Court filing
Response in Opposition by Alexandra Acosta — USA v. Alexandra Acosta (Dkt. 48, S.D. Fla.)
Filed May 22, 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 | 2024-05-22 |
U.S. District Court for the Southern District of Florida · No. 0:23-cr-60170-RNS · Doc. 48 · 2024-05-22 · Docket on CourtListener
Full text
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
UNITED STATES OF AMERICA, )
)
Plaintiff,
)
)
v.
)
CASE NO. 23-cr-60170-RNS
)
)
ALEXANDRA ACOSTA,
)
)
Defendant.
)
_______________________________)
DEFENDANT’S RESPONSE IN OPPOSITION TO GOVERNMENT’S
MOTION IN LIMINE TO ADMIT INEXTRICABLY INTERTWINED
EVIDENCE, ETC. [DN-38]
COMES NOW, the Defendant, ALEXANDRA ACOSTA (“Acosta”), by and
through the undersigned attorney, and respectfully responds in opposition to the
government’s Motion in Limine Admit Inextricably Intertwined Evidence or, in the
Alternative, Evidence of Other Crimes, Wrongs, or Acts, Pursuant to Rule 404(b)
[DN-38]. In support thereof, Acosta states as follows:
Case 0:23-cr-60170-RNS Document 48 Entered on FLSD Docket 05/22/2024 Page 1 of 17
1.
In its motion, the government seeks admission of evidence concerning
Acosta’s IRS audit, a lawsuit she is party to against a pool contractor for breach of
contract (she is the Plaintiff), and evidence concerning the Broward Sheriff’s Office
(“BSO”) outside work policy.
2.
Acosta objects to the admission of any of this evidence because it is
irrelevant, it comprises inadmissible character/prior acts evidence, is more
prejudicial than it is probative, will cause her to suffer unfair prejudice, and because
it will confuse the issues and mislead the jury in violation of Fed. R. Evid. 401, 402,
403, and 404.
3.
While Acosta does not deny that a PPP loan application and forgiveness
application that contained materially false information were submitted to the SBA
on her behalf, she wholeheartedly denies knowing the applications contained false
information and denies preparing or filing the loan application and the forgiveness
application, instead relying on a third party who handled everything on her behalf
(her tax preparer). Acosta admits the loan was granted and that she was disbursed
$20,180. Acosta does not deny immediately spending all the money on expenses that
were not approved by the PPP program. According to Acosta, the applications were
exclusively prepared and submitted by her tax preparer, VILSAINT ST. LOUIS. Her
claim is substantiated by IP address evidence that proves her loan application was
Case 0:23-cr-60170-RNS Document 48 Entered on FLSD Docket 05/22/2024 Page 2 of 17
signed and submitted by a user with the same IP address as St. Louis. It is further
substantiated by St. Louis’ own admissions.
4.
The government wishes to admit evidence of Acosta’s IRS audit and
pool construction litigation to establish a financial motive for the alleged fraud. It
also claims this evidence is inextricably intertwined with the story of its case and is
therefore admissible. The government also wishes to admit BSO’s outside work
policy to suggest Acosta knew she did not qualify for a $20,000 PPP loan because
she didn’t do any meaningful real estate work in 2019, 2020, or 2021 – thus
explaining why she obtained a permission slip for outside work in some years, but
not in 2019, 2020, or 2021.
BASIS FOR DENYING THE GOVERNMENT’S MOTION
5.
First, the IRS audit evidence and pool evidence are tenuous and
speculative and are therefore irrelevant and should not be admitted. The claim that
Acosta was motivated to defraud the government of $20,000 due to a tax audit
liability of $18,491.55 or due to her pool litigation ($19,500 counterclaim that was
later dismissed) is contradicted by the fact that none of the loan proceeds were ever
used for either of these expenses.
6.
