Court filing
Second Motion in Limine to Exclude Evidence by USA — USA v. Alexandra Acosta (Dkt. 39, S.D. Fla.)
Filed May 11, 2024 in USA v. Alexandra Acosta; one of 136 filings from this case.
Record facts
| Court | U.S. District Court for the Southern District of Florida |
|---|---|
| Filed | 2024-05-11 |
U.S. District Court for the Southern District of Florida · No. 0:23-cr-60170-RNS · Doc. 39 · 2024-05-11 · Docket on CourtListener
Full text
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 23-60170-CR-SCOLA
UNITED STATES OF AMERICA
v.
ALEXANDRA ACOSTA and
VILSAINT ST LOUIS,
Defendants.
/
UNITED STATES MOTION IN LIMINE TO EXCLUDE EVIDENCE
Introduction
The United States of America moves to preclude the following evidence and
argument at trial:
1.
Evidence and arguments of any attempt or successful repayment of
the fraudulent funds to the SBA.
2.
Evidence and arguments concerning any alleged negligence by the
victim lender, their loan processors, or the United States Small
Business Administration (“SBA”);
3.
Evidence and arguments concerning any profit by the above-
referenced victims; and
4.
Evidence and arguments relating to jury nullification, including
evidence and argument about the nature of the prosecution, use of
federal resources, and the United States’s charging decisions.
Items 2–4 above are unopposed, but Defendant Alexandra Acosta reserves the
right to challenge the investigative steps specific to the evidence in her case.
Case 0:23-cr-60170-RNS Document 39 Entered on FLSD Docket 05/11/2024 Page 1 of 15
2
Background
The United States incorporates by reference the facts set forth in its Motion
in Limine to Admit Inextricably Intertwined Evidence, filed on May 11, 2024, ECF
No. 38 at 2–4.
Memorandum of Law
I.
The Defendant should be precluded from introducing evidence of
any intent or attempt to pay back the PPP loan.
Acosta should be precluded from offering evidence of repayment or any
attempt or intent to repay the PPP loan because it is irrelevant to the charges
and otherwise would mislead and confuse the jury.
The charges against Acosta require an intent to defraud. See 15 U.S.C.
§ 645; 18 U.S.C. § 1343. To act with “intent to defraud” “means to act knowingly
and with the specific intent to use false or fraudulent pretenses, representations,
or promises to cause loss or injury.” 11th Cir. Pattern Jury Instr. 051 (2022).
The crime is complete once a defendant obtains money through knowingly false
pretenses or representations, regardless of whether the defendant intended
repayment. Cf. United States v. Morales, 978 F.2d 650, 653 (11th Cir. 1992) (“A
reasonable expectation of making covering deposits after the event is not a
defense which negates intent to defraud in a check kiting case.”); United States
v. McKinney, 822 F.2d 946, 949-50 (10th Cir. 1987) (“A charge under 18 U.S.C.
§ 656 is complete when the misapplication takes place, and the fact that the
bank does not suffer a loss, or, if the bank does suffer a loss and the defendant
later offers repayment, does not negate an earlier intent to defraud.”). It also
Case 0:23-cr-60170-RNS Document 39 Entered on FLSD Docket 05/11/2024 Page 2 of 15
3
applies to violations of 18 U.S.C. § 1344 (bank fraud). See United States v. Ross,
206 F.3d 896, 899 (9th Cir. 2000); United States v. Hollis, 971 F.2d 1441, 1452
(10th Cir. 1992).
In United States v. Fields, 327 F. App’x 133 (11th Cir. 2009), the defendant
was charged with stealing money from the United States in violation of 18 U.S.C.
§ 641, i.e., theft of government funds. Fields, 327 F. App’x at 134. The defendant
had lied on an application to a housing authority that received federal funding.
Id. Prior to being indicted for her conduct, the defendant agreed to a repayment
plan and ultimately repaid the balance just before learning of the indictment. Id.
