Evidentiary Hearing Transcript (February 28, 2023) — United States v. Bernard Okojie

Summary

A transcript of the evidentiary hearing held February 28, 2023 in United States v. Bernard Okojie, Case No. 4:22-cr-00084-LGW-BWC, in the U.S. District Court for the Southern District of Georgia, before Judge Benjamin W. Cheesbro, filed March 6, 2023 as Document 76. The issue is whether the government may introduce evidence of undeclared cash carried on a flight to Nigeria, one category in its Rule 404(b) notice; the court treats the defendant's response as a motion in limine. An FBI special agent testifies about funded EIDL applications totaling about $76,300.00 in June 2020, about $145,000.00 received from eight individuals, and check images showing withdrawals below the $10,000.00 reporting threshold. The court says it will take the matter under advisement and rule in writing before trial. The transcript runs 55 pages.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Full text

Case 4:22-cr-00084-LGW-BWC

Document 76

Filed 03/06/23

Page 1 of 55

1
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
UNITED STATES OF AMERICA

)
)
)
CASE NO.
) 4:22-CR-00084-LGW-BWC-1
)
)
)

v.
BERNARD OKOJIE,
Defendant.

EVIDENTIARY HEARING
BEFORE THE HONORABLE BENJAMIN W. CHEESBRO
February 28, 2023; 10:20 a.m.
Brunswick, Georgia
APPEARANCES:
For the Government:

MATTHEW A. JOSEPHSON, Esq.
U. S. Department of Justice
United States Attorney's Office
P. O. Box 8970
Savannah, Georgia 31401
(912) 652-4422
matthew.josephson@usdoj.gov

For the Defendant:

JOHN J. OSSICK, JR., Esq.
John J. Ossick, Jr., PC
P. O. Box 1087
Kingsland, Georgia 31548-9190
912.729.5864
ossick@tds.net

Reported by:

Debbie Gilbert, RPR, CCR
Official Court Reporter
801 Gloucester Street
Post Office Box 1894
Brunswick, GA 31521-1894
(912) 262-2608 or (912) 266-6006
debra_gilbert@gas.uscourts.gov
- - -


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1

P R O C E E D I N G S

2

(Call to order at 10:20 a.m.)

3

THE COURT:

Ms. Mixon, please call the next case.

4

THE CLERK:

Case Number 4:22-CR-84, United States of

5

America versus Bernard Okojie, Matthew Josephson for the

6

Government and John Ossick for this defendant.

7
8

MR. JOSEPHSON:

Your Honor, the Government is ready to

proceed.

9

MR. OSSICK:

We're ready, Your Honor.

10

THE COURT:

We are scheduled here today to take up an

11

evidentiary issue in this case.

The Government filed its 404(b)

12

notice in which it identified three categories of potential

13

evidence that it would seek to introduce at trial in this case.

14

Mr. Okojie's counsel filed a response and objection to

15

that notice and then the Government filed a reply to that

16

response.

17

only one category of evidence is at issue at this point and that

18

is evidence related to undeclared cash on a flight to Nigeria.

19

I do want to be clear about the posture of this.

20

As a result of that briefing, as I understand it,

There is not a filing in the form of a motion at this

21

point but I'm going to construe defendant's response as a motion

22

in limine seeking to exclude that evidence and treat the reply

23

brief as a response to that motion.

24

MR. JOSEPHSON:

25

THE COURT:

Any objection to that?

No, Your Honor.

Mr. Ossick, any objection?


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MR. OSSICK:

No.

2

THE COURT:

So this does focus on the undeclared cash on

3

the flight to Nigeria.

4

introduce this evidence, it would be the Government's burden to

5

establish the admissibility of this evidence, so, Mr. Josephson,

6

I would ask you to present any evidence or argument that you

7

have in association with that request.

8
9

Given that the Government seeks to

MR. JOSEPHSON:

Yes, Your Honor.

and several exhibits to present to The Court.

10

THE COURT:

11

MR. JOSEPHSON:

12

Would Your Honor like him to --

13

THE COURT:

14

I do have one witness

All right.
We have Agent Randy Dye with the FBI.

That will be fine.

Agent Dye, if you will

please step up to the witness box.

15

DOUGLAS RANDOLPH DYE,

16

having been first duly sworn, was examined and testified as

17

follows:

18

THE CLERK:

19

THE WITNESS:

20

THE CLERK:

21
22
23

Thank you.

You may be seated.

Thank you.

Please state your full name, spell your last

name for the record and state your occupation.
THE WITNESS:

Douglas Randolph Dye, FBI, Special Agent.

The address?

24

THE CLERK:

Spell your last name.

25

THE WITNESS:

Oh, D-y-e.


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MR. JOSEPHSON:

Your Honor, before I begin the

2

examination, I do have four exhibits.

They were e-mailed

3

yesterday evening to The Court and the defense counsel.

4

also provided a paper copy to the defense counsel this morning.

5

For expediency, I would propose me handing them all to

6

the witness rather than me handing each one at the time if The

7

Court would allow that.

I've

8

THE COURT:

Any objection, Mr. Ossick?

9

MR. OSSICK:

I didn't see them yesterday was the reason

10

I was just taking a minute.

11

MR. JOSEPHSON:

12

hand them all at once.

13

MR. OSSICK:

14

exactly what I had.

15

THE WITNESS:

16

Just to clarify, all I'm asking, can I

No objection, I wanted to look and see

Thank you.
DIRECT EXAMINATION

17

BY MR. JOSEPHSON:

18

Q.

19

name, your occupation and your role in this particular case

20

regarding the defendant, Mr. Bernard Okojie?

21

A.

22

FBI and I'm case agent on this -- this case.

23

Q.

24

going to be limited to the purpose of this hearing which is to

25

determine the admissibility of evidence obtained from Mr. Okojie

Agent Dye, could you introduce yourself to The Court, your

Yes, I'm Douglas R. Dye.

I am a special agent with the

Agent Dye, I'm going to ask you a few questions.

They are


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at an airport, specifically some cash that was not declared to

2

customs and border patrol as well as some evidence surrounding

3

that cash in the form of statements and other documents.

4

I want to begin by asking you about the defendant's EIDL

5

loans that he personally received.

Did the defendant receive --

6

let me first ask you, what is an EIDL loan?

7

A.

8

Economic Impact Disaster Loan, that is administered by the SBA

9

to beneficiaries that request advances and loans to help them

10

with an incident such as the COVID-19 disaster.

11

Q.

12

loans for himself or his purported businesses?

13

A.

Yes.

14

Q.

And were some of those loans funded while others were not

15

funded by the SBA?

16

A.

Yes.

17

Q.

I want to focus specifically today on the loans that were

18

actually funded.

19

previously marked for identification as Government Exhibit 1?

20

A.

Yes.

21

Q.

Could you describe generally what you're looking at with

22

respect to Government Exhibit 1?

23

A.

24

A, B and C.

25

account number, the routing number, the date disbursed and

EIDL loan is a Small Business Administration program,

And did the defendant in this case receive multiple EIDL

Could you pull up what I've handed you

Yes, it is a synopsis of loan applications, three of them,
They are EIDL loans and advances and they show the


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whether it was an advance or a loan.

2

Q.

3

three loans that were funded?

4

A.

Yes.

5

Q.

Could you describe for The Court what was the time period

6

in which these loans were funded and the funds were provided to

7

Mr. Okojie?

8

A.

9

20th and 23rd of 2020.

10

Q.

So June 17, 18, 20 and 23 of 2020; is that correct?

11

A.

Yes, sir.

12

Q.

In terms of the total amounts -- I know the specific

13

amounts of each of the three loans are on this summary sheet

14

you're referring to.

15

total amount of money that Mr. Okojie received directly from the

16

SBA through the EIDL program?

17

A.

Yes, sir, it was approximately $76,300.00.

18

Q.

In addition to the $76,000.00 that made its way --

19

actually before we move on, were you able to analyze the loans

20

themselves that Mr. Okojie submitted to the SBA?

21

A.

Yes.

22

Q.

And did those loans include materially false statements?

23

A.

Yes.

24

Q.

Was one of those materially false statements the gross

25

revenues that a purported entity generated the year prior to

Does the summary also include the amounts of each of the

Yes.

