.3d 211, 223 (2d Cir. 
2006); see also Pitre, 960 F.2d at 1120 (finding no error with regard to Rule 403 where the 
evidence of prior crimes “did not involve conduct any more sensational or disturbing than the 
crimes with which [the defendants] were charged” (citation omitted)). 
Mr. Ilori, for his part, challenges the admissibility of evidence of this uncharged conduct, 
contending that the proffered evidence does not establish that Mr. Ilori had the requisite 
knowledge that he was committing any fraud.  (Def. Aff. at 4–5).  Specifically, Mr. Ilori contends 
that there is insufficient evidence to support that Mr. Ilori had knowledge that the Mercedes was 
leased fraudulently or that the bank card he used was in the name of an identity theft victim.  
(Def. Aff. at 4–5).  He also contends that certain bank statements purportedly submitted by Mr. 
Ilori in the name of Identity Theft Victim-3 in an application for the Brooklyn apartment, 
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actually belonged to Mr. Recamier.  (Def. Aff. at 5).  Mr. Ilori will have the opportunity to make 
these arguments at trial.   
The Court cannot resolve these disputed issues in advance of trial.  The Court must see 
the context in which this evidence is offered and the purpose for which it is offered.  
Accordingly, the Court denies the in limine motion without prejudice and reserves decision on 
the admission of this conduct evidence until trial.  
III. 
Prior History Of Identity Theft And Fraud 
The Government moves in limine with respect to the admissibility of evidence 
concerning Mr. Ilori’s prior convictions for fraud and identity theft, either pursuant to Rule 
404(b) or for impeachment purposes.  (Gov’t Br. at 14, 18).  Specifically, the government seeks a 
ruling with respect to evidence of seven prior convictions and one prior arrest, all for conduct 
involving fraud and identity theft.  (Gov’t Br. at 14–16).  Most recently, Mr. Ilori took part in a 
fraud and identity theft scheme between in or about March 2019 and in or about March 2020, of 
which co-defendant Mr. Recamier also was a part, that resulted in Mr. Ilori’s 2021 conviction in 
the Southern District of New York in case 20 Cr. 378 (LJL).  This offense involved the 
submission of fraudulent business loan applications utilizing the stolen identities of identity theft 
victims and false claims of association with corporate entities, as well as the submission of 
falsified bank and tax documents.  In addition to that most recent conviction, Mr. Ilori has been 
arrested and/or convicted on six previous occasions over the past three decades, each time for 
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attempting to open bank accounts or purchasing goods using counterfeit ID cards or bank cards 
in the names of identity theft victims.  
A. Rule 404(b) 
The Government contends that Mr. Ilori’s prior identity theft and fraud conduct and 
convictions should be admitted under Rule 404(b) to show that Ilori had the requisite knowledge 
or intent to commit the charged crimes, or to rebut any assertion that he was not the person who 
committed the crimes.  (Def. Br. at 16).  Specifically, the Government argues that the method and 
means of the conduct underlying Mr. Ilori’s prior convictions—forging documents, submitting 
fraudulent applications, falsely claiming association with corporate entities, obtaining stolen 
identify information from victims, and possessing and using false ID cards and credit cards in 
victims’ names—provides a reasonable basis for inferring that Mr. Ilori had knowledge or intent 
to commit the charged crimes.  (Def. Br. at 17).4 
As previously noted, Rule 404(b)(1) precludes the admission of evidence of any other 
crime, wrong, or act “to prove a person’s character in order to show that on a particular occasion 
the person acted in accordance with the character.”  Fed. R. Evid. 404(b)(1).  However, the 
“evidence may be admissible for another purpose, such as proving motive, opportunity, intent, 
preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”  Fed. R. Evid. 
404(b)(2).  The Second Circuit has instructed that “evidence of prior convictions merits 
particularly searching, conscientious scrutiny” when determining whether the “probative value of 
the prior crimes is substantially outweighed by the danger of unfair prejudice.”  United States v. 
 
4 The Superseding Indictment filed on June 22, 2022 includes allegations triggering the statutory enhancement under 
18 U.S.C. § 3147, which applies where individuals commit federal offenses while on federal bail.  (See Superseding 
Indictment).  Accordingly, to the extent that the Defendant’s bail status is an element of 18 U.S.C. § 3147, the jury 
would only need to know that the Defendant had been charged and arrested for the conduct in the Chancy case, but 
his conviction in that case would not be necessary to establish the elements of the enhancement under 18 U.S.C. 
§ 3147. 