At trial, the district court excluded evidence proffered by the defendant regarding
her repayment plan and any related statements. Id. The defendant appealed
arguing that the evidence should have been admitted because its relevance was
not outweighed by the potential for confusion and it prevented her from
presenting a “viable defense.” Id.
In the unpublished opinion, the Eleventh Circuit discussed this Circuit’s
prior approach to similar issues and stated that “[a] defendant's intention to
repay stolen money, and ‘even actual repayment,’ is not a defense to a charge
under § 641.” Id. at 135 (citing United States v. Lanier, 920 F.2d 887, 895 (11th
Cir. 1991); United States v. Suba, 132 F.3d 662, 677 (11th Cir. 1998)
(“Repayment in the face of litigation does not show a lack of fraudulent intent.”).
United States v. Scott, 701 F.2d 1340 (11th Cir. 1983) (repayment was irrelevant
to the offense of intentionally providing false information to acquire loan
Case 0:23-cr-60170-RNS Document 39 Entered on FLSD Docket 05/11/2024 Page 3 of 15
4
accounts). And, after applying Rule 401, 402, and 403, the court held that
“[b]ecause repayment was not relevant to [the defendant’s] intent to deprive the
government of its funds under § 641, the district court did not abuse its
discretion in disallowing evidence of repayment.” Fields, 327 F. App’x at 135.
The court likewise excluded any purported statements made by the defendant to
investigators about repayment on hearsay grounds. Id.
Here, as in Fields, the crime of defrauding the federal government was
completed in June 2021, when the SBA issued its forgiveness payment to the
lender. It is therefore irrelevant whether Acosta has repaid or attempted to repay
any portion of the money that she fraudulently obtained from her PPP loan
because failure to repay is not an element of the fraud and intent to repay is not
a defense. See United States v. Miller, 953 F.3d 1095, 1103 (“Miller's primary
defense—that he was not guilty of wire fraud because he intended to pay back
the funds he deceptively obtained from [the victim company]—is not a defense at
all.”); United States v. Masquelier, 210 F.3d 756 (7th Cir. 2000) (“[The
defendant's] ultimate intention to make good on the contract is irrelevant to his
intent to obtain government money to which he was not entitled through
deceptive means. . . . [T]o hold otherwise would require us to overturn a thousand
years of criminal law.”). Indeed, evidence of repayment or intent to repay now is
solely designed for nullification and to play on sympathies of the jury, which will
otherwise mislead them and confuse the issues in this case.
Case 0:23-cr-60170-RNS Document 39 Entered on FLSD Docket 05/11/2024 Page 4 of 15
5
Accordingly, Acosta should be precluded from offering any evidence or
argument that she has repaid, intends to repay, or has taken steps to repay the
PPP loan.
II.
The Court should preclude evidence and arguments concerning
any alleged negligence by the victim lenders, loan processors, and
the SBA.
The United States intends to call witness representatives from Cross River
Bank, its servicers, and the SBA (which administered the PPP program and
backed the loans, among other things). The United States respectfully askes the
Court to preclude Defendant from introducing evidence and arguments
concerning any alleged negligence by these victims.
A.
Courts routinely find evidence of lender negligence inadmissible.
The Eleventh Circuit has held that evidence of a lender’s alleged negligence
is not relevant and is properly excluded at trial. United States v. Powell, 509 F.
App’x 958, 967 (11th Cir. 2013) (“Whether the lenders in this case knew or
should have known that the loan applications were fraudulent is of no
consequence to this action. It has no bearing on the essential element of
[defendant’s] conduct, namely her intent to participate in the mortgage fraud
scheme. Whether the lenders were motivated by profit or did, in fact, profit from
[the defendant’s] efforts is equally immaterial). “Likewise, whether the lenders
negligently created an environment of lax lending standards is irrelevant.