They -- they started around June 17th, 2020, 18th,

Were you able to determine an approximate


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when the application was submitted?

2

A.

Yes.

3

Q.

In addition to the $76,300.00 that you have talked about,

4

did Mr. Okojie also receive money for submitting EIDL

5

applications for other people?

6

A.

Yes.

7

Q.

Let me ask that a little bit better.

8

submit EIDL applications on behalf of other people?

9

A.

Yes.

10

Q.

And did your investigation show that there were payments

11

that those people made to Mr. Okojie for submitting those

12

applications?

13

A.

Yes.

14

Q.

And like the applications that Mr. Okojie submitted

15

directly for himself, were you able to determine whether these

16

applications contained materially false statements?

17

A.

Yes.

18

Q.

And like the applications submitted directly for the

19

benefit of Mr. Okojie, did these applications for other people

20

include false statements regarding gross revenues?

21

A.

Yes.

22

Q.

I'd like for you to turn now to Government Exhibit 2.

23

you recognize Government Exhibit 2?

24

A.

Yes.

25

Q.

And just for the record, Government Exhibit 2 is eight

Did Mr. Okojie

Do


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pages and includes a list of information for eight individuals.

2

Agent Dye, could you describe in summary form what

3

Government Exhibit 2, what information it summarizes?

4

A.

5

and it provides the name of the individual, the SBA EIDL

6

application number, the amount that was funded and the payments

7

from the individual beneficiary of the loan to entities

8

associated with Bernard Okojie.

9

Q.

10

that individuals sent to Mr. Okojie for filing false EIDL

11

applications?

12

A.

Yes.

13

Q.

Were you able to -- first, how many people sent payments

14

as reflected in Government Exhibit 2?

15

A.

Eight.

16

Q.

Eight people.

17

money, total amount of money that Mr. Okojie received from these

18

eight people for submitting false EIDL applications?

19

A.

Approximately $145,000.00.

20

Q.

So am I right in summary that the defendant received money

21

directly from the SBA in June in the approximate amount of

22

$76,000.00 and then in July and August received approximately

23

$145,000.00 from people for submitting EIDL applications?

24

A.

Yes.

25

Q.

After the defendant received all of this money, did he

Yes, it summarizes the individuals from the indictment,

Does Government Exhibit 2 include copies of the checks

Were you able to determine an amount of


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make cash withdrawals?

2

A.

Yes.

3

Q.

I'd like for you to turn to Government Exhibit 3A and 3B.

4

Could you describe for The Court what information is included in

5

Government Exhibit 3A and 3B?

6

A.

7

two accounts, two separate accounts, one ending in 4728 and one

8

ending in 4752, showing the date, the dollar amount withdrawn,

9

the account name, Bernard Okojie and the account number.

10

Q.

11

general:

12

others have looked at with respect to Mr. Okojie?

13

A.

Yes.

14

Q.

This is not a comprehensive list of checks that were --

15

check withdrawals, cash withdrawals of Mr. Okojie; is that

16

correct?

17

A.

Correct.

18

Q.

In terms of the timeframe of just these sample checks, did

19

they occur in approximately in July, August, September and

20

October of 2020?

21

A.

22

other than those two --

23

Q.

24

predated the receipt of the money but all of the others in

25

Government Exhibit 3A and 3B would postdate the receipt of money

Yes.

They are check images from Regions Bank accounts,

In terms of the amount of money -- let me ask you in

Yes.

Is this simply a sampling of the checks that you and

There are two, one from June and one from March, but

So there were two that were included that would have


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either directly from the SBA or from an individual who provided

2

funds for Mr. Okojie's services; is that correct --

3

A.

Yes.

4

Q.

-- for those two examples, but everything would postdate

5

the receipt of money other than those two?

6

A.

Yes, sir.

7

Q.

With respect to the amount of cash withdrawn, did you

8

notice anything suspicious regarding the amounts and the federal

9

financial reporting requirements?

10

A.

Yes.

11

Q.

And could you describe what you noticed to The Court?

12

A.

In many of them, they are just under the $10,000.00

13

threshold.

14

Q.

15

to report transactions that are $10,000.00 or greater?

16

A.

Yes.

17

Q.

And is that a well-known requirement particularly?

18
19

And under federal law, are financial institutions required

MR. OSSICK:

Objection.

I don't know that he knows what

is well known.

20

MR. JOSEPHSON:
(By Mr. Josephson)

Withdrawn.

21

Q.

Okay, so is it correct that Mr.

22

Okojie, given Government Exhibit 3A and 3B and the other

23

exhibits you've described today, is it correct that Mr. Okojie

24

withdrew a significant amount of cash after he received money

25

from the SBA or from people for performing his EIDL services?


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1

A.

Yes.

2

Q.

And were a significant amount of those transactions

3

structured below the $10,000.00 reporting requirement?

4

A.

Yes.

5

Q.

All right, after Mr. Okojie withdrew cash largely through

6

structured transactions, did he encounter law enforcement at an

7

airport on December the 28th, 2020?

8

A.

Yes.

9

Q.

Could you describe just generally what happened in that

10

encounter on December the 28th?

11

MR. OSSICK:

Objection.

12

MR. JOSEPHSON:

Is this his personal knowledge?

I can establish the foundation.

13

not his personal knowledge.

14

there but he's familiar with the event and the report.

15
16

MR. OSSICK:

It is

He's not the actual agent who was

So you're asking him just to testify from

what he's learned through a report; am I correct in that?

17

MR. JOSEPHSON:

18

MR. OSSICK:

That's correct.

I don't have a problem with that for these

19

limited purposes, Judge, but beyond that, I would object if

20

it's --

21

MR. JOSEPHSON:

22

MR. OSSICK:

I'm not waiving anything.

23

THE COURT:

Understood.

(By Mr. Josephson)

A trial situation.

Understood.

You may proceed.

24

Q.

Agent Dye, have you reviewed reports

25

regarding Mr. Okojie's encounter with law enforcement on


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1

December the 28th, 2020?

2

A.

Yes.

3

Q.

And was this encounter with agents from customs and border

4

patrol?

5

A.

Yes.

6

Q.

Could you describe for The Court what transpired with that

7

encounter?

8

A.

9

report, with CBP, where they asked him about whether he had

10

cash, he had money that he was departing with from the United

11

States to an outbound flight to Nigeria.

12

Q.

And was that money declared to law enforcement in any way?

13

A.

It was not until they asked him.

14

Q.

The prior -- prior to the request from law enforcement,

15

there was no -- Mr. Okojie made no effort to declare any bulk

16

cash to law enforcement?

17

A.

Correct.

18

Q.

After the incident on December the 28th, 2020, was there

19

another incident with law enforcement when the defendant came

20

back into the United States?

21

A.

Yes.

22

Q.

And let me ask you just to clarify:

23

December the 28th, could you describe the nature of that flight,

24

where Mr. Okojie was coming from and going to?

25

A.

Yes.

He was -- had a conversation with, according to the

The incident on

On December 28th, 2020, he was departing Atlanta, the US,


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to Nigeria.

2

Q.

3

the defendant was coming back into the United States and

4

encountered law enforcement for a second time?

5

A.

6

was a year later on November 19th, approximately November 19th,

7

2021, inbound flight from Nigeria to Atlanta airport US.

8

Q.

Okay, so different trip?

9

A.

I believe so.

10

Q.

And in that return into the United States, did law

11

enforcement interview the defendant?

12

A.

Yes.

13

Q.

And did the defendant make statements regarding the source

14

of his income during that encounter?

15

A.

16

the report did have narrative that talked about his sources of

17

his income.

18

Q.

19

Were there also statements that the defendant made in the first

20

encounter as well regarding his wealth or his income?

21

A.

22

that report that had a petition to I believe reclaim the money.

23

Q.

24

was taken from the defendant's person?

25

A.

And was there an encounter after that incident in which

Yes.

I believe this was a -- not a return flight but it

Yes, according to the reports from CBP, they did make --

And just as a summary matter -- actually let me back up.

Yes, there was a -- there was an additional document in

Okay, on the second encounter, was there a notebook that

Yes.


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1

Q.

