Main Document - Corrected pdf — USA v. OKOJIE (Dkt. 48.1)

Record facts

U.S. District Court for the Southern District of Georgia · No. 4:22-cr-00084-LGW-BWC · Doc. 48-1 · 2022-11-17 · Docket on CourtListener

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA 
SAVANNAH DIVISION
 
UNITED STATES OF AMERICA
vs.
BERNARD OKOJIE, 
Defendant.           
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CASE NO. 
4:22-CR-00084-LGW-BWC-1 
MOTION HEARING 
BEFORE THE HONORABLE BENJAMIN W. CHEESBRO
November 2, 2022; 10:04 a.m.
Brunswick, Georgia
APPEARANCES:
For the Government:
JONATHAN PORTER, Esq.
U. S. Department of Justice
United States Attorney's Office 
P. O. Box 8970 
Savannah, Georgia  31401 
(912) 652-4422 
jonathan.porter@usdoj.gov 
For the Defendant:  
JOHN J. OSSICK, JR., Esq.
John J. Ossick, Jr., PC 
P. O. Box 1087 
Kingsland, Georgia  31548-9190 
912.729.5864 
ossick@tds.net 
Reported by:
Debbie Gilbert, RPR, CCR
Official Court Reporter
801 Gloucester Street
Post Office Box 1894
Brunswick, GA 31521-1894
(912) 262-2608 or (912) 266-6006
debra_gilbert@gas.uscourts.gov
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P R O C E E D I N G S
(Call to order at 10:04 a.m.)
THE COURT:  Ms. Mixon, please call the case.
THE CLERK:  Case Number 4:22-CR-84, United States of 
America versus Bernard Okojie, Jonathan Porter for the 
Government, John Ossick for the defendant. 
MR. PORTER:  Good morning, Your Honor, the Government is 
ready to proceed. 
MR. OSSICK:  Good morning, Your Honor. 
THE COURT:  I'm going to go over a little bit of 
background before we get started.  The indictment in this case 
was filed on June 9th of this year, and the charges in that 
indictment are contained in three separate counts.  
Count 1 is conspiracy to commit wire and bank fraud.  
Count 2 is wire fraud.  Count 3 is a money laundering conspiracy 
charge.  All of those counts concern applications for Economic 
Injury Disaster Loan applications that were submitted to the 
United States Small Business Administration as well as Payroll 
Protection Program loans under the CARES Act.  
Mr. Okojie appeared before Judge Bly in the Northern 
District of Georgia for his initial appearance on June 17th was 
released on bond at that time and was transferred to the 
Southern District for further proceedings, and he appeared 
before me on July 20th for his arraignment.  
He was continued on bond and Mr. Ossick was appointed to 
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represent Mr. Okojie.  
Scheduling order was entered setting the time for the 
pretrial motions and that was extended once and Defendant timely 
filed 11 motions and the Government filed one motion. 
The parties filed a joint status report identifying 
which motions are opposed and which are not and specifically 
requested oral argument on two motions.  No evidentiary hearing 
was requested on any of the motions.  
One minor point of clarification:  The Government's 
motion for reciprocal discovery was not identified on the status 
report.  I reviewed the response to that, and it appears to be 
unopposed and there is no need for argument or any evidentiary 
hearing; is that correct?  
MR. PORTER:  Correct, yes.
THE COURT:  Do you agree, Mr. Ossick?  
MR. OSSICK:  Yes. 
THE COURT:  So the two pending motions that we're going 
to address today are Defendant's motion to dismiss Counts 1 and 
3.  That's Document Number 29 and Defendant's motion for a 
pretrial hearing to determine the existence of any 
conspiratorial agreements that will be admitted and statements 
in particular.  That's Document Number 38.  Both of those 
motions are fully briefed.  
Mr. Ossick, these are your motions.  I'm going to ask 
you to present any argument you have in support of the motions 
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first.  
MR. OSSICK:  Thank you, Your Honor.  Essentially the 
motion raises the issue of whether or not the conspiracy count 
is adequately pled.  
We don't believe that it is, and the reason, you know, 
certainly The Court is aware that it's whether or not it's 
sufficient to give us notice about how to defend, what we have 
to defend against and is it a bar to subsequent prosecution.  