Contributory negligence is not a defense to the crime of fraud.” Id. “[W]hatever
role, if any, a victim’s negligence plays as a bar to civil recovery, it makes little
Case 0:23-cr-60170-RNS Document 39 Entered on FLSD Docket 05/11/2024 Page 5 of 15
6
sense as a defense under a criminal statute that embraces ‘any scheme or artifice
to defraud.’ A perpetrator of fraud is no less guilty of fraud because his victim
is also guilty of negligence.” United States v. Svete, 556 F.3d 1157, 1165 (11th
Cir. 2009) (citations omitted).
More recently, in United States v. Rabuffo, 716 F. App’x 888, 899 (11th Cir.
2017), the Eleventh Circuit declined the defendants’ argument to overturn their
convictions for bank and wire fraud in an extensive mortgage fraud scheme
based on the district court’s exclusion of certain evidence at trial. The
defendants’ “arguments rest[ed] on the contention that bad conduct by [the
mortgage company] and its employees undercut the government’s case, and was
relevant to whether they (and their co-defendants) committed bank fraud.” Id.
The Eleventh Circuit, however, rejected defendants’ argument, affirmed the
convictions and sentences. Id. In affirming the district court’s decision to exclude
the evidence, the Rabuffo court noted that “the gravamen of § 1344 is the
‘scheme,’ rather than the ‘completed fraud,’ and . . . the offense therefore does
not require ‘damage’ or ‘reliance.’” Id. at 899 (quoting Loughrin v. United States,
573 U.S. 351, 372 (2014)); see also id. (quoting United States v. Lindsey, 850
F.3d 1009, 1014 (9th Cir. 2017) (the “lender’s negligence, or even intentional
disregard, cannot excuse another’s criminal fraud.”).
B.
Whether a victim is sophisticated is immaterial to the intent to
defraud.
In the Eleventh Circuit, as in other circuits, the government need not prove
that a fraud scheme was calculated to deceive only persons of ordinary prudence
Case 0:23-cr-60170-RNS Document 39 Entered on FLSD Docket 05/11/2024 Page 6 of 15
7
and comprehension, as fraud statutes protect the naïve as well as the
sophisticated. Svete, 556 F.3d at 1165 (“Proof that a defendant created a scheme
to deceive reasonable people is sufficient evidence that the defendant intended
to deceive, but a defendant who intends to deceive the ignorant or gullible by
preying on their infirmities is no less guilty. Either way, the defendant has
criminal intent.”); see also United States v. Hendrick, 663 F. App’x 788, 790 (11th
Cir. 2016) (holding that the wire fraud statute “prohibits ‘any scheme or artifice
to defraud,’ no matter how fanciful and without regard to whether a person of
ordinary prudence and comprehension would rely upon the misrepresentation”)
(citing Svete, 556 F.3d at 1169); United States v. Masino, No. 18-15019, 2021 WL
3235301, at *9 (11th Cir. July 30, 2021) (affirming a wire fraud conviction and
holding that “the government did not need to prove that the victims were actually
tricked—or even that a person of ordinary prudence would have been tricked by
defendants’ scheme”).
Accordingly, whether the institutional victims’ internal controls or
personnel were sufficient to detect and prevent fraud is irrelevant to the crimes
charged in this case, and inadmissible as a defense.
C.
Victim negligence is irrelevant for assessing the materiality of a false
statement.
The federal mail fraud, wire fraud, and bank fraud statutes generally
require a misrepresentation or concealment of material fact. See Neder v. United
States, 527 U.S. 1, 22–25 (1999). In assessing whether a misrepresentation of
fact was material, the Eleventh Circuit has time and time again rejected the
Case 0:23-cr-60170-RNS Document 39 Entered on FLSD Docket 05/11/2024 Page 7 of 15
8
argument, commonly made by defendants in fraud cases, that victim negligence
is somehow relevant to materiality. The materiality requirement does not permit
defendants to backdoor victim negligence into a case because materiality is an
objective, rather than subjective, test. See Svete, 556 F.3d at 1165 (holding that
“the focus of the mail fraud statute . . . is on the violator, [therefore] the purpose
of the element of materiality is to ensure that a defendant actually intended to
create a scheme to defraud . . . . [W]hatever role, if any, a victim’s negligence
plays as a bar to civil recovery, it makes little sense as a defense under a criminal
statute that embraces ‘any scheme or artifice to defraud.’”); United States v. Scott,
701 F.2d 1340, 1344–45 (11th Cir. 1983) (rejecting defendant’s assertion that
loan officers’ testimony that they were not actually influenced by defendant’s
false statements was evidence that the defendant lacked the intent to influence).
