Notice of Intent to Use 404(b) Evidence by USA as to Andre Lorquet — USA v. Lorquet (Dkt. 29, S.D. Fla.)

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U.S. District Court for the Southern District of Florida · No. 1:22-cr-20326-KMM · Doc. 29 · 2023-01-02 · Docket on CourtListener

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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF FLORIDA 
 
CASE NO: 22-CR-20326-MOORE 
 
 
UNITED STATES OF AMERICA 
 
v. 
 
ANDRE LORQUET, 
 
 
Defendant. 
____________________________________________/ 
 
 
NOTICE TO INTRODUCE EVIDENCE UNDER 
FEDERAL RULE OF EVIDENCE 404(B) 
 
 
The United States of America (the “Government”), through the undersigned Assistant 
United States Attorney, hereby files this Notice to Introduce Evidence Under Federal Rule of 
Evidence 404(b). 
INTRODUCTION 
The Defendant Andre Lorquet is charged with participating in a scheme in or around June 
2020 through in or around November 2021 to submit or cause others to submit fraudulent COVID-
relief loan applications for his company, Miami Ent LLC (“MEL”).  MEL applied for and received 
Paycheck Protection Program (“PPP”) loans, an Economic Injury Disaster Loan (“EIDL”), and a 
Shuttered Venue Operator Grant (“SVOG”).  In a post-Miranda interview, the Defendant admitted 
that he applied for the EIDL loan but said that someone else applied for the PPP loans and SVOG 
grant.  The only loan he “knew how to do” was the EIDL, the Defendant said, and he “didn’t know 
how to do anything” regarding COVID-relief.   
The Defendant’s denials during his post-Miranda interview place his knowledge, intent, 
and identity at issue in this trial.  The Government therefore seeks to introduce evidence that shows 
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that the Defendant knew exactly what he was doing, that it was the Defendant doing it, and that 
the Defendant intended to commit COVID-relief fraud.  This evidence includes fraudulent loan 
applications that the Defendant filed for third parties and communications between the Defendant 
and third parties in which he solicits them as clients and writes that he knows how to apply for 
PPP and SBA loans.  This evidence is admissible as intrinsic evidence, and outside Rule 404(b), 
because it is inextricably intertwined with the Defendant’s scheme and integral to an account of 
his crime.  In the alternative, the evidence is admissible “other acts” evidence because it is 
probative of the Defendant’s intent, knowledge, and identity.     
BACKGROUND 
In 2020 and 2021, the Defendant participated in a scheme to file COVID-relief applications 
that greatly overstated MEL’s payroll and revenue.  In each application, the Defendant fabricated 
numbers and submitted fraudulent documents.  Among other things, the Defendant submitted 
fraudulent IRS Form 940s, which are annual filings with the IRS that report an employer’s federal 
unemployment tax.  To submit two of his applications, the Defendant created sham e-mail 
addresses.   
Counts 1 and 3 of the indictment allege interstate wires related to the Defendant’s PPP 
applications.  During the COVID-19 epidemic, PPP provided forgivable loans to small businesses 
to help them keep up with their expenses and maintain their payroll.  Under PPP, participating 
lenders funded the loans and the SBA guaranteed them.  The indictment alleges that the Defendant 
applied for PPP loans with two participating lenders in June 2020 and March 2021. 
Count 2 of the indictment alleges an interstate wire related to the Defendant’s EIDL 
application.  EIDL is an SBA program that lends money to businesses affected by COVID-19 and 
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other disasters.  The indictment alleges that the Defendant applied for an EIDL loan with the SBA 
in June 2020.   
Count 4 of the indictment alleges a wire related to the Defendant’s SVOG grant.  Through 
SVOG the SBA awarded grants to entertainment venues and companies that could not fully 
function during the pandemic.  The indictment alleges that the Defendant applied for an SVOG 
award with the SBA in August 2021.  In the SVOG application, the Defendant used the identity of 