The conspiracy count may well -- it identifies a number 
of transactions, and they may well have set out individually 
wire or bank fraud charges in a valid way, but nowhere does it 
identify any coconspirator, indicted or unindicted, and as a 
consequence, a number of the entities which allegedly sought 
these loans and payments and stuff are solely controlled.  
So while you could have a conspiracy between an 
individual and a corporate or business entity if it's not 
controlled by the same person because you can't conspire with 
yourself, those could in another context be a sufficient 
allegation.  
Now, it does contain also allegations about other people 
who these submissions were supposedly made for, but they are not 
identified as being some unidentified or unindicted 
coconspirator, so there's -- I don't understand what the 
agreement allegedly is or who the agreement allegedly is with.  
And there's nothing in -- you know, the Government in 
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its response talks about sufficiency of evidence is not what 
this hearing is about, and I agree it's not.  This is nothing 
about the sufficiency of the evidence.  This is sufficiency of 
the identification of what the agreement and people the 
agreement is with, and I just made the reference to the matters 
of what was in the discovery to show that in some cases it helps 
you identify what it's about.  
Here it appears the contentions are that those other 
parties are not in agreement with, you know, some conspiracy.  
Now if they are and are, in fact, unidentified, unindicted 
coconspirators, then that's a different way to look at it, but 
it doesn't say that at all.  
So it doesn't give an indication what the agreement is.  
As a consequence, how would you know who could testify or what 
testimony could come in and say this is a coconspirator's 
admissible statement because it's during the pendency and 
meeting all the other tests.  Who would that apply to, which is 
sort of getting into the James request.  
What, right now, from this indictment would we know 
about whose statement out of court will be admissible under 
those rules that allow that?  And in what way is it admissible 
because of what the agreement was?  
Now, maybe there could be and certainly could allege 
that with, you know, Person A there was a conspiracy with them 
and that B was also part of that perhaps and maybe C and D 
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didn't know anything about it.  
But it doesn't do any of that.  That's not what we're 
looking at based on the allegations in these counts, and I'm 
using Count 1 but the same will apply to the money laundering 
because it's exactly the same deficiency in terms of what I 
believe is wrong with it, so I think that we have to have an 
indictment that gives us an idea of exactly, you know, is this 
some other friend that we don't even know their name that is 
supposedly the unindicted coconspirator of Mr. Okojie's?  
Did some family member participate and that's who the 
agreement is with?  Or is it somebody at the bank?  Is it 
somebody with some government agency?  
I have no idea and nothing here would help me know that 
it is or it isn't and I also then wouldn't know whose statement 
might be read at some point and be admissible under 
coconspirator.  
So I mean, unless you have some specific questions you 
want me to address, I think that's the gist of my argument, Your 
Honor.  
THE COURT:  I do have a few specific questions, and I 
want to preface my questions with sort of a statement to kind of 
frame my thinking, and if you disagree with this reading or 
interpretation of the indictment, then please do tell me.  
I follow your argument completely and I understand your 
linking Count 1 to Count 3 and the arguments there.  Focusing on 
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Count 1 -- and this may be a little bit of an 
oversimplification -- but I read the substantive conspiracy 
allegations to be contained in Paragraphs 26, 27, 28 and 29, and 
within those four paragraphs, I read it to divide it into really 
three sets of allegations.  
Paragraph 26 with all its subparts appears to relate 
specifically to the EIDL applications made by Mr. Okojie and his 
businesses. 
MR. OSSICK:  Okay. 
THE COURT:  Paragraphs 27 and 28 are linked together in 
that they relate to EIDL applications allegedly made by Mr. 
Okojie on behalf of others known to Mr. Okojie and these 
subparagraphs identify those unnamed individuals Individual 1, 
2, 3, et cetera.  
In Paragraph 26, it identifies the applications and then 
in Paragraph -- I'm sorry, I misstated.  In Paragraph 27 it 
identifies the applications, and in Paragraph 28 it 
identifies -- and I'm going to use just a shorthand term of 
"alleged kickbacks" from the recipients to Mr. Okojie.  
So to reiterate, Paragraphs 27 and 28 are linked to 
those individuals other than Mr. Okojie identified by their 
anonymous identifiers both in the applications and in the 
kickbacks.