And I want to direct you to Government Exhibit 4.

Did

2

this notebook contain -- actually, let me have you just flip if

3

you could to Page 3.

4

A.

Does that begin with a prayer request?

5

Q.

Yes.

6

notebook appears to contain?

7

A.

8

would want to do or would want to remedy in the future.

9

Q.

10

requests?

11

A.

Yes.

12

Q.

I don't want to go through all of them but I do want to

13

ask you about a couple examples.

14

A.

"Lord, make me a millionaire in dollars in 2021."

15

Q.

Could you also read Number 11?

16

A.

"Lord, give me victory on this matter with customs and DHS

17

and let all my money and phones be returned."

18

Q.

19

after the initial encounter with law enforcement when they

20

seized the $39,000.00?

21

A.

22

approximately November 19th, 2021.

23

Q.

Could you read as another example Number 17?

24

A.

"Lord, help me to own a fast food chain."

25

Q.

And if you could read Number 20?

And just in summary could you describe what this

It appears to contain a list of things that Bernard Okojie

And are they -- pardon me.

Are they styled as prayers or

Could you read Number 14?

And a matter of clarification, was this notebook taken

Yes, according to the report, this is from the November --


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1

A.

2

properties in America and Nigeria."

3

Q.

4

decipher?

5

A.

Yes.

6

Q.

Does it appear to say "Lord, help me acquire more

7

properties in America and Nigeria" given that we're not quite

8

sure what that adjective is?

9

A.

Correct.

10

Q.

I asked you to read just a couple of those statements, but

11

in general, does the notebook go on from there to include more

12

statements regarding the defendant's desire to obtain money or

13

property?

14

A.

Yes.

15

Q.

And this was a notebook written after the money was seized

16

at the airport?

17

A.

18
19

From what I -- "Lord, help me to acquire more ad

There is a difficult word there before "properties" to

Yes.
MR. JOSEPHSON:

Agent Dye.

20

THE COURT:

21

MR. JOSEPHSON:

22

Your Honor, I have no more questions for

Do you want to tender these exhibits?
Yes, I would like to tender Government

Exhibit 1 through 4 at this time.

23

MR. OSSICK:

No objection.

24

THE COURT:

They are admitted.

25

Mr. Ossick, cross-examination.


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1

CROSS-EXAMINATION

2

BY MR. OSSICK:

3

Q.

4

with the fact that you indicated that -- I think you used the

5

term that there were false statements made in connection with

6

these loans?

7

A.

Yes, sir.

8

Q.

Now, that's your opinion; right?

9

is about, isn't it?

10

A.

Yes, sir.

11

Q.

So that's your view at this point, or is it not?

12

A.

It's not an opinion.

13

supporting documents from people.

14

Q.

15

correct?

16

A.

Yes, I --

17

Q.

Okay, I can move on.

18

Now you indicated that essentially there's paperwork that

19

reflects whatever proceeds came from any of these applications,

20

whether we are talking about the first group or the second

21

group; is that correct?

22

A.

Yes.

23

Q.

So the Government, when they fund these things to the

24

extent they are funded, it's with a paper trail; correct?

25

A.

Couple of questions, Agent Dye.

I believe, let's start

That's what this trial

We have -- we have testimony and

That have convinced you but not necessarily me; is that

Yes.

Is that fair?

I don't think that's too important.


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1

Q.

So any need for documentation about what if anything was

2

received as a consequence of any application, that's provable

3

through these documents; right?

4

A.

Yes.

5

Q.

So there's no need for anything, records, otherwise to

6

prove whether or not these loans were funded; correct?

7

A.

Would you please say that one more time, sir?

8

Q.

In other words, there's a paper trail that we can rely on

9

to show whether or not a particular loan is funded and what the

10

amount of the funding was?

11

A.

Yes.

12

Q.

Now, you indicated that then there's also a series of

13

documents which will reflect whether or not cash withdrawals are

14

ever made; is that true also?

15

A.

Yes.

16

Q.

And those are from accounts evidently that in some way you

17

believe Mr. Okojie had access to make withdrawals from; is that

18

correct?

19

A.

Yes.

20

Q.

Now, the extent to which you indicated there's loans which

21

you also believe that some fee or compensation was paid to Mr.

22

Okojie from that were directed to others --

23

A.

Yes.

24

Q.

-- or in the name of others, that also has this same sort

25

of paper trail; is that correct?


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1

A.

Yes.

2

Q.

So everything about the loans, any monies he's received,

3

how much they were, when they occurred, all of that, that's on

4

paper; right?

5

A.

Yes.

6

Q.

Now you also indicated on the cash withdrawals that cash

7

withdrawals of what you think are suspicious amounts also

8

occurred before any of these loans ever occurred; isn't that

9

right?

10

A.

Yes, there are -- yes, there are some.

11

Q.

So there's conduct that would reflect substantial

12

withdrawals before anything alleged in this indictment; isn't

13

that, in fact, true?

14

A.

Yes, there are.

15

Q.

That sort of in your view suspicious activity continues

16

because that -- even after the loans?

17

A.

Yes.

18

Q.

Now, there's nothing about the loans, the payments, the

19

proceeds or how any compensation is paid that has anything to do

20

with making an international flight, is there?

21

A.

Say that one more time.

22

Q.

There is nothing that an international flight has to do

23

with any of these loan programs in terms of any offense or

24

making applications or receiving the monies; isn't that right?

25

A.

No.


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1

Q.

No, it's not true?

2

A.

No, the money that was received from loan beneficiaries'

3

payments was cash withdrawn and the money was with him when he

4

departed the country.

5

Q.

6

You don't know -- money is fungible, isn't it?

7

A.

Yes, sir.

8

Q.

So you don't know that it's the same dollar he got out of

9

a cash withdrawal, do you?

10

A.

Correct.

11

Q.

You have no idea whether that's true; you have no idea

12

whether that's the same monies from the March withdrawal;

13

correct?

14

A.

Correct.

15

Q.

So you can't say it's the same money, can you?

16

A.

No.

17

Q.

Okay, but let's talk about the offense.

18

about the offense of making what you believe to be a false

19

application that has anything to do with making an international

20

flight?

21

A.

No.

22

Q.

In other words, a person could stay in America a hundred

23

percent of the time in connection with any of these offenses;

24

isn't that true?

25

A.

Well, you know that there was money with him in currency.

Yes.

Is there anything


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1

Q.

And whether or not there was a false statement to get the

2

loans or to get it approved or how the monies and proceeds were

3

handled have nothing to do with going on a trip, does it?

4

A.

No.

5

Q.

Now, you say that it's -- currency transaction

6

requirements on international flights, I believe you said, were

7

well known or did I stop you before you got to say that?

8

A.

I believe the AUSA said that and you stopped him.

9

Q.

So, in other words, you would agree, though, that

10

transactions of having currency in an international flight

11

people are aware of with a negative connotation in the general

12

public, aren't they?

13

A.

14

of.

15

Q.

You don't think so?

16

A.

I don't -- I don't know.

17

Q.

Did you ever see like television, movies, books where they

18

talk about currency, large sums of currency being transported

19

out of the country?

20

A.

Yes.

21

Q.

Have you ever seen that portrayed in a favorable light?

22

A.

No.

23

Q.

But yet you don't associate the two together as a way to

24

just cast an inappropriate aspersion on someone for having

25

currency?

I don't know what the public has a negative connotation


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1

A.

No.

2

Q.

Now, you indicated there's some sort of notebook you say

3

was seized.

4

know when it was copied?

5

A.

6

report date.

7

Q.

When you -- okay.

8

A.

The date of the arrival into the United States.

9

Q.

You know that it was kept or not kept?

10

A.

It was -- I would have to look at the report and see

11

whether it was in evidence or not in evidence, but it was

12

contained --

13

Q.

Tell me what it was.

14

A.

It was contained in the report if I could refer to the

15

report.

16

Q.

17

Do you know when that notebook was seized or do you

I know that it was seized and copied according to the

Sure.

Do you have the report?

May I approach the witness?

18

THE COURT:

You may.

19

THE WITNESS:

Thank you.

I've got to follow up.

20

does say on the last page, 3 of 3, that all devices were

21

returned to Mr. Okojie on inspection.

