First Motion in Limine by USA — First Motion in Limine by USA as to Anuli Okeke — USA v. Okeke (Dkt. 32) (Dkt. 32, E.D.N.Y.)

Record facts

U.S. District Court for the Eastern District of New York · No. 1:22-cr-00020-FB · Doc. 32 · 2024-05-17 · Docket on CourtListener

Full text

FTB:CWE/AA/JB 
F. #2020R00955 
 
UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
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UNITED STATES OF AMERICA 
 
 
- against - 
 
ANULI OKEKE, 
 
 
Defendant. 
 
- - - - - - - - - - - - - - - - - - - - - - - - - - - X 
 
 
 
 
 
Docket No. 22-CR-20 (FB)  
 
 
 
 
 
MEMORANDUM OF LAW IN SUPPORT  
OF THE GOVERNMENT’S MOTIONS IN LIMINE 
 
 
 
 
BREON PEACE 
United States Attorney 
Eastern District of New York 
271 Cadman Plaza East 
Brooklyn, New York 11201 
 
GLENN S. LEON 
Chief, Fraud Section  
Criminal Division, Dept. of Justice 
 
Chand W. Edwards-Balfour 
Adam Amir 
Assistant U.S. Attorneys 
 
Jennifer Bilinkas 
Trial Attorney
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TABLE OF CONTENTS 
PRELIMINARY STATEMENT .............................................................................................. 1 
BACKGROUND ...................................................................................................................... 2 
I.
Overview of the Scheme ..................................................................................................... 2 
II. Covid-19 Relief Programs .................................................................................................. 3 
A. The Paycheck Protection Program ................................................................................ 3 
B. The Economic Injury Disaster Loan Program .............................................................. 4 
III. Procedural History .............................................................................................................. 5 
ARGUMENT ............................................................................................................................ 6 
I.
The Court Should Admit SBA Loan Contracts, Other Loan Documents, and Business
Emails as Verbal Acts or Business Records ....................................................................... 6 
II. The Court Should Admit the Defendant’s Other Acts as Direct Evidence ........................ 7 
III. The Court Should Admit Statements of Co-Conspirators as Non-Hearsay ...................... 10 
IV. Evidence and Argument about Potential Punishment, Prior Good Acts, Lack of Prior Bad
Acts, Uncharged Defendants, and Other Irrelevant Topics Should Be Precluded ........... 13 
V. Evidence and Argument Concerning Alleged Negligence by Bank 1 or the SBA Should
Be Precluded ..................................................................................................................... 14 
VI. Improper Use of Agent Reports to Impeach Witnesses Should Be Precluded ................. 16 
VII. The Court Should Order the Defense to Produce Trial Exhibits and Witness 
       Statements
 ................................................................................................................................ 18 
CONCLUSION ....................................................................................................................... 18 
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PRELIMINARY STATEMENT 
The government respectfully submits this memorandum of law in support of its 
motions in limine in anticipation of trial, which is scheduled to begin on June 10, 2024.  The 
defendant is charged with conspiring to commit wire fraud and bank fraud, wire fraud, bank 
fraud, and money laundering conspiracy.  The government respectfully requests that the Court: 
1) permit the government to introduce loan agreements, bank emails and other 
documents as business records; 
2) admit the defendant’s other acts, either as direct evidence or pursuant to Rule 
404(b); 
3) permit the government to introduce statements of co-conspirators;  
4) preclude the defendant from presenting evidence and argument concerning 
possible punishment and collateral consequences and other irrelevant topics;  
5) preclude the defendant from victim-blaming, including by introducing 
evidence and arguments concerning alleged negligence by a bank known to 
the defendant (“Bank 1”) or the U.S. Small Business Administration (“SBA”); 
6) preclude improper use of law enforcement reports; and 
7) order the defense to produce Rule 16 and 26.2 materials. 
For the reasons set forth herein, the Court should grant the government’s motions in limine.1 
 
 
 
