Pretrial Memorandum Regarding Inapplicability of Good Faith Defense — USA v. Alexandra Acosta (Dkt. 65, S.D. Fla.)

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U.S. District Court for the Southern District of Florida · No. 0:23-cr-60170-RNS · Doc. 65 · 2024-05-31 · Docket on CourtListener

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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’ MEMORANDUM OF LAW REGARDING  
INAPPLICABILITY OF GOOD FAITH DEFENSE TO 15 U.S.C. § 645(a) 
 
Introduction 
Defendant Alexandra Acosta is charged in Count 1 with general conspiracy 
(18 U.S.C. § 371) as to Counts 2 and 3 of the Superseding Indictment, which 
charge Acosta with making a false statement to the Small Business 
Administration (“SBA”), in violation of 15 U.S.C. § 645(a). ECF No. at 23. Count 
4 of the Superseding Indictment charges Acosta with wire fraud, in violation of 
18 U.S.C. § 1343. Id. Defendant has proposed two special instructions regarding 
a good faith defense, see ECF No. 54-1 at 50–52. The first proposed instruction 
is a modified Eleventh Circuit Pattern Criminal Jury Instruction Special 
Instruction 9, which applies to Internal Revenue Code crimes that require 
“willfulness.” Id. at 50. The second is Special Instruction 17, which applies to 
crimes that have as an essential element the specific “intent to defraud.” Neither 
are correct instructions for Counts 1 through 3 related to 15 U.S.C. § 645(a) 
because those offenses do not have elements of “willfulness” or “intent to 
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defraud.” As such, the Court should refuse to give the proposed instructions as 
to those Counts. Assuming Defendant Acosta lays the proper foundation in 
evidence at trial to support a defense of good faith as to Count 4 of the 
Superseding Indictment that requires an intent to defraud, i.e., 18 U.S.C. § 1343, 
Special instruction 17 could be provided on Count 4 even though the standard 
instruction covering intent to defraud should suffice. See, e.g., United States v. 
Holzendorf, 576 F. App’x 932, 936 (11th Cir. 2014) (holding that district court 
did not abuse its discretion in denying good-faith instruction where the defense 
was otherwise substantially covered by the court’s instruction on intent—“which 
stated that the jury could not convict [the defendant] without finding that he 
acted with the intent to defraud.”).  
Standard of Review 
“A refusal to give a requested theory of defense instruction is reversible 
error only if the requested instruction ‘(1) was correct, (2) was not substantially 
covered by the court’s charge to the jury, and (3) dealt with some point in the 
trial so important that failure to give the requested instruction seriously impaired 
the defendant’s ability to conduct his defense.’” United States v. Camejo, 929 
F.2d 610, 614 (11th Cir. 1991) (quoting United States v. Benz, 740 F.2d 903, 910 
(11th Cir.1984), cert. denied, 474 U.S. 817 (1985)); see also United States v. 
Maxwell, 579 F.3d 1282, 1303 (11th Cir. 2009).  
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Argument 
 
A. Defendant’s Good Faith Instructions are Inaccurate Statement of the Law 
 
“Accuracy in a requested instruction on a theory of defense requires that 
there be some basis both in law and in the evidence to support the instruction.” 
United States v. Morris, 20 F.3d 1111, 1116 (11th Cir. 1994). The special 
instructions proposed by Defendant Acosta regarding good faith are not correct 
statements of the law for Counts 1–3 because the elements of the substantive 
underlying offense of making a false statement under § 645(a), as charged, do 
not require the government to prove intent to defraud (S17) or willfulness (S9).  
“The general rule that ignorance of the law or a mistake of law is no defense 
to criminal prosecution is deeply rooted in the American legal system.” Cheek v. 
United States, 498 U.S. 192, 199 (1991). “Based on the notion that the law is 
definite and knowable, the common law presumed that every person knew the 
law.” Id. However, with the growing number of complex statutes and regulations, 
statutory language requiring the elements of intent to defraud and willfulness 
create specific intent crimes where appropriate. See id. In such instances, the 
Eleventh Circuit is clear that good faith instructions apply only to these specific 
intent crimes requiring the elements of intent to defraud or willfulness. See 
United States v. Zoriano, 817 F. App’x 817, 821 (11th Cir. 2020) (“Because intent 
to defraud is not an element of the crimes charged in Zoriano’s indictment, good 
faith is not a complete defense to those charges. Thus, the district court did not 
abuse its discretion in declining to give Zoriano's requested good faith instruction 
because the instruction was not a correct statement of the law.”); United States 
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v. Maxwell, 579 F.3d 1282, 1304 (11th Cir. 2009) (recognizing good faith defense 
as applicable to crimes involving intent to defraud or willfulness); United States 
v. Morris, 20 F.3d 1111, 1115–17 (11th Cir. 1994) (discussing good faith 
instruction for willfulness element in tax crimes); see also Eleventh Circuit 
Criminal Pattern Jury Instruction, Special Instruction 18 comments (“Because 
good-faith relates to an element of the offense, the defendant does not have 
the burden of persuasion, although the defendant may have the burden of 
production.” (emphasis added)). 
15 U.S.C. 645(a)—False Statement—does not have elements of 
intent to defraud or willfulness 
 
