Letter Opposing Admission of Ex. 201-B as… — Letter Opposing Admission of Ex. 201-B as to Anuli Okeke — USA… (Dkt. 44)

Record facts

U.S. District Court for the Eastern District of New York · No. 1:22-cr-00020-FB · Doc. 44 · 2024-06-13 · Docket on CourtListener

Full text

Hon. Frederic Block 
Page 1 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
June 13, 2024 
BY ECF 
 
Honorable Frederic Block 
United States District Judge 
Eastern District of New York 
225 Cadman Plaza East 
Brooklyn, New York 11201 
 
 
Re: 
United States v. Anuli Okeke 
22 Cr. 20 (FB) 
Dear Judge Block: 
 
We write in response to the government’s June 12, 2024 letter (Dkt. 256, “Gov. Let.”) and 
in opposition to the government’s request to admit Government’s Exhibit 201-B.  For the reasons 
that follow, the exhibit is not a prior consistent statement made by the witness, Brahima Lengane, 
and is inadmissible hearsay, lacks relevance, and is unduly prejudicial. 
 
Initially, the government’s letter appears to have shifted both its request and the underlying 
legal rationale from that stated by the government several hours earlier in Court during trial.  The 
initial request, as stated at sidebar, was for the introduction of a limited portion of the exhibit 
relating to which bank employees prepared certain cashier’s checks in relation to Lengane’s 
August 21, 2020 withdrawal as a prior consistent statement.  Tr. 492.  The government appears 
to have abandoned this position.  The government’s revised request is for introduction of the 
entire exhibit as a prior consistent statement to purportedly rehabilitate Lengane from “attacks on 
[his] credibility and memory.” 1  Gov. Let. at 3.  While, the initial request was unfounded as a 
matter of law and rested on a misreading of the transcript, it was limited in scope.  The 
current/revised request is highly problematic in that it seeks to introduce the entirety of document 
which, as explained below, is essentially a script Lengane wrote after being contacted by law 
 
1 The government has thus shifted from reliance on Federal Rule of Evidence 801(d)(1)(B)(i) to 
prong (ii) of that subsection, which excludes from the hearsay rule statements when “[t]he 
declarant testifies and is subject to cross examination about a prior statement, and the statement 
is consistent with the declarant’s testimony and is offered to rehabilitate the declarant’s 
credibility as a witness when attacked on another ground.” 
 
Case 1:22-cr-00020-FB     Document 44     Filed 06/13/24     Page 1 of 4 PageID #: 260

Hon. Frederic Block 
Page 2 
 
enforcement to try to exculpate himself and inculpate others  
 
The threshold problem with the government’s argument is that the document is not a prior 
statement at all; it post-dates many of the statements at issue.  The government’s letter is notably 
vague regarding the date of both the exhibit it seeks to admit and the prior statements at issue on 
cross examination of Lengane.  Lengane acknowledged that he first met with law enforcement on 
October 5, 2020.  Lengane was asked whether he at first told federal agents that his business, 
Fatim’s, had twenty employees and later that it had six employees—as the agent’s interview memo 
clearly stated.  Tr. 474-476.  Lengane denied having made that statement and further stated that 
his memory was not refreshed when shown the interview memos.2  Though, the government’s 
letter rests largely on this colloquy, it does not disclose the date on which the alleged statements 
would have been made.3  See Gov. Let. at 3.   
 
Lengane was next cross-examined regarding statements he made in a phone call with law 
enforcement a few days later on October 7, 2020.  Tr. 479.  Lengane denied having made the 
statement about which he was examined—that there was a guy who set the whole thing up—and 
again testified that his memory was not refreshed after reviewing an interview memo.  Tr. 480 
 
Having already been interviewed by law enforcement twice in early October 2020, 
Lengane apparently set about crafting a narrative he wished to convey to law enforcement in the 
form of a script.  Indeed, even Lengane’s self-serving testimony explaining the nature of the 
exhibit conceded that it was prepared “after meeting . . . the federal agents” and understanding that 
his problems were “serious” in order to “tell them” “what happened . . . because I [] knew that they 
would come ask questions again.”  Tr. at 491. 
 
The metadata from Government’s Exhibit 201-B states that it is a Note created in 
Lengane’s phone on October 14, 2020 and modified on October 21, 2020.  The Note, in its 
original and revised forms, extends over 5 pages and 3,000 words and is clearly written to deflect 
blame from Lengane to others.  It concludes by stating “I have been used”; asserting that “I did 
not understand the system, let alone business matters”; noting that “[t]hey did not mind a second 
that I had a wife who is jobless and two children as well as a sister to take care of”; and stating that 
“those who convinced me into this knew I was not aware of the consequences.”  Notably, the 
government describes the exhibit as a “note drafted by Lengane from October 2020,” Gov. Let. at 
2, without stating the precise date, omitting the fact that it post-dated many of the statement about 
which Lengane was cross-examined, and failing to discuss that the purpose of the document was 
to serve as a script for future interviews with law enforcement. 
 
