Government Trial Brief — United States v. Mustafa Ayoub Diab

Record facts

U.S. District Court, N.D. Ohio, Eastern Division · No. 5:23-cr-00350-SO · Doc. 73 · 2025-03-12 · Docket on CourtListener

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IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF OHIO 
EASTERN DIVISION 
 
UNITED STATES OF AMERICA, 
 
 
 
Plaintiff, 
 
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CASE NO.: 5:23CR350 
 
JUDGE SOLOMON OLIVER, JR. 
 
 
v.  
 
 
 
MUSTAFA AYOUB DIAB, 
 
 
 
Defendant. 
GOVERNMENT’S TRIAL BRIEF 
 
Now comes the United States of America, by its counsel, Carol M. Skutnik, Acting 
United States Attorney, and Vanessa V. Healy and Brenna L. Fasko, Assistant United States 
Attorneys, and hereby submits the attached Trial Brief.   
Respectfully submitted, 
 
CAROL M. SKUTNIK 
Acting United States Attorney 
 
By: 
/s/ Vanessa V. Healy 
Vanessa V. Healy (OH: 0092212) 
Brenna L. Fasko (OH: 0084897) 
Assistant United States Attorneys 
United States Court House 
801 West Superior Avenue, Suite 400 
Cleveland, OH 44113 
(216) 622-3652/3618 
(216) 522-2403 (facsimile) 
Vanessa.Healy@usdoj.gov 
Brenna.Fasko@usdoj.gov  
 
 
 
 
 
 
 
 
 
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I. 
OVERVIEW OF THE CASE 
At trial, the Government intends to offer evidence of the following: 
Defendant Mustafa Ayoub Diab (“Diab”) was the owner of TaxPro$, an income tax 
preparation service in the Akron area.  During the COVID-19 pandemic, Diab held himself out 
to be an expert in obtaining various pandemic-related benefits, including Pandemic 
Unemployment Assistance (“PUA”).  He convinced many of his tax preparation clients, who had 
already provided him with their personally identifiable information (“PII”), that they qualified 
for the PUA program.  Within months, Diab quickly gained the reputation as an individual who 
could obtain approval for various pandemic benefits and provide much needed cash payments to 
struggling individuals.  His clients began to refer their friends, neighbors, and family members to 
Diab — and Diab happily took their PII and applied for PUA on their behalf.   
However, unbeknownst to his clients, Diab kept a large portion of the PUA funds for 
himself.  Evidence at trial will show that Diab set up an elaborate network of bank accounts in in 
the names of his wife and co-conspirator, Elizabeth Robinson, his sister, Shurouq Diab, and other 
victims, to conceal his control of those accounts.  Diab then linked these bank accounts under his 
control to his client’s PUA accounts and diverted the PUA benefits to those accounts rather than 
valid accounts in the clients’ names.  Once diverted, Robinson and Shurouq Diab would 
withdraw the majority of the PUA funds in cash for Diab to use for himself.  
Diab’s scheme also extended to the Paycheck Protection Program (“PPP”).  Using his 
client’s PII, Diab applied for multiple loans for fictitious companies.  This was all done without 
his clients’ knowledge, permission, or benefit.  Diab’s scheme resulted in the diversion of more 
than $700,000 in PUA and PPP benefits.   
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Most troubling, Diab never let his clients ever actually see the PUA or PPP applications 
he was filing on their behalf.  These applications were filled in inaccuracies, fraudulent 
statements, and outright lies.  In fact, many of his clients did not qualify for the PUA program at 
all — despite Diab’s assurances to them that “everyone” was entitled to these payments.   
Testimony at trial will establish that Diab’s scheme had a consistent pattern across 
clients/victims.  Diab frequently would visit them at their homes, laptop in hand.  He would take 
photos of their driver’s license, birth certificate, and social security card.  Diab would create a 
fake email address for each victim that he or she did not have access to and apply for the PUA 
benefits with this information, all without explaining to his clients why they qualified for it, or 
what he was putting into the application to justify it.  Testimony at trial will reveal that Diab 
would make up professions, income levels, and even fictional dependent children — all for the 
purpose of maximizing the approval of the PUA and benefit amount.  Diab would not give his 
clients the ability to log into their PUA account so they could see what was filed or what benefits 
were approved and being paid out.  These clients were individuals who trusted Diab to help them 
navigate the pandemic-era benefits.  Diab exploited this trust and used their PII to enrich himself 
and his co-conspirators.   
II. 
CONTROLLING LAW 
Diab is charged in Count 1 with Conspiracy to Commit Wire Fraud, in violation of 18 
U.S.C. § 1349.  To sustain its burden of proof for this crime, the Government must prove all of 
the following elements beyond a reasonable doubt: 
A. 
Statutory Language 
Any person who attempts or conspires to commit any offense under this chapter 
shall be subject to the same penalties as those prescribed for the offense, the 
commission of which was the object of the attempt or conspiracy. 
 