Acosta’s loan application was initiated with the SBA on February 1,
2021 and was approved on February 3, 2021. On February 4, 2021, a mere three
days after the loan application was initiated, $20,180 was disbursed to Acosta. That
Case 0:23-cr-60170-RNS Document 48 Entered on FLSD Docket 05/22/2024 Page 3 of 17
same day, February 4, 2021, Acosta immediately tried to wire $19,000 of the
proceeds into her Robinhood Markets trading account but their system would only
accept a $10,000 wire. As a result, Acosta deposited the remaining $9,000 into her
savings account. The $10,000 deposited into Robinhood was quickly lost to
speculative stock investments. The remainder of the loan was spent on unrelated
personal expenses. None of the loan proceeds were used to pay the IRS tax liability
or to pay the pool company.
7.
The government’s motive theory is inadmissible because it requires a
jury to speculate that Acosta’s motive must have totally changed during the three
days that elapsed between the day her loan application was initiated (February 1st)
and the day she received the funds and immediately tried to invest them with
Robinhood (February 4th) instead of paying the IRS or the pool company.
8.
While $9,000 of that effort may have been frustrated by Robinhood’s
wire transfer policies, it nonetheless gives a clear and contemporaneous insight into
Acosta’s intentions and state of mind at the time the loan was applied for, contrary
to the government’s motive theory. Because the government’s motive theory
requires the jury to resolve this conflict in the evidence with speculation, the theory
itself is speculative and therefore irrelevant and inadmissible.
9.
Additionally, admission of this evidence would be more prejudicial
than probative. Hearing about her audit will only serve to tarnish her character,
Case 0:23-cr-60170-RNS Document 48 Entered on FLSD Docket 05/22/2024 Page 4 of 17
especially by jurors who believe an audit means a person did something illegal,
unethical, or against the rules with their taxes. It is also unfairly prejudicial because
it gives the government an advantage at great cost to Acosta. This evidence will only
serve to confuse and distract the jury’s attention away from the relevant facts and
issues.
10.
Second, evidence concerning the pool defects lawsuit is too remote in
time and substance to be relevant or to be attributable to a motive to defraud. The
action is still pending and has not yet been resolved or adjudicated. Not only was
Acosta the plaintiff in the action, but the lawsuit was not even filed until December
2021 – a full 11 months after the loan was applied for and the funds were spent. The
counterclaim by the pool contractor that is at the heart of the government’s argument
was not even filed until May 2022 and was ultimately dismissed in May 2023.
11.
Third, admission of any evidence concerning BSO’s outside work
policy in 2019 would mislead the jury because it is undisputed that Acosta worked
outside BSO in 2019 as a part-time real estate agent and earned at least $13,904 in
gross commissions from it. [DN-38, page 3 of 12] Because it is undisputed that
Acosta worked in this capacity, admission of the work policy evidence will only
inform the jury that Acosta violated BSO’s work policy in 2019 when she worked
part-time as a real estate agent while employed full-time at BSO.
Case 0:23-cr-60170-RNS Document 48 Entered on FLSD Docket 05/22/2024 Page 5 of 17
12.
As for 2020 and 2021, any evidence concerning those years is totally
irrelevant because Acosta’s PPP loan application made no mention of those years.
On the contrary, the application submitted by St. Louis was supported by a fake 2019
form 1099 that he altered and a fake Schedule C that had no year on it. It makes no
difference what Acosta thought about her business prospects in 2020 and 2021
because the PPP application at issue was limited to representations about 2019 only,
as was permitted by the PPP loan application instructions. Introduction of this
evidence is not relevant and will only serve to impermissibly and unfairly tarnish
Acosta’s credibility before the jury.
13.
Fourth, introduction of BSO’s work policy evidence will also inform
the jury that Acosta is a law enforcement officer who is employed as a deputy sheriff
at BSO – a fact that is highly prejudicial because jurors will judge her differently
than other defendants and some will hold it against her. This issue is presented in
Acosta’s Motion in Limine to Exclude Evidence that will be filed after this response.
14.