22

to see if that also included paperwork.

23

Q.

24

just your conclusion?

25

A.

(By Mr. Ossick)

It

I would have to pull up

Does it say that it was kept or is that

It says, "At this time copies of pocket trash and


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1

documents were obtained and uploaded to the event.

2

were since shredded and disposed."

3

Q.

Did you hear my question?

4

A.

I think where it says that they were uploaded was that

5

they were kept but I would have --

6

Q.

7

onto a computer into a database?

8

A.

9

upload images, videos, music.

10

Q.

If I upload this, is it gone from here and kept or not?

11

A.

No, it would be a copy.

12

Q.

So it doesn't say "kept"?

13

A.

No.

14

Q.

So that's your conclusion?

15

A.

-- CBP.

16

Q.

When you have previously testified it was kept, that was

17

your conclusion without it saying that in the report; is that

18

correct?

19

A.

20

of it, that we have received it.

21

Q.

22

I realize you testified that you weren't present during these

23

prior transactions, these prior meetings and at the time of

24

these intercepts by law enforcement; is that correct, sir?

25

A.

Explain "uploading" to me.

All copies

Does it say if it was kept?

Isn't that putting something

If you're uploading, you can upload documents; you can

I would have to follow up with --

I was referring to kept as an image, that they made a copy

Okay.

Now, you referenced some statements that Mr. -- and

Correct, sir.


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1

Q.

And you were relying just on again the report of someone

2

else?

3

A.

Yes.

4

Q.

Do you know if Mr. Okojie was free to go during the time

5

he was questioned about those two matters?

6

A.

On those events?

7

Q.

Well, either one.

8

December 2020.

9

MR. JOSEPHSON:

Let's take individual.

Let's go to

I am going to object to this.

I think

10

the testimony was he wasn't there so to ask him what Mr. Okojie

11

was free to do or not do, he, by your own questioning, is not in

12

a position to answer that.

13

MR. OSSICK:

Well, he was able to answer your questions

14

based on a report.

Perhaps he can apply that same expertise to

15

mine.

16

THE COURT:

I will overrule the objection.

17

question, as I heard it, was:

18

leave.

Does he know if he was free to

19

THE WITNESS:

I do not know.

20

MR. OSSICK:

Okay, thank you.

21

THE WITNESS:

Thank you, sir.

22

THE COURT:

23

MR. JOSEPHSON:

24
25

That's all I have.

Any redirect?
Yes, Your Honor.
REDIRECT EXAMINATION

BY MR. JOSEPHSON:

The


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Q.

2

withdrawals that predated the loan disbursement money.

3

true that those cash withdrawals continued throughout the

4

disbursement period?

5

A.

Yes.

6

Q.

And were there significant amounts of cash withdrawals

7

that occurred after the defendant received loan money either

8

directly from the SBA or from individuals as a result of his

9

filling out EIDL applications?

10

A.

Yes.

11

Q.

With respect to the notebook, I believe counsel asked you

12

a question about whether the notebook was directly tied to a

13

loan application, if I recall, but regardless of whether that

14

was the question, I want to ask you:

15

the notebook that did, in fact, relate to some of the

16

applications that were submitted?

17

A.

Yes.

18

Q.

And could you just summarize what information you saw in

19

the notebook with respect to a specific EIDL application?

20

A.

A password.

21

Q.

And was this a password that was used to submit an EIDL

22

application for an individual who is named in the indictment?

23

A.

24
25

Agent Dye, counsel asked you some questions about cash
Is it

Was there information in

Yes.
MR. JOSEPHSON:

for Agent Dye.

Your Honor, I have no further questions

I have some argument for The Court but no


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1

further questions.

2

THE COURT:

3

THE WITNESS:

4

Agent Dye, you can step down.
Thank you, Your Honor.

exhibits?

5

THE COURT:

You can take those back to counsel table.

6

have hard copies here is fine.

7

THE WITNESS:

8

THE COURT:

9

Do I leave the

Thank you, Your Honor.

Mr. Ossick, do you have any witnesses or

evidence you wanted to present today?

10

MR. OSSICK:

No, Your Honor.

11

THE COURT:

Only argument.

12

Mr. Josephson, you can present your argument at this

13
14

time.
MR. JOSEPHSON:

Yes, Your Honor.

The evidence in this

15

case regarding the cash seizure at the airport in the encounter

16

with law enforcement on that day is admissible.

17

I

Our first argument for admissibility is that it's not

18

actually 404(b), that the money that was taken was the proceeds

19

of the fraud in this case, both the fraudulent loan that was

20

obtained directly by Mr. Okojie that took place in June of 2020,

21

we also think that there's a factual basis we've established

22

that there was significant kickbacks that continued in July and

23

August of 2020.

24
25

In terms of the amounts we've got -- I want to say these
are in the exhibits, but it was over $70,000.00 funded in loan


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1

money in June and we have kickbacks in July and August in the

2

range of $145,000.00.

3

that we are contending was fraudulently obtained.

4

So we have a significant amount of money

Now, of course, it will be our burden at trial to prove

5

that.

But I think we've established from a financial standpoint

6

that there was a significant amount of money that made its way

7

to the defendant in June, July and August of 2020.

8

We also have established that the money didn't just sit

9

there and nothing happened to it.

10

withdrawals that took place after that time period.

11

Specifically in July, August, September, October, there were

12

withdrawals of cash that the defendant made and they were not

13

just -- the cash was not just withdrawn.

14

withdrawn in a structured manner, in a manner that was intended

15

to avoid a federal reporting requirement.

16

There was significant cash

It was actually

One of the charges -- again our argument is this is

17

evidence of the crimes charged, not extrinsic evidence of

18

intent -- I think we will get to that in a second -- but

19

actually evidence of the crime charged which wouldn't require

20

any 404(b) admissibility.

21

THE COURT:

22

argument here as a preface.

23

as mutually exclusive, not cumulative arguments.

24

404 evidence or is intrinsic inextricably intertwined.

25

be both.

I want to be very precise about your
I view the two evidentiary theories

They have to be mutually exclusive.

It is either
It can't

Your first


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1

argument is that this is not 404 evidence.

2

crime that's charged here.

3

Which count does this relate to?

4

MR. JOSEPHSON:

It is part of the

So let me drill down a little bit.

It relates to the fraud, so conspiracy

5

to commit wire fraud and bank fraud as well as Count 2, so

6

Counts 1 and 2, conspiracy to commit wire fraud and bank fraud

7

as well as the substantive wire fraud count in Count 2.

8

It also would relate to the money-laundering charges in

9

Count 3, and I can go count by count and explain how that is the

10

case.

11

We've established that the money is traceable to the

12

fraudulent loans through the testimony and the exhibits in this

13

case.

14

defendant and then they are withdrawn by the defendant,

15

significant amounts of cash, and then he's found with a

16

significant amount of cash in December of 2020.

17

Significant loan proceeds and kickbacks are coming to the

Our argument -- and I understand counsel is free to

18

raise defenses as a factual matter and present to the jury his

19

contention that the money came from another source, that there

20

was some other way that he got $40,000.00 apart from the fraud,

21

and that would be a question of fact for the jury and a question

22

of credibility to determine the relevance of that, but if our

23

theory is it is tied to the fraud, both bank fraud and wire

24

fraud that was committed through the fraudulent loans, it

25

wouldn't be extrinsic to those charges.


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With respect to the money laundering, it's also relevant

2

because we're alleging that the withdrawals were structured,

3

that they were withdrawn in a manner to hide the money from the

4

Government from a reporting standpoint.

5

THE COURT:

Let's keep those separate for now.

The

6

fraud charge, I'm struggling a little bit to understand how

7

disposition of the fraud proceeds would be integral to the

8

offenses charged there, understanding that the argument is he

9

obtained these proceeds illegally and then he did something with

10

the proceeds, but for the Government to admit this on the theory

11

that it is intrinsically intertwined or inextricably intertwined

12

with the charged offenses, it's -- I anticipate, based on the

13

questioning, that Mr. Ossick is going to argue that that

14

separate disposition of the proceeds, which is identified by the

15

airport seizure, is not necessary to prove the fraud transaction

16

at all, that there is ample evidence otherwise, separate and

17

apart from the issue of what he did with the money once he

18

obtained it.

