Motion in Limine by USA. Responses due by 3/21/2023. Referred to Judge Benjamin W. Cheesbro — USA v. Okojie (Dkt. 79, S.D. Ga.)

Record facts

U.S. District Court for the Southern District of Georgia · No. 4:22-cr-00084-LGW-BWC · Doc. 79 · 2023-03-07 · Docket on CourtListener

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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF GEORGIA 
SAVANNAH DIVISION 
 
 
UNITED STATES OF AMERICA 
 
) 
) 
) 
 
v. 
) 
CR: 422-084 
 
BERNARD OKOJIE 
) 
) 
 
 
GOVERNMENT’S MOTION IN LIMINE 
 
 
The United States moves in limine for three purposes: (1) for a pre-trial ruling 
that certain evidence is self-authenticating under Federal Rule of Evidence 902, 
requiring no extrinsic evidence of authenticity to be admitted; (2) for a pre-trial ruling 
that evidence of Defendant’s statements made during a proffer interview with the 
Government are admissible; and (3) to preclude Defendant from presenting certain 
argument or evidence at trial. In support of this motion, the United States shows the 
Court as follows:  
1. Certain Records in this Case Are Self-Authenticating. 
 
Effective December 1, 2017, Federal Rule of Evidence 902 was amended to “set 
[] forth a procedure by which parties can authenticate certain electronic evidence 
other than through the testimony of a foundation witness,” and with the recognition 
that “the expense and inconvenience of producing an authenticating witness” for 
certain types of records and data “is often unnecessary.” Fed. R. Evid. 902 advisory 
committee’s note (2017).  
The United States has complied with Rule 902’s requirements to authenticate 
financial records, loan records, and other records of regularly conducted activity. 
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More specifically, the United States has provided sufficient notice of its intent to use 
self-authenticating records from AT&T, Bank of America, Benworth Capital Partners 
(“Benworth”), Cadence Bank, Capri Holdings Limited, Cross River Bank, EFCU 
Financial Federal Credit Union, Georgia Department of Revenue, Google LLC, 
Harvest Small Business Finance, LLC (“Harvest”), Kabbage Inc. (“Kabbage”), Leith 
Inc., MidSouth Community Federal Credit Union, Navy Federal Credit Union, Pike 
National Bank, Prestamos CDFI, LLC (“Prestamos”), Regions Bank, Robinhood 
Financial, LLC, SunTrust Bank, Synovus Financial Corp., Wells Fargo Bank, N.A., 
Yahoo Inc. (Doc. 46). In addition to providing the requisite notice, the certificates and 
accompanying records meet the requirements of Federal Rule of Evidence 902(11) 
and 902(13), respectively. The United States thus requests a ruling that these records 
are self-authenticating and require no extrinsic evidence of authenticity to be 
admitted at trial.  
2. Motion to Admit Certain Evidence at Trial.  
The Government seeks a ruling that Defendant’s statements made during a 
proffer interview with law enforcement are admissible in the Government’s case-in-
chief. On May 3, 2022, prior to the return of the indictment in this case, Defendant 
agreed to be interviewed by law enforcement in the presence of his retained counsel.1  
Defendant and his attorney signed a proffer agreement with the Government in 
 