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B. 
Elements  
1. 
Two or more persons conspired, or agreed, to commit the crime of wire 
fraud;  
2. 
The defendant knew of the conspiracy and its objects, aims, or goals; and  
3. 
The defendant joined the conspiracy with the intent that at least one of the 
conspirators engage in conduct that satisfies the elements of wire fraud.  
 
Diab is charged in Count 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, and 12 with Wire Fraud, in violation 
of 18 U.S.C. §§ 1343 and 2.  To sustain its burden of proof for these crimes, the Government 
must prove all of the following elements beyond a reasonable doubt: 
A. 
 Statutory Language 
Whoever, having devised or intending to devise any scheme or artifice to defraud, 
or for obtaining money or property by means of false or fraudulent pretenses, 
representations, or promises, transmits or causes to be transmitted by means of 
wire, radio, or television communication in interstate or foreign commerce, any 
writings, signs, signals, pictures, or sounds for the purpose of executing such 
scheme or artifice. 
 
B. 
Elements 
1. 
First, that the defendant knowingly participated in, devised, or intended to 
devise a scheme to defraud in order to deprive another of money or 
property, to obtain money and property by means of false and fraudulent 
pretenses, representations, and promises; 
2. 
Second, that the scheme included a material misrepresentation or 
concealment of a material fact; 
3. 
Third, that the defendant had the intent to defraud; and 
4. 
Fourth, that the defendant caused another to use wire, radio or television 
communications in interstate commerce in furtherance of the scheme. 
 
Diab is charged in Count 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, and 36 with Theft of 
Government Funds, in violation of 18 U.S.C. §§ 641 and 2.  To sustain its burden of proof for 
these crimes, the Government must prove all of the following elements beyond a reasonable 
doubt: 
A. 
Statutory Language  
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Whoever embezzles, steals, purloins, or knowingly converts to his use or the use 
of another, or without authority, sells, conveys or disposes of any record, voucher, 
money, or thing of value of the United States or of any department or agency 
thereof, or any property made or being made under contract for the United States 
or any department or agency thereof; or 
 
Whoever receives, conceals, or retains the same with intent to convert it to his use 
or gain, knowing it to have been embezzled, stolen, purloined or converted. 
 
B. 
Elements  
1. 
The money or thing of value belonged to the United States and had a value 
in excess of $1,000;  
2. 
The defendant embezzled, stole or converted such money or thing of value 
to the defendant’s own use or to the use of another; and  
3. 
The defendant did so knowingly, with the intent to deprive the owner of 
the use or benefit of the money or thing of value so taken.  
 
Diab is charged in Count 37, 38, 39, 40, 41, 42, 43, 44, 45, and 46 with Aggravated 
Identity Theft, in violation of 18 U.S.C. § 1028A(a)(1).  To sustain its burden of proof for these 
crimes, the Government must prove all of the following elements beyond a reasonable doubt: 
A. 
Statutory Language  
Whoever, during and in relation to any felony violation enumerated in subsection 
(c), knowingly transfers, possesses, or uses, without lawful authority, a means of 
identification of another person. 
 
B. 
Elements  
1. 
The defendant transferred, possessed, or used a means of identification of 
another person without lawful authority;  
2. 
The defendant did so knowingly;  
3. 
The defendant knew the means of identification belonged to another 
person; and  
4. 
That the transfer, possession, or use was during and in relation to a 
violation of wire fraud.  
 
Diab is charged in Count 47 with Conspiracy to Launder Monetary Instruments, in 
violation of 18 U.S.C. § 1956(h).  To sustain its burden of proof for this crime, the Government 
must prove all of the following elements beyond a reasonable doubt: 
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A. 
Statutory Language  
Whoever, knowing that the property involved in a financial transaction represents 
the proceeds of some form of unlawful activity, conducts or attempts to conduct 
such a financial transaction which in fact involves the proceeds of specified 
unlawful activity knowing that the transaction is designed in whole or in part to 
conceal or disguise the nature, the location, the source, the ownership, or the 
control of the proceeds of specified unlawful activity.  
 
B. 
Elements  
1. 
Two or more persons conspired, or agreed, to commit money laundering; 
and  
2. 
The defendant knowingly and voluntarily joined the conspiracy.  
 
 
 