 
1 This memorandum cannot anticipate every type of evidence and testimony that will be 
offered at trial and does not detail all the specific testimony the government will elicit at trial.  
The government respectfully reserves its right to supplement this filing with additional papers 
setting forth legal authority for the introduction of evidence and/or additional motions in limine 
as legal issues are identified closer to trial, the government interviews potential witnesses, or in 
response to any objection by defense to the introduction of evidence.  Additionally, the 
government intends to file motions in limine to preclude cross-examination of certain 
government witnesses regarding specific topics pursuant to Rules 608 and 609 of the Federal 
Rules of Evidence, consistent with the timing for its Giglio production. 
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BACKGROUND 
I. 
Overview of the Scheme 
In 2020, the defendant Anuli Okeke, the now former branch manager of a New 
York branch of Bank 1, exploited the COVID-19 pandemic’s unprecedented economic crisis to 
enrich herself by orchestrating a scheme to prepare and submit fraudulent applications for 
COVID-19 relief worth millions of dollars.  Specifically, the defendant and her co-conspirators 
submitted fraudulent loan applications and received funding through the Paycheck Protection 
Program (“PPP”) and the Economic Injury Disaster Loan (“EIDL”) program, which offered 
forgivable and low-interest loans to small businesses as economic support to help overcome the 
loss of revenue due to COVID-19.  Both programs were administered by the U.S. SBA. 
The defendant and her co-conspirators recruited and assisted borrowers in 
completing and submitting fraudulent COVID-19 relief loan applications through Bank 1 to the 
SBA—even though the defendant knew that the borrowers did not qualify for the loans.  These 
applications contained materially false and fraudulent representations concerning the business 
operations and employees.  The applications also included fraudulent supporting documents, 
such as tax forms.  As the branch manager, the defendant was responsible for reviewing and 
approving each application submitted through her branch.  The defendant signed all of the PPP 
loan agreements on behalf of Bank 1.  Despite knowing that the loan applications contained false 
statements and fraudulent supporting documentation, Okeke and her co-conspirators submitted 
them for approval to others at Bank 1 and the SBA.   
The defendant and her co-conspirators received unauthorized commissions from 
the fraudulent loans.  After the SBA deposited loan proceeds into borrowers’ Bank 1 accounts, 
Okeke and her co-conspirators at times required borrowers to sign Bank 1 “starter” checks, 
which were legally negotiable instruments issued by banks to customers who opened new 
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checking accounts, as part of the fraudulent scheme.  The defendant and her co-conspirators 
would use the signed starter checks to make withdrawals from borrowers’ accounts.  In 
particular, the defendant and her co-conspirators at times used the starter checks to purchase 
cashiers’ checks, which were used to pay the defendant and her co-conspirators unauthorized 
commissions to which they were not entitled to under the PPP rules.  The defendant personally 
obtained tens of thousands of dollars in cash commissions.   
II. 
Covid-19 Relief Programs 
A. 
The Paycheck Protection Program 
The CARES Act was a federal law enacted in or about March 2020, which was 
designed to provide emergency financial assistance to the millions of Americans who were 
suffering the economic effects of the COVID-19 pandemic.  One source of relief provided by the 
CARES Act was the authorization of up to $349 billion in forgivable loans to small businesses 
for job retention and certain other expenses through the PPP loan program.  In or about April 
2020, Congress authorized over $300 billion in additional PPP funding. 
To obtain a PPP loan, a qualifying business was required to submit a PPP loan 
application signed by an authorized representative of the business.  The PPP loan application 
required the business (through its authorized representative) to acknowledge the program rules 
and to make certain affirmative certifications.  In the PPP loan application, the small business 
(through its authorized representative) was required to state, among other things, its: (a) average 
monthly payroll expenses, and (b) number of employees.  These figures were used to calculate 
the amount of money the small business was eligible to receive under the PPP.  In addition, 
businesses applying for a PPP loan were required to provide documentation showing their 
payroll expenses.  
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The PPP was overseen by the SBA, which was headquartered in Washington, 
D.C., and had authority over all PPP loans.  Individual PPP loans, however, were issued by 
approved private lenders such as participating financial institutions and credit unions (the 
“Lenders”).  The Lenders received and processed PPP applications and supporting 
documentation and made loans using the Lenders’ own funds. 
Upon approval of a PPP loan application, the Lenders funded the PPP loan, which 
was 100 percent guaranteed by the SBA.  Data from the PPP loan application, including 
information about the borrower, the total amount of the loan and the listed number of employees, 
was transmitted by the Lenders to the SBA in the course of processing the loan.   
PPP loan proceeds were permitted to be used by a borrower on specified 
expenses, such as payroll costs, interest on mortgages, rent and utilities.  The PPP allowed the 
interest and principal on a PPP loan to be entirely forgiven if the borrower spent the loan 
proceeds on the enumerated expenses within a designated period of time and used a certain 
amount of the PPP loan proceeds on payroll expenses. 
B. 
The Economic Injury Disaster Loan Program 
The EIDL program was an SBA program that provided low-interest financing to 
small businesses, renters and homeowners in regions affected by declared disasters. 
The CARES Act authorized the SBA to provide EIDLs of up to $2 million to 
eligible small businesses experiencing substantial financial disruption due to the COVID-19 
pandemic.  Under the program, the SBA was authorized to issue advances of up to $10,000 to 
small businesses within three days of their applying for an EIDL (“EIDL Advances”).  The 
amount of an EIDL Advance was determined based on the number of employees working for the 
applicant.  The advance did not have to be repaid. 
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To obtain an EIDL or EIDL Advance, a qualifying business was required to 
submit an application to the SBA and provide information about its operations, such as the 
number of employees, gross revenues for the 12-month period preceding the disaster and cost of 
goods sold in the 12-month period preceding the disaster.  In the case of EIDLs for COVID-19 
relief, the 12-month period was the period preceding January 31, 2020.  The applicant also was 
required to certify that all the information in the application was true and correct to the best of 
the applicant’s knowledge. 
EIDL applications were submitted directly to the SBA and processed by the SBA 
with support from a government contractor, Rapid Finance.  The amount of the loan, if the 
application was approved, was determined based, in part, on the information provided in the 
application about the number of employees, revenue and cost of goods, as described above.  Any 
funds issued under an EIDL were issued directly by the SBA.  EIDL funds could be used for 
payroll expenses, sick leave, production costs and business obligations, such as debts, rent and 
mortgage payments.  If the applicant also obtained a loan under the PPP, the EIDL funds could 
not be used for the same purpose as the PPP funds. 
III. 
Procedural History 
On September 24, 2021, the defendant was arraigned on a complaint charging her 
with conspiring to commit wire fraud and bank fraud in connection with PPP and EIDL 
applications at her bank.  See ECF No. 1.  On January 12, 2022, a grand jury returned an 
indictment charging the defendant with conspiring to commit wire fraud and bank fraud, wire 
fraud, bank fraud, and money laundering conspiracy.  See ECF No. 12.    
 