 
2 The memorandum was not introduced into evidence due to the government’s argument in its 
motion in limine that law enforcement agent memoranda cannot be attributed as statements of the 
witness who neither authored nor adopted them. 
 
3 Nor does the government’s letter acknowledge that the interview memo was not introduced 
into evidence.  Permitting the government to admit this exhibit while not permitting the 
introduction of the interview memos would be inherently unfair and create a distorted 
evidentiary record. 
Case 1:22-cr-00020-FB     Document 44     Filed 06/13/24     Page 2 of 4 PageID #: 261

Hon. Frederic Block 
Page 3 
 
The nature of the document, a self-serving piece of advocacy to law enforcement created 
after the witness had blatantly lied to agents, renders the document obviously unreliable and paints 
a clear distinction to the authority cited by the government in support.  In United States v. Flores, 
945 F.3d 687 (2d Cir. 2019) the Second Circuit held that the district court did not abuse its 
discretion in admitting contemporaneous notes of an agent regarding post-arrest statements made 
by two defendants on a flight.  In United States v. Purcell, 967 F.3d 159, 196 (2d Cir. 2020), the 
Second Circuit upheld the admission of the entirety of a witness’s statements to the police in 
response to cross-examination that suggested that the witness had only told half-truths and had 
edited her answers to the police.  In United States v. Ray, No. 20 Cr. 110 (LJL), 2022 U.S. Dist. 
LEXIS 47245, at *7, 2022 WL 813492 (S.D.N.Y. Mar. 16, 2022), the district court permitted a 
contemporaneous oral statement by the witness to his sister about a violent act committed by the 
defendant to refute the implication on cross-examination that the witness had changed his 
assessment of the defendant as a product “of government influence and mental fragility.”  The 
defense is not aware of any court, and the government’s cites no authority, permitting the 
introduction of a post-hoc script to advocate for leniency from law enforcement as a prior 
inconsistent statement. 
 
On its face, Exhibit 201-B is Lengane’s apparent attempt to script his entire statement to 
law enforcement, including, as discussed below, various facts that even if true are irrelevant and 
prejudicial.  As such, the document, in addition to lacking indicia of reliability, includes pages of 
information that bear no relation to the areas in dispute.  The government baldly states that the 
Exhibit “covers the same or closely related topics” but never explains what those topics are.  And, 
more specifically, the government fails to articulate any theory of the manner in which any part of 
the document, let alone the whole thing, would serve to rehabilitate Lengane. 
 
In addition to Exhibit 201-B’s obvious hearsay problems, the document also contains 
substantial portions (which the government no longer offers to remove) that, in addition to being 
inherently unreliable, have no probative value and are substantially prejudicial.  These include, 
but are not limited to, Lengane’s assertions that: 
 
• Assan Zampaligre took money from him that she knew “I would need back in 2020 
for son’s tuition for college.” 
• Zampaligre was “highly indebted, which she had hidden from me from the 
beginning. She was many months behind for the rent, had electricity bills piled up 
and owed money to some people.” 
• Zampaligre “convinced me to apply for a business ID in my name so that there 
would be two separate businesses on the same location.” 
• He “begged [Zampaligre] for 10,000 for my son’s college tuition she refused [sic] 
And definitely gave me 6000.” 
• “I now realize that my sister and I have both been used.” 
• “I did not understand the system, let alone business matters.” 
• “Benefiting from the situation was what they only cared about. They did not mind 
a second that I had a wife who is jobless and two children as well as my sister to 
take care of. What will be their fate if something happens to me?” 
• “Those who convinced me into this perfectly knew I was not aware of the 
consequences.” 
Case 1:22-cr-00020-FB     Document 44     Filed 06/13/24     Page 3 of 4 PageID #: 262

Hon. Frederic Block 
Page 4 
 
 
Each of these self-serving assertions is irrelevant and prejudicial.  The document should thus also 
be excluded under FRE 403. 
CONCLUSION 
 
For the reasons stated above, the Court should the government’s request and exclude GX 
201-B. 
 
 
 
 
 
Very truly yours, 
 
 
 
 
 
 
Noam Greenspan 
 
 
 
 
 
Sanford Talkin 
 
 
 
 
 
Noam Greenspan 
Case 1:22-cr-00020-FB     Document 44     Filed 06/13/24     Page 4 of 4 PageID #: 263

File and source

File

gov.uscourts.nyed.474435.44.0.pdf

Size

325,844 bytes

SHA-256

5b8196962fa0a3bc5ba674810c3d4bd814985ef74b0e42ed453cab47457ade5c

Our copy

gov.uscourts.nyed.474435.44.0.pdf

Original

PACER (login required)