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United States' Combined Response to Defendant's Discovery and Other Pretrial Motions — United States v. Bernard Okojie

No. 4:22-cr-00084-LGW-BWC · Doc. 43 · Docket on CourtListener

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Case 4:22-cr-00084-LGW-BWC Document 43 Filed 09/28/22 Page 1 of 8

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION

UNITED STATES OF AMERICA )
)
v. ) CASE NO: 4:22-CR-084
)
BERNARD OKOJIE )

UNITED STATES’ COMBINED RESPONSE TO
DEFENDANT’S DISCOVERY AND OTHER PRETRIAL MOTIONS

The United States responds to Defendant’s various discovery and pretrial

motions (Docs. 29–39) as follows.

The United States has complied with its discovery obligations under Federal

Rules of Criminal Procedure 12, 16, and 26.2. The United States has produced several

gigabytes of discovery in this case, including law enforcement reports, loan

applications, loan files, audio files, and bank records, among other evidence. To the

extent discoverable items come within the United States’ custody, control, or

possession that have not been produced, the United States will promptly produce

them.

I. Motion to Dismiss Counts One and Three of the Indictment, and the
Corresponding Portions of the Forfeiture Allegation (Doc. 29)

Defendant moves to dismiss the indictment on the grounds that, as Defendant

argues, the indictment fails to properly allege a conspiracy. Because Defendant

misconstrues the law that applies to motions to dismiss an indictment, the Court

should deny Defendant’s motion.

The law in the Eleventh Circuit is clear on the circumstances in which an

indictment should be dismissed. At this stage, the language of the indictment is
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controlling and defense arguments relating to sufficiency of evidence are not proper

bases for dismissal of an indictment. United States v. Salman, 378 F.3d 1266, 1268–

29 (11th Cir. 2004) (reversing trial court’s dismissal because there is no “criminal

summary judgment procedure” and “it is not for the courts to filter which criminal

cases may reach the trial stage by reviewing the proffered evidence in advance”);

United States v. Rangel-Rubio, No. 4:18-CR-274, 2021 WL 8015833, at *1 (S.D. Ga.

Oct. 22, 2021) (citing United States v. Critzer, 951 F.2d 306, 307 (11th Cir. 1992)),

report and recommendation adopted, No. CV 4:18-CR-274, 2021 WL 5599647 (S.D.

Ga. Nov. 30, 2021) (“When reviewing the sufficiency of an indictment, the Court

should only consider the language of the indictment on its face without assessing the

sufficiency of the evidence in the case.”). The language of “[a]n indictment ‘is sufficient

if it (1) presents the essential elements of the charged offense, (2) notifies the accused

of the charges to be defended against, and (3) enables the accused to rely upon a

judgment under the indictment as a bar against double jeopardy for any subsequence

prosecution for the same offense.” United States v. Chalker, 966 F.3d 1177, 1190 (11th

Cir. 2020) (quoting United States v. Woodruff, 296 F.3d 1041, 1046 (11th Cir. 2002)).

“And when ‘an indictment specifically refers to the statute on which the charge was

based, the reference to the statutory language adequately informs the defendant of

the charge.’” Chalker, 966 F.3d at 1046 (quoting United States v. Pena, 684 F.3d 1137,

1147 (11th Cir. 2012)).

For conspiracy charges, indictments are sufficient when they allege that the

defendant conspired with another person, even if the indictment does not specifically

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name a defendant’s co-conspirators. United States v. Stapleton, 39 F.4th 1320, 1330

(11th Cir. 2022) (“A conspiracy indictment and a conspiracy charge to a jury may

properly refer to unidentified co-conspirators.”); see also United States v. Daniels, 135

F. App’x 305, 308 (11th Cir. 2005) (unpublished) (“Accordingly, the government's

indictment in this case was sufficient, despite its failure to name the co-

conspirators.”).

Thus, the analysis here is simple. Count One of the indictment alleges that

Defendant conspired with co-conspirators to commit wire fraud and bank fraud.

Count Three of the indictment alleges that Defendant conspired with co-conspirators

to commit money laundering. Both counts (1) present the essential elements of the

charges by largely tracking the statutes charged, (2) provide sufficient factual

allegations to put the Defendant on notice of the nature of the charges, and (3) will

allow Defendant to defend against future charges on the basis of double jeopardy.

Therefore, the allegations contained in the indictment are sufficient and the

indictment should not be dismissed.

II. Defendant Bernard Okojie’s Rule 807 Residual Exception
Disclosure (Doc. 30)

The Government will timely comply with its obligations under Federal Rule of

Evidence 807(b).

III. Defendant Bernard Okojie’s Motion for Information Regarding Bad
Prior Acts by Defendant and his Coconspirators (Doc. 31)

The Government has already provided notice of its intent to introduce evidence

requested by Defendant in this motion. See Doc. 24 (Government’s Notice of Its Intent

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to Introduce Evidence of Uncharged SBA Loans and Money Laundering and Related

Information).

IV. Motions for Discovery, Plea Bargains, Grand Jury Transcripts,
Scientific Test Results, Criminal Records, Statements, and Brady
Materials (Docs. 32, 33, 35, 37)

Since the United States has provided expanded discovery in this case, as

outlined above, these motions should be rendered moot. The United States has

complied with its obligations under Brady v. Maryland, 373 U.S. 83 (1963). This

intention to provide exculpatory, arguably favorable, or impeaching information

should not be construed to relieve Defendant of making particularized demands and

showings of materiality and need for specifically identified items. While the United

States fully intends a good faith effort to identify and produce materials under its

obligation as defined by Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United

States, 405 U.S. 150 (1972), United States v. Agurs, 427 U.S. 97 (1976), and their

progeny, characterizations of particular items or information as falling within that

obligation may differ, and Defendant may find exculpatory or impeaching use of an

item of information in a manner not apparent to or anticipated by the United States.