 
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ARGUMENT 
I. 
The Court Should Admit SBA Loan Contracts, Other Loan Documents, and Business 
Emails as Verbal Acts or Business Records 
The government intends to offer into evidence various loan contracts and related 
PPP and EIDL loan documents and accompanying correspondence.  Such documents are 
admissible as verbal acts or as business records.   
First, contracts and loan documents, including agreements between Bank 1, 
borrowers, and the SBA, are admissible non-hearsay.  “Verbal acts that give rise to legal 
consequences,” such as contracts, are not hearsay.  See United States v. Cardascia, 951 F.2d 474, 
486-87 (2d Cir. 1991); Porter v. United States, No. 13-CV-7332, 2015 WL 1004953, at *1 n.2 
(S.D.N.Y. Mar. 3, 2015) (“[A] contract is ‘a form of verbal act to which the law attaches duties 
and liabilities.”); see also Liani v. Baker, No. 09-CV2651, 2010 WL 2653392, at *6 n.11 
(E.D.N.Y. June 28, 2010) (“[L]egally operative statements are not hearsay under Rule 801.”); 
therefore is not hearsay.’”) (quoting Mueller v. Abdnor, 972 F.2d 931, 937 (8th Cir. 1992)). 
Second, loan applications, internal bank documents, and emails written by Bank 1 
employees while they considered, evaluated and discussed the defendant’s fraudulent PPP loan 
applications are admissible under the business records exception to hearsay under Rule 803(6).   
“Rule 803(6) renders admissible for its truth a record made at or near the time by 
a person with knowledge if the record was ‘kept in the course of a regularly conducted business 
activity, and if it was the regular practice of that business activity to make the memorandum.’”  
United States v. Stein, No. 05 Cr. 888, 2007 WL 3009650, *1 (S.D.N.Y. Oct. 15, 2007); see also 
Fed. R. Evid. 803(6).  The Second Circuit has adopted “a generous view” of the business records 
exception, United States v. Strother, 49 F.3d 869, 874 (2d Cir. 1995), emphasizing that “Rule 
803(6) favors the admission of evidence rather than its exclusion if it has any probative value at 
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all.”  United States v. Kaiser, 609 F.3d 556, 574 (2d Cir. 2010) (quoting United States v. 
Williams, 205 F.3d 23, 34 (2d Cir. 2000)). 
Moreover, “business records may be admitted notwithstanding the unavailability 
of the record’s author, so long as a custodian or other qualified witness testifies that the 
document was kept in the course of a regularly conducted business activity and also that it was 
the regular practice of that business activity to make the record.”  Parker v. Reda, 327 F.3d 211, 
214–15 (2d Cir. 2003) (quoting Williams, 205 F.3d at 34).  “A witness need not be a custodian or 
have personal knowledge of the actual creation of [a] document to be ‘qualified’ within the 
meaning of Rule 803(6).”  United States v. El Gammal, 831 Fed. Appx. 539, 543 (2d Cir. 2020). 
The rule requires only that the witness is “familiar with the record keeping procedures of the 
organization” and “understands the system.”  Id. at 543 n.10. 
Consistent with this exception, the government anticipates that a witness from 
Bank 1 would testify, if called, that the relevant documents were kept by the bank in the normal 
course of business and that the bank’s regular practice was to make such a record.2 
II. 
The Court Should Admit the Defendant’s Other Acts as Direct Evidence  
The government also moves in limine to admit testimony and limited documents 
as to certain other act evidence.  Specifically, to prove the charges in the indictment, the 
government anticipates introducing evidence regarding the defendant’s participation in a scheme 
to defraud Bank 1 by, among other things, falsifying loan applications, submitting loan 
applications on behalf of individuals without their knowledge, and working with accountants to 
 