19

MR. JOSEPHSON:

Well, Your Honor, we have to prove that

20

he intended to defraud the loan program in this case, and the

21

disposition of the funds is relevant to the intent to defraud

22

because we -- like in any fraud case, if somebody submits false

23

statements in order to get the money and then spends the money

24

in a particular manner that's inconsistent with the program --

25

and in this case, you know, Your Honor, it's a little bit


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1

difficult procedural posture because we're not in a position to

2

try the entire case about how the fraud worked, what the

3

application said, how it's fraudulent.

4

That will certainly be an issue at trial, but I think

5

for purposes of determining admissibility of the cash, the

6

disposition of the funds, we're alleging it was structured out,

7

so specifically withdrawn not in a $40,000.00 amount that would

8

have been reported to the Government, but it was structured out

9

specifically below the $10,000.00, and we just submitted some

10

summaries here, but our trial evidence is going to include all

11

of those and we would have to include those for the money-

12

laundering count anyway.

13

THE COURT:

Doesn't the previous withdrawals undermine

14

that, though, the fact that there are ones that predate any of

15

the fraud allegations here?

16

conduct.

17

MR. JOSEPHSON:

There seems to be a continuity of

Well, Your Honor, quite candidly,

18

there's more fraud than we've alleged, and so -- and the

19

defendant -- you know, this is an issue of fact.

20

is free to argue that and free to argue that, well, it's

21

actually not tied to this scheme.

22

and can open that door, but it's not a 404(b) question.

23

relevance question of how close is it tied to the counts that

24

we've charged.

25

THE COURT:

The defendant

It's tied to another scheme
It's a

Let me ask you a purely legal question, and


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I don't know the answer to this, but at this point it's your

2

burden to establish admissibility.

3

have to establish that this piece of evidence is inextricably

4

intertwined with the charged offense.

5

have to establish by a preponderance of the evidence the

6

connection between the airport seizure and the charged fraud at

7

this point.

That presumably means you

I presume that you would

8

As you said at trial the defendant can make an argument

9

that that connection is not sufficient, but at least to get the

10

evidence in at the outset, would you disagree that it's your

11

burden to overcome that hurdle at the beginning?

12

MR. JOSEPHSON:

Your Honor, so I think this is a

13

question of admissibility under 103, Rule 103, and I think what

14

I would propose to The Court, I think we have proven -- we've

15

got four exhibits of significant financial transactions that

16

show the defendant is obtaining significant amounts of money,

17

withdrawing that money and then is found close in time with

18

money that's unreported.

19

I think we've met our burden but I would propose if The

20

Court has concerns factually about any part of that, The Court

21

can conditionally admit certain evidence on the -- you know, and

22

put us to our burden of showing certain things that The Court

23

thinks would trigger the admissibility.

24
25

I think that is a way to do it rather than completely
keep it out because I do think there are parts of this


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1

evidence -- and the witness talked about this.

2

notebook, well, the notebook has some evidence directly related

3

to applications, I mean, directly, like passwords that were used

4

to submit fraudulent applications.

5

foundational evidence to the charge.

6

separate incident.

7

incident.

8

For example, the

I mean, that is, I mean,
It wouldn't be this

It took place in the context of that

So my concern would be if The Court issues a ruling and

9

says, well, this evidence is not admissible, well, part of it

10

could be.

11

could be, cash withdrawals, maybe not the cash withdrawals that

12

predate the fraud but the cash withdrawals that are after it.

Part of the notebook could be or part of the cash

13

And so I think The Court could craft a ruling if it has

14

concerns factually about admissibility that would put us to our

15

proof, like let us prove the relevance of it, and Mr. Ossick can

16

cross-examine and submit his own theories about the airport

17

incident, but I think it is -- there's a lot of factual

18

questions, not necessarily legal questions, under 404(b).

19

THE COURT:

I want to clarify one point for the record

20

and make sure I'm not under any misapprehension.

As I

21

understood it, the only notice concerned the seizure of the cash

22

in the December event, not the admissibility of the notebook

23

itself, that that wasn't raised or challenged.

24

understand us to be taking up that admissibility challenge or if

25

there is an admissibility challenge to the notebook -- is that

So I did not


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2

correct -- at least from the Government's point of view?
MR. JOSEPHSON:

I guess I just want to be clear, I think

3

that is clear in terms of the notice and in terms of how the

4

paper and the pleadings were made in this case.

5

perspective, we have two encounters of law enforcement and they

6

do relate to each other because he's being questioned about --

7

the notebook itself references the cash, and you have the

8

defendant who leaves the country.

9

think it's tied to the fraudulent loan scheme for which he's

10

indicted and the money-laundering scheme for which he's

11

indicted, and then he's, a year later, questioned about it, has

12

the notebook on him and there are statements in it relating to

13

the scheme and relating to the prior cash incident.

14

THE COURT:

From our

He has bulk cash on him.

We

To be clear, I'm not saying that I can't

15

consider the notebook in the context of determining the

16

admissibility of the seized cash, only that I'm not rendering

17

any decision on the admissibility of the notebook at trial for

18

any other purposes.

19

Let's go back, though.

As I understood your argument,

20

the seized cash from the Government's point of view is

21

admissible as inextricably intertwined to Counts 1 and 2 because

22

it shows the intent to defraud.

23

it's either relevant to or tied in with those charges?

24
25

MR. JOSEPHSON:

Is there another theory of how

Well, to commit fraud, you either have

to attempt to obtain money or obtain money.

The obtainment of


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the money is part of the offense.

2

speak, is not a crime.

3

at least an attempt to make that so.

4
5

Fraud in the air, so to

There has to be money changing hands or

We're putting the money in his hands, literally in his
hands.

6

THE COURT:

I understand that and that's shown by the

7

withdrawals, but then there's one more step after that as to

8

what he does once he's withdrawn the money, so that last step,

9

what is that inextricably intertwined with?

10

MR. JOSEPHSON:

Like in many fraud cases, the

11

disposition of money that's not earned legally is relevant to

12

the intent.

13

when people spend money and they buy expensive cars or clothes,

14

the disposition of the funds is always admissible because it

15

goes to the state of mind and the intent to commit the fraud

16

itself.

17

the crime isn't just cut off then and there because the money is

18

obtained and something is done with it and it's always

19

considered to be part of the offense that's committed, and that

20

evidence hasn't been challenged.

I mean, the spending, like in many fraud cases,

It's not cut off, the misrepresentations and the lies,

21

We're going to submit evidence of spending in this case.

22

I don't think there's a distinction between that and, you know,

23

cash withdrawals kept in an airport, you know, on the basis that

24

it already happened after the fraud.

25

THE COURT:

I worry that we're mixing concepts here


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because when you indicate that the disposition of the

2

fraudulently obtained proceeds are relevant to intent, that

3

sounds much more like a 404 argument, that this is another act

4

that is not inextricably intertwined but is relevant to show

5

intent, so I want to be precise because under the inextricably

6

intertwined, it's not a question of whether it's a relevant to

7

intent for the underlying charge.

8

it's integral and part of the natural part of the witness'

9

account I think is the standard for inextricably intertwined,

10

that it's so tied together in time and circumstances that it is

11

just part of the whole story of the crime, and so here the

12

question, the inquiry on inextricably intertwined, is whether

13

the seizure at the airport is so integrated with the offenses

14

itself that it has to be admitted separate from a 404 analysis.

15

Disagree with that?

16

MR. JOSEPHSON:

It's a question of whether

Just to clarify, when I say intent, it's

17

intent to commit the crimes charged in the indictment, so not

18

intent in a 404(b) sense.

19

is charged with money laundering, structuring of the cash.

20

specifically charged, and, you know, Mr. Ossick I believe is

21

going to discuss an Eleventh Circuit case that I think

22

illustrates why evidence should be admissible here but it

23

wasn't -- of the airport seizure was admissible, should be

24

admissible here but not in this case.

25

We're alleging that the -- because he

We're not alleging that the defendant, the evidence

He's


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comes in because he lied to the Government at the airport.

He

2

lied to the Government at the SBA.