 
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III. 
STIPULATIONS 
The parties have conferred and have agreed on the following stipulations: 
1. 
The crime of Wire Fraud in violation of 18 U.S.C. § 1343 was a “specified 
unlawful activity” as defined in 18 U.S.C. § 1956(c)(7). 
2. 
If called as witnesses, representatives of the respective agencies, businesses, and 
banks, the Ohio Department of Job and Family Services (“ODJFS”), Small Business 
Administration (“SBA”), Alphabet, Inc., Stride Bank, J.P. Morgan Chase, PNC Bank, US Bank, 
Womply, Bancorp, Choice Bank, Woodforest National Bank, and Citizens Bank, would testify 
that the documents and materials they have provided were true and accurate copies of the 
documents and materials they purport to be within the meaning of Rules 803, 901, and/or 902 of 
the Federal Rules of Evidence.  The parties further stipulate that the exhibits produced from 
those records are business records of their respective entities, were created contemporaneous 
with the events recorded therein, were created by someone familiar with the events recorded 
therein and were maintained in the ordinary course of their business. 
3. 
The Pandemic Unemployment Insurance (“UI”) benefits applications referenced 
in Counts 2-10 of the Superseding Indictment were submitted through ODJFS’s website, the 
servers for which were located in Virginia, thereby traveling in interstate commerce.  
4. 
The Paycheck Protection Program loan applications referenced in Counts 11 and 
12 of the Superseding Indictment were submitted or caused to be submitted by the borrower and 
received through SBA servers located in Virginia or Oregon, thereby traveling in interstate 
commerce.   
5. 
The Pandemic UI benefits referenced in Counts 25-36 were funded by the U.S. 
Department of Labor, which was a department or agency of the United States.  
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Along with this trial brief, the parties have filed joint stipulations, consistent with the Court’s 
trial order.  
IV. 
POTENTIAL EVIDENTIARY ISSUES  
 
A. 
USE OF “INEXTRICABLY INTERTWINED” OR OTHERWISE ESSENTIAL 
RES GESTAE EVIDENCE, OR IN THE ALTERNATIVE 404(B) EVIDENCE  
In its case-in-chief, the Government intends to introduce limited evidence that pre-dates 
the timeframe alleged in the Superseding Indictment.  Such evidence includes (1) tax information 
from the year 2019 that was uploaded to various PUA applications; (2) testimony from several 
victims/witnesses that Diab had prepared their taxes in the years prior to the COVID-19 
pandemic; and (3) testimony from several victims/witnesses that the information contained on 
their tax returns was false.  All of this evidence will be used to provide background information 
with respect to Diab’s scheme and his ability to obtain the PII of the victims for which he filed 
PUA benefits and PPP loans.  Diab held himself out as a tax professional, and many of the 
Government’s witnesses will testify that they first encountered Diab related to preparing their 
taxes.  While the Government has not bought any tax charges against Diab, the testimony from 
witnesses regarding their false tax returns will further establish that the PUA and PPP 
applications contained fraudulent information.  Moreover, it is impossible to separate out the 
PUA application from any relevant tax information provided by the witnesses, because the award 
of PUA benefits was based, in part, on the income listed on 2019 tax returns attached to the PUA 
application.  
The Government submits that this evidence is relevant and admissible because it is 
inextricably intertwined or otherwise res gestae background evidence essential for the jury to 
understand the underlying events.  The Sixth Circuit has deemed that Rule 404 of the Federal 
Rules of Evidence does not bar “background” or res gestae evidence.  In United States v. Hardy, 
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the Sixth Circuit announced, “[t]his court has previously recognized the propriety of introducing 
‘background’ evidence.  Such evidence, often referred to as ‘res gestae’ does not implicate Rule 
404(b).”  228 F.3d 745, 748 (6th Cir. 2000) (citing United States v. Buchanan, 213 F.3d 302, 311 
(6th Cir. 2000).  The Hardy court then explained: 
Rather, the very definition of what constitutes background 
evidence contains inherent limitations. Buchanan, Paulino and 
other cases dealing with this issue teach that background or res 
gestae evidence consists of those other acts that are inextricably 
intertwined with the charged offense or those acts, the telling of 
which is necessary to complete the story of the charged offense.  
 
Proper background evidence has a causal, temporal or spatial 
connection with the charged offense. Typically, such evidence is a 
prelude to the charged offense, is directly probative of the charged 
offense, arises from the same events as the charged offense, forms 
an integral part of a witness’s testimony, or completes the story of 
the charged offense.  
 