 
2 In the alternative, many of these Bank 1 records are independently admissible as 
statements of a party opponent, statements or party’s agent or employee, or statements of co-
conspirators—because they are completed or signed by the defendant, bank employees working 
at the defendant’s direction, or co-conspirators in furtherance of the conspiracy.  See Fed. R. 
Evid 801(d)(2). 
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falsify records.  In addition to this evidence of the core criminal scheme, the government also 
anticipates introducing evidence that the defendant in some instances knowingly violated Bank 1 
policies, practices, and procedures.  The government also anticipates introducing evidence that 
the defendant did not report her earnings from the fraudulent scheme on her taxes. 
These latter two categories of evidence are admissible “if [they] arose out of the 
same transaction or series of transactions as the charged offense, if [they are] inextricably 
intertwined with the evidence regarding the charged offense, or if [they are] necessary to 
complete the story of the crime on trial.”  United States v. Hsu, 669 F.3d 112, 118 (2d Cir. 2012) 
(citation and internal quotation marks omitted); see also United States v. Quinones, 511 F.3d 
289, 309 (2d Cir. 2007).  Even if the evidence does not directly establish an element of the 
offense charged, it can be admitted “in order to provide background for the events alleged in the 
indictment.”  United States v. Coonan, 938 F.2d 1553, 1561 (2d Cir. 1991) (citation omitted).  
Evidence of other acts “may be admitted to provide the jury with the complete story of the 
crimes charged by demonstrating the context of certain events relevant to the charged offense.”  
United States v. Inserra, 34 F.3d 83, 89 (2d Cir. 1994) (citations omitted); see also United States 
v. Gonzalez, 110 F.3d 936, 941 (2d Cir. 1997) (“To be relevant, evidence need only tend to 
prove the government’s case, and evidence that adds context and dimension to the government’s 
proof of the charges can have that tendency.  Relevant evidence is not confined to that which 
directly establishes an element of the crime.”). 
In this case, the expected training and non-compliance evidence is probative for 
two reasons.  The training the defendant received (and at times deliberately did not follow) bears 
on the defendant’s state of mind at the time of the alleged crime.  United States v. Flotron, No. 
3:17-CR-00220 (JAM), 2018 WL 1790828, at *2 (D. Conn. Apr. 15, 2018) (finding that 
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evidence concerning defendant’s training with respect to prohibited trading activities is relevant 
and appropriate for the government to introduce).  One of the elements of wire fraud is that the 
defendant “knowingly and intentionally participated in the scheme or artifice to defraud.” United 
States v. Mahaffy, 693 F.3d 113, 125 (2d Cir. 2012).  Moreover, the government anticipates that 
the defendant may argue at trial that the defendant lacked knowledge of the unlawful nature of 
her conduct.  As a result, the government seeks to introduce evidence that the defendant learned 
about ethics, including conflicts of interests, abusive sales practices, falsifying or manipulating 
applications, anti-money laundering practices, and know-your-customer requirements from Bank 
1 trainings.  See United States v. Anderson, 533 F.3d 623, 632 (8th Cir. 2008) (evidence of 
compliance procedures are relevant to proof of intent and knowledge). 
In addition, the fact that the defendant did not report her illicit earnings from the 
fraudulent SBA loan and money laundering scheme is probative of her consciousness of guilt.  
United States v. Black, No. 13-CR-316 DLI, 2014 WL 5783067, at *5 (E.D.N.Y. Nov. 5, 2014) 
(“[T]his Court agrees with the other circuits that have addressed this issue and finds that failure 
to report significant sums of money in tax filings is not … evidence under Rule 404(b). Instead, 
this failure to report is direct evidence of said offense, as it is inextricably intertwined with the 
defendant’s participation in the money laundering conspiracy.”); United States v. Hatfield, 685 
F. Supp. 2d 320, 324 (E.D.N.Y. 2010) (admitting “tax evidence” as “direct evidence” because 
failure to pay taxes on earnings “shows that the income is not valid” and thus represents “the 
defendants’ consciousness of guilt”). 
To the extent, however, that the Court concludes that the above-referenced 
evidence is not inextricably intertwined with or arises out of the same transaction as the charged 
crimes, the government moves in the alternative to admit such evidence pursuant to Rule 404(b) 
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and hereby provides notice of the same.  The defendant’s training and non-compliance with 
Bank 1 policies is relevant for non-propensity reasons, namely her motive, intent, knowledge, 
and absence of mistake.  See Fed. R. Evid. 404(b); Anderson, 533 F.3d at 632 (evidence of 
compliance procedures are relevant to proof of intent and knowledge).  Likewise, failure to file 
taxes “is admissible under Rule 404(b) as evidence of the defendant’s knowledge that the money 
was the proceeds of illegal activity.”  Black, 2014 WL 5783067, at *5; United States v. 
Thompson, 439 F. App’x 66, 68 (2d Cir. 2011) (finding that tax return was admissible under 
Rule 404(b) for the proper purpose of showing the defendant’s fraudulent intent and absence of 
mistake in receiving payments). 
III. 
The Court Should Admit Statements of Co-Conspirators as Non-Hearsay 
At trial, the government intends to offer in its case-in-chief evidence of statements 
made by co-conspirators pursuant to Federal Rule of Evidence 801(d)(2)(E).  The government 
anticipates introducing statements by individuals such as Bank 1 co-conspirator employees, 
statements by co-conspirator accountants, and statements by borrower co-conspirators.  The 
evidence at trial will establish by a preponderance that these co-conspirators were in fact part of 
the conspiracy.  The Court should admit these statements at trial in keeping with the practice in 
this district and Second Circuit law. 
Pursuant to Rule 801(d)(2)(E) of the Federal Rules of Evidence (“Rule 
801(d)(2)(E)”), a statement offered against an opposing party3 and “made by the party’s 
 