a certified tax preparer and submitted a fake confirmation with her identifying information.  The 
indictment charges that submission as aggravated identity theft in Count 9. 
The Defendant’s scheme was successful and he received approximately $4.4 million in 
COVID-relief funds.  The defendant laundered the proceeds of his COVID-relief fraud by 
withdrawing large amounts of cash, writing high-value checks, and purchasing expensive jewelry.  
The Defendant also laundered his proceeds by purchasing five cars: one Porsche, one 
Lamborghini, and three Teslas.  The indictment charges four of these car purchases as money 
laundering in Counts 5 through 8.   
EVIDENCE TO BE INTRODUCED 
The wire fraud scheme the Defendant participated in involved more COVID-relief 
applications than those charged in the indictment.  The Defendant’s e-mail inbox shows that he 
and his accomplices filed dozens of applications for third parties, the Defendant’s cloud drive 
contains a document listing each of the applicants and their loans, and the Defendant’s bank 
statements show that he received kickbacks from the successful applications.  During its case-in-
chief, the Government intends to introduce evidence related to two of the loan applications that 
the Defendant submitted for third parties, AJI Clark Bathtub Refinishing LLC (“Clark”) and 
Daniela Rendon PA (“Rendon”).  This evidence includes e-mails in which the Defendant sends 
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and receives application information for Clark and Rendon, Exs. 1 & 2, financial statements for 
Clark and Rendon from the Defendant’s cloud drive, Exs. 3 & 5, the PPP applications for Clark 
and Rendon, 
Exs. 
4 
& 
7, and 
the 
subscriber 
information 
and 
e-mails 
from 
danielarendonpa@gmail.com, which the Defendant created to submit the application for Rendon, 
Exs. 6 and 8.  The Government also intends to introduce the chart of PPP applications he and his 
accomplices submitted for third parties, Ex. 16.  In addition, the Government intends to introduce 
the Defendant’s communications on Facebook and Instagram about filing COVID-relief 
applications, how much he charges for the service and where to send payment, and what documents 
the Defendant requested from third parties to process their loans.  Exs. 9–15.   
LEGAL STANDARD 
The Court may introduce evidence of “any other crime, wrong, or act,” that is, extrinsic 
evidence, for any purpose other than “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).  
To be admissible under Rule 404(b), “(1) [the evidence] must be relevant to an issue other than 
defendant’s character; (2) there must be sufficient proof to enable a jury to find by a preponderance 
of the evidence that the defendant committed the act(s) in question; and (3) the probative value of 
the evidence cannot be substantially outweighed by undue prejudice, and the evidence must satisfy 
Rule 403.”  United States v. Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007).  Permissible issues 
include “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, 
or lack of accident.”  Fed. R. Evid. 404(b)(2). 
Rule 404(b) does not exclude evidence that is intrinsic to the charged offense.  Intrinsic 
evidence is “evidence, not part of the crime charged but pertaining to the chain of events explaining 
the context, motive and set-up of the crime.”  United States v. White, 848 F. App’x 830, 840 (11th 
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Cir. 2021) (quoting United States v. McLean, 138 F.3d 1398, 1403 (11th Cir. 1998)).  Intrinsic 
evidence is admissible if it is “(1) an uncharged offense which arose out of the same transaction 
or series of transactions as the charged offense, (2) necessary to complete the story of the crime, 
or (3) inextricably intertwined with the evidence regarding the charged offense.” United States v. 
Ellisor, 522 F.3d 1255, 1269 (11th Cir. 2008) (cleaned up).  Intrinsic evidence does not require 
pretrial notice but must satisfy Rule 403, that is, its “probative value” must not be “substantially 
outweighed by any unfair prejudice caused by that evidence.”  United States v. Olaniyi, 796 F. 
App’x 601, 606 (11th Cir. 2019) (citing Fed. R. Evid. 403).   
ARGUMENT 
 