228 F.3d at 748 (emphasis added) (citing 2 Jack B. Weinstein, Margaret A. Berger & Joseph M. 
McLaughlin, Weinstein=s Federal Evidence, § 404.20[2][c] and [d]; United States v. Weinstock, 
153 F.3d 272, 277 (6th Cir.1998); United States v. Barnes, 49 F.3d 1144, 1149 (6th Cir.1995); 
United States v. Townsend, 796 F.2d 158, 162 (6th Cir.1986); United States v. Cunningham, 103 
F.3d 553, 557 (7th Cir.1996); and Jennifer Y. Schuster, Uncharged Misconduct Under Rule 
404(b): The Admissibility of Inextricably Intertwined Evidence, 42 U. Miami Law Review 947 
(March/May 1998) (See United States v. Rice, 2004 WL 333800 (6th Cir. 2004).   
“The jury is entitled to know the ‘setting’ of a case.  It cannot be expected to make its 
decision in a void--without knowledge of the time, place and circumstances of the acts which 
form the basis of the charge.”  United States v. Roberts, 548 F.2d 665, 667 (6th Cir. 1977).  See 
also, United States v. Vincent, 681 F.2d 462, 465 (6th Cir. 1982).  Further, prosecutors are 
permitted to provide the jury with a “natural narrative of events,” and are not limited to a 
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“sanitized recounting of the facts.”  United States v. Gibbs, 797 F.3d 416, 424 (6th Cir. 2015) 
(internal quotation marks omitted).  Therefore, evidence of background, res gestae, or a 
continuing pattern of illegal activity is properly admissible as it is not precluded by Rule 404(a) 
of the Federal Rules of Evidence.   
Testimony and documentary evidence regarding tax information associated with the PUA 
applications at issue here is properly admitted because it provides context as to why so many 
individuals sought out Diab’s services and why he had their PII to begin with.  It is also properly 
admitted because the tax information which was included within the PUA applications provides 
a “material misrepresentation or concealment of a material fact” that is needed for Counts 2-12 
of the Superseding Indictment.  Indeed, without these tax returns included with the PUA 
applications, many of the benefits Diab had applied for would not have been awarded.  Thus, it is 
“directly probative of the charged offense,” “forms an integral part of witnesses’ testimony,” and 
is necessary to “complete[] the story of the charged offense.”  Hardy, 228 F.3d at 748.  The 
Government therefore anticipates offering this information into evidence on these grounds. 
The aforementioned evidence is also inextricably intertwined with the underlying case.  
In United States v. Barnes, the Sixth Circuit held: 
[T]he Court of Appeals explained that Rule 404(b) does not apply 
where the challenged evidence is “inextricably intertwined” with 
evidence of the crime charged in the indictment.  When the other 
crimes or wrongs occurred at different times and under different 
circumstances from the offense charged, the deeds are termed 
“extrinsic.”  “Intrinsic” acts on the other hand, are those that are 
part of a single criminal episode. 
 
49 F.3d 1144, 1149 (6th Cir. 1995) (citing United States v. Torres, 685 F.2d 921, 924 (5th Cir. 
1982); see also United States v. Henderson, 626 F.3d 326 (6th Cir. 2010) (“Where the 
challenged evidence is ‘intrinsic’ to, or ‘inextricably intertwined’ with evidence of, the crime 
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charged, Rule 404(b) is not applicable”); United States v. Daulton, 266 F. App’x 381 (6th Cir. 
2008) (citation omitted) (“Evidence is inextricably intertwined when the charged conduct and the 
uncharged conduct ‘are part of the single criminal episode or the other acts were necessary 
preliminaries to the crime charged.’”); United States v. Rozin, 664 F.3d 1052 (6th Cir. 2012) (in 
tax fraud case, evidence of prior year activities not 404(b), but rather intrinsic evidence); United 
States v. Monsour, 893 F.2d 126 (6th Cir. 1990) (investigative link evidence, such as the 
defendant acting “suspiciously” at another bank branch a few days prior to the robbery, was 
intrinsic evidence).  Therefore, when other acts are “intrinsic” to charged conduct or part of a 
single criminal episode they are “inextricably intertwined” and not subject to a Rule 404(b) 
analysis.   
 
In other instances, evidence is intrinsic when exclusion would leave a “chronological or 
conceptual void in the story of the crime,” United States v. Ojomo, 332 F.3d 485, 488-89 (7th 
Cir. 2003), or when the acts complete the story of the crime on trial.  United States v. Senffner, 
280 F.3d 755, 764 (7th Cir. 2002), or explains the circumstances of the case. United States v. 
Holt, 460 F.3d 934 (7th Cir. 2006); cf. United States v. Poulsen, 655 F.3d 492 (6th Cir. 2011) 
(evidence from defendant’s related separate obstruction of justice case admissible as 404(b) 
consciousness of guilt evidence in his securities case); United States v. Martinez, 430 F.3d 317 
(6th Cir. 2005) (evidence that part of the conspiracy is not “other acts” evidence).  In this case, 
the fact that many of these victims went to Diab for tax services is essential evidence needed for 
the jury to consider.  It completes the story of the crime on trial, and its absence would leave a 
conceptual void in the story.  Senffner, 280 F.3d at 764; Ojomo, 332 F.3d at 488-89.  It is also 
necessary to explain the circumstances of the case.  Holt, 460 F.3d at 934. 
 
Accordingly, the Government respectfully moves this Court for a ruling that the evidence 
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it intends to offer as Ainextricably intertwined@ or res gestae evidence be admitted during the 
course of the jury trial.  In the event the Court finds the Government’s proposed evidence is not 
admissible on those grounds, the Government then moves this Court to allow the introduction of 
all the categories of evidence identified in this pleading as Rule 404(b) evidence to show Diab’s 
intent, plan, knowledge, identity, modus operandi, or absence of mistake in the filing of the PUA 
benefit and PPP loan applications in this case. 
B. 
NOTICE OF GOVERNMENT’S INTENTION TO INTRODUCE EVIDENCE 
PURSUANT TO F.R.E. 404(B) 
1. 
Notice 
The Government intends to introduce testimony through Government witnesses that, 
prior to the dates charged in the indictment and during the relevant period of the conspiracy, 
Diab had prepared tax returns which contained fraudulent information.  Additionally, the 
Government intends to elicit testimony that Diab had uploaded 2019 tax returns to his client’s 
PUA applications which contained inaccurate or fraudulent information. 
2. 
Law and Argument  
 
