United States’ Opposition to Defendant’s Motion for a New Trial Pursuant to Fed. R. Crim. P. 33 — United States v. Joseph (Dkt. 204, D. Colo.)

Summary

The United States' opposition to the defendant's motion for a new trial under Fed. R. Crim. P. 33 (ECF No. 202), filed February 17, 2026 in United States v. Francis F. Joseph, Criminal Case No. 21-cr-00083-RM, in the U.S. District Court for the District of Colorado (Document 204). The government states that the jury convicted Joseph on one count of wire fraud under 18 U.S.C. § 1343 and one count of theft or embezzlement in connection with health care under 18 U.S.C. § 669, and acquitted him of theft of government property under 18 U.S.C. § 641. It argues that the motion seeks to relitigate the ownership of his company, which it calls a non-dispositive issue. The opposition is signed by Trial Attorney Jennifer L. Bilinkas of the U.S. Department of Justice Criminal Division, Fraud Section.

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Case No. 1:21-cr-00083-RM       Document 204 filed 02/17/26       USDC Colorado        pg 1
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                        IN THE UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLORADO


Criminal Case No. 21-cr-00083-RM

UNITED STATES OF AMERICA,

          Plaintiff,
v.
1. FRANCIS F. JOSEPH,
          Defendant.
____________________________________________________________________________

    UNITED STATES’ OPPOSITION TO DEFENDANT’S MOTION FOR A NEW TRIAL
                       PURSUANT TO FED. R. CRIM. P. 33
____________________________________________________________________________


          The United States of America, by and through undersigned counsel, respectfully

submits its opposition to defendant Francis F. Joseph’s (“the defendant”) Motion for a

New Trial Pursuant to Federal Rule of Criminal Procedure 33. ECF No. 202.

     I.       Introduction

          After nearly a week of evidence and argument, the jury convicted defendant on

one count of wire fraud in violation of 18 U.S.C. § 1343 and one count of theft or

embezzlement in connection with health care in violation of 18 U.S.C. § 669 related to the

defendant’s scheme to defraud United States government programs that distributed

money to people and businesses in need during the COVID-19 pandemic. 1 The jury’s




1The jury acquitted the defendant of theft of government property in violation of 18
U.S.C. § 641.

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verdicts were consistent with the overwhelming evidence presented at trial and with the

applicable law.

       In his motion for a new trial, the defendant seeks to relitigate a non-dispositive

issue—the ownership of his company—as evidence that would have fundamentally

altered the verdict. Specifically, the defendant claims that in two related bankruptcy

proceedings, a trustee found post-trial that the defendant was the sole shareholder and

sole director of his former medical practice Spring Medical Associates (“SMA”) under

Colorado law. The defendant argues these findings constitute newly discovered evidence

that did not exist at trial and “resolve the precise legal question the jury was never allowed

to answer.” Def.’s Mot. at 2-3. The defendant further argues that “if [he] owned SMA and

possessed legal authority over its finances … [t]ransactions the prosecution labeled

fraudulent become acts taken by the lawful owner of the entity itself.” 2 Id. at 3.

       The defendant’s attempt to reduce the verdict to a dispute over ownership

oversimplifies the record and misstates the law.         First, a trustee’s post-trial asset

characterization is not newly discovered evidence, especially if the trustee’s findings are

based on underlying materials that were extant at the time of trial. Second, the defendant

at trial presented evidence and argument that he believed he was the rightful owner and

operator of SMA. At best, the proffered additional evidence regarding ownership would


       2Many of the defendant’s claims about the facts and findings in the bankruptcy
proceedings appear unsupported by the defendant’s citations and may be
unsubstantiated. For example, the defendant cites to “Bankr. ECF No. 52” for the
proposition that “the trustee stated that ‘it is undisputed that Dr. Joseph was the sole
shareholder and director when the underlying case was commenced.’” (Def.’s Mot. at 7.)
But that quotation does not appear to be in the docket entry at ECF No. 52 in either
bankruptcy proceeding cited by the defendant.
                                              2

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merely be potential impeachment material for the government’s witnesses. Finally, the

defendant has failed to show how this evidence would even be admissible in a new trial,

let alone that it would probably result in an acquittal. A post-trial finding that did not exist

at the time of the charged crimes could not have impacted the defendant’s intent at that

time. The defendant’s motion fails to present any cognizable basis for granting his

request for a new trial and should be denied.

   II.       Legal Standard for a New Trial

          Rule 33 provides that “[u]pon the defendant’s motion, the court may vacate any

judgment and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P.