The materiality requirement is not concerned with whether a
decisionmaker relied on a false statement, but instead materiality focuses on
whether a false statement “has a tendency to influence or is capable of
influencing a decision.” United States v. Neder, 197 F.3d 1122, 1128 (11th Cir.
1999); see also United States v. Swearingen, 858 F.2d 1555, 1558 (11th Cir.
1988) (holding that a bank’s actual reliance on false statements is not
determinative of materiality; materiality turns on “whether the false
representations were capable of influencing the Bank’s actions”).
Along similar lines, the Eleventh Circuit has held that actual reliance is
not a requirement for materiality. See Powell, 509 F. App’x at 967 (“Whether the
Case 0:23-cr-60170-RNS Document 39 Entered on FLSD Docket 05/11/2024 Page 8 of 15
9
lenders in this case knew or should have known that the loan applications were
fraudulent is of no consequence to this action.”); see also Neder, 197 F.3d at
1129 (“[T]he issue is whether a statement has a tendency to influence or is
capable of influencing a decision, and not whether the statement exerted actual
influence, a false statement can be material even if the decision maker did not
actually rely on the statement.”).
As noted above, the Eleventh Circuit in Rabuffo rejected the argument,
commonly made by defendants in fraud cases, that victim negligence is somehow
relevant to materiality. As the Rabuffo court observed, the materiality
requirement does not allow defendants to backdoor victim negligence into a case
because materiality is an objective, not subjective, test. Rabuffo, 716 F. App’x at
899–900 (holding that defendants’ contention that they could not have
committed bank fraud if the negligent or complicit mortgage processer knew that
the statements were false “misse[d] the mark” because materiality focuses on the
violator’s intent); see also Lindsey, 850 F.3d at 1015 (“A false statement is
material if it objectively had a tendency to influence, or was capable of
influencing, a lender to approve a loan.”). The materiality requirement is not
concerned with a statement’s subjective effect, but instead on a statement’s
objective reliability. Svete, 556 F.3d at 1165; see also Neder, 527 U.S. at 24–25
(“The common-law requirement[ ] of ‘justifiable reliance’ . . . ha[s] no place in the
federal fraud statutes.”).
Case 0:23-cr-60170-RNS Document 39 Entered on FLSD Docket 05/11/2024 Page 9 of 15
10
D.
The relevant inquiry is Acosta’s intent, not the victim’s negligence.
In the instant case, the relevant inquiry is whether: (i) Acosta submitted
or caused to be submitted fraudulent PPP loan applications; (ii) whether Acosta
had the requisite intent to defraud; and (iii) whether the information that Acosta
caused to be submitted to the SBA victim lenders was material (as to Count 4
only), that is, had the capacity or natural tendency to influence a person’s
decision. Hindsight challenges to any of these institutional victims’ internal
controls are irrelevant, waste time, and create the risk of jury confusion. See
Fed. R. Evid. 404(b).
Accordingly, this Court should prohibit Defendant from introducing
evidence or making arguments concerning any supposed victim negligence,
including any criticism of a PPP lender, loan processors, or SBA’s internal
controls, as well as the internal controls of banks and financial institutions
whose accounts were used to receive or transfer fraudulent loan proceeds.
United States v. Biesiadecki, 933 F.2d 539, 544 (7th Cir. 1991) (upholding
exclusion of testimony that “would have improperly shifted the jury’s attention
away from the knowledge and intent of [defendant] and focused instead on the
beliefs of the victim of the alleged scheme to defraud”).