Evidence that Diab was preparing fraudulent tax returns is admissible under Federal Rule 
of Evidence 404(b).  Generally, “other acts evidence” is not admissible “to prove a person’s 
character in order to show that on a particular occasion a person acted in accordance with that 
character.”  Fed. R. Evid. 404(b).  It may, however, be admissible for other purposes, “such as 
proving motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake 
or lack of accident.”  Id.  “[T]he rule is one of inclusion rather than exclusion.”  United States v. 
Copeland, 51 F.3d 611, 614 (6th Cir. 1995).   
The admissibility of Rule 404(b) evidence is governed by a “three-step analysis.”  United 
States v. Mack, 729 F.3d 594, 601 (6th Cir. 2013) (citing United States v. Clay, 667 F.3d 689, 
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693 (6th Cir. 2012)).  The first inquiry is whether there is sufficient evidence that the other act 
actually occurred.  Id.  Second is “whether the evidence is probative of a material issue other 
than character.”  Id.  Third, courts must consider whether the probative value of the evidence 
substantially outweighs any unfair prejudice, under Rule 403.  United States v. Perry, 438 F.3d 
642, 648 (6th Cir. 2006).  The evidence is viewed in a light most favorable to its proponent, 
maximizing its probative value and minimizing its prejudicial effect.  Id.  The district court need 
not make a finding that the proponent proved the other act by a preponderance of the evidence; 
“such evidence should be admitted if there is sufficient evidence to support a finding by the jury 
that the defendant committed the similar act.”  Huddleston v. United States, 485 U.S. 681, 685 
(1988).  In addition to its interplay with the Rule 404(b) analysis, Rule 403 independently 
“provides a balancing test for excluding relevant evidence.”  United States v. Asher, 910 F.3d 
854, 860 (6th Cir. 2018).  This balancing test is “strongly weighted toward admission.”  Id.   
 