 
3 By contrast, the defendant may not admit her agents’ or co-conspirators’ statements 
under Fed. R. Evid. 801(d)(2)(D) or (E).  Such statements would not be an “opposing party” 
statement as to the defendant.  The “co-conspirator exception is a one-way street down which 
only the government may travel.”  United States v. Persico, No. 04-CR-911, 2006 WL 3246922, 
at *1 (E.D.N.Y. Nov. 8, 2006) 
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coconspirator during and in furtherance of the conspiracy” is not hearsay.  “The law is well 
settled within this circuit that declarations that are otherwise hearsay may nevertheless be 
provisionally admitted, subject to connection of the defendant with the conspiracy alleged, as 
long as the trial court is ultimately satisfied that the participation of the defendant against whom 
the declaration is offered has been established by a fair preponderance of the evidence 
independent of the hearsay utterances.”  United States v. Cambindo Valencia, 609 F.2d 603, 630 
(2d Cir. 1979).  “To admit a statement under the co-conspirator exception to the hearsay 
definition, a district court must find two factors by a preponderance of the evidence: first, that a 
conspiracy existed that included the defendant and the declarant; and second, that the statement 
was made during the course of and in furtherance of the conspiracy.”  United States v. Gigante, 
166 F.3d 75, 82 (2d Cir. 1999). 
“The conspiracy between the declarant and the defendant need not be identical to 
any conspiracy that is specifically charged in the indictment.” Id. “[W]hile the hearsay statement 
itself may be considered in establishing the existence of the conspiracy, ‘there must be some 
independent corroborating evidence of the defendant’s participation in the conspiracy.’” Id. 
(quoting United States v. Tellier, 83 F.3d 578, 580 (2d Cir. 1996)).  Moreover, statements that 
“provide reassurance, or seek to induce a coconspirator’s assistance, or serve to foster trust and 
cohesiveness, or inform each other as to the progress or status of the conspiracy” are admissible. 
Id.  The “Government need not show that the listener, or the person who heard the declarant’s 
statement, was also a member of the conspiracy.”  United States v. Paredes, 176 F. Supp. 2d 183, 
187 (S.D.N.Y. 2001).  Indeed, a communication “with a person who is not a member of the 
conspiracy in a way that is designed to help the coconspirators to achieve the plan’s goals” is 
admissible.  Id. 
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In this case, the government expects to prove at trial that the defendant was a 
member of the bank fraud and wire fraud conspiracies alleged in the indictment and that the 
defendant also conspired to launder the proceeds of her fraudulent schemes.  Along with the 
defendant, and as alleged in the indictment, the government expects to show that other members 
of the conspiracies, including Bank 1 employees, borrowers, and accountants participated in the 
fraud in exchange for illegal kickbacks to help facilitate the fraudulent loan applications.  The 
defendant and her co-conspirators worked together to obtain PPP and EIDL loans despite 
knowing that the recipients did not qualify.   
The government does not ask the Court to rule on the admissibility of any 
particular emails or other out-of-court statements by co-conspirators that the government intends 
to offer at this time, but merely provides notice of the types of co-conspirator statements the 
government will seek to introduce at trial.  The Court should admit these statements at the 
appropriate time, including subject to connection in certain instances, as appropriate under 
Second Circuit law.  As explained in United States v. Geaney, 417 F.2d 1116 (2d Cir. 1969) 
(Friendly, J.), “statements proffered as coconspirator statements may be admitted in evidence on 
a conditional basis, subject to the later submission of the necessary evidence of” the 
requirements of Rule 801(d)(2)(E).  United States v. Tracy, 12 F.3d 1186, 1199 (2d Cir. 1993); 
see also United States v. Shyne, No. S4 05-CR-1067 (KMK), 2007 WL 1075035, at *34 
(S.D.N.Y. Apr. 5, 2007) (“A trial court need not . . . make these determinations prior to trial.”). 
This practice is “well-settled” in this circuit, see United States v. Labate, S1 00-CR-632 (WHP), 
2001 WL 533714, at *21 (S.D.N.Y. May 18, 2001), and avoids the need for a “mini-trial, 
significantly prolonging the proceedings in this case and affording the defendants a complete 
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preview of the government’s evidence,” United States v. Ianniello, 621 F. Supp. 1455, 1478 
(S.D.N.Y. 1985). 
IV. 
Evidence and Argument about Potential Punishment, Prior Good Acts, Lack of Prior Bad 
Acts, Uncharged Defendants, and Other Irrelevant Topics Should Be Precluded 
The government also moves to preclude evidence and argument on the following 
topics, all of which would be improper or so irrelevant that any probative value would be 
swamped by the attendant risks of confusion, misleading, delay, and waste of time.  These topics 
are not an exhaustive list of matters to which the government would object at trial, but rather an 
attempt to address the most likely topics and themes in this case that should be precluded as 
improper. 
First, the defendant should be precluded from offering evidence or argument 
concerning any potential punishment or consequences that she faces if convicted of the charged 
offenses.  Evidence or argument concerning punishment “invites [jurors] to ponder matters that 
are not within their province, distracts them from their factfinding responsibilities, and creates a 
strong possibility of confusion.”  Shannon v. United States, 512 U.S. 573, 579 (1994) (quoting 
Rogers v. United States, 422 U.S. 35, 40 (1975)).  Because there is no proper basis permitting the 
defendant to put these issues before the jury in any form, they should be precluded from offering 
evidence or argument on this subject. 
Second, to the extent the defendant seeks to offer evidence or argument 
concerning her prior commission of any alleged “good acts”—for example, concerning 
charitable works—or to offer evidence of her non-criminal activities, she should be precluded 
from doing so.  Propensity evidence regarding specific acts is no more admissible to refute a 
criminal charge than to establish one.  Indeed, it is settled law that “[a] defendant may not seek to 
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establish [her] innocence . . . through proof of the absence of criminal acts on [other] specific 
occasions.”  United States v. Scarpa, 897 F.2d 63, 70 (2d Cir. 1990).   
Similarly, while a defendant may offer general testimony from a character witness 
about her reputation for a “pertinent trait of character,” or the witness’s opinion of the defendant 
as regards that trait, see Fed. R. Evid. 404(a)(2)(A), 405(a), a defendant can neither testify nor 
offer other proof to establish specific acts in conformity with that trait that are not an element of 
the offense.  See, e.g., United States v. Benedetto, 571 F.2d 1246, 1249-50 (2d Cir. 1978) 
(finding evidence of defendant’s specific acts improperly admitted because “character evidence 
has long been admissible only in the form of reputation and not in the form of a recitation of 