Aside from testimony, the government wishes to admit specific
documents in support of its work policy theory that will reveal that Acosta is a law
enforcement officer employed by BSO as a Deputy Sheriff. They are also adorned
with BSO’s agency name and logo and contain the signatures of multiple command
staff members including Colonels, Lieutenant Colonels, Majors, Captains, and
others. Exhibit 1 (BSO Off-Duty Employment Form)
Case 0:23-cr-60170-RNS Document 48 Entered on FLSD Docket 05/22/2024 Page 6 of 17
15.
Fifth, as the government referenced in its motion, admission of the IRS
audit, pool lawsuit, and work policy evidence will unfairly cast Acosta in a negative
light as a rule breaker. This evidence is especially prejudicial where the place she is
breaking the rules at is a law enforcement agency where she works as a law
enforcement officer.
16.
Sixth, the government’s grounds for admission of evidence concerning
the IRS audit, pool litigation, and BSO’s work policy, including the claim that the
evidence is inextricably intertwined, do not justify the breadth and scope of the
evidence that the government wishes to admit. The breadth and scope of this
evidence is simply not necessary for the government to complete their story of the
alleged crime for the jury or make their point about motive.
17.
Seventh, less prejudicial alternatives exist. While Acosta maintains her
objection to the admission of any of this evidence, the Court should at least limit the
evidence the government may introduce as follows:
Regarding the IRS audit, the government can make its point by merely
presenting testimony that states Acosta was being audited at such and such time, that
she had to pay a tax liability of such and such, and it can admit the initial and ending
notices sent by the IRS to Acosta. There is no need to have an exhaustive dissertation
on her taxes and audit that will only distract the jury and impugn Acosta’s character.
This is especially true of her tax returns for any year other than 2019 because no
Case 0:23-cr-60170-RNS Document 48 Entered on FLSD Docket 05/22/2024 Page 7 of 17
other year was referenced or relied upon in her PPP loan application. What happened
in any other year is irrelevant.
Regarding the pool litigation, it is merely enough for an investigator to testify
that she/he searched browardclerk.org for Acosta’s name and learned that she had
sued a pool construction company for breach of contract on such and such date, and
that she was counter-sued on such and such date for $19,500 by the defendant in that
case, and that the countersuit was later dismissed on such and such date. Again, there
is no need for a lengthy dissertation or the admission of exhaustive documents or
testimony to make the point. The basics plus the dates will do, especially since the
lawsuit is still pending.
Regarding BSO’s outside work policy, the government can make its point by
using generalized terms, such as referring to BSO as Acosta’s “employer”. There is
no need to mention BSO by name or that it is a law enforcement agency. There is
equally no reason to mention Acosta’s title with BSO or that she is a law enforcement
officer. Her title as a Deputy Sheriff is irrelevant to whether or not she submitted a
request to perform outside work and did so for any particular reason. The
government could tell the same story and argue the same points even if it substituted
“barista” and “Starbucks” every time the words “Deputy Sheriff” and “Broward
Sheriffs Office” appeared and it would make no difference. Acosta’s role and the
Case 0:23-cr-60170-RNS Document 48 Entered on FLSD Docket 05/22/2024 Page 8 of 17
name and nature of her employer are totally irrelevant to this case and will only serve
to inflame the jury against her.
18.
In lieu of admitting any prejudicial documents (i.e. the work
authorizations and printed policy), the government can make its point with testimony
that refers to BSO as Acosta’s “employer.” There should be no mention of BSO by
name or that her employer is a law enforcement agency. Equally, there should be no
mention that Acosta is a law enforcement officer or a Deputy Sheriff at BSO. Given
that her status as law enforcement officer has no nexus to the allegations in this case,
it is irrelevant and should be excluded.
19.
Eighth, it should be emphasized that the government’s IRS audit
evidence, pool evidence, and work policy evidence are not central to its case. In fact,
this evidence is 100% collateral. The government has no duty to prove motive or
present any of this evidence for any of its other stated reasons. Whereas the
admission of this evidence will come at a great cost to Acosta and unfairly hamper
her defense.