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McCallum, 584 F.3d 471, 476 (2d Cir. 2009).  This is so because such evidence “easily lends 
itself to generalized reasoning about a defendant’s criminal propensity and thereby undermines 
the presumption of innocence.”  Id.  Nonetheless, a “court can . . . admit evidence of prior acts as 
probative of knowledge and intent if the evidence is relevant to the charged offense, i.e., if there 
is a similarity or connection between the charged and uncharged acts.”  United States v. Dupree, 
870 F.3d 62, 76 (2d Cir. 2017). 
The law is clear that where a defendant claims that he lacked the knowledge or intent to 
commit the charged offense, the Government is permitted to introduce evidence of the 
defendant’s other convictions for similar conduct.  See, e.g., United States v. Caputo, 808 F.2d 
963, 968 (2d Cir. 1987) (“Where intent to commit the crime charged is clearly at issue, evidence 
of prior similar acts may be introduced to prove that intent.”); United States v. Arango-Correa, 
851 F.2d 54, 60 (2d Cir. 1988) (concluding that evidence of defendant’s general knowledge of 
narcotics transactions admissible where knowledge was at issue); United States v. Alcantara, 674 
F. App’x 27, 30 (2d Cir. 2016) (evidence of prior conviction properly offered to prove knowledge 
and intent with respect to tax fraud and identity theft).  A defendant’s knowledge and intent are at 
issue unless these elements of the crime have been conceded.  See, e.g., United States v. Colon, 
880 F.2d 650, 656–57 (2d Cir. 1989) (“If a defendant does not wish to enter into a formal 
stipulation, he or she must at least ‘express a decision’ to restrict the defense case so as not to 
raise the issue of intent, and to accept a jury instruction that would keep that issue out of the 
case”) (internal citation omitted)); see also United States v. Jones, 858 F. App’x 420, 422 (2d Cir. 
2021).  To take knowledge or intent out of a case, “a defendant must make some statement to the 
court of sufficient clarity to indicate that the issue will not be disputed.”  Pitre, 960 F.2d at 1119 
(quoting Colon, 880 F.2d at 659).  “A defendant may do so either ‘by putting forward a particular 
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theory of defense or by specifically offering to stipulate.’”  United States v. Ozsusamlar, 428 F. 
Supp. 2d 161, 168 (S.D.N.Y. 2006) (quoting Colon, 880 F.2d at 657). 
Knowledge and intent are also put at issue when a defendant argues that he or she was 
present during the commission of an offense, but not involved in any illegal activity.  See, e.g., 
United States v. Zackson, 12 F.3d 1178, 1183 (2d Cir. 1993) (“Where a defendant claims that his 
conduct has an innocent explanation, prior act evidence is generally admissible to prove that the 
defendant acted with the state of mind necessary to commit the offense charged”)); United States 
v. Ahmed, 67 F. App’x 648, 650 (2d Cir. 2003) (admitting evidence of a prior conviction to 
undermine a defendant’s claim of ignorance).  However, when a defendant argues that he did not 
commit the charged act at all, intent is not at issue.  See Colon, 880 F.2d at 657 (“Our cases have 
thus recognized a distinction between defense theories that claim that the defendant did not do 
the charged act at all, and those that claim that the defendant did the act innocently or mistakenly, 
with only the latter truly raising a disputed issue of intent.”). 
Courts within the Second Circuit have frequently allowed the admission of “other act” 
evidence pursuant to Rule 404(b) to prove knowledge and intent when such other acts are similar 
to the crime with which a defendant stands charged, particularly in the context of crimes of 
fraud.  See, e.g., United States v. Mills, 895 F.2d 897, 907 (2d Cir. 1990) (upholding decision to 
admit evidence of a prior conviction for counterfeiting in order to rebut claim that defendant was 
unaware of receipt of counterfeit money); United States v. Myerson, 18 F.3d 153, 166-67 (2d Cir. 
1994) (upholding admission of prior instances of fraudulent diversion of client funds and tax 
evasion to prove requisite intent for each of these crimes at trial); United States v. Moreno, 
10CR0564-LTS, 2011 WL 1642274 (S.D.N.Y. Apr. 25, 2011) (granting in limine motion to admit 
evidence of prior identity theft conviction to demonstrate knowledge and intent in access device 
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fraud and aggravated identity theft case).  Lastly, the Circuit has held that in a conspiracy case 
such as this one, prior convictions are admissible as “background information to demonstrate the 
existence of a relationship of mutual trust, or to ‘enable the jury to understand how the illegal 
relationship between the co-conspirators developed.’”  United States v. Guang, 511 F.3d 110, 121 
(2d Cir. 2007) (quoting United States v. Pipola, 83 F.3d 556, 566 (2d Cir. 1996)). 