We

3

would need to show specific, something more specific to allow

4

the evidence to come in.

5

we're arguing is that we should be able to present to a jury

6

that the defendant got these loans.

7

payments just like we lay out in the exhibit, and the money

8

wasn't used to operate a business.

9

people on the payroll.

10

loan.

11

That would be improper.

I think we've shown that because what

The defendant got these

It wasn't used to keep

It wasn't used for the purposes of the

And, Your Honor, again, this is somewhat of a limited

12

posture.

We didn't get into the SBA requirements and how the

13

money can be used and can't be, but I can say, as an argument,

14

we would like and plan to show that the disposition of the funds

15

is inconsistent with the program itself, and I think that we can

16

do that not just with buying things but also with keeping cash

17

at an airport hidden not in a bank account, not in a business

18

account, not in a payroll account.

19

was never intended to be used for the purposes of the loan that

20

was applied for.

It's evidence that the money

21

THE COURT:

I understand the sort of factual theory.

I

22

have two questions.

23

followed it.

24

commit the crimes charged in the indictment; it is not intent in

25

the 404(b) sense.

You made a remark, and I'm not sure I

You said this is relevant to proving intent to

I'm not sure I understand what the difference


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2

is.
MR. JOSEPHSON:

Evidence can be intrinsic to the crimes

3

charged, so applicable to the elements of the offense so we can

4

submit and nobody notices that evidence ever because that is the

5

evidence.

6

relevant to the offense that's charged.

7

That's the discovery.

Here's the discovery.

It's

The 404(b) notice was filed really in an abundance of

8

caution, and we're arguing in the alternative because I do

9

agree, Your Honor, it's either evidence intrinsically to those

10

crimes or you have to have some 404(b) purpose to get it in.

11

If we're right that, well, it comes in if you guys

12

connect it to the crime that's charged in the indictment, either

13

money laundering, wire fraud, bank fraud, I think that The Court

14

can rule that, and I mean, it sounds like there is concerns with

15

the second theory if we don't meet those threshold requirements,

16

yet the intent, motive, intent, opportunity, plan, those more

17

limited purposes would be a different analysis and an

18

alternative basis to get it in, but our first argument is it's

19

no different than the other evidence of cash that we're going to

20

present at trial.

21

THE COURT:

Let me ask you a factual question.

The

22

$39,000.00, is it the Government's position that it was money

23

received as kickbacks or proceeds from the EIDL loans that Mr.

24

Okojie obtained for his own affiliated businesses?

25

MR. JOSEPHSON:

What I would say, Your Honor, and I


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hesitate because, as I indicated earlier, we just submitted a

2

summary of these transactions, but what I can say is some of

3

these transactions are related, the withdrawals are related to,

4

timewise, to the kickbacks, so there's money coming in from a

5

check and then the money is structured out and withdrawn.

6

Now, I can't say for certain it's one or always one.

7

There's a series of transactions.

8

and months of structuring, not just one transaction.

9

period of time, and so we would, at trial, submit evidence that

10

would show all of them as well as show how money came in and

11

then it would be a question I think for the jury to determine,

12

you know, whether it's related and to what transaction.

13

THE COURT:

We're talking about months
It's a

I believe that you also argue separate from

14

the fraud allegations that it's relevant, intertwined with Count

15

3 and the money laundering.

16

connectivity between the charged offense and the seizure?

17

MR. JOSEPHSON:

Can you elaborate on that

Yes, Your Honor.

So the money-

18

laundering count, Count 3, one, it's conspiracy to commit money

19

laundering in different ways:

20

spending of the money and to avoid a federal financial

21

transaction reporting requirement.

22

Concealment of the money,

So we've got three different ways that that crime was

23

committed starting with the federal reporting requirement.

Our

24

evidence that we would like to submit at the trial would be that

25

the money was structured out.

It was received and then -- it


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was fraudulently obtained.

2

has to do something with it.

3

it at once because that would trigger notice to law enforcement.

4

So he structured it out over a multiple-month period and

5

we touched on some of the transactions here and the exhibit has

6

some of them.

7

significant more, but those structured transactions would relate

8

to the money-laundering charge to avoid that federal financial

9

requirement and the fact that he has the money -- you know, the

10

defense has got to be, well, that money is not tied to the

11

fraud, which is a factual defense, but it's not saying that

12

we're wrong legally.

13

all.

14

It's received and then the defendant
And he can't just withdraw all of

Again, that is not all of them.

There's a

It's not saying it's not admissible at

And to finish the other two, Your Honor, we allege

15

concealment money laundering, so we're alleging that the money

16

was taken and it was hidden in a way -- and we didn't get into

17

this a lot -- but the loans in this case were often in shell

18

companies, fake names, that type of thing.

19

There's going to be concealment evidence at this trial.

20

The fact that money is concealed from law enforcement at the

21

airport we would say is evidence of the crime charged.

22

not saying just propensity.

23

money from the fraud.

24

and you also hid it at an airport.

25

say is admissible for the concealment reason, and the spending,

We're

We're actually saying you got the

You hid it through the bank transactions
It's evidence that we would


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we also allege that there were transactions greater than

2

$10,000.00 as a part of the money-laundering conspiracy.

3

THE COURT:

Taking those three theories, I don't intend

4

to pick them apart, but the first one, the avoidance of the

5

reporting requirements seems to be established through the

6

nature of the withdrawals.

7

with those withdrawals, I'm having difficulty seeing exactly how

8

it proves it.

9

As far as what happens afterwards

Taking the third one, just let me walk through this

10

because maybe I'm misunderstanding your position.

11

third one, the spending, that also seems to be documented,

12

proven and associated with completely separate conduct

13

allegations or proof that you intend to submit.

14

As to the

The middle or second one, concealment, generally, I

15

understand more there the connection, if it's an effort to hide

16

proceeds and that means withdrawal and then concealment and

17

travel outside of the United States, but to really drill down to

18

that, does that mean that the Government intends to go to trial

19

and say that Mr. Okojie committed money laundering by trying to

20

fly through the airport with these funds and not declaring it,

21

that that constitutes money laundering itself?

22

MR. JOSEPHSON:

We intend to prove the elements through

23

all of the evidence, which would include the bank statements,

24

but, yes, I would argue that hiding money in a duffle bag on an

25

international flight, if that's not concealing the cash, then


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I'm not sure what is.

2

THE COURT:

Well, is there other evidence that you

3

intend to present that does relate to concealment, domestic

4

concealment?

5

MR. JOSEPHSON:

6

THE COURT:

7

MR. JOSEPHSON:

Evidence of the crime charged?

Yes.
You know, Your Honor, we're not in a

8

position really today -- we want to give The Court the

9

information that it needs but it's also difficult because we're

10

getting ready for trial but we're not there yet and we've got to

11

pull together all of the documents and there are different steps

12

of concealment along the way.

13

What I can say is that the applications were submitted

14

in companies that we intend to prove did not exist, that were

15

not real companies, that did not -- and there were false

16

statements that were made not only on one application but on

17

dozens, and as a result, significant amounts of money was

18

obtained and it wasn't obtained and announced to law enforcement

19

and announced "Hey, look, here's what I got."

20

and then structured out over a multiple-month period and we

21

think a bulk of it, not all of it, but a bulk of it was kept by

22

the defendant and further concealed through an international

23

flight.

24

That's our argument.

25

That's our showing, Your Honor.

THE COURT:

It was obtained

That's our showing.

I understand, and Mr. Josephson, I expect


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from the briefing that Mr. Ossick may also argue 403.

2

give you a opportunity to respond to that after I hear his

3

argument.

4

Mr. Ossick.

5

MR. JOSEPHSON:

6

MR. OSSICK:

I will

Yes, Your Honor.

Your Honor, if I might, I'm going to refer

7

to a case, and I have made copies to the Government.

8

give one to The Court?

Could I

9

THE COURT:

That will be fine.

10

MR. OSSICK:

Your Honor, let me sort of start off I

11

guess by saying I got kind of a whole different idea what we

12

were going to be doing here today.

13

says that -- and again, we're down to just the one.

14

resolved all the others.