MEMORANDUM OF LAW
20.
A trial court has great discretion when making evidentiary rulings.
United States v. McLean, 138 F.3d 1398, 1403 (11th Cir. 1998) (“When an appellant
challenges an evidentiary ruling on appeal, we ‘will not disturb the [district] court's
Case 0:23-cr-60170-RNS Document 48 Entered on FLSD Docket 05/22/2024 Page 9 of 17
judgment absent a clear abuse of discretion.’”), United States v. Green, No. 22-
10785, 2023 U.S. App. LEXIS 8602, at *2 (11th Cir. Apr. 11, 2023)
21.
Pursuant to Federal Rule of Evidence 401, evidence is relevant only if
“(a) it has any tendency to make a fact more or less probable than it would be without
the evidence; and (b) the fact is of consequence in determining the action.” Evidence
that falls short of this threshold is irrelevant, and therefore inadmissible. Fed. R.
Evid. 402.
22.
However, even if evidence is relevant, there are conditions where it may
nonetheless be inadmissible. Pursuant to Fed. R. Evid. 403, “The court may exclude
relevant evidence if its probative value is substantially outweighed by a danger of
one or more of the following: unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”
Additionally, “Evidence of a person’s character or character trait is not admissible
to prove that on a particular occasion the person acted in accordance with the
character or trait.” and “Evidence of any other crime, wrong, or act is not admissible
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(a)(1), (b)(1)
23.
To determine if the probative value of evidence outweighs the risk of
undue prejudice, the Court should consider: (1) the government's incremental need
for the evidence to prove guilt beyond a reasonable doubt; (2) the similarity of the
Case 0:23-cr-60170-RNS Document 48 Entered on FLSD Docket 05/22/2024 Page 10 of 17
extrinsic act and the charged offense; and (3) the closeness in time between the
extrinsic act and the charged offense. United States v. Ellisor, 522 F.3d 1255, 1268
(11th Cir. 2008), United States v. Green, No. 22-10785, 2023 U.S. App. LEXIS
8602, at *3 (11th Cir. Apr. 11, 2023)
CONCLUSION
24.
Acosta’s trial should not turn into a case about her IRS audit, the shoddy
construction job done by her pool guy, or BSO’s work policy. This is a case about
PPP loan fraud and that is where the jury’s attention should remain focused. Above
all, the jury’s attention should not be misdirected by evidence that will unfairly and
irreparably tarnish Acosta’s character and credibility before the jury, especially on
topics that are totally collateral to the government’s case that they have no obligation
to prove or even discuss.
WHEREFORE, the Defendant and the undersigned attorney respectfully ask
the Court to deny the government’s Motion in Limine to Admit Inextricably
Intertwined Evidence or, in the Alternative, Evidence of Other Crimes, Wrongs, or
Acts, Pursuant to Rule 404(b) [DN-38]. In the alternative, should the Court be
inclined to admit the evidence, the Court is asked to limit the breadth and scope of
the government’s evidence as outlined above.
Case 0:23-cr-60170-RNS Document 48 Entered on FLSD Docket 05/22/2024 Page 11 of 17
Respectfully Submitted,
/s/ Brian Silber
______________________________
Brian Silber, Esq.
Counsel for Alexandra Acosta
Florida Bar #: 0640646
916 South Andrews Avenue
Fort Lauderdale, FL 33316
954-462-3636 (ofc)
silberlaw@gmail.com
briansilberlaw.com
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of this document was served on the
following parties via CM/ECF on May 22, 2024.
SERVICE LIST
AUSA Trevor Jones
U.S. Attorney’s Office SDFL
500 E. Broward Blvd, 7th Floor
Ft. Lauderdale, FL 33394
786-564-9109
trevor.jones@usdoj.gov
Case 0:23-cr-60170-RNS Document 48 Entered on FLSD Docket 05/22/2024 Page 12 of 17
EXHIBIT 1
(BSO Off-Duty Employment Form)
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