The evidence related to the third-party applications are intrinsic to the Defendant’s charged 
offense because they are part of the same series of transactions as the alleged wire fraud.  These 
applications were filed during the dates charged in the indictment and effectuated the same 
COVID-relief fraud, and therefore the evidence is “linked in time and circumstances” to the fraud 
and “forms an integral and natural part of an account of the crime.”  United States v. McClean, 
138 F.3d 1398, 1403 (11th Cir. 1998).  In the alternative, the evidence related to the third parties—
both the applications and the communications—are extrinsic evidence under Rule 404(b) that 
prove the Defendant’s intent, knowledge, and identity.  The evidence shows that the Defendant 
himself submitted the applications alleged in the indictment, and the Defendant himself knowingly 
and intentionally participated in the scheme.  Intrinsic or extrinsic, the third-party evidence is 
admissible. 
I. 
INTRINSIC EVIDENCE: THE THIRD-PARTY APPLICATIONS AROSE FROM 
THE SAME SERIES OF TRANSACTIONS AS THE CHARGED WIRE FRAUD. 
The fraudulent loan applications that the Defendant filed for third parties, of which Clark 
and Rendon are but two, are inextricably intertwined with the Defendant’s offense because they 
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were submitted through the same method as the Defendant’s own fraudulent applications.  The 
Eleventh Circuit “repeatedly has held that evidence of uncharged conduct that is part of the same 
scheme or series of transactions and uses the same modus operandi as the charged offenses is 
admissible as intrinsic evidence outside the scope of Rule 404(b).”  United States v. Ford, 784 
F.3d 1386, 1394 (11th Cir. 2015).  
To submit his own PPP applications, the Defendant included a fraudulent IRS Form 940 
that falsely represented MEL paid $1,035,091 to its employees in tax year 2019 and represented 
that MEL owed $84 in federal unemployment taxes.  The Defendant did not “flatten” this Form 
940 that was in PDF format, and the document markups show that the date and signature were 
added on an iPad months after it was purportedly signed.  The Form 940 that the Defendant 
submitted was an identical copy of another Form 940 that he had submitted on behalf of another 
applicant, This Is The Sound LLC, which was also a client listed on the Defendant’s “PPP Clients” 
spreadsheet.  The Defendant communicated with the owner of This Is The Sound LLC by e-mail, 
and the Defendant’s cloud drive contained application documents for This Is The Sound LLC. 
The Defendant repeated this pattern with the applications for Rendon and Clark, both of 
which were created from an IP address from which the Defendant repeatedly accessed his social 
media accounts.  Like his own application, the Defendant created a fraudulently Form 940 for 
Clark and Rendon with fraudulent figures that he copied from another Form 940.  In each Form 
940, the Defendant reported that each company paid $955,152 to their employees in tax year 2019 
and incorrectly calculated the total unemployment tax as $84, a unique number which cannot be 
arrived at if the representations in the loan applications are true.  Like his own application, the 
Defendant also added the date and signature for Clark and Rendon on a mobile device, each time 
forgetting to remove the document markups.  And like two of his applications, the Defendant 
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created a sham e-mail address for Rendon to send and receive communications with the PPP 
processor.  Although the applications for Clark and Rendon are not charged, they share the same 
method and modus operandi as the scheme the Defendant is charged with, and are admissible as 
intrinsic evidence in the Eleventh Circuit. 
In Ford, which involved a defendant who filed fraudulent tax returns in other people’s 
names, the Eleventh Circuit held that uncharged tax returns were intrinsic to the charged offense 
where that evidence “concerned fraudulent tax returns that were filed by [the defendant], during 
the same time period, and using the same methods.”  781 F.3d at 1394.  One of those methods, like 
the Defendant’s in this case, was the use of tax returns containing “false Schedule C information” 
and “common” false representations such as dependents or addresses.  Id.  Like Ford, the 
fraudulent applications that the Defendant submitted for third parties are not “other acts” under 
Rule 404(b).  Rather, they are part of the same scheme he is charged with and use the same 
methods.  Moreover, like the charged scheme, they are acts the Defendant committed to benefit 
himself: after Rendon and Clark’s loans were approved, the Defendant received a $39,768 
