Discovery Letter — USA v. McKenzie (Dkt. 22-1, M.D. Fla.)

Summary

Document 22-1, a three-page discovery letter dated October 6, 2023 from Assistant United States Attorney Yolande G. Viacava, for U.S. Attorney Roger B. Handberg, to defense counsel Russell K. Rosenthal in United States v. Diop McKenzie, Case No. 2:23-cr-88-SPC-KCD, Middle District of Florida. Under Rule 16(a) it says law enforcement reports with defendant statements were produced, no recorded statements exist, and PPP and EIDL loan applications and bank records are available for inspection. It adds that the government may seek to use Rule 404(b) evidence of prior PPP and EIDL applications that may not have been funded. There are no examination reports and no expert witness is planned, the letter requests reciprocal Rule 16(b) materials, and it says plea offers must be in writing to count.

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2110 First Street, Suite 3-137 
Fort Myers, Florida 33901 
239/461-2200 
239/461-2219 (Fax) 
 
300 N. Hogan Street, Suite 700 
Jacksonville, Florida 32202 
904/301-6300 
904/301-6310 (Fax) 
 
U.S. Department of Justice 
 
35 SE 1st Avenue, Suite 300 
Ocala, Florida 34471 
352/547-3600 
352/547-3623 (Fax) 
United States Attorney 
Middle District of Florida 
 
Main Office 
400 North Tampa Street, Suite 3200 
Tampa, Florida 33602 
813/274-6000 
813/274-6358 (Fax) 
 
400 West Washington Street, Suite 3100 
Orlando, Florida 32801 
407/648-7500 
407/648-7643 (Fax) 
Reply to: Fort Myers, FL 
 
 
 
October 6, 2023 
 
Russell K. Rosenthal 
2075 West First Street, Suite 300 
Fort Myers, Florida 33901 
 
 
Re: United States v. Diop McKenzie 
 
Case No. 2:23-cr-88-SPC-KCD 
 
Dear Mr. Rosenthal: 
 
 
In connection with the above-captioned case and pursuant to Fed. R. Crim. P. 
16(a), please be advised of the following: 
 
1. 
With respect to the substance of any oral statement which the 
government intends to offer in evidence at trial made by the defendant before or after 
arrest in response to interrogation by any person then known to the defendant to be a 
government agent, please be advised that the government has provided a copy of law 
enforcement reports such contain such statements in discovery.   
 
2. 
With respect to any relevant written or recorded statements made by the 
defendant, please be advised that the United States is not in possession of any 
recorded statements made by the defendant. 
 
 
3. 
Please be advised that we may seek to introduce evidence pursuant to 
Federal Rules of Evidence, Section 404(b), with regard to, inter alia, any prior 
actions by the defendant, to include any PPP and EIDL loans applied for which may 
not have been funded.   
 
Case 2:23-cr-00088-SPC-K_D     Document 22-1     Filed 10/06/23     Page 1 of 3 PageID 70

 
 
4. 
With regard to the below-listed items, they are available for you to 
inspect upon reasonable notice: 
a. 
PPP loan applications;  
b. 
EIDL loan applications; and  
c. 
Bank records.  
    
 
5. 
Any prior criminal record will be made available as part of discovery. 
 
6. 
At this time, there are no reports of examinations and tests in 
connection with this case. 
 
7. 
At this time, the government does not intend to call an expert witness. 
 
 
8. 
We are aware of continuing discovery obligations pursuant to Fed. R. 
Crim. P. 16(c) and will make you aware of such materials as soon as practicable if 
such materials come to our attention.   
 
 
9. 
Pursuant to Fed. R. Crim. P. 16(b), the United States requests the 
following: 
 
 
 
a. 
Books, papers, documents, photographs, tangible objects, or 
copies or portions thereof, which are within the possession, custody, or control of the 
defendant and which the defendant intends to introduce as evidence in chief at the 
trial.  Fed. R. Crim. P. 16(b)(1)(A).   
 
 
 
b. 
Any results or reports of physical or mental examinations and of 
scientific tests or experiments made in connection with the particular case, or copies 
thereof, within the possession or control of the defendant, which the defendant 
intends to introduce as evidence in chief at the trial or which were prepared by a 
witness whom the defendant intends to call at the trial when the results or reports 
relate to that witness' testimony.  Fed. R. Crim. P. 16(b)(1)(B). 
 
 
 
c. 
A written summary of testimony that the defendant intends to 
use under Rule 702, 703, or 705 of the Federal Rules of Evidence as evidence at trial, 
describing the witnesses' opinions, the bases and reasons for those opinions and the 
witnesses' qualifications.  Fed. R. Crim. P. 16 (b)(1)(C). 
 
 
To be effective and capable of being accepted, plea offers from the United 
States must be in writing and contain all terms of the offer in a proposed written plea 
agreement.  Oral communications regarding a potential plea are merely preliminary 
plea discussions and do not constitute a formal plea offer from the United States. 
 
Case 2:23-cr-00088-SPC-K_D     Document 22-1     Filed 10/06/23     Page 2 of 3 PageID 71

 
 
 
If you have any questions concerning any of the foregoing, please do not 
hesitate to contact me.   
 
 
Sincerely, 
 
 
ROGER B. HANDBERG 
 
United States Attorney 
 
 
By:     /s/ Yolande G. Viacava 
 
 
Yolande G. Viacava 
 
Assistant United States Attorney 
Case 2:23-cr-00088-SPC-K_D     Document 22-1     Filed 10/06/23     Page 3 of 3 PageID 72

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