For similar reasons, the Court should exclude any evidence and
arguments concerning the SBA’s guarantees to PPP lenders as a defense to the
alleged fraud. The government does not know on what basis Defendant would
try to introduce evidence or make arguments concerning this guarantee, but any
Case 0:23-cr-60170-RNS Document 39 Entered on FLSD Docket 05/11/2024 Page 10 of 15
11
such evidence or argument should be excluded as irrelevant to the case, a waste
time, and tending to confuse and mislead the jury. Even in civil cases, where a
victim’s negligence might be relevant to damages, evidence of financial
compensation (insurance) is inadmissible to prove negligence or wrongdoing.
Fed. R. Evid. 411. This is truer in the criminal context of the instant case, where
victim negligence is irrelevant, and should therefore be excluded.
III.
The Court should preclude evidence and arguments concerning
any profit by the above-referenced victims.
The Eleventh Circuit has held that “[w]hether the lenders were motivated
by profit or did, in fact, profit from [defendant’s] efforts is equally immaterial.”
Powell, 509 F. App’x at 967. “[T]he government can convict a person for mail or
wire fraud even if his targeted victim never encountered the deception—or, if he
encountered it, was not deceived.’” Id. (quoting United States v. Svete, 556 F.3d
at 1166 ; see also Rabuffo, 716 F. App’x at 900 (“Our precedent thus establishes
that whether [the victims] . . . would have or in fact did rely on the fraudulent
statements contained in the mortgage applications does not undermine the
fairness of the trial or the jury’s findings.”); United States v. Gray, 367 F.3d 1263,
1269–70 (11th Cir. 2004) (finding defendant guilty of mail fraud the moment the
defendant mailed a letter with fraudulent misstatements, noting that even had
victim not received the letter defendant would still be guilty of mail fraud).
Therefore, the Court should exclude any evidence and arguments concerning
any profits the victim lenders may have made as a result of the loans that are at
issue in this scheme.
Case 0:23-cr-60170-RNS Document 39 Entered on FLSD Docket 05/11/2024 Page 11 of 15
12
IV.
The Court should preclude evidence and argument relating to jury
nullification, including evidence and/or argument about the
nature of the prosecution, use of federal resources, and the United
States’s charging decisions.
Any statements or arguments from the defense regarding uncharged co-
conspirators, or selective prosecution, are not relevant to the defendant’s guilt,
have no probative value, and should be precluded. United States v. Armstrong,
517 U.S. 456, 463 (1996) (“[a] selective-prosecution claim is not a defense on the
merits to the criminal charge itself, but an independent assertion that the
prosecutor has brought the charge for reasons forbidden by the Constitution”);
United States v. Shaygan, 652 F.3d 1297, 1314 (11th Cir. 2011) (“[T]he
Government retains ‘broad discretion’ as to whom to prosecute,” and the
“decision to prosecute is particularly ill-suited to judicial review.”) (quoting
Wayte v. United States, 470 U.S. 598, 607 (1985)). Any statements by defense
counsel regarding the exercise of prosecutorial discretion in this case have no
probative value and are only meant to prejudice the jury. Fed. R. Evid. 403.
Moreover, permitting such argument would be tantamount to a request for
jury nullification. “Nullification is, by definition, a violation of a juror’s oath to
apply the law as instructed by the court – in the words of the standard oath
administered to jurors in the federal courts, to ‘render a true verdict according
to the law and the evidence.’” United States v. Thomas, 116 F.3d 606, 614 (2d
Cir. 1997) (citation omitted). The Eleventh Circuit has unequivocally
disapproved of this practice and has issued clear instructions that “defense
counsel may not argue jury nullification during closing argument.” United States
Case 0:23-cr-60170-RNS Document 39 Entered on FLSD Docket 05/11/2024 Page 12 of 15
13
v. Trujillo, 714 F.2d 102, 106 (11th Cir. 1983); see United States v. Funches, 135
F.3d 1405, 1409 (11th Cir. 1998) (collecting cases in support of proposition that
a defendant has no right to present evidence or make arguments geared towards
nullification). Because “the potential for nullification is no basis for admitting
otherwise irrelevant evidence,” Funches, 135 F.3d at 1409, the United States
moves to exclude evidence and to preclude argument designed to convince the
jury to acquit not because the United States failed to prove the charged crimes,
but because a guilty verdict would be contrary to a sense of justice, morality, or
fairness. Washington v. Watkins, 655 F.2d 1346, 1374 n.54 (5th Cir. 1981)
(noting that with respect to jury nullification, courts “have almost uniformly held
that a criminal defendant is not entitled to an instruction that points up the
existence of that practical power to his jury”); United States v. Gorham, 523 F.2d
1088, 1097–98 (D.C. Cir. 1975) (affirming trial court’s refusal to admit evidence
bearing no legal relation to the charges but which might encourage a “conscience
verdict” of acquittal).
