Motion in Limine to Exclude Defendant’s Prior Loan and Tax History — United States v. Baver (Dkt. 123, D. Utah)

Summary

A Motion in Limine to Exclude Defendant's Prior Loan and Tax History in United States of America v. Allison Marie Baver, Case No. 2:21-cr-00520 JNP, in the U.S. District Court for the District of Utah, dated June 5, 2023. Through Assistant Federal Defenders Kristen R. Angelos and Robert K. Hunt, the defendant asks the Court to exclude several government exhibits from trial. The motion describes Government Exhibits 62c and 63c as April 2020 letters from the SBA denying her a small business loan based on credit history. It asks the Court to exclude Government Exhibits 62c, 63c, 64b, 65, and 66 and all testimony relating to them.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Record facts

Full text

Case 2:21-cr-00520-JNP Document 123 Filed 06/05/23 PageID.1773 Page 1 of 5




SCOTT KEITH WILSON, Federal Public Defender (7347)
KRISTEN R. ANGELOS, Assistant Federal Public Defender (#8314)
ROBERT K. HUNT, Assistant Federal Public Defender (#5722)
OFFICE OF THE FEDERAL PUBLIC DEFENDER
DISTRICT OF UTAH
Attorneys for Defendant
46 West Broadway, Suite 110
Salt Lake City, Utah 84101
Telephone: (801) 524-4010
Email: kris_angelos@fd.org and robert_hunt@fd.org
_____________________________________________________________________________

                        IN THE UNITED STATES DISTRICT COURT

                                      DISTRICT OF UTAH


  UNITED STATES OF AMERICA,                           MOTION IN LIMINE TO EXCLUDE
                                                      DEFENDANT’S PRIOR LOAN AND
                              Plaintiff,                      TAX HISTORY

               v.

  ALLISON MARIE BAVER,                                      Case No. 2:21-cr-00520 JNP

                             Defendant.


       Defendant, Allison Marie Baver, by and through counsel, Kristen R. Angelos and Robert

K. Hunt, submits this Motion in Limine to Exclude Defendant’s Prior Loan and Tax History.

Herein, Ms. Baver asks that this Court exclude from trial all evidence of the following:

   •   Government Exhibit 62c (April 2020 letter from the SBA to Ms. Baver denying her a

       small business loan (application number XXXXXX7243) based on credit history);

   •   Government Exhibit 63c (April 2020 letter from the SBA to Ms. Baver denying her a

       small business loan (application number XXXXXX3819) based on credit history);

    Case 2:21-cr-00520-JNP Document 123 Filed 06/05/23 PageID.1774 Page 2 of 5




      •   Government Exhibit 64b (April 2020 letter from the SBA to Ms. Baver denying her a

          small business loan (application number XXXXXX3478) based on credit history); 1

      •   Government Exhibit 65 (undated letter from Ms. Baver to Economic Injury Disaster

          Loan, another SBA type of loan, requesting reconsideration of the denial of loan

          application numbers ending --3478 and --7243); and

      •   Government Exhibit 66 (April 2020 letter from the IRS to Ms. Baver regarding a tax

          penalty for tax year 2010).

                                                ARGUMENT

          The Court Should Exclude from Trial Evidence of Ms. Baver’s Previous Unrelated
          Loan Application Reasons for Denial, as well as Evidence of a 2010 Tax Issue.

          If evidence is relevant - if it “has any tendency to make a fact [of consequence] more or

less probable than it would be without the evidence” - it is admissible; evidence which is not

relevant is not admissible. F.R.E. 401, 402. But under Rule 403, even relevant evidence may be

excluded 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. F.R.E. 403; United States v. Record, 873 F.2d

1363, 1375 (10th Cir. 1989). Evidence may be unfairly prejudicial if it would likely provoke an

emotional response from the jury or would otherwise tend to adversely affect the jury's attitude

toward a particular matter. See United States v. Rodriguez, 192 F.3d 946, 951 (10th Cir. 1999).

          In this case, Ms. Baver has been charged with making false statements designed to

influence a bank. See Second Superseding Indictment, ECF 47. This charge requires the



1
  Although not referenced in each letter, these three loan applications involve for three separate companies
including Allison Baver Entertainment/Lash Media, Allison Baver New York, and High Rise Realty LLC.
                                                        2

 Case 2:21-cr-00520-JNP Document 123 Filed 06/05/23 PageID.1775 Page 3 of 5




Government to prove that:

        1) The involved financial institution was federally insured;

        2) the defendant made a false statement to the financial institution;

        3) the defendant knew the statement was false when she made it; and

        4) the defendant intended to influence the financial institution to act.