1 Prior to the return of the indictment, Defendant retained private counsel, Mr. Jack 
Fishman, who accompanied him to the proffer interview.  After the return of the 
indictment, Defendant received appointed counsel, Mr. John Ossick, who currently 
represents him in this matter.   
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which they agreed that: “If Mr. Okojie testifies under oath, or makes an averment 
either directly or through counsel in any pleading, materially different from this 
proffer, the Government shall be free to use the contents of this proffer and the fact 
of its making in impeachment, rebuttal, or response.” (Ex. 1 at 1).  
During his proffer session with the Government on May 3, 2022, Defendant 
made numerous admissions relevant to the crimes charged in the indictment. A copy 
of the report of interview, FBI 302, is attached hereto as Exhibit 2. Most pertinently, 
Defendant identified Brandon Richardson as the individual who told him about “free 
money” that could be made by completing SBA EIDL applications; that Richardson 
told him specific amounts to enter in the gross revenue field of these applications; 
that Richardson identified the personally identifiable information (PII) necessary to 
complete the applications; that Richardson submitted a loan application on behalf of 
the Defendant; that Richardson identified the number of employees to enter on 
applications to generate “free money” from the SBA; that Defendant provided 
Richardson with his own PII and the PII of his family members; that Defendant 
provided Richardson with his banking username and password; and that Richardson 
told Defendant the amount of money he would charge for completing SBA loan 
applications for other people. (Ex. 2, at 1–2). In short, Defendant specifically 
identified Richardson as an individual who advised him how to commit numerous 
aspects of the fraud scheme that eventually led to the return of the indictment in this 
case.   
In addition to Defendant’s statements regarding Brandon Richardson, 
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Defendant admitted to filing SBA EIDL applications for companies that were 
completely made up and did not exist. Defendant also admitted to falsifying the 
amounts of gross revenue he entered in the EIDL applications. Defendant also 
admitted to submitting false applications for at least nine people, including many of 
the people listed in the indictment in this case. (Ex. 2 at 2).       
After his proffer interview, Defendant ceased cooperating with law 
enforcement.  He was indicted by the grand jury, elected to plead not guilty, and has 
indicated a desire to proceed to trial. Most recently, on March 3, 2023, Defendant filed 
a motion in limine and has sought to exclude at trial “any mention by the government 
of a criminal conspiracy between Mr. Okojie and Brandon Richardson or any acts 
alleged to be part of such other crime.” (Doc. 75).  In his motion, Defendant, through 
counsel, now denies his criminal association with Brandon Richardson and, in the 
alternative, seeks to argue that any crime would be “separate and distinct from the 
one alleged in the present Indictment and that was presented to the grand jury.”   
(Doc. 75 at 5).  Mr. Okojie’s decision now to challenge his criminal association with 
Brandon Richardson and contend that his crimes are “separate and distinct” from 
those charged in the indictment are clearly “averment[s] either directly or through 
counsel in any pleading, materially different from” the statements he made during 
his proffer interview. As a result, the Government is now “free to use the contents of 
this proffer and the fact of its making in impeachment, rebuttal, or response” at the 
trial in this matter. Therefore, the Government asks the court for a ruling that all 
statements made during his proffer interview on May 3, 2022 are admissible in the 
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government’s case-in-chief.  The Defendant is free to cross-examine any witness about 
the statements and the circumstances in which they were made.   
3. Motion to Exclude Certain Argument and Evidence at Trial. 
The United States requests an order prohibiting Defendant from presenting 
argument or evidence blaming the victim of fraud by accusing the financial lenders 
in this case (including Benworth, Cross River Bank, Harvest, Kabbage, and 
Prestamos), the Small Business Administration, or their employees of negligence.  
Defendant may not assert that these victims lacked adequate procedures or could 
have prevented the fraud perpetrated in this case. It has long been held that “[a] 
perpetrator of fraud is no less guilty of fraud because his victim is also guilty of 
negligence.” United States v. Svete, 556 F.3d 1157, 1165 (11th Cir. 2009); United 
States v. Colton, 231 F.3d 890, 903 (4th Cir. 2000) (“the susceptibility of the victim to 
fraud, in this case a financial institution, is irrelevant to the analysis”); United States 
v. Coyle, 63 F.3d 1239, 1244 (3d Cir. 1995) (“the negligence of the victim in failing to 
discover a fraudulent scheme is not a defense to criminal conduct”). Given this 
authority, the United States requests an order preventing Defendant from offering 
argument or evidence in blaming the victim.  
 
WHEREFORE, the United States requests that the Court grant its Motion in 
Limine in its entirety.  
 
 
 
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Respectfully submitted this 3rd day of March, 2023. 
JILL E. STEINBERG 
UNITED STATES ATTORNEY 
 
s/ Matthew A. Josephson 
Matthew A. Josephson 
Assistant United States Attorney 
Georgia Bar No. 367216 
United States Attorney’s Office 
Southern District of Georgia 
P.O. Box 8970 
Savannah GA 31412 
T: (912) 652-4422 
matthew.josephson@usdoj.gov 
 
s/ Jennifer A. Stanley 
 
 
 
Jennifer A. Stanley 
Assistant United States Attorney 
Alabama Bar No. 8400E77T 
United States Attorney’s Office 
Southern District of Georgia 
Post Office Box 2017 
Augusta, Georgia 30903 
T: (706) 826-4525 
jennifer.stanley@usdoj.gov 
 
 
 
 
 
 
 
 
 
 
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CERTIFICATE OF SERVICE 
This is to certify that I have on this day filed this motion under seal and service 
will be made on all parties in this case in accordance with the notice of electronic 
filing (“NEF”), which will be generated as a result of electronic filing in this Court. 
 
This 3rd day of March, 2023. 
 
 
 
 
 
 
 
 
 
 
 
 
 
JILL E. STEINBERG 
UNITED STATES ATTORNEY 
 
 
 
 
 
 
 
 
 
 
 
 
 
s/ Jennifer A. Stanley 
 
 
 
Jennifer A. Stanley 
Assistant United States Attorney 
 
 
 
 
 
 
 
 
 
Case 4:22-cr-00084-LGW-BWC     Document 79     Filed 03/07/23     Page 7 of 7

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