And then Paragraph 29 addresses a third set of 
allegations which are not EIDL loans but rather PPP applications 
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made, and as I read that paragraph, it relates specifically to 
Mr. Okojie and a financial institution through which the 
business application was submitted.  
First off, would you agree that that's a fair way to 
sort of break these allegations down?  
MR. OSSICK:  Yes. 
THE COURT:  Well, I want to focus you first to the ones 
in the middle, Paragraph 27 and 28, where you have individuals 
identified, application dates, identifying information related 
to the applications and specific alleged kickback schemes.  
When you look at Stapleton as cited by the Government 
and the cases that Stapleton is based on, it says specifically 
the indictment doesn't have to name the individuals who are the 
alleged coconspirators.  
Here we've got quite a bit of identifying information 
that would put you and Mr. Okojie on the path as to who those 
conspirators would be.  Would you not concede that at least for 
those allegations that what's in the indictment is enough to 
point to the coconspirators?  
MR. OSSICK:  No, because, Your Honor, what the 
indictment does not tell us, are these, in fact, people that are 
unindicted coconspirators.  In other words, are these people who 
have an agreement to commit this offense -- and I'm shortening 
that a little bit -- or are these just innocent victims who 
thought they were doing something that's completely allowed and 
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therefore they are not coconspirators; they are not statements 
they made to third parties; they are not admissible.  They're 
not 801(d)(2) or whatever.  I don't know.  When I look at the 
discovery, it's the latter.  They are victims.  
THE COURT:  I understand. 
MR. OSSICK:  I realize that discovery is not part of 
doing that, but it helps me illustrate what the problem is.  I 
mean, if it just said these are unindicted coconspirators, fine.  
I realize you don't have to identify everybody, but you still 
have an indictment that is sufficient so that we know what is 
this agreement and who is this agreement with, not every person 
in it, Your Honor.  
I'm not trying to suggest that the law requires any of 
that, but just how can you read those paragraphs that name those 
people and say are these separate conspiracies, are they 
multiple conspiracies here, is it one overall conspiracy that 
some are just in for a little bit or out, or are these even 
coconspirators?  
THE COURT:  For the sake of argument, even if I were to 
agree on Paragraph 27 where it simply alleges that the 
applications were made on their behalf, Paragraph 28 alleges a 
kickback scheme between these individuals.  
Doesn't that additional allegation at least suggest or 
imply that that is the agreement, applications are submitted, 
kickbacks are made, that is the alleged conspiracy, even if it 
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doesn't define that in sort of precise terms?  
MR. OSSICK:  Well, that would then preclude a person 
from innocently paying a kickback?  In other words, if I'm 
Individual 6 and I let Mr. Okojie submit this application and 
I'm in agreement to paying this fee or kickback, if I think it's 
okay, I'm not in agreement to commit an offense, even though I'm 
in agreement about paying a fee for services.  
I don't think that the word "kickback" versus "fee" can 
identify a coconspirator sufficient to allow protection.  What 
if half -- 
THE COURT:  Go ahead. 
MR. OSSICK:  What if half are one way, Your Honor, and 
half are the other.  So now we have, okay, according to you, 
I've got a valid indictment, your reading, a valid indictment, 
but, well, maybe it's two different conspiracies or only one 
conspiracy and it's much more limited in scope and participants?  
How do I know that?  
THE COURT:  Well, then my question would be where do you 
draw the line between the valid indictment and what should be 
proven at trial.  Perhaps it's an avenue of argument and proof 
to demonstrate that while there was an agreement, it was not a 
conspiratorial agreement in the sense of a criminal conspiracy 
but rather it was a legitimate agreement like what you 
hypothesized with these individuals, but for the purposes of the 
facial sufficiency of the indictment, the agreement and the 
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scheme and the conspiratorial arrangement is sufficiently 
defined at least as to those individuals.  Do you still maintain 
that that's not enough even with the payment scheme allegation?  
MR. OSSICK:  If these people were labeled victims, which 
again would just be surplusage in the indictment, for instance, 
okay, what would be different about what I know about this case 
in terms of defending it and what's a bar for a subsequent 
prosecution?  