good or bad acts”); United States v. Fazio, No. 11 Cr. 873 (KBF), 2012 WL 1203943, at *5 
(S.D.N.Y. Apr. 11, 2012) (“[A] defendant may not affirmatively try to prove [her] innocence by 
reference to specific instances of good conduct; character is to be proven by reputation or 
opinion evidence.”), aff’d, 770 F.3d 160 (2d Cir. 2014).  As such, the defendant should be 
precluded from offering evidence or argument—including in opening statements—concerning 
any charitable work, philanthropy, religious participation, or other specific instances of prior 
alleged good acts or service, irrelevant aspects of their family or personal status, lack of prior 
criminal history, or the lack of prior commissions of other similar or dissimilar bad acts.  See, 
e.g., United States v. Rivera, No. 13 Cr. 149, 2015 WL 1725991 (KAM), at *2 (E.D.N.Y. Apr. 
15, 2015) (precluding evidence of charitable giving). 
V. 
Evidence and Argument Concerning Alleged Negligence by Bank 1 or the SBA Should 
Be Precluded 
The defendant should not be allowed to advance evidence or arguments that shifts 
her culpability to the victims of her fraud.  Specifically, the Court should preclude the defendant 
from advancing evidence or arguments that blames the victims—in other words, arguing that 
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because Bank 1 or the SBA failed to detect the defendant’s fraud or were otherwise negligent, 
the defendant cannot be found guilty of fraud.  
Any evidence relating to victim negligence is irrelevant to the question of the 
defendant’s guilt and is an improper defense.  Just as it is no defense to burglary charges that the 
victim left a front door unlocked, it is no defense to bank fraud that the victim was negligent.  
See United States v. Allen, 201 F.3d 163, 167 (2d Cir. 2000) (per curiam) (“The victim’s 
negligence in permitting a crime to take place does not excuse the defendant from culpability for 
[the] substantive offense . . . .”); United States v. Thomas, 377 F.3d 232, 243-44 (2d Cir. 2004) 
(affirming restrictions on cross-examination of victim; rejecting defendant’s argument that 
victim’s foolishness vitiated defendant’s fraudulent intent); see also United States v. Lindsey, 
850 F.3d 1009, 1014 (9th Cir. 2017) (explaining that a lender’s negligence “does not mean 
lenders can be victimized by intentional fraudulent conduct with impunity merely because the 
lenders were negligent, or even because the lenders intentionally disregarded the information in a 
loan application.  Two wrongs do not make a right, and lenders’ negligence, or even intentional 
disregard, cannot excuse another’s criminal fraud”); United States v. Colton, 231 F.3d 890, 903 
(4th Cir. 2000) (“The susceptibility of the victim of the fraud, in this case a financial institution, 
is irrelevant to the analysis:  If a scheme to defraud has been or is intended to be devised, it 
makes no difference whether the persons the schemers intended to defraud are gullible or 
skeptical, dull or bright.” (internal quotation marks omitted)). 
Evidence of Bank 1’s or the SBA’s failure to detect the fraud does not tend to 
prove or disprove any element of the charged offenses, and thus whether either acted negligently 
is irrelevant to whether the defendant committed fraud.  Accordingly, the Court should preclude 
any evidence and arguments blaming Bank 1 or the SBA. 
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VI. 
Improper Use of Agent Reports to Impeach Witnesses Should Be Precluded 
In accordance with its obligations under Rule 26.2 and 18 U.S.C. § 3500, the 
government has produced summaries of witness interviews prepared by law enforcement.  The 
government respectfully requests that the Court preclude the defense from introducing the 
contents of these reports to impeach such witnesses during cross-examination, publishing the 
contents of the reports to the jury, or otherwise suggesting to the jury that the reports are 
statements of the witnesses who did not write or adopt them.   
A party may impeach a witness with a prior inconsistent statement of that witness, 
but the statement must be the witness’s own statement that he or she either made or adopted.  See 
Fed. R. Evid. 613; United States v. Alamonte, 956 F.2d 27, 29 (2d Cir. 1992) (concluding that 
the trial court did not err in refusing to admit prosecutor’s notes taken during debriefing of 
witness and explaining that a “third party’s characterization” of a witness’s statement does not 
constitute a prior statement of that witness “unless the witness has subscribed to that 
characterization”); United States v. Leonardi, 623 F.2d 746, 757 (2d Cir. 1980) (holding that 
because “the written statement of the FBI agent was not attributable to [the witness],” it was 
“properly rejected as a prior inconsistent statement”).  The problem with using a third party’s 
summary or characterization of the witness’s statement to impeach is “one of relevancy”: “If a 
third party’s notes reflect only that note-taker’s summary characterization of a witness’s prior 
statement, then the notes are irrelevant as an impeaching prior inconsistent statement, and thus 
inadmissible.”  Alamonte, 956 F.2d at 29. 
The Jencks Act governs the discoverability of a witness’s prior statements, and its 
definition of “statement” accords with Fed. R. Evid. 613(a) and applicable case law on proper 
impeachment using prior inconsistent statements.  Under the Jencks Act, a statement means “a 
written statement made by said witness and signed or otherwise adopted or approved by him,” a 
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17 
recording or transcription that “is substantially [a] verbatim recital of an oral statement made by 
said witness and recorded contemporaneously,” or a statement made by a witness to the grand 
jury.  See 18 U.S.C. § 3500(e).  Because the Jencks Act is meant to restrict the defendant’s use of 
discoverable statements for impeachment, “only those statements which could properly be called 
the witness’ own words should be made available to the defense for purposes of impeachment.”  
Palermo v. United States, 360 U.S. 343, 349, 352 (1959).  An “agent’s interpretations and 
impressions” of a witness do not fall within the purview of the Jencks Act.  Id. at 352-53.   
In this case, the government has provided the defense with broad discovery and 
material pursuant to 18 U.S.C. § 3500, including notes and reports summarizing investigators’ 
interviews with government witnesses.  These reports were not reviewed or adopted by any of 
the government witnesses.  Moreover, they were finished after interviews were completed and 
reflect the thought processes and interpretations of the agents and officers; they do not constitute 
verbatim recitals or transcripts of any of the witnesses’ statements.4  As a result, the statements 
in these reports are not statements of any of the government’s witnesses (other than the reports’ 
authors, if called to testify at trial); cannot be used for impeachment; and should not be read 
aloud or shown to the jury.  See Alamonte, 956 F.2d at 28; Leonardi, 623 F.2d at 757.  The Court 
should therefore preclude any use or suggestion by defense counsel that a statement in a law 
enforcement summary report is a statement of the witness being interviewed.5 
 