33(a). “A motion for a new trial is not regarded with favor and is only issued with great

caution.” United States v. Herrera, 481 F.3d 1266, 1269-70 (10th Cir. 2007). To prevail,

a defendant must prove: (1) the evidence was discovered after trial, (2) the failure to learn

of the evidence was not caused by his own lack of diligence, (3) the new evidence is not

merely impeaching, (4) the new evidence is material to the principal issues involved, and

(5) the new evidence is of such a nature that in a new trial it would probably produce an

acquittal. United States v. McCullough, 457 F.3d 1150, 1167 (10th Cir. 2006). Because

a jury’s guilty verdict is presumptively valid, the defendant bears the burden of

demonstrating that a new trial is warranted. See id.

   III.      The Trustee’s Post-Trial Legal Characterization of Assets Is Not Newly
             Discovered Evidence

          The defendant’s motion is premised on the bankruptcy trustee’s post-trial

characterization of asset ownership, that is, SMA. But Rule 33 is concerned with the

discovery of new historical facts, not subsequent legal conclusions or interpretations of

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evidence that existed at the time of trial. The Tenth Circuit requires a defendant to show

that the evidence was discovered after trial and that the failure to learn of it was not due

to lack of diligence. See United States v. Gwathney, 465 F.3d 113, 1144 (10th Cir. 2006)

(evidence is not newly discovered where the defendant was aware of the underlying facts

prior to trial); United States v. Herrera, 481 F.3d at 1271; United States v. Combs, 267

F.3d 1167, 1176 (10th Cir. 2001); United States v. Stevens, 978 F.2d 565, 570 (10th Cir.

1992). Here, the trustee’s conclusions reflect legal judgments about asset ownership

under the Bankruptcy Code and Colorado law. The conclusions are not new historical

facts regarding the defendant’s conduct, knowledge, or intent at the time of the charged

offenses. The defendant himself acknowledges that the trustee’s findings were derived

from various corporate and financial records such as SMA’s bylaws, corporate records,

assignments, agreements, emails, and financial transactions—all of which would have

predated the defendant’s trial. Def.’s Mot. 7. To the extent the trustee’s conclusions rest

on corporate records, financial documents, testimony, and transactions that existed

before trial, they are not newly discovered evidence under Rule 33. The defendant had

direct access to these materials and was uniquely positioned to obtain and present them

at trial, many of which were in fact litigated before this Court on their admissibility during

trial.   See, e.g., Trial Tr. Jan. 10, 2023, at 232:7-238:7 (arguments and ruling on

admissibility and redactions of Government Exhibit 107 regarding the El Paso County

court findings of fact, conclusions of law and order).

         Moreover, the trustee’s findings do not identify previously unknown historical facts

regarding the corporate structure of SMA. In fact, the jury heard evidence of SMA’s


                                              4

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corporate structure through corporate documents, the Joint Action Agreement between

the defendant and Eric Paplini (“Papalini”), the El Paso County hearing testimony and

court order, and competing claims of ownership and control over SMA between the

defendant and Papalini. See, e.g., Gov’t Exs. 101, 103, 107, 109; Def. Exs. A, I, J, O.

The defense presented evidence and argument, including during the defendant’s own

testimony at trial, that the defendant believed he had the right to take actions on behalf of

SMA as the owner, including opening bank accounts, applying for loans, and moving and

spending money from the business accounts. See, e.g., Trial Tr. Jan. 12, 2023, at 32:5-

33:1; 38:9-11; 44:12-46:25; 56:5-8; 74:19-75:8; 86:4-13; Trial Tr. Jan. 13, 2023, at 193:5-

199:10. Furthermore, to the extent these issues bear on the defendant’s intent, a post-

trial finding that did not exist at the time of the charged crimes could not have impacted

the defendant’s intent at that time and is thus irrelevant.

       At most, the trustee’s findings are a newly created legal finding under applicable

bankruptcy legal standards, not newly discovered evidence. The defendant seeks to use

Rule 33 to obtain a new trial whenever a subsequent civil court applies the law to the

same historical facts differently than the jury did. Accepting the defendant’s argument

would permit collateral civil proceedings to reopen criminal convictions whenever a later

court interprets existing evidence differently, thereby undermining the finality of jury

verdicts and the strict limits imposed by Rule 33. The defendant has failed to show he

has met the first prong of Rule 33 and his motion for a new trial on that basis alone should

be denied.




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   IV.      The Trustee’s Findings Are Merely Impeaching

         Even if the Court were to consider the trustee’s post-trial conclusions as newly

discovered evidence, the defendant still cannot satisfy Rule 33 because the trustee’s

findings regarding ownership would, at most, merely be potential impeachment material

for government’s witnesses, rather than independent evidence.            The government

introduced evidence regarding ownership as part of its narrative explaining the

defendant’s conduct, but ownership was not an element of any of the charged offenses.