Improper arguments would include, for example, suggestions that the
prosecution is unfair because the United States has prosecuted some
individuals, but not others. Furthermore, the identity and quantity of individuals
charged in connection with the scheme at issue, the reasons behind the United
States’s charging decisions, and the culpability of the United States as compared
to other individuals are all examples of irrelevant and unfairly prejudicial
evidence aimed at jury nullification. See, e.g., United States v. Thompson, 253
Case 0:23-cr-60170-RNS Document 39 Entered on FLSD Docket 05/11/2024 Page 13 of 15
14
F.3d 700 (5th Cir. 2001) (upholding grant of the government’s motion in limine
to prevent counsel from comparing defendant’s conduct to that of other
uncharged or immunized witnesses); United States v. Re, 401 F.3d 828, 833 (7th
Cir. 2005) (finding that the government’s exercise of prosecutorial discretion is
not proper subject for cross-examination). Thus, Acosta should be precluded
from making arguments or comments to the jury—and from eliciting statements
on cross-examination—which are irrelevant to the record evidence and charges
and that are, instead, designed to encourage a verdict without regard to the law.
Certificate Pursuant to Local Rule 88.9
Pursuant to Local Rule 88.9, undersigned counsel met and conferred in
good faith with counsel of record for Defendant Alexandra Acosta, Attorney Brian
Silber, via Microsoft Teams on May 1, 2024, and via telephone on May 6, 2024,
in an attempt to resolve the issues raised in this Motion. The Parties agree as to
the exclusion of evidence and arguments set forth in Sections II–IV, but the
parties are unable agree as to the exclusion of evidence and arguments discussed
in Section I.
Conclusion
For the foregoing reasons, the United States of America respectfully
submits that this Court should exclude the following:
1.
Evidence and arguments of any attempt or successful repayment of
the fraudulent funds to the SBA.
Case 0:23-cr-60170-RNS Document 39 Entered on FLSD Docket 05/11/2024 Page 14 of 15
15
2.
Evidence and arguments concerning any alleged negligence by the
victim lender, their loan processors, or the United States Small
Business Administration (“SBA”);
3.
Evidence and arguments concerning any profit by the above-
referenced victims; and
4.
Evidence and arguments relating to jury nullification, including
evidence and argument about the nature of the prosecution, use of
federal resources, and the United States’s charging decisions.
Respectfully submitted,
MARKENZY LAPOINTE
UNITED STATES ATTORNEY
BY: Trevor C. Jones
TREVOR C. JONES
Assistant United States Attorney
Fla. Bar No. 0092793
500 E. Broward Blvd., 7th Floor
Fort Lauderdale, Florida 33394
Tel: (786) 564-9109
Trevor.Jones@usdoj.gov
Case 0:23-cr-60170-RNS Document 39 Entered on FLSD Docket 05/11/2024 Page 15 of 15File and source
- File
- gov.uscourts.flsd.654235.39.0.pdf
- Size
- 187,271 bytes
- SHA-256
- e1c72399b1d1e6a5c7c1f60964599f592e2765d67447ec12f6037766ce3ff63b
- Original
- PACER (login required)