 
4 These reports would, however, constitute prior statements of the agents or officers who 
prepared the report if they are called as a witness to testify regarding the subject matter contained 
in the report. 
 
5 The defense may of course ask a witness whether he or she made a statement that is 
reflected in a law enforcement report.  However, if the defense is not satisfied with the witness’s 
answer, the defense may not publish or introduce the report’s contents as a prior inconsistent 
statement.  Additionally, if a witness says that he or she does not remember a fact, the defense 
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VII. 
The Court Should Order the Defense to Produce Trial Exhibits and Witness Statements 
The government respectfully requests that the Court order the defendant to 
disclose defense exhibits, including exhibits they intend to introduce through cross-examination 
of government witnesses, and Rule 26.2 defense witness material. 
Federal Rule of Criminal Procedure 16(b) governs a defendant’s disclosures in a 
criminal case.  In relevant part, it requires the defendant to provide the government with 
documents and records that the defendant “intends to use . . . in the defendant’s case-in-chief at 
trial.”  Fed. R. Crim. P. 16(b)(1)(A).  The Rule’s purpose “is to avoid surprise and 
gamesmanship” and “it definitely contemplates reciprocity in the production of evidence that 
both parties intend to introduce in their case-in-chief at trial.”  United States v. Hsia, 2000 WL 
195067, at *1 (D.D.C. Jan. 21, 2000).  Similarly, Rule of Criminal Procedure 26.2 provides that 
“the court on motion of a party who did not call the witness, must order an attorney for the 
government or the defendant and the defendant’s attorney to produce, for the examination and 
use of the moving party, any statement of the witness that is in their possession and that relates to 
the subject matter of the witness’s testimony.” 
In this case, the parties agreed to exchange trial exhibits and 18 U.S.C. § 3500 
material on or about May 13, 2024.  To date, the government has not received any exhibits or 
witness material from the defense.  
CONCLUSION 
 