Here, knowledge and intent, which are elements of the offenses with which Mr. Ilori has 
been charged, are at issue in this case.  Mr. Ilori has not made any statement to the Court of 
sufficient clarity to indicate that the issue will not be disputed.  (See Def. Aff. at 4–6).  The acts 
underlying the crimes for which Mr. Ilori has been convicted in the past are also similar to the 
crime for which the Defendant stands charged in this case.  Each charge involves the forging of 
documents, submission of fraudulent applications, false claims of association with corporate 
entities, stolen identities from victims, and possession and use of false ID cards and credit cards 
in victims’ names.  Accordingly, these past convictions clearly are probative of knowledge and 
intent. 
With respect to Mr. Ilori’s 2021 fraud conviction, the Court finds that the probative value 
of evidence of this conviction substantially outweighs any danger of unfair prejudice, especially 
where this prior conduct is not “any more sensational or disturbing than the crimes with which” 
the Defendant is currently charged.  United States v. Roldan-Zapata, 916 F.2d 795, 804 (2d Cir. 
1990).  However, in order to limit any potential for unfair prejudice, the evidence of Mr. Ilori’s 
2007, 2006, 2004, 2000, and 1998 convictions (the “earlier convictions”) and his 2019 arrest 
should be excluded as cumulative.  The Court is concerned that, given the significant number of 
prior convictions, all for substantially similar conduct, and much of it remote in time, allowing 
the jury to hear this evidence would substantially increase the risk of confusing the issues for the 
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jury and/or unduly prejudice the Defendant.  Moreover, to the extent that the government seeks 
admission of Mr. Ilori’s prior bad acts for purposes of establishing knowledge or intent, Mr. 
Ilori’s 2021 fraud conviction is the most recent in time and most serious of Mr. Ilori’s prior fraud 
convictions.   
Accordingly, to the extent that Mr. Ilori places his knowledge and intent at issue in this 
case, evidence of his 2021 fraud conviction may be admitted.  However, evidence of his earlier 
convictions and his 2019 arrest will be excluded as unduly prejudicial. 
B. Impeachment 
The Government also requests that, should Mr. Ilori not place his knowledge and intent at 
issue in this case, prior bad acts and similar criminal convictions be admitted as impeachment 
evidence under Rules 608 and 609 if Mr. Ilori testifies in his defense.  (Def. Br. at 18).   
Under Federal Rule of Evidence 609, evidence of a witness’s prior conviction can be 
admitted for impeachment purposes, subject to certain limitations.  Fed. R. Evid. 609.  Prior 
convictions involving crimes of dishonesty or false representation are automatically admissible 
under Fed. R. Evid. 609(a)(2) as they bear on a witness’s propensity to testify truthfully.  See, 
e.g., United States v. Estrada, 430 F.3d 606, 615 (2d Cir. 2005).  In fact, the Court has no 
discretion to exclude convictions involving false statements because such convictions are 
inherently more probative than prejudicial as to the witness’s capacity for truthfulness.  See, e.g., 
United States v. Hayes, 553 F.2d 824, 827 (2d Cir. 1997) (“[E]vidence of conviction of a certain 
type of crime—one involving ‘dishonesty or false statement’—must be admitted, with the trial 
court having no discretion, regardless of the seriousness of the offense or its prejudice to the 
defendant.”). 
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All of Mr. Ilori’s prior convictions were for conduct involving fraud and identity theft.  
(See Gov’t at 14–16).  All of these crimes involved dishonesty or false statements and thus, are 
per se probative of credibility under Rule 609(a)(2).  See United States v. Chervin, No. 10 CR 
918 RPP, 2013 WL 124270, at *5 (S.D.N.Y. Jan. 10, 2013) (conviction of wire fraud is a crime of 
dishonesty or false representation);  United States v. Watts, 934 F. Supp. 2d 451, 490 (E.D.N.Y. 
2013) (“Rule 609(a)(2) mandates admission of Dupree’s prior convictions for bank fraud, 
conspiracy to commit bank fraud, and false statements, all offenses involving dishonesty or false 
statements.”); United States v. Bumagin, 136 F. Supp. 3d 361, 377 (E.D.N.Y. 2015) 
(“Defendant’s 2002 convictions for conspiracy to possess and pass a counterfeit check and for 
attempt to pass a fictitious obligation fall under Rule 609(a)(2) because each conviction required 
Defendant to admit at his guilty plea an intent to defraud.”); Sanders v. Ritz-Carlton Hotel Co., 
LLC, No. 05 CIV. 6385 (PKL), 2008 WL 4155635, at *3 (S.D.N.Y. Sept. 9, 2008) (conviction for 
tax evasion based upon plaintiff’s false statements to the government, constituted a conviction 
involving dishonesty or false statement as required by Rule 609(a)(2)).5  Moreover, although Mr. 