“Where Congress includes particular language in one section of a statute 
but omits it in another section of the same Act, it is generally presumed that 
Congress acted intentionally and purposely in excluding the particular 
language.” United States v. Henry, 111 F.3d 111, 114 (11th Cir. 1997); Zoriano, 
817 F. App’x at 821. 
Section 645(a) proscribes two separate crimes false statements and 
overvaluations of securities to the SBA: 
(a) FALSE STATEMENTS; OVERVALUATION OF SECURITIES 
 
Whoever makes any statement knowing it to be false, or whoever 
willfully overvalues any security, for the purpose of obtaining for 
himself or for any applicant any loan, or extension thereof by 
renewal, deferment of action, or otherwise, or the acceptance, 
release, or substitution of security therefor, or for the purpose of 
influencing in any way the action of the Administration, or for the 
purpose of obtaining money, property, or anything of value, under 
this chapter, shall be punished by a fine of not more than $5,000 or 
by imprisonment for not more than two years, or both. 
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(emphasis added). Thus, within the statute itself, Congress determined that 
willfulness is an element of charges relating to the overvaluing of any security 
but not for making any false statement. And distinct from the false statements 
of § 645(a), Congress expressly included the element of intent to defraud in 
§ 645(c): 
Whoever, with intent to defraud, knowingly conceals, removes, 
disposes of, or converts to his own use or to that of another, any 
property mortgaged or pledged to, or held by, the Administration, 
shall be fined not more than $5,000 or imprisoned not more than 
five years, or both; but if the value of such property does not exceed 
$100, he shall be fined not more than $1,000 or imprisoned not 
more than one year, or both. 
 
15 U.S.C. § 645(c) (emphasis added); United States v. Kelly, 630 F.2d 302 (5th 
Cir. 1980)1 (discussing intent to defraud element of § 645(c)). It expressly 
required the same intent to defraud element § 645(b)(2) and (3). Thus, it is clear 
from the statutory language of § 645 that a person can be convicted of a false 
statement under § 645(a) without the intent to defraud and without willfulness. 
Cf. United States v. Condon, 132 F.3d 653, 656 (11th Cir. 1998) (reading plain 
language of § 645(a) to not require element of materiality because the statutory 
language “fails to mention materiality and expressly prohibits ‘any’ false 
statements made to the SBA”). For example, a false representation about who 
was signing the applications is a knowing false statement that could be done 
without intent to defraud, but with the intent to influence the SBA in approving 
 
1 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), 
the Eleventh Circuit adopted as binding precedent all of the decisions of the 
former Fifth Circuit handed down before the close of business on September 30, 
1981. 
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a loan under false pretenses. 
By comparison, 18 U.S.C. § 1001 requires that the false statement be 
knowing and willful. Id. (“[W]hoever, in any matter within the jurisdiction of the 
executive, legislative, or judicial branch of the Government of the United States, 
knowingly and willfully . . . .”); United States v. Johnson, 730 F.2d 683 (11th Cir. 
1984) (addressing possible application of good faith instruction to 18 U.S.C. 
§ 1001, which has willfulness element).  
And while perhaps there is an implicit intent to deceive that is inherent in 
§ 645(a)—i.e., knowingly making a false statement—the government need not 
prove the intent as an element of the offense. See Zoriano, 817 F. App’x 817, 821 
(“Zoriano argues that an instruction on the good faith defense was appropriate 
with respect to the charged violations of § 408(a)(7)(C) because the intent to 
deceive is inherent in the crime of selling counterfeit documents . . . . We agree 
that dishonesty is inherent in the act of selling a counterfeit Social Security card 
that the defendant knows is fake. But the fact that the intent to deceive is implicit 
in the crime does not mean that the government is required to prove such intent 
as an element of the offense.”). 
Accordingly, a good faith instruction as to willfulness and intent to defraud 
is an inaccurate statement of the law and should not be provided to the jury as 
to Counts 1 through 3 of the Superseding Indictment.  
B. Defense is Substantially Covered by Offense Instruction 
 
 
The substantive offense instruction for 15 U.S.C. § 645(a) substantially 
covers the defense theory that she did not know the statements were false: 
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(1) the defendant knowingly made any false statement; and 
 
(2)  the false statement was for the purpose of obtaining for herself 
or for any applicant any loan or for the purpose of influencing in 
any way the action of the SBA. 
 