For the foregoing reasons, the government respectfully requests that the Court:  
(1) admit loan documents, contracts and related emails as verbal acts or business records; 
 
 
may attempt to refresh a witness’s recollection by showing the witness the report, but only if the 
defense does so in a manner that does not imply that the report is the witness’s own statement or 
publish its contents to the jury. 
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19 
(2) admit the defendant’s other acts, either as direct evidence or pursuant to Rule 404(b);  
(3) permit the government to introduce statements of co-conspirators; (4) preclude the defendant 
from presenting evidence and argument concerning possible punishment, collateral consequences 
and other irrelevant topics; (5) preclude the defendant from victim-blaming, including by 
introducing evidence and arguments concerning alleged negligence by Bank 1 or the SBA;  
(6) preclude improper use of law enforcement reports; and (7) require the defense to comply with 
their obligations under Rule 16 and 26.2  
Dated:  
Brooklyn, New York 
May 17, 2024 
 
Respectfully submitted, 
 
BREON PEACE 
UNITED STATES ATTORNEY 
Eastern District of New York 
Attorney for Plaintiff 
271 Cadman Plaza East 
Brooklyn, New York 11201 
 
 
By:  /s/ Chand W. Edwards-Balfour                       
Chand W. Edwards-Balfour 
Adam Amir 
Assistant United States Attorneys 
(718) 254-7000 
 
 
GLENN S. LEON 
Chief, Fraud Section  
Criminal Division, Dept. of Justice  
 
By: 
/s/                                                                    
Jennifer Bilinkas 
Trial Attorney 
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20 
 
 
 
cc: 
Clerk of the Court (FB) (by ECF) 
 
Defense counsel (by ECF) 
 
Case 1:22-cr-00020-FB     Document 32     Filed 05/17/24     Page 22 of 22 PageID #: 99

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