I'm at a loss, Your Honor, about that.  I mean, okay, 
let's say, for instance, they just said they are unindicted 
coconspirators.  Okay.  Maybe in the evidence in the case, then 
at least I know who purportedly is part of this agreement, and 
maybe the evidence would be that two of them are and five of 
them aren't or whatever.  
That again, I agree with The Court that would be just 
sort of the matter of what the proof of the evidence is about, 
but in terms of knowing what is -- I mean, would it not flow 
that, right now, any out-of-court statement of any of these 
people is at least, subject to proof of the conspiracy, 
admissible?  
THE COURT:  I don't want to merge the two separate 
motions, but I understand how they are intertwined, but speaking 
specifically to the sufficiency of the indictment, let me ask 
you a different question.  
MR. OSSICK:  Okay.  
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THE COURT:  I kind of broke this into three constituent 
parts in Count 1.  Even if there were any problems with Part 1 
and Part 3, the part related to Mr. Okojie and his businesses 
for the EIDL applications and for the PPP applications, I have a 
lot of hesitation and concern about the concept of carving up 
the indictment to say that these allegations that don't pertain 
to the conspiracy in Paragraphs 26 and 29 would fall away when 
Paragraphs 27 and 28 demonstrate this relationship with the 
other unidentified individuals.  I understand you maintain that 
27 and 28 aren't sufficient either, but if they were, what would 
be the recourse there for those other parts of the conspiracy 
charge?  
MR. OSSICK:  Well, let's say that you proved those 
things happened, but not the ones involving other third parties, 
let's say.  
You wouldn't have proven conspiracy because that would 
only have been with himself, so it would be -- now, they could 
have been charged as wire fraud counts or bank fraud counts or 
whatever, which is what you would do when there is not another 
party to an agreement. 
THE COURT:  Well, you wouldn't maintain that those 
allegations that relate solely to Mr. Okojie and his individual 
businesses have to be carved off or excluded in the conspiracy 
charge?  They just, in your view, wouldn't be sufficient to 
support a conspiracy conviction; is that right?  
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MR. OSSICK:  Well, I would think that in order to 
prevent a verdict that's not properly based, in other words, 
let's say that the jury found that I believe that Mr. Okojie 9 
or pick one of the -- car business, that he, in fact, did that, 
but I don't think he did these other things with these other 
people in an agreement with them, you know, that's consistent 
with a charge of conspiracy, you know.  If they were to attempt 
to return a verdict of guilty for the conspiracy, it wouldn't 
stand. 
THE COURT:  I will ask it in a more hypothetical way.  
There may be a number of ways where a conspiracy may be charged, 
and in the course of alleging facts related to that conspiracy, 
there may be non-conspiratorial actions, individual action by 
one particular defendant; this defendant establishes this 
business without coordination with others for the purposes of 
furthering the scheme.  That is a proper allegation in a 
conspiracy indictment, wouldn't you agree?  
MR. OSSICK:  Yes. 
THE COURT:  All right.  Let me ask you about the second 
motion, the motion for the pretrial James hearing.  Is there 
anything that you can point to specific about the nature of this 
alleged conspiracy different from other types of charged 
conspiracies that would support a need for a pretrial James 
hearing in this case?  
MR. OSSICK:  Not different than the conspiracy but 
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different in the fact that almost always -- in fact, every time 
I think in the past in a conspiracy count I've had a pretty 
solid idea -- at least I thought I did -- about what the 
agreement was and who it was with so that I had a pretty good 
idea of when some piece of evidence was going to be introduced, 
whether or not it's probably going to qualify as a coconspirator 
hearsay exception or not.  
I have no idea here, Judge, but it goes back to the 
argument I've just made.
THE COURT:  I want to make sure there is agreement on 
this point.  You would agree that ordering a pretrial James 
hearing is purely discretionary for the trial court?  
MR. OSSICK:  Yes, under the law, I agree. 
THE COURT:  I'm trying to discern exactly when it is 
appropriate under the law to require any sort of pretrial James 
hearing, and I can't find a scenario that would mandate a 
pretrial James hearing, and without any sort of mandatory 
requirement, I'm trying to identify specific factors or concerns 
that would support ordering a pretrial James hearing, and quite 
frankly, I have not found a single instance of a pretrial James 
hearing ordered in any recent years that I can identify, so I'm 
looking at what may be exceptional or different about this case 
that would warrant one. 