Moreover, as discussed above, the defendant was allowed to present evidence and

argument at trial that he believed he was the rightful owner of SMA. The jury rejected this

theory. The trustee’s conclusions are cumulative of that evidence and argument already

presented, and do not negate the defendant’s false statements, misappropriation of

government funds, or fraudulent intent. At most, they provide additional support regarding

the defendant’s perceived role at SMA at the time of his crimes rather than introduce

exculpatory facts about the defendant’s conduct or intent. Evidence that merely furnishes

an additional basis on which to challenge the credibility of the government’s witnesses is

insufficient under Rule 33. See United States v. Sinclair, 109 F.3d 1527, 1531 (10th Cir.

1997). Thus, the trustee’s post-trial conclusions do not establish the defendant did not

lie, misappropriate funds, or act with fraudulent intent, and do not provide grounds for

relief under Rule 33.

   V.       The Defendant Cannot Show the Trustee’s Findings Would Probably
            Produce an Acquittal

         Even assuming the trustee’s post-trial conclusions could be deemed newly

discovered and more than merely impeaching, they would not probably produce an

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acquittal and therefore do not warrant a new trial under Rule 33.          The defendant

mischaracterizes the government’s case and improperly treats ownership as dispositive

of criminal liability, but a lawful owner may still commit fraud through the same

misrepresentations that were proven at trial. While ownership was a disputed fact during

trial, it was not an element of the charged offenses. Rather, it provided background

context for evaluating the defendant’s conduct.

      As an initial matter, the defendant cannot show that the trustee’s post-trial

conclusions would probably produce an acquittal because those conclusions would not

be admissible at a new trial. The trustee’s conclusions reflect a civil fiduciary’s legal

characterization of corporate ownership for estate-administrative purposes, not

admissible factual testimony.      Such legal conclusions are inadmissible hearsay,

irrelevant, and would risk confusion and undue prejudice by presenting the jury with an

authoritative civil determination with a lower burden of proof. The probative force of this

new finding is negligible given that it could not have impacted the defendant’s intent at

the time of the charged conduct. In fact, both sides at trial were already appropriately

limited from introducing evidence and argument about related civil proceedings that

predated, let alone postdated trial. See Trial Tr. Jan. 10, 2023, at 232:18-24. Because

the trustee’s conclusions are not admissible, they cannot satisfy Rule 33’s requirement

that the evidence would probably produce an acquittal.

      But even if admitted, they would not undermine the jury’s verdict or likely produce

an acquittal, because a post-hoc determination of ownership status does not negate the

defendant’s fraudulent intent to commit the charges offenses at the time they were


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committed.    Moreover, the trustee’s conclusions would also be cumulative to the

defendant’s ownership theory of intent that the jury already considered and rejected. The

defendant himself repeatedly argued his position and perceived authority over SMA and

argued the jury’s focus should be the defendant’s intent at the time of the fraudulent

conduct. Despite these arguments presented at trial and again in the defendant’s instant

Rule 33 motion, the jury heard ample evidence supporting the convictions, including that

the defendant applied for loans with false certifications, misappropriated funds through

various bank accounts, and admitted to lying under oath about how he spent federal

funds. Even if the trustee’s conclusions regarding ownership are credited, that conclusion

does not undermine the jury’s findings that the defendant acted with fraudulent intent at

the time of the charged crimes and the jury could still find the defendant guilty beyond a

reasonable doubt. Accordingly, the trustee’s civil conclusions regarding ownership would

not negate the elements of the offenses or alter the jury’s verdict, and therefore do not

satisfy Rule 33’s stringent standard.




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   VI.      Conclusion

         The defendant’s motion for a new trial should be denied for the reasons stated

herein.

          Respectfully submitted this 17th day of February, 2026.

                                                 A. TYSEN DUVA
                                                 Assistant Attorney General

                                                 LORINDA I. LARYEA
                                                 Chief, Criminal Division, Fraud Section
                                                 U.S. Department of Justice

                                                 s/ Jennifer L. Bilinkas
                                                 Jennifer L. Bilinkas
                                                 John J. Liolos
                                                 Trial Attorneys
                                                 U.S. Department of Justice
                                                 Criminal Division, Fraud Section
                                                 1400 New York Avenue, NW
                                                 Washington, DC 20005
                                                 E-mail: Jennifer.bilinkas@usdoj.gov
                                                 E-mail: john.liolos@usdoj.gov
                                                 Attorneys for the United States




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                               CERTIFICATE OF SERVICE
         I hereby certify that on this 17th day of February, 2026, I electronically filed the
 foregoing with the Clerk of the Court using the CM/ECF system and mailed this document
 to the following address:
 Francis Joseph # 25 04143
 Pike County Correctional Facility
 175 Pike County Blvd.
 Lords Valley, PA 18428



                                                  s/ Jennifer L. Bilinkas
                                                  Jennifer L. Bilinkas
                                                  Trial Attorney
                                                  U.S. Department of Justice
                                                  Criminal Division, Fraud Section
                                                  1400 New York Avenue, NW
                                                  Washington, DC 20005
                                                  Tel: (202) 305-3928
                                                  E-mail: jennifer.bilinkas@usdoj.gov




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