Likewise, nothing herein should be construed to relieve Defendant of the obligation

to acquire on his own matters of public record. Should additional information subject

to Brady become available, the United States will disclose it as required. To the extent

Defendant has not received disclosure addressed in his motion to which he believes

to be entitled, the United States requests that counsel confer with the undersigned

attorney to determine if the item exists, and if so, whether it is subject to disclosure.

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And Defendant should consider production of all evidence of its intent to use such

evidence in the United States’ case in chief at trial.

V. Defendant Bernard Okojie’s Motion to Preserve Evidence and
Authority Therefor (Doc. 36)

The United States does not oppose this motion.

VI. Defendant Bernard Okojie’s Motions for Hearsay Exceptions and
for a Pretrial Hearing to Determine the Existence of any
Conspiratorial Agreements (Docs. 34 & 38)

The United States is aware of its obligations under Federal Rule of Evidence

801 and will abide by them. But the United States opposes Defendant’s request for a

pre-trial hearing to determine the admissibility of out-of-court statements by alleged

co-conspirators. To lay the proper foundation for admission of a co-conspirator

statement pursuant to Federal Rule of Evidence 801(d)(2)(E) and under the standard

enunciated in United States v. James, 590 F.2d 575, 582 (5th Cir. 1978) (en banc),

“the government must establish by a preponderance of the evidence: (1) that a

conspiracy existed, (2) that the defendant and the declarant were members of the

conspiracy, and (3) that the statement was made during the course and in furtherance

of the conspiracy.” United States v. Harrison, 246 F. App’x 640, 651 (11th Cir. 2007).

However, as the trial court may consider both co-conspirator statements and

independent external evidence in making a determination on admissibility, a pre-

trial determination under James is not required. United States v. Magluta, 418 F.3d

1166, 1177-78 (11th Cir. 2005); United States v. Van Hemelryck, 945 F.2d 1493, 1497-

98 (11th Cir. 1991). “Thus, the required finding need not be made pre-trial and can

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be made at the close of the government's case in chief.” United States v. Register, No.

3:15-cr-13, 2016 WL 589707, at *2–3 (S.D. Ga. Feb. 11, 2016) (citations omitted).

“Indeed, the Supreme Court has ruled that a trial court may examine hearsay

statements prior to admission when making a preliminary factual determination

under Rule 801(d)(2)(E) and further explained, ‘the judge should receive the evidence

and give it such weight as his judgment and experience counsel.’” Id. (quoting

Bourjaily v. United States, 483 U.S. 171, 181 (1987)). As the need for a James hearing

is lessened in light of Bourjaily, and in the interest of judicial economy, the United

States requests that the determination concerning co-conspirator statements be

made at trial, if necessary.

VII. Defendant Bernard Okojie’s Motion to Interview Government
Informants Prior to Trial (Docs. 39)

Although Defendant may attempt to interview witnesses in this case, the

Eleventh Circuit has made clear that the United States has no duty to present its

witnesses for interviews. United States v. Pepe, 747 F.2d 632, 655 (11th Cir. 1984);

see also United States v. Savage, No. CRIM.A. 07-550-03, 2013 WL 271800, at *2 (E.D.

Pa. Jan. 24, 2013) (“We may easily dispose of Defendants’ request to compel the

Government to make the witnesses available for interviews. There is no

constitutional guarantee granted to a defendant to interview a witness.”).

To the extent Defendant in this motion seeks a list of witnesses or conspirators

with each’s current address, that should be denied. In non-capital cases such as this

case, a defendant is generally not entitled to a list of government witnesses. United

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States v. Massell, 823 F.2d 1503, 1509 (11th Cir. 1987); United States v. Johnson, 713

F.2d 654, 659 (11th Cir. 1983); United States v. Colson, 662 F.2d 1389, 1391 (11th

Cir. 1981). Further, in light of the United States’ liberal discovery in this case,

Defendant has received much of the information sought in discovery.

* * *

Given the nature of the motions, the Government submits that a motions

hearing is not necessary, as all motions are either moot, can be denied on the face of

the indictment, or are considerations that are best determined at trial. See Rangel-

Rubio, No. 4:18-CR-274, 2021 WL 8015833, at *1 (denying motion to dismiss

indictment based on language of indictment and without presenting argument at

motions hearing); United States v. Wilson, No. 2:16-CR-12-17, 2017 WL 1015324, at

*3 (S.D. Ga. Mar. 15, 2017) (denying motion for James hearing because “Defendant

has not presented sufficient evidence specific to the facts of this case to warrant such

a hearing and inviting parties’ use of usual process under Fed. R. Evid. 801(d)(2)(E)).

Respectfully submitted, this 28th day of September 2022.

DAVID H. ESTES
UNITED STATES ATTORNEY

/s/ Jonathan A. Porter
Jonathan A. Porter
Assistant United States Attorney
Georgia Bar Number 725457

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CERTIFICATE OF SERVICE

This is to certify that I have on this day served all the parties in this case in

accordance with the notice of electronic filing (ANEF@) which was generated as a result

of electronic filing in this Court.

This 28th day of September 2022.

Respectfully submitted,

DAVID H. ESTES
UNITED STATES ATTORNEY

/s/ Jonathan A. Porter
JONATHAN A. PORTER
Assistant United States Attorney
Georgia Bar No. 725457
Email: Jonathan.Porter@usdoj.gov

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