MR. OSSICK:  Well, the only thing I can say in response 
to that, Judge, this is the only indictment that I've seen for 
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conspiracy charges that didn't give any indication as to who a 
coconspirator was. 
THE COURT:  All right.  Thank you, Mr. Ossick.  
I will give you a chance for rebuttal, but let me hear 
from Mr. Porter next. 
MR. PORTER:  Your Honor, just picking back up on what 
Mr. Ossick said, I've seen a lot of indictments where the 
indictment alleges a conspiracy and it alleges that the 
defendant conspired with others.  
That's what's required in indictments, Your Honor.  
That's it.  I've seen a lot of them, and apparently the Eleventh 
Circuit has upheld all of those because that's what the 
Stapleton case stands for.  That's what a lot of other cases 
stand for.  
Sort of the interesting part about this is rather than 
just saying there was a conspiracy to commit wire and bank 
fraud, the grand jury alleged additional facts.  
The grand jury alleged specific instances where acts in 
furtherance of the conspiracy occurred, and I think what Mr. 
Ossick is saying is that the thing he's struggling with is the 
grand jury identified in the indictment individuals rather than 
labeling them as conspirators or non-conspirators, but that in 
and of itself doesn't make the indictments insufficient to put 
the defendant on notice of what he's being charged with.  
The indictment is crystal clear of what conduct he's 
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been charged with, and that's the whole point of this is to 
ensure that the defendant knows the conduct that's being alleged 
and knows that if he's indicted in wherever, Mississippi, for 
the same conduct that he can point to the indictment and say, 
"Your Honor, I've already been charged with this; I went to 
trial and I was" whatever "on this same conduct," so I don't 
think that's, by alleging additional facts, that somehow makes 
the indictment insufficient and I think the case law that we 
cited in our brief is more than sufficient to make that point. 
THE COURT:  Let me point your attention to the 
three-part way that I sort of read this.  Paragraph 26, Part 1, 
27 and 28, Part 2, and 29, Part 3. 
MR. PORTER:  Yes, Your Honor. 
THE COURT:  I'm having some difficulty identifying how 
Paragraphs 26 and 29 fit into the conspiracy allegations.  Are 
those allegations that are there effectively to tell the story 
or are they an aspect of the conspiracy that's charged?  
MR. PORTER:  It's an aspect of the conspiracy that's 
charged.  They're acts in furtherance of this scheme.  So the 
scheme was one to defraud the Government coming from the 
COVID-19 pandemic.  The EIDL program, the PPP were passed as 
part of the same CARES Act and the indictment alleges 
sufficiently I believe that the conspirators sought to get all 
of these funds and, therefore, there are instances where Mr. 
Okojie was creating businesses on his own in order to launder 
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the funds.  Some of the same businesses that were listed in 
Paragraph 26 are the same businesses that received funds from 
the folks mentioned in 27.  
So to me, Your Honor, it's all part of the same 
conspiracy. 
THE COURT:  Well, let me ask you specifically about 
Paragraph 29.  That's the only paragraph that has any specific 
allegations about PPP loans, and as I read that paragraph, it 
relates exclusively to one business that Mr. Okojie allegedly 
controlled, and my concern there is Count 3 is also a conspiracy 
charge, and it invokes the PPP loans.  
I don't see where there's even an unnamed or general 
allegation of a coconspirator or any other participant in that 
at all, and again, I may be oversimplifying, but it reads to me 
that Mr. Okojie is charged with, in Count 29, submitting a PPP 
application for one of his businesses and then got funds back.  
Where is the conspiratorial element in Count 1 or Count 3 
relative to PPP loans?  
MR. PORTER:  Yes, Your Honor.  So Count 29, you're 
correct.  Count 29 by itself would not be sufficient to allege a 
bank fraud conspiracy, but Paragraph 23 alleges both a wire and 
a bank fraud conspiracy.  