Ilori contends that admission of this evidence is prejudicial, he concedes that this argument is 
less persuasive should he choose to testify.  (Def. Aff. at 6). 
 
Having decided that the Defendant’s convictions are false statement crimes, the Court 
must also address the timeliness of the earlier convictions, all of which occurred more than ten 
years ago, before they will be admitted under Rule 609.  Rule 609(b) bars the use of a conviction 
more than ten years old to attack a witness’s credibility unless the Court determines that “its 
probative value, supported by specific facts and circumstances, substantially outweighs its 
prejudicial effect; and (2) the proponent gives an adverse party reasonable written notice of the 
 
5 As this evidence is presumptively admissible under Fed. R. Evid. 609(a)(2), the Court need not consider whether it 
is also admissible under Rule 608.   
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intent to use it so that the party has a fair opportunity to contest its use.”  Fed. R. Evid. 609(b).  
The ten-year limitation is measured from the later of the date of conviction or the date of release. 
Fed. R. Evid. 609(b).  The Second Circuit has instructed that, before admitting impeachment 
evidence under Rule 609(b), the district judge must make an on-the-record finding based on 
“specific facts and circumstances” that the probative value of the evidence substantially 
outweighs the danger of unfair prejudice.  United States v. Payton, 159 F.3d 49, 57 (2d Cir. 
1998).  Factors relevant to the Rule 609(b) balancing test include: (i) the impeachment value of 
the conviction, see Payton, 159 F.3d 49, 57–58 (2d Cir. 1998); (ii) “the centrality of the 
credibility issue,” see id. at 58; (iii) the length of time since the conviction, see United States v. 
Garcia, 291 F.3d 127, 138 (2d Cir. 2002); and (iv) the similarity of the prior conviction to the 
alleged crime, see id.   
The Court finds that the probative value of the Defendant’s earlier convictions do not 
substantially outweigh their potential prejudicial effect.  First, none of these convictions have 
significant probative value because they are all less serious and less recent than Mr. Ilori’s 2021 
fraud conviction and are all remote in time, having occurred over a decade ago.  Any probative 
value of the earlier convictions would be largely cumulative given that the 2021 conviction can 
be admitted to impeach the Defendant or with respect to intent or knowledge if put at issue.  See 
United States v. Crumble, No. 18-CR-32 (ARR), 2018 WL 2016852, at *7 (E.D.N.Y. May 1, 
2018) (finding a twelve year old conviction for possession in the fifth degree to be needlessly 
cumulative where a more recent drug sale conviction was already admitted for impeachment 
purposes); United States v. Washington, 746 F.2d 104, 107 (2d Cir. 1984) (Newman, J., 
concurring ) (“Once credibility is impeached by a prior felony conviction, the incremental 
probative force of a second conviction is minimal.”). 
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Finally, as the government concedes, “[t]he elements of the charged crimes [here] are 
nearly identical to the elements of Ilori’s prior convictions.”  (Gov’t Br. at 17).  As Courts in this 
circuit have repeatedly stated, “similarity of past and present offenses weighs heavily against the 
use of prior criminal convictions for impeachment purposes” because of the danger of unfair 
prejudice.  See, e.g., Bumagin, 136 F. Supp. 3d at 376 (citation omitted; emphasis in original).  
Accordingly, should Mr. Ilori testify, his 2021 fraud conviction may be admissible for 
impeachment purposes under Rule 609(a)(2).  Mr. Ilori’s remaining earlier convictions will be 
excluded. 
IV.
Evidence Of Consequences Of Conviction
The Government last moves in limine to preclude evidence or argument concerning the 
potential punishment or consequences Defendant faces if convicted.  (Def. Br. at 23).  The 
Defendant responds that he has no intention of raising the potential consequences of a possible 
conviction.  (Def. Aff. at 6).  This is, of course, a well-established rule and the Government’s 
motion in limine is unwarranted and a needless imposition on the Court and the Defendant.  
Accordingly, the government’s motion to preclude evidence or argument concerning the potential 
punishment or consequences the Defendant faces if convicted is denied without prejudice as 
moot.  
The Clerk of Court respectfully is requested to close docket entry 42. 
SO ORDERED. 
_________________________________ 
Date: July 5, 2022 
MARY KAY VYSKOCIL 
New York, NY 
United States District Judge 
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