18 U.S.C. § 1014; Tenth Circuit Pattern Criminal Jury Inst. No. 2.48 (2021); United States v.

Grissom, 44 F.3d 1507, 1510 (10th Cir. 1995).

        In support of these charges, the Government made known its intent to offer five exhibits.

The first four relate to three loan applications which Ms. Baver submitted on behalf of three

different companies – and three rejection letters denying Ms. Baver based on credit history, and a

letter from Ms. Baver requesting reconsideration. In contrast to the loans surrounding Exhibits

62c, 63c, 64b, and 65, the PPP loan for which Ms. Baver was applying in the instant case did not

require a credit check and was not based on creditworthiness. See SMALL BUSINESS

ADMINISTRATION, Paycheck Protection Program Borrower Application Form, March 2021,

available at https://www.sba.gov/sites/sbagov/files/2021-

03/BorrowerApplication2483ARPrevisions%20%28final%203-18-21%29-508.pdf. The

qualifications for the loans in the exhibits and qualifications for the PPP loan were quite

different.

        That Ms. Baver had previously applied for loans and been denied based on her credit

history does not make it more or less likely that she made a false statement on the PPP loan




                                                  3

    Case 2:21-cr-00520-JNP Document 123 Filed 06/05/23 PageID.1776 Page 4 of 5




application. 2   That she requested a reconsideration of the denial indicating reporting errors on

her credit history is not relevant to whether Ms. Baver’s PPP loan application contained a false

statement either. As the PPP loan did not require a credit check, evidence of previous loans

denied based on credit history are not relevant. There is simply nothing about these prior loan

denials that is relevant to the current case. Having no relevance to this case, these four exhibits

must be excluded.

         Further, the zero probative value of these exhibits is substantially outweighed by the

danger of unfair prejudice, confusing the issues, and misleading the jury, requiring exclusion

under Rule 403. Admitting exhibits that portray Ms. Baver in a negative light because she

applied for loans, but did not receive them because of credit history, will unfairly prejudice the

jury against Ms. Baver. These exhibits are likely to provoke an emotional response from the jury,

and encourage a verdict based on something other than the proper evidence of her actual guilt.

Offering evidence of the reasons for the denial of other loans which Ms. Baver applied for but

did not get based on creditworthiness confuses the issue of the loans she applied for and did

receive in this case. And it misleads the jury to suggest that because Ms. Baver was denied these

three loans based on her credit history that she was somehow also ineligible for or fraudulently

obtained the PPP loan in this case based on these previous denials. There is a significant danger

if the Court admits evidence of the three loan applications, and it should refuse to admit them.

Government exhibits 62c, 63c, 64b, and 65 should be excluded.




2
   It should be noted that the Government will be bringing in the actual applications during trial.
It is the subsequent letters sent to Ms. Baver and the reasons for denial that Ms. Baver currently
seeks to exclude.
                                                  4

 Case 2:21-cr-00520-JNP Document 123 Filed 06/05/23 PageID.1777 Page 5 of 5




        The last exhibit is a letter from the IRS to Ms. Baver discussing a 2010 tax issue. As with

the earlier four exhibits, there is nothing in or about this tax letter – stemming from a 2010 tax

issue – that makes it more or less likely that Ms. Baver submitted a false statement on a PPP loan

ten years later. Absent any relevance to the case before this Court, this exhibit has no probative

value whatsoever. This probative value (none) is also substantially and significantly outweighed

by the danger of unfair prejudice and misleading the jury. Rather than encouraging the jury to

base its verdict on the evidence relevant to the case presented, such evidence would encourage

the jury to convict Ms. Baver on other grounds – that because she had past tax problems, she

may have been dishonest in attempting to secure PPP funding (which again did not require

creditworthiness). Encouraging the jury to render a verdict on irrelevant evidence unfairly

prejudices Ms. Baver and misleads the jury in its duty. Such evidence has no place in this case

and should be excluded by the Court. Government exhibit 66 must be excluded from trial.

                                         CONCLUSION

        Based on the foregoing, Ms. Baver respectfully asks that this Court grant her Motion and

exclude from trial Government Exhibits 62c, 63c, 64b, 65, and 66, and exclude all testimony

relating thereto.

        Respectfully submitted this 5th day of June, 2023.


                                              /s/ Kristen R. Angelos
                                              KRISTEN R. ANGELOS
                                              Assistant Federal Defender



                                              /s/ Robert K. Hunt
                                              ROBERT K. HUNT
                                              Assistant Federal Defender

                                                  5

File and source

File

gov.uscourts.utd.129379.123.0.pdf

Size

238,985 bytes

SHA-256

31391a87d0881c360e81bb4705022fae6621acb79b7f748e891eaa8185af6c76

Our copy

gov.uscourts.utd.129379.123.0.pdf

Original

archive.org