In this case, evidence supports that Diab prepared and uploaded fraudulent 2019 tax 
returns to his client’s PUA applications.  This evidence is offered to show Diab’s intent, plan, 
knowledge, and opportunity to fraudulently obtain PUA benefits on behalf of his clients, which 
are material issues in this case. See Merriweather, 78 F.3d at 1076 (an admitted purpose is 
material if the defendant has placed or could likely place the evidence at issue, or if it is an 
element the government must prove in the case).  Specifically, Diab is likely to argue that the 
Government cannot prove that the information contained in the PUA applications is false.  The 
Government intends to elicit testimony from several of his clients, who will confirm that the 
information contained in the 2019 tax returns included with the PUA applications was not 
accurate.    
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Once the moving party shows an admissible purpose for entering evidence of past 
actions, the court must weigh its potential prejudicial effect against its probative value. Id. at 
1077.  “Although relevant, evidence may be excluded if its probative value is substantially 
outweighed by the danger of unfair prejudice.”  Fed. R. Evid. 403.  Evidence is unfairly 
prejudicial if “the likelihood is very great that the jurors will use the evidence precisely for the 
purpose it may not be considered; to suggest that the defendant is a bad person ... and that if ‘he 
did it before he probably did it again.’”  United States v. Johnson, 27 F.3d 1186, 1193 (6th Cir. 
1994).  However, evidence that is prejudicial only in that it paints a defendant in a bad light, but 
does not confuse or mislead the jury, is not unfairly prejudicial.  United States v. Sanders, 95 
F.3d 449, 453 (6th Cir. 1996).  In other words, unfair prejudice does not result “from the 
legitimate probative force of the evidence” rather, it results only when prejudicial evidence 
“tends to suggest a decision on an improper basis.”  United States v. Schrock, 855 F.2d 327, 335 
(6th Cir. 1988).  Additionally, in applying Rule 403’s balancing test, the government’s need for 
the evidence is an important consideration.  United States v. Vance, 871 F.2d 572, 576 
(6th Cir. 1989). 
In this case, the Government must prove that Diab made a material misrepresentation in 
order to obtain PUA benefits under false pretenses.  Evidence that the tax returns uploaded to the 
PUA applications were fraudulent is critical in showing that Diab made false statements in the 
submitted PUA applications.  Thus, this evidence is critical in showing his intent and plan to 
fraudulently obtain PUA benefits, and his opportunity and knowledge of his client’s income tax 
returns.  Further, the risk of unfair prejudice is limited relative to the probative value and any 
chance that presentation of such evidence will mislead or confuse the jury can be cured with a 
limiting instruction. Accordingly, this evidence should be admitted. 
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C. 
CROSS EXAMINATION ON NON-QUALIFYING CONVICTIONS  
Defense counsel should be prevented from commenting or cross-examining witnesses on 
allegations, past arrests, dismissed charges, pending unresolved cases or non-qualifying 
convictions under Federal Rules of Evidence 608 and 609.  A defendant’s right to confront the 
witnesses against him through cross-examination is not absolute.  Delaware v. Van Arsdall, 
475 U.S. 673, 679 (1986).  “On the contrary, trial judges retain wide latitude insofar as the 
Confrontation Clause is concerned to impose reasonable limits upon such cross-examination 
based on concerns about, among other things, harassment, prejudice, confusion of the issues, the 
witness’s safety, or interrogation that is repetitive or only marginally relevant.”  Id. at 679.  The 
Government intends to present the testimony of several witnesses in its case in chief, some of 
whom have been arrested (but have not suffered convictions), have been merely accused of 
crimes without any further actions, or have otherwise unqualifying convictions.  Defense may 
not properly use these occurrences for impeachment.  
Under Federal Rule of Evidence 609(a), “evidence that a witness other than an accused 
has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable 
by death or imprisonment in excess of one year,” and “evidence that any witness has been 
convicted of a crime shall be admitted regardless of the punishment, if it readily can be 
determined that establishing the elements of the crime required proof or admission of an act of 
dishonesty or false statement by the witness.”  United States v. Morrow, 977 F.2d 222, 227 (6th 
Cir. 1992).  In this regard, arrests, dismissed charges, pending, unresolved cases and acquittals 
are not convictions.  Moreover, the underlying factual basis for a prior conviction is generally 
not a proper subject for impeachment under Rule 609.  See United States v. Lopez-Medina, 
596 F.3d 716, 737-38 (10th Cir. 2010); United States v. Dansker, 537 F.2d 40, 59-60 (3d Cir. 
1976).  Thus, unless there is some other articulable, good faith basis for attempting to impeach a 
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witness about prior arrests, dismissed charges, pending unresolved charges, acquittals, 
nonqualifying convictions, or underlying factual basis, no witness should be cross-examined in 
any manner about such subjects.  The Government hereby requests that the Court instruct 
defense counsel: (1) to notify the Government prior to cross-examination of a witness of any 
prior convictions that they believe qualify under Rule 609(a); and: (2) if the Government 
disagrees as to the proper impeachment purpose for one or more of the convictions, that the 
Court resolve the matter outside of the presence of the jury, since sustained objections in the 
presence of the jury during trial are a less effective means of honoring Rule 609 than is 
compliance with the rule before an improper question is asked.   
D. 
LIMITED ALLOWANCE OF LEADING QUESTIONS OF GOVERNMENT 
WITNESSES ON DIRECT EXAMINATION  
The Government intends to call several of Diab’s former clients, as well as one of Diab’s 
family members who participated in the scheme.  The Government is aware that several of these 
clients, as well as this family member, either met Diab while he was incarcerated or were aware 
of Diab’s criminal history.  The Government, in preparation for this trial, has diligently 
instructed these witnesses to not mention that Diab was incarcerated or had a criminal history.  
However, in an abundance of caution, the Government requests that the Court allow for limited 
leading questions of these witnesses on direct examination.   These leading questions would be 
limited to carefully establish how these individuals knew Diab, without revealing that he had 
served time in prison.     
Under Federal Rule of Evidence 601, leading questions are typically not permitted on 
direct examination.  F.R.E. 601(c)(1).  However, the use of leading questions during direct 
examination of a witness falls within the sound discretion of the court.  United States v. Shoupe, 
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548 F.2d 636, 641 (6th Cir. 1977).  See also United States v. Pugh, 404 Fed.App’x 21, 28 (6th 
Cir. 2010).     
Here, it is in the interest of justice to allow for the Government to ask carefully phrased 
leading questions to its witnesses on direct examination to avoid any testimony regarding Diab’s 
incarceration or criminal history.  There would be no prejudice to Diab in allowing this.  In fact, 
it would be the opposite — it would prevent the jury from hearing any prejudicial testimony 
regarding Diab’s criminal history.  
E. 
IF DEFENDANT TESTIFIES THE GOVERNMENT INTENDS TO USE HIS 
PRIOR CONVICTIONS UNDER FED. R. EVID. 609 
Diab has numerous prior felony and misdemeanor convictions.  If Diab chooses to testify 
in his defense, the Government may inquire about his prior convictions in accordance with 
Federal Rule of Evidence 609 which states,  
“(a) The following rules apply to attacking a witness’s character for truthfulness by 
evidence of a criminal conviction: 
(1) for a crime that, in the convicting jurisdiction, was punishable by death or by 
imprisonment for more than one year, the evidence: 
(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the 
witness is not a defendant; and 
(B) must be admitted in a criminal case in which the witness is a defendant, if the 
probative value of the evidence outweighs its prejudicial effect to that defendant; and 
(2) for any crime regardless of the punishment, the evidence must be admitted if the court 
can readily determine that establishing the elements of the crime required proving—or the 
witness’s admitting—a dishonest act or false statement.” 
 