It says that Mr. Okojie with other coconspirators 
conspired to commit wire and bank fraud.  That, Your Honor, is 
the way the PPP side of this is alleged, and again, Your Honor, 
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it could just be that the grand jury alleged all of these things 
and didn't allege, you know, all of the facts known to the grand 
jury, and so that, Your Honor, I understand where you're going 
with that, and I understand how Paragraph 29 by itself would not 
suffice but -- yes, Your Honor. 
THE COURT:  Just carrying Mr. Ossick's argument forward, 
if the indictment charges PPP and EIDL in these three groups of 
alleged actions and hypothetically at trial the jury concludes 
that Mr. Okojie did, in fact, submit fraudulent PPP loan 
applications for his business but did not engage in any EIDL 
application fraud and then found him guilty on Count 1, that 
would suggest the possibility at least of an improper conviction 
on a conspiracy charge unless there is some additional evidence 
that comes out at trial that shows others involved in the PPP 
scheme; is that a fair assessment?  
MR. PORTER:  I think your last point is the most 
important one, depending on how the evidence comes out at trial.  
That's also why special verdict forms exist where the jury would 
be ensured that they agree what exact fraud crime the defendant 
conspired to commit.  
THE COURT:  Well, let's discuss the motion for pretrial 
James hearing.  I understand the case law makes it 
discretionary.  I understand Bourjaily -- I'm not quite sure how 
to pronounce it --
MR. PORTER:  Yes. 
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THE COURT:  -- suggests there's this consideration of 
the statement and all the external evidence.  Let me ask you 
specifically:  What is the disadvantage or the problem of 
conducting one in these circumstances?  
MR. PORTER:  Your Honor, this is not a case where we had 
a wire up, and there's coconspirators that are caught on the 
wire and we're going to try to take what that coconspirator said 
and we're going to try to apply it to Mr. Okojie.  
That's not this type of case.  This is going to be a lot 
more straightforward.  There was no wire.  It's going to be very 
straightforward, so a James hearing, we would just be sort of 
speculating as to what witnesses are going to say at trial, so 
I'm not sure that this is a scenario where a James hearing is 
appropriate. 
THE COURT:  In other words -- and I don't want to 
recharacterize -- but it sounds to me that you're saying that 
there is not any written statement, any recorded statement that 
the Government can identify at this point.  It would only be a 
matter of trial testimony that would be at issue; is that 
correct?  
MR. PORTER:  Good question, Your Honor.  I believe there 
are going to be written statements.  I'm not sure what form they 
will take.  I don't have like a written statement in my mind 
right now where I'm saying is going to be Government's Exhibit 
whatever.  So I don't want to go as far as to say there's not 
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going to be any sort of recorded statements because it could be 
that a witness comes forward and says, "Here's a text message 
and it's a text message going on on both sides."  
That could very well happen.  I don't have that right 
now where I'm saying here is the coconspirator statement that 
we're going to try to apply to Mr. Okojie.  This is going to 
be -- it's just not one of those cases, Your Honor. 
THE COURT:  Well, I want to press you on the same issue 
that I pressed Mr. Ossick on, which is there is not a lot of 
indication from the case law as to when you get to that point 
that a pretrial James hearing would be warranted.  You cite 
Magluta in your briefs, and that case suggests to me that there 
are instances where it is a valuable endeavor to conduct a 
pretrial James hearing, and there the conviction for obstruction 
was set aside because the coconspirator statements did not 
qualify under the hearsay exception, and that unwound the entire 
conviction, and it was because there was a difficult legal issue 
as to whether there was actually a conspiracy still ongoing at 
that time.  
Mr. Ossick argues that it's difficult for him to 
determine if any conspiracy existed, what the agreement was and 
whether any statements were made in furtherance of that 
conspiracy, so can you articulate any factors or standard to try 
to determine when it's appropriate to have one. 
MR. PORTER:  Good question, Your Honor.  I have not 
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studied it as much as you have.  I appreciate your going back to 
try to find the instances where this district has conducted a 
James hearing, and I'm not -- I don't recall offhand what the 
coconspirator statements were in Magluta, but, Your Honor, I 
would again say that I think if this were a case where we were 
going to try to prove everything by coconspirators' statements, 
that would be one thing and that could be potentially where a 
James hearing would be helpful.  But where we're not sort of 
banking on coconspirator statements to prove up our case, I 
don't think this is one where a James hearing is appropriate.  I 
think this is one where the trial judge is going to be able to 
hear the statements and sort of address this on a 
situation-by-situation basis. 