ECF No. 54-1 at 40 (emphasis added). Defendant Acosta cannot argue that 
she relied in good faith on advice that it was okay to knowingly make false 
statements on the SBA application. See also United States v. Johnson, 730 F.2d 
683, 686–87 (11th Cir. 1984) (denying a good faith reliance instruction in 18 
U.S.C. § 1001 (requires knowledge and willfulness) case where defendant 
claimed to not know about the false statements, i.e., the knowledge element, and 
did not claim that he was advised to make the false statements).   
Alternative Proposed Instruction for 15 U.S.C. § 645 
 
 
In Condon, the Eleventh Circuit noted that 15 U.S.C. 645(a) “contains 
language substantially similar to” 18 U.S.C. 1014, which prohibits false 
statements made to federally insured banks. 132 F.3d at 655. The two statutes 
were so similar that the Eleventh Circuit concluded that 645(a) did not have a 
materiality element because § 1014 also lacked a materiality element (as the 
Supreme Court had recently held in United States v. Wells, 519 U.S. 482 (1997)). 
See Condon, 132 F.3d at 655–56. 
While the jointly submitted instruction accurately states the elements of 
§ 645(a) as agreed by the parties, the Eleventh Circuit also has a pattern 
instruction for § 1014 offenses. Given the textual and structural similarities 
between the two statutes, as recognized by the Eleventh Circuit, the Court could 
use the alternative instruction below that would substantially cover Defendant 
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Acosta’s defense without misstating the law2:   
It’s a Federal crime to knowingly make a false statement or report to 
the Small Business Administration a federally insured financial 
institution. 
 
The Defendant can be found guilty of this crime only if all the 
following facts are proved beyond a reasonable doubt: 
 
(1) the Defendant made a false statement or report; and 
– or – 
(when the alleged wrongdoing is overstating the value of an asset or 
income) 
[(1) the Defendant willfully overvalued land property or security;] 
 
(2) the Defendant did so knowingly and with intent to influence an 
action of the Small Business Administration institution described in 
the indictment regarding a an application, advance, commitment, or 
loan, or with the intent to influence in any way the action of the Small 
Business Administration. a change or extension to any of those loan; 
and 
 
(3) the deposits of the institution were insured by the Federal 
Deposit Insurance Corporation. 
 
A statement or report is “false” if it is untrue when made and the 
person making it knows it is untrue. 
 
The heart of the crime is the attempt to influence the action of the 
Small Business Administration institution by knowingly [willfully] 
making a false statement or report. The Government does not have 
to prove that the Small Business Administration institution was 
actually influenced or misled. 
 
C. Evidentiary Basis 
The good-faith instruction requested by Defendant requires an underlying 
evidentiary foundation. See United States v. Williams, 728 F.2d 1402, 1404–05 
(11th Cir. 1984) (citing United States v. Goss, 650 F.2d 1336 (5th Cir. Unit A 
1981)).   
 
2 Proposed additions are in italics and omissions have strikethrough.  
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Because the decision to give the good-faith-defense instruction is nuanced 
and dependent upon the evidence presented to the jury at trial, the United States 
objects to the instruction as to Count 4 (wire fraud) before the close of evidence, 
and respectfully requests that the Court reserve ruling on this issue and address 
the proposed instruction—and any arguments for or against—at the charging 
conference. Indeed, the United States’ case-in-chief alone will not support a 
good-faith instruction. 
Conclusion 
 
Good faith instructions are an incorrect statement of the law for 15 U.S.C. 
§ 645(a), as charged, because the government is not required to prove intent to 
defraud or willfulness. And the jointly proposed instructions for Counts 1-3 
substantially cover the defense because they require that the Defendant knew 
the statements were false. Accordingly, this Court should deny the Defendant’s 
request to instruct the jury with Special Instruction 9 and Special Instruction 17 
as to Counts 1 through 3, and reserve ruling on instructing the jury with Special 
Instruction 17  
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  
 
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