Fed. R. Evid. 609. 
The Government is aware of the prohibitions against mentioning Diab’s incarceration 
status or criminal history and will refrain from eliciting any testimony on those subjects during 
its case-in-chief. As noted above, the only circumstance in which his criminal history may 
become relevant is in the event of his testimony.  See Fed. R. Evid. 609.  Evidence of the specific 
nature and charge of his prior convictions are admissible if the “probative value of admitting this 
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18 
evidence outweighs its prejudicial effect.”  Fed. R. Evid. 609(a)(1)(B). This Court has “broad 
discretion” to determine whether the actual charge of conviction shall be admitted to the jury. 
United States v. Morrow, 977 F.2d 222, 228 (6th Cir. 1992) (citing United States v. Ortiz, 553 
F.2d 782, 784 (2d Cir. 1977)). 
Diab’s prior convictions are of a nature that would not have a prejudicial effect on the 
jury. The Government does not intend to elicit testimony about the facts and circumstances of the 
offenses, but simply, the names of the offenses. The value of asking Diab on cross examination 
whether he has prior convictions for theft, fraud, or forgery offenses is more probative than 
prejudicial. When the Government elicits testimony from Diab about the number and type of 
prior convictions, it is within the parameters of Rule 609. See United States v. Henry, 206 F. 
App'x 452, 454 (6th Cir. 2006).  Further, the Government’s cross-examination of Diab can 
include whether he pled guilty or was found guilty of specific offenses, served time in prison, 
and whether he would want to avoid returning to prison. United States v. Tincher, 8 F.3d 350 
(6th Cir.), op. withdrawn, 8 F.3d 350, 1993 U.S. App. LEXIS 27295 (6th Cir. 1993).  Here, the 
Government is not seeking to elicit the facts and circumstances of the prior convictions, but 
naming the specific offense is well within the bounds of law and probative to the nature of his 
prior felonies. 
In the event Diab testifies and testifies inconsistent, incomplete, or misleading regarding 
his prior convictions, the Government reserves the right to impeach him with not only the named 
offense but specifics regarding the prior conviction. If Diab "opens the door" by offering 
testimony that explains away an earlier conviction or offers testimony inconsistent with the facts 
underlying an earlier conviction, the government may inquire into the details of the conviction. 
United States v. Douglas, 408 F.3d 922, 923 (7th Cir. 2005). The Government recognizes that an 
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open door is not a license to dwell on the details of the prior conviction and shift the focus to 
Diab's prior bad acts, but should be permitted to explore the details of the inconsistencies during 
cross-examination.  
For the reasons outlined herein, the Government submits that the prior convictions of 
Diab that fall within Rule 609 are relevant and admissible if Diab elects to testify.  It is 
permissible for the jury to hear the types of offenses Diab has committed because that 
information is probative for impeachment purposes. As a result, the Government requests that 
the Court rule in accordance with the above points and authorities. 
V. 
THE COURT SHOULD PERMIT THE GOVERNMENT TO HAVE TWO CASE 
AGENTS REMAIN IN THE COURTROOM DURING TRIAL 
 
The Government moves this Court to permit two case agents, Special Agent (“SA”) 
Carson Gossmeyer and Forensic Accountant (“FOA”) Alexandra Madonia of the Federal Bureau 
of Investigation (“FBI”) (referred to together as “the Agents”) to remain in the courtroom during 
trial.  The Government anticipates both Agents will testify at trial.  While the Government 
anticipates that the Court will enter a witness separation order in this case pursuant to Fed. R. 
Evid. 615, the Government requests that the Court permit the Agents to remain in the courtroom 
to assist the Government at counsel table.   
Fed. R. Evid. 615(b) specifically excludes from sequestration “an officer or employee of 
a party that is not a natural person, after being designated the party’s representative by its 
attorney.”  Both SA Gossmeyer’s and FOA Madonia’s presence in the courtroom during trial is 
essential to the presentation of the Government’s case.  Therefore, the Government anticipates 
designating the Agents as Government representatives present at counsel table.   
Federal Rule of Evidence 615(c) provides an additional exception to the court’s 
sequestration order for witnesses “whose presence is shown by a party to be essential to the 
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presentation of the party’s cause.”  See United States v. Mohney, 949 F.2d 1397, 1404-05 (6th 
Cir. 1991) (referencing former Rule 615(3)).  The rule, therefore, allows the prosecution to 
designate representatives in addition to the case agent for certain prosecutions that are 
sufficiently complex so that “the aid of more than one law enforcement officer is needed to sort 
through extensive, technical evidence, and to help ‘map out strategy.’”  United States v. Phibbs, 
999 F.2d 1053, 1072 (6th Cir. 1993).  “The ‘essential’ witness exception set out in Rule 615(3) 
‘contemplates such persons as an agent who handled the transaction being litigated or an expert 
needed to advise counsel in the management of the litigation.’”  Id. at 1073 (quoting Advisory 
Committee Notes to Fed. R. Evid. 615).   
The presence of the Agents in court is essential.  The Agents have served as key parts of 
the investigative team assigned to this matter and have become conversant in the evidence.  The 
Agents will prepare, organize and familiarize themselves with the exhibits in this case related to 
the schemes their respective agencies investigated.  Their presence will streamline the 
presentation of evidence in this matter.  Accordingly, the Government submits that the Agents 
are essential witnesses pursuant to Rule 615(c) who both should be permitted to sit at the 
Government’s table for the entirety of the trial. 
VI. 
DEFENDANT’S STATEMENTS 
 