THE COURT:  Thank you, Mr. Porter.  
MR. PORTER:  Thank you, Your Honor. 
THE COURT:  Mr. Ossick, any rebuttal?  
MR. OSSICK:  Well, first thing I would say in response, 
I thought that the Government's answer was very telling when it 
said we often have cases where the defendants have unindicted 
coconspirators.  This is a single defendant.  
I agree completely when you've got defendants, I know 
about the agreement the Government is trying to allege and prove 
because it's between at least these named people, and I agree 
completely that you don't have to name everyone in the case, but 
you've got to give me enough information to identify who 
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supposedly is part of the agreement because only then can I 
start to see what the agreement, you know, the Government is 
going to prove is, and the idea -- and I'm jumping, of course, 
but to the -- in the James, it's like, well, okay, we don't 
think that's really important in this case.  How do we know?  I 
mean, what one little piece of evidence might be the thing that 
really counts, so I don't know that that should ever be the 
rationale for when The Court should think you should or should 
not make some pretrial determination.  
I would suggest that it's much more appropriate as I've 
urged to have it so that when it's so vague as to what that, you 
know, whose statement that might be that that would be a better 
criteria to judge when it would be useful to prevent an 
inappropriate result as a consequence, and one other thing, 
Judge, when you were questioning about, in my view, when you 
look at the PPP allegations of 29, I don't legally see any 
difference between that and the other solely owned controlled 
companies of the EIDL allegations.  
I don't see them as being different in terms of legally, 
and as a consequence, I mean, I don't think that either of those 
can be a basis to support that this is a valid indictment 
because all of those would -- neither of those, in my view, 
legally could sustain a conspiracy conviction. 
THE COURT:  Mr. Ossick, two questions.  The first is 
regarding the Individual Numbers 1 through 8, I believe, as in 
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the indictment, without going too into detail about those 
individuals, are you able to identify those individuals from the 
discovery?  
MR. OSSICK:  Oh, yes.  Yes, and that's why I say it 
makes it even more complex or confusing is that "We didn't know 
that; we weren't part of that; we didn't even see that" is the 
sort of thing I'm reading in discovery, so it's the -- you know, 
it's the antithesis of what you would expect to see from a 
coconspirator's, unindicted coconspirator statement, so why I 
used the term he could have labeled them victims.  
He may by the time of trial change his mind about that 
or whatever, but there's -- and correct me if I'm wrong -- I 
don't read in the discovery, "Oh, yeah, I was in agreement we 
would give this a shot, and if it worked out, I would give you 
15 percent" or whatever.  So that's why I say that doesn't -- 
you know, that doesn't identify sufficient to meet either of the 
tests. 
THE COURT:  So while the individuals are identified, 
your position is that the -- it's not clear whether those 
individuals are the conspirators or whether it's someone else or 
what the conspiratorial agreement even was from the indictment 
at least. 
MR. OSSICK:  I say that by knowing who they are does not 
help me identify either who the agreement is with or what is the 
agreement, and when I go beyond that to the evidence part or 
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expected evidence, it even strengthens the fact that that's not 
helpful.  It wouldn't be them because their testimony, expected 
testimony, "No, I didn't have any agreement with him about 
that." 
THE COURT:  Let me ask you a question on the James 
hearing issue.  Mr. Porter indicated there may not be any sort 
of recorded statement that exists right now that would be relied 
on.  
I'm having a little difficulty envisioning what a 
pretrial James hearing would look like, if it was just 
speculation about what might be submitted at trial.  
If it really is only limited to trial testimony from 
alleged coconspirators, how would a pretrial James hearing work?  
MR. OSSICK:  Well, I would think that what would be the 
issue in the James hearing is there, in fact, sufficient 
evidence that this is a conspiracy and this is part of it and 
it's in furtherance of and during.  
So I would then have an idea of -- let's just say, just 
picking a person, let's just say Individual 3.  Individual 3 may 
have made a statement to someone I don't know that says "Okojie 
and I have worked out a deal," et cetera, et cetera, something 
that would be incriminating or would be relevant that would meet 
the other tests, okay.  If he's, in fact, a coconspirator and is 
part of the agreement, that's coming in.  