15

The notice on the 404(b)
We've

The United States intends to introduce evidence relating

16

to Mr. Okojie on December 28th, 2020 attempting to take

17

$39,700.00 in cash aboard a flight from Atlanta and to Nigeria,

18

and he failed to declare that cash, and it was seized.

19

Okay.

My understanding is that if something is intrinsic, it's

20

not 404(b), so that's a whole different question that would be

21

dealt with at the trial just like a 103 relevancy or anything

22

else would be dealt with.

23

In other words, so I'm kind of addressing myself, if I

24

can, and I certainly will go further, but addressing myself

25

first, is under this notice, is this admissible under 404(b) or


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should it be and what should we look at to determine that, and

2

that would be the failure to declare the cash.

3

to do with this notebook or statements.

4

It's got nothing

I mean, I just don't see that as being part of what

5

would otherwise be admissible, that would be admissible if The

6

Court said, "Ordinarily, this wouldn't be but you've satisfied

7

me that you've met the test of 404(b) and I'm allowing it in

8

because it goes to help the jury in a specific way as to one of

9

the identified elements of 404(b)."

10

There's some question about identity, there's some

11

question about plan, motive, intent, whatever, but a legitimate

12

one that makes it more likely than not by allowing the jury to

13

see this evidence that element can be established, and I think

14

that what we've seen here today shows that that's just not the

15

case whatsoever, and I will go to some 403, but let me just

16

start by saying first, I think it's pretty clear that in a lot

17

of people who might serve as jurors' minds, international travel

18

alone has got some sort of nefarious aspect, and certainly with

19

$39,000.00, it does.

20

So I believe it's basically a way to back-door bad

21

evidence about character, but let's look at what would be here

22

that would relate to one of the elements that's here.

Okay.

23

The Government has argued today, of course, mainly --

24

well, significantly, about whether it's not 404(b), which I'm

25

not addressing unless -- do you feel I have to address that


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today, Judge?

2

THE COURT:

Let me share my view at this point.

3

MR. OSSICK:

Okay.

4

THE COURT:

The Government's initial notice took one

5

position, and in that position stated that this was not 404

6

evidence because the evidence described in the notice was

7

inextricably intertwined with -- pardon me, I misstated that.

8

Initial notice took the position that this was not

9

intrinsic evidence but rather was 404 evidence.

10

specifically in that notice that it's outside the scope of the

11

money-laundering and conspiracy charge in Count 3 and is not

12

inextricably intertwined with the charged conduct but is

13

admissible under 404, so the notice took the position this was

14

other acts, not intrinsic evidence, but rather extrinsic

15

evidence that would be introduced under 404(b) of other acts.

16

It identified the undeclared cash on the flight.

17

It states

However, you objected to that in your response that I've

18

construed as a motion in limine, and then in the Government's

19

reply, they took alternative positions, first, that it is

20

inextricably intertwined, in other words, intrinsic evidence of

21

the offenses charged, and, second, that it is also admissible

22

404(b) evidence.

23

Any disagreement with that, Mr. Josephson?

24

MR. JOSEPHSON:

25

THE COURT:

That's accurate procedure, Your Honor.

So for the purposes of your argument, Mr.


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Ossick, I am accepting the Government's alternative argument

2

that it is either inextricably intertwined and the arguments

3

that it presented here today is that it's intertwined with all

4

three counts, Count 1, 2 and 3, and if it is not, then it is

5

other-acts evidence under 404(b) that would be relevant to one

6

of those permissible purposes like intent.

7
8

And then using that understanding, I'll let you
structure your argument how you see fit.

9
10

MR. OSSICK:
I'm not sure.

11
12

I guess -- and I'm trying to understand.

For instance, let's just say is evidence of wealth
admissible in this case because it's a fraud case?

13

THE COURT:

I'm not going to take up that issue.

14

MR. OSSICK:

Okay, what does the Government want to put

15

in here?

They want to put in that he had currency in his pocket

16

leaving the country.

17

whatsoever because the fraud is the false statement to get

18

something and then the structuring can either be because -- it

19

can either be money laundering because it's proceeds of illegal

20

activity or you can have the other type of money laundering

21

which has to be evading certain reporting requirements and

22

structuring of transactions.

I would contend that's not intrinsic

23

Every bit of that, Your Honor, I suggest will be able to

24

be determined appropriately under documentary-type evidence and

25

things that relate to that without any mention of ever being in


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2

Nigeria or traveling or ever having any currency.
Now, everything about -- this is not where you have here

3

are operations that produce cash and we're failing to disclose

4

those and then we're handling amounts of money that fall under

5

the structuring and concealment of that activity that produces

6

it, which is the offense.

7

Every dime paid out in connection with any alleged fraud

8

here is done on a paper-trail basis or machine based, you know,

9

a record type of thing.

10

indictment in any part where, you know, there's some sort of,

11

which, by the way -- let me digress for just a minute.

12

heard "kickback" a lot here.

13

There is no allegation in this

We've

My understanding of kickback is when you give back to

14

somebody something who had control over the program for the

15

benefit you received, which is not at all what this case is

16

about, but that aside --

17

THE COURT:

Let me comment on that because I used the

18

term "kickback" but I used it in reference to the Government's

19

position.

20

alleged to have received from these other individuals and their

21

entities as kickbacks.

22

They have described the payments that Mr. Okojie is

I used that as a shorthand.

It's not meant to be a characterization.

That may be

23

central to the issue at trial as to whether it qualifies or not.

24

But I understand your point.

25

MR. OSSICK:

I think there will be an issue as to


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whether or not he received funds for helping people make an

2

application, a fee or something, but not that he had any

3

authority over the program such -- nor the person he was dealing

4

with, that that was a compensation as a consequence of exercise

5

of discretion, which constitutes a kickback.

6

But there's no transactions that are involved, Your

7

Honor, in my view, expect to be involved, that don't start with

8

a paper basis, so we're not looking at I have, you know, a drug

9

operation that generates cash sales and now we're talking about,

10

you know, things significantly related to cash are important

11

because that whole transaction occurred that way.

12

every bit of it comes from some sort of program and it's on

13

paper.

This is where

14

Now, they may and can and I expect they will attempt to

15

make some inferences from the introduction of the paperwork that

16

supports the generation of the currency as a consequence of a

17

withdrawal from an institution that is recorded on paper that

18

may or may not relate to proceeds of any other activity, but

19

that's a separate type of thing than is it proceeds, and again,

20

what does any of that have to do with the fact of having

21

currency anymore than it would have to do with -- otherwise, to

22

say, you know, in any kind of fraud case, wealth is going to be

23

admissible because, look, it could have been some of that money.

24
25

Even the testimony today showed some of what they are
saying here couldn't have been that money just by the timing as


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it relates to the structuring.

2

analysis is, you know, to go back to the testing of is it

3

relevant to an issue other than character?

4
5
6

So I go back to -- I think the

I don't think that test is ever met here as far as
404(b) having anything to do with the currency.
THE COURT:

Mr. Ossick, let me characterize one of the

7

Government's arguments and ask you to respond to it, so focused

8

specifically on the theory that the airport funds are

9

inextricably intertwined with the offense conduct related to

10

Count 3, money laundering and the allegations that Mr. Okojie

11

engaged in transactions designed to conceal the nature of the

12

proceeds, the Government's theory is that Mr. Okojie obtained

13

funds unlawfully, either through the EIDL loans for him and his

14

businesses or others, that he withdrew those proceeds from his

15

bank account and then transported the proceeds that he withdrew

16

internationally without declaring those funds, and that is an

17

act of concealment.

18

Their argument is that is all intrinsic evidence that is

19

part of the offense charged.

20

not proof of concealment?

21

MR. OSSICK:

What is the argument that that's

That's actually not a bit different than

22

showing he went to Winn-Dixie and bought groceries at some point

23

after he received proceeds from some of these loans, and whether

24

he paid his credit card bill with a check from something or not,

25

the same concealment exists there to any dime that would come.


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Otherwise, you open the door to -- I mean, how does any

2

of that help prove some additional concealment?

3

showing, you know, to be successful, they are going to have to

4

show these are, in fact, proceeds to start with so --

5

THE COURT:

You're already

But the argument there is there is a

6

regulatory disclosure requirement that is meant to avoid

7

concealment and that Mr. Okojie didn't satisfy that regulatory

8

requirement and that's proof of concealment.