kickback from Rendon—20% of her loan amount—and a $29,849.85 kickback from Clark—15% 
of his loan amount.  
The Eleventh Circuit has reaffirmed the reasoning of Ford in other cases like the 
Defendant’s.  In United States v. Shabazz, 887 F.3d 1204 (11th Cir. 2018), the defendant filed 
fraudulent tax returns for indigent inmates, claiming refunds for same tax period, using common 
addresses, and attaching forms that claimed similar expenses.  The Government introduced 
uncharged tax returns that followed the same pattern as the charged offenses, and the Court of 
Appeals affirmed their admission as intrinsic evidence.  Id. at 1217.  The Court of Appeals found 
that the uncharged tax returns “were substantially similar to the charged returns,” rejecting the 
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defendant’s argument that the uncharged returns shared only “traits inherent in all inmate tax fraud 
schemes.”  Id.  The same reasoning should apply here.  The two uncharged applications that the 
Government seeks to admit were filed by the Defendant, contain the same incorrectly calculated 
taxable wages as his own, and were signed by the same method with the same neglect of the 
document markups.  The time and circumstances are the same and, like Ford and Shabazz, all that 
differs is the name on the application. 
II. 
EXTRINSIC 
EVIDENCE: 
THE 
THIRD-PARTY 
APPLICATIONS 
AND 
COMMUNICATIONS 
PROVE 
THE 
DEFENDANT’S 
IDENTITY 
AND 
FRAUDULENT INTENT.  
The third-party applications, as well as the Defendant’s communications with third parties, 
are also admissible as extrinsic evidence because they are relevant to the Defendant’s knowledge, 
intent, and identity.  The Defendant has said that he did not know anything about COVID-relief 
loans or how to apply for them.  The evidence the Government seeks to introduce shows that 
cannot be true and that, in fact, the Defendant attempted to capitalize on his own success by using 
the same methods for third parties.  It is unlikely, the jury can infer, that the Defendant would 
solicit clients for something that the Defendant claims he knew nothing about.   
“Text me I getting people approved for disaster small business loans PPP,” the Defendant 
wrote to two people on Facebook, on June 19, 2020.  The Defendant then requested the business 
information from the applicants, but did not ask for tax documents.  He did not need to because, 
as is charged in the indictment, he could forge those himself.   “I’m doing PPP loan for people and 
my Client’s,” the Defendant later wrote on March 2, 2021.  Another person asked the Defendant 
if he could prepare Schedule Cs for PPP, and the Defendant said “Yes.” 
“Heyy are you doing PPP,” someone wrote the Defendant on Instagram.  “Yes,” the 
Defendant wrote back.  “Do one for me,” she asked. “K,” the Defendant replied.  The Defendant 
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sent a screenshot of an approved PPP application and a link to the SBA website.  “This is hitting I 
got the plug,” the Defendant wrote. 
 The Government has a demanding burden: it must show the Defendant’s knowledge and 
intent.  The evidence it seeks to introduce is relevant to these issues, which the Defendant has 
inserted into this case by pleading not guilty and, in a post-Miranda statement, denying his 
knowledge and intent.  See, e.g., United States v. Zapata, 139 F.3d 1355, 1358 (11th Cir. 1998) 
(“A defendant who enters a not guilty plea makes intent a material issue which imposes a 
substantial burden on the government to prove intent, which it may prove by qualifying Rule 
404(b) evidence absent affirmative steps by the defendant to remove intent as an issue.”).  
In addition to intent and knowledge, the third-party applications also prove the Defendant’s 
identity because they bear his “signature,” “handiwork,” and “use[] a modus operandi that is 
uniquely his.”  United States v. Vigne, 571 F. App’x 932, 934 (11th Cir. 2014) (quoting United 
States v. Phaknikone, 605 F.3d 1099, 1108 (11th Cir. 2010)).  In Vigne, the defendant was accused 
of using a fake New York driver’s license to redeem a money order at the U.S. Post Office.  Id. 
When he was arrested, the defendant was carrying a stolen Bank of America debit card.  Id.  At 
trial, the Government introduced the defendant’s ten-year-old prior conviction for using a stolen 
Bank of America debit card and a fake New York driver’s license to buy a laptop.  Id.  The Court 
of Appeals affirmed the admission of the conviction because the “shared characteristics [were] 
sufficiently similar to be considered [the defendant’s] signature or modus operandi.”  Id.  “While 
the two crimes were not exactly the same,” the Court of Appeals reasoned, “the manner in which 