Well, is Individual 3 an unindicted coconspirator?  Is 
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that part of the agreement or is this a victim just ranting 
around?  You know, so the Government would be required, I would 
think, in a pretrial James hearing to say, okay, what testimony 
from -- whose out-of-court declarations other than the defendant 
do you expect to have admitted to be able to show, you know, the 
agreement, the existence, the relevant topic of whatever it is, 
and then The Court would say, "Well, wait a minute, I don't 
think there is enough evidence that shows that that person was 
in agreement," or to the contrary, they are and therefore it's 
coming in, but the fact of whether it's recorded, what does that 
have to do with it?  I mean, and I mean that -- that doesn't 
help me. 
THE COURT:  Well, this is more of a practical question 
than more of a what benefit may inure to either party or even in 
terms of judicial economy.  A practical question is what would 
that look like if the Government were to only speculate and say, 
"Well, we don't have any statement here today from any 
coconspirator that we intend to introduce at trial but it's 
possible that Individual 3 may come in and say" whatever it is 
that they think that they might testify to, and then The Court 
would be in a position to sort of pre-assess the evidence of the 
relationship between Mr. Okojie and Individual 3 without the 
benefit of the trial setting and any other evidence that would 
come in in order to assess a speculated statement and one that's 
not actually been made or even adopted by Individual Number 3.  
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While there may be instances where a James hearing would 
be valuable, it would seem to be most valuable where everyone 
identifies the statement but disputes whether it was made in 
furtherance of a conspiracy.  Here we don't even have the 
identifiable statements at this point. 
MR. OSSICK:  Well, I agree that that's a valuable way 
but also if there is nothing offered to show that it would 
qualify, therefore, it's also a great benefit to my defense to 
know that I'm not going to be confronted with something that I 
have no idea what it is like that, where somebody says they have 
overheard or had a conversation with Mr. 3, you know, and here's 
what Mr. 3 said at the time.  
This isn't applying to what 3 testifies to now.  That's 
a whole different issue about admissibility.  This is where 
someone else is evidence supposedly of someone saying what a 
coconspirator said that would otherwise be admissible against my 
defendant. 
THE COURT:  Thank you both very much for preparation and 
very clear oral arguments.  Mr. Ossick, any other matters that 
you want to raise today aside from these motions?  I'm going to 
take these two motions under advisement along with the other 
motions that are pending to the extent that any portion of those 
motions are disputed, and I will issue a written ruling on all 
of those.  But any other matters to address?  
MR. OSSICK:  We had several that, of course, we didn't 
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think we need to say anything about but that doesn't mean that 
we agree that they should be dismissed as moot.  
Other than that, Your Honor, there have been 404(b) 
responses, and I think there will probably be, depending upon 
what issues develop, objections to some of -- whether it is or 
not but I don't think that's something that The Court could deal 
with at this point in advance.
Some of them are pretty broad ranging probably done to 
make sure they weren't omitted, but I don't know if something 
from a package mailed in 2012 is really going to be 404(b), but 
at least we have the benefit of it being listed, but are you 
asking about -- I mean, we're not waiving those objections by 
not bringing them now, are we?  
THE COURT:  No.  I understand that was recently filed on 
the docket.  I understand we're outside of the pretrial motions 
deadline, but obviously you couldn't have asserted any motions 
based on any of that notice or that evidence.  Therefore, as 
long as the objections are timely made and relatively promptly, 
those will certainly be considered on the merits and not waived. 
MR. OSSICK:  Thank you. 
THE COURT:  Mr. Porter, anything further?  
MR. PORTER:  Nothing else, Your Honor.  Thank you. 
THE COURT:  Is either party requesting a copy of the 
transcript today?  
MR. PORTER:  No, Your Honor. 
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MR. OSSICK:  Probably, yeah.  I can't not do that. 
THE COURT:  All right, that is noted.  Thank you very 
much.  We will be adjourned. 
(Proceeding concluded at 10:45 a.m.)
CERTIFICATION
I certify that the foregoing is a true and correct 
transcript of the stenographic record of the above-mentioned 
matter.
__________________________________
 11/15/2022
Debra Gilbert, Court Reporter
Date
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