9

MR. OSSICK:

Well, I don't agree with that analysis,

10

Your Honor, because that's just to say any other offense you did

11

could kind of be similar and therefore we get to put it in.

12

mean, that's just showing the propensity to lie or to fail to

13

comply with the law.

14

case I'm talking about.

15

I

That's exactly what is prohibited in the

I mean, otherwise, you can just say, well, you know,

16

whatever he did, he did it because he's a criminal kind of guy.

17

I mean, I really don't see the -- I don't see that relationship

18

whatsoever, Your Honor.

19

this but --

Maybe I'm not very good at looking at

20

THE COURT:

21

me give you a hypothetical.

22

internationally, he was being accused of burying $40,000.00 in a

23

coffee can in the back yard.

24

concealment?

25

MR. OSSICK:

I think I know your answer on this but let
Instead of transporting the funds

Would that be evidence of

I don't think it would at all that's


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admissible in this case.

2

any issue other than being something that looks inflammatory and

3

prejudicial to a jury.

4

THE COURT:

I mean, I don't see where that goes to

Well, that's the next point.

And, I

5

understand you are additionally invoking 403, and do you have

6

any additional argument you want to present on the 403 issue?

7

think you've already addressed it pretty fully but I'm going

8

to --

9

MR. OSSICK:

I don't think so.

I'm sure The Court is as

10

familiar with that as I would be so I don't think I could help

11

you any there, but I do think it's real important in this

12

matter.

13

And let's just go back to the indictment in this thing,

14

Judge.

15

vague all along.

16

in my view, and I understand, but now we're getting to where

17

issues that in my view are just completely unrelated are

18

attempting to be, but because of their prejudicial basis, are

19

trying to be presented to a jury without having the assistance

20

on answering questions that 404(b) type things require to be

21

admissible.

22

I

Talking about, you know, I contend it's been kind of
We're here close to trial and it's not changed

THE COURT:

Mr. Ossick, I've also received a copy of the

23

Mills case that you provided.

Is there any additional point you

24

want to make about this case?

I will certainly review it after

25

the hearing today before making a ruling.


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MR. OSSICK:

No, Your Honor.

I think it is kind of the

2

basis that I'm arguing from because I think it sets out a pretty

3

clear test of how it is and how it gets misapplied, and I think

4

that's what is being asked to be done here.

5

THE COURT:

6

Mr. Josephson, any additional argument you want to

7
8

Thank you, Mr. Ossick.

present?
MR. JOSEPHSON:

Yes, Your Honor.

On the Mills case,

9

just the case is distinguishable because that case concerned

10

false statements under 1005, did not concern wire fraud, did not

11

concern bank fraud, did not concern money laundering, either the

12

concealment money laundering, money laundering intended to avoid

13

federal transaction requirement or money laundering involving

14

transactions over $10,000.00, so the nature of the crimes

15

charged are completely different in that case, and, of course,

16

our argument is that's what you should look at.

17

We're going to submit evidence for those crimes, not for

18

extrinsic purposes, so I do think the case is distinguishable.

19

It didn't involve the same charges here or the same theories in

20

terms of how the money at the airport would be introduced.

21

Your Honor did ask a question about the concealment

22

evidence.

I would point out that the exhibits in evidence do

23

have the checks that Mr. Okojie received from eight individuals

24

for performing EIDL loan application services, and on the checks

25

themselves, there are notations that I think are misleading,


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including that the purpose of the check was for a trucking

2

business.

3

statements on the memo lines that suggest that the money was for

4

a particular purpose when, in fact, we intend to prove it was

5

not, so the money itself, the transfer of the money itself has a

6

concealment purpose based on the check.

7

The Court can review those checks, but there are

I think The Court can consider that and we will have

8

more concealment evidence at the trial in this case.

9

agree with counsel, defense counsel, on this point.

10

I would

I think The Court can conditionally admit the evidence

11

of the cash at the airport on the condition that we show the

12

cash is connected to the crimes charged, specifically the wire

13

fraud, the bank fraud and the money laundering, and if we do

14

that, I think that the jury can consider it.

15

We're not saying just any cash, any bucket of cash that

16

the defendant had is admissible.

We are not talking about just

17

any show of wealth is admissible.

We are tying it to what we're

18

alleging was a crime, so if we didn't show that, then we would

19

have to have another purpose to admit it.

20

THE COURT:

I'm hesitant about conditional admission

21

because it seems that that's the purpose of this hearing, is to

22

see if the Government has connected that cash at the airport to

23

the proceeds from the offense here.

24

Is it your suggestion that there's going to be

25

additional evidence that's presented that's going to make that


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connection stronger that will meet a burden that might not be

2

able to be met today?

3

MR. JOSEPHSON:

Your Honor, I should say I think we've

4

met our burden to show the cash is at least relevant to the

5

crimes charged under the Federal Rules of Evidence, and so we

6

wouldn't have to fit it into a 404 purpose.

7

At the trial, we will have other witnesses who actually

8

encountered Mr. Okojie and actually obtained the cash who talked

9

to him when he obtained the cash.

10

The record will show that there were statements that he

11

made regarding the cash, how he got it, which would be

12

admissible to his intent in this case, not just the cash but his

13

intent with respect to how he makes money, how he has an income.

14

That's going to be an issue in the case, and the other

15

thing I would say is that the problem with, you know, the

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defense in the case, I don't know what the defense is

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necessarily going to be.

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We prepared for everything.

We make our case and then we respond to the arguments

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the defendants makes.

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deny a particular transaction, deny receiving certain money,

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deny having control over a bank account, deny -- whatever the

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issue could be with respect to the cash.

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has $40,000.00 that we connect would certainly be admissible to

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respond to some of those contentions about receipt of cash.

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I don't know if the defendant is going to

Well, the fact that he

Now the defendant today here has said, oh, the crime is


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basically complete on the paper; you don't need to look at all

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about what happens to the money.

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going to be said at trial, and so we may need to respond to

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certain arguments regarding the receipt of cash on different

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days.

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THE COURT:

Well, I don't know what is

To be clear, that would be a totally

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different theory of admissibility at that point, sort of

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rebuttal evidence to a claim of --

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MR. JOSEPHSON:

It would be, Your Honor.

I bring it up

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because that's not a fanciful idea, that he would decline or

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deny certain transactions or certain -- how money moves in a

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certain way, and I think that goes to show we're talking about

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the offense here.

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We're talking about did you defraud the United States Government

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with these applications and obtain money and what did you do

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with that money, that money, not just any money, but that money,

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and we think that it's admissible for Counts 1, 2 and 3.

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We're not talking about a separate incident.

On the 403 analysis, I have to acknowledge that an

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international trip with cash in a suitcase, yes, there will be

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some prejudice there to the jury, but as The Court is well

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aware, the probative value has to be substantially outweighed,

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and so The Court has got to look at the probative value here,

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and I think we've shown that the value, the evidence is

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probative of several of the crimes charged, all of the crimes

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charged in the indictment, and I don't think -- the fact this


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defendant made the decision to withdraw a bunch of cash, do it

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in a specific way, put it in a suitcase and leave the country,

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it's a decision he made, but it's a decision that I think a

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federal jury should hear.

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THE COURT:

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Well, I will take the matter under advisement and I will

All right, thank you, Mr. Josephson.

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issue a written ruling on it sufficiently far in advance of

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trial so y'all have an adequate time to prepare relative to the

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trial.

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Mr. Josephson, any other issues you would like to raise
during the hearing today?

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MR. JOSEPHSON:

No, Your Honor.

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THE COURT:

Mr. Ossick?

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MR. OSSICK:

No, Your Honor.

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THE COURT:

If anyone is requesting a transcript, I will

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direct you to coordinate with Ms. Gilbert following the hearing

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today.

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We will be adjourned.

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(Proceeding concluded at 11:49 a.m.)

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CERTIFICATION

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I certify that the foregoing is a true and correct

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transcript of the stenographic record of the above-mentioned

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matter.

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__________________________________

03/04/2023

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Debra Gilbert, Court Reporter

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