they were carried out present the same unique characteristics—the use of a stolen Bank of America 
debit card in conjunction with a fake New York driver’s license to fraudulently obtain something 
of value.”  Vigne, 571 F. App’x at, 934. 
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In this case, the Defendant’s own applications and the applications for Clark and Rendon 
share far more characteristics than those in Vigne.  In each application, the submitted Form 940 
copied another Form 940, each Form 940 was filled in the same way, and each Form 940 was 
neglected to be flattened and therefore revealed the way it was made.  Furthermore, the Defendant 
communicated with each of the third-party applicants through his e-mail, documents submitted 
with each application were found in the Defendant’s drive, each of the applications were filed from 
an IP address the Defendant repeatedly accessed, and each application was filed in the same month.  
This is not a “commonplace variety of criminal act,” id., but is a signature, literally, of the 
Defendant’s crimes.  To show that the Defendant filed the fraudulent applications charged in the 
indictment, the Government should be permitted to show other instances in which the Defendant 
used the same modus operandi.  The Defendant may deny it was him, but the evidence shows 
differently. 
The three Ellisor factors for admitting Rule 404(b) evidence have been met.  First, the 
evidence is relevant to identity, knowledge, and intent.  Occurring during the charged offenses, the 
evidence is also highly probative.  See United States v. McNair, 605 F.3d 1152, 1204 (11th Cir. 
2010) (“[E]vidence of similar conduct that occurs during the same time period has heightened 
probative value.”) (internal citations omitted).  Second, the evidence cannot be controverted.  The 
third-party applications that the Government seeks to introduce have been stored on computer-
servers and produced as certified business records.  The application documents come from the 
Defendant’s own cloud drive, and the messages come from the Defendant’s own social media.  
Third, any prejudice is not “undue.”  The third-party applications the Government seeks to 
introduce are a limited selection of vast wire fraud that the Defendant’s own records show he 
participated in.  And, the Defendant cannot be not unduly prejudiced by his own words, reprinted 
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directly from his social media.  See United States v. Harbison, 523 F. App’x 569, 575 (11th Cir. 
2013) (admitting an undisclosed statement over objection where, “[a]s for prejudice to the 
Defendant, the statement that purportedly came as a surprise to defense counsel was [the 
Defendant’s] own statement” and, “[m]ore importantly, defense counsel had the opportunity to 
cross-examine [the witness] and ask in the jury’s presence whether the ‘y’ll can’t make nuthin’ 
stick’ statement could have been by someone who felt he was being wrongly accused”); United 
States v. Williams, No. 11-60285, 2013 WL 1748753, at *3 (S.D. Fla. Apr. 23, 2013) (“While it is 
true that the recording is prejudicial against [the defendant], that fact results in large part from [the 
defendant’s] own statements and actions.”).  If there is a missing context to these messages, the 
Defendant can explain it.  A meaning other than the obvious, he can explain that too.  But excluding 
evidence because it is unduly prejudice under Rule 403 is “an extraordinary remedy which the 
district court should invoke sparingly.”  United States v. Lopez, 649 F.3d 1222, 1247 (11th Cir. 
2011).  The third-party applications, as well as the Defendant’s communications with third parties 
are highly relevant and hardly prejudicial.  It should be seen by the jury, who can follow a limiting 
instruction to reduce any prejudicial effect.  See United States v. Diaz-Lizaraza, 981 F.2d 1216, 
1225 (11th Cir. 1993); see Eleventh Circuit Pattern Jury Instructions, Special Instr. No. 4.1, Similar 
Acts Evidence (Rule 404(b), Fed. R. Evid.) (2020).  They can then decide what to think.   
 
 
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CONCLUSION 
Accordingly, the United States of America (the “Government”), through the undersigned 
Assistant United States Attorney, hereby files this Notice to Introduce Under Federal Rule of 
Evidence 404(b). 
  
 
 
 
 
 
 
 
Respectfully submitted, 
 
JUAN ANTONIO GONZALEZ 
 
 
 
UNITED STATES ATTORNEY 
 
 
 
 
 
 
BY:  
Jonathan Bailyn    
 
 
 
 
 
 
Jonathan R. Bailyn, AUSA 
Court ID No. A5502602 
99 Northeast Fourth Street, 6th Floor 
Miami, Florida 33132-2111 
Phone: (305) 961-9071 
jonathan.bailyn@usdoj.gov 
 
 
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