The Government intends to offer out-of-court statements made by Diab, including emails, 
text messages, and other statements by Diab to others.  These statements will be admissible 
under one or more of the following theories: (1) the statements are non-hearsay; (2) the 
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statements were made by a party-opponent pursuant to Federal Rule of Evidence 801(d)(2); or 
(3) the statements are subject to another specific hearsay exception.1 
A. 
NON-HEARSAY STATEMENTS  
A large portion of Diab’s out-of-court statements are not subject to the rule against 
hearsay because they are not being offered for the truth of the matter asserted.  Federal Rule of 
Evidence 801(c) defines hearsay as an out-of-court statement offered to prove the truth of the 
matter asserted.  See United States v. Johnson, 71 F.3d 539, 543 (6th Cir. 1995).  As such, an 
out-of-court statement is not hearsay if (1) it does not contain an assertion, see United States v. 
Wright, 343 F.3d 849, 865 (6th Cir. 2003), or (2) it is not offered to prove the truth of what it 
asserts, see United States v. Rodriguez-Lopez, 565 F.3d 312, 314-15 (6th Cir. 2009).  
Likewise, statements introduced to prove their falsity, rather than the truth of what they 
assert, do not implicate the rule against hearsay or the Confrontation Clause.  See United States 
v. Porter, 886 F.3d 562, 566-67 (6th Cir. 2018).  Statements that consist solely of questions or 
commands are not hearsay because they do not contain assertions.  See Rodriguez-Lopez, 
565 F.3d at 314.  Other statements will be admissible to provide context to related evidence in 
the case.  See United States v. Henderson, 626 F.3d 326 (6th Cir. 2010) (holding that a non-
party’s half of a conversation with defendant was not hearsay, because it was admissible as 
context for the defendant’s half).   
Finally, many of Diab’s out-of-court statements are verbal acts that are not subject to the 
hearsay rule.  “A verbal act is an utterance of an operative fact that gives rise to legal 
 
 
1  
This section is not intended as an exhaustive list of every out-of-court statement that may 
be introduced by the Government at trial.  Rather, this section is intended to outline the legal 
theories the Government intends to rely on for admitting the statements. 
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22 
consequences.”  5 WEINSTEIN’S FEDERAL EVIDENCE § 801.11(3) (2012).  For verbal acts, 
“[i]t is the fact that the declaration was made, and not the truth of the declaration, which is 
relevant.”  United States v. Childs, 539 F.3d 552, 559 (6th Cir. 2008).  Thus, where a statement 
directs the formation and operation of a conspiracy, illegally solicits someone else to perform an 
act, or puts forward a bribe, that statement is not barred by the hearsay rules, regardless of the 
truth or falsity of its assertion.  See United States v. Forfana, 543 F. App’x 578, 580 (6th Cir. 
2013) (“words used to offer a bribe amount to ‘verbal acts’ with their own legal significance and 
do not qualify as hearsay”).   
B. 
STATEMENTS BY A PARTY OPPONENT  
In addition to the exceptions cited above, a defendant’s own statements are admissible 
against him personally under Federal Rule of Evidence 801(d)(2)(A) as statements made by a 
party opponent.  Fed. R. Evid. 801(d)(2)(A); United States v. Matlock, 415 U.S. 164, 172 (1974). 
Other statements may qualify as adoptive admissions under Rule 801(d)(2)(B) if the defendants 
“manifested an adoption or belief in the statements’ truth.”  See United States v. Williams, 
445 F.3d 724, 735 (4th Cir. 2006); United States v. Safavian, 435 F. Supp. 2d 36, 43-44 (D.D.C. 
2006) (ruling that emails authored by defendant may be admissible as statements by a party 
opponent, and emails forwarded by defendant may be admissible as adoptive admissions). 
VII. 
LIMITATION ON DEFENDANT SEEKING TO ADMIT HIS OWN OUT-OF-
COURT STATEMENTS 
 
Out-of-court statements made by a party-opponent are excluded from the definition of 
hearsay under Federal Rule of Evidence 801(d)(2), but this exception does not apply when the 
same statements are offered by the party himself.  The party-opponent exception reflects the fact 
that the adversarial process allows the party-declarant to rebut his or her own admissions by 
testifying at trial.  See United States v. McDaniel, 398 F.3d 540, 545 (6th Cir. 2005).  This 
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exception does not, however, extend to a party’s attempt to introduce his or her own statements 
 
through the testimony of other witnesses.  See United States v. Payne, 437 F.3d 540, 547-48 (6th 
 
Cir. 2006).  Precluding a defendant from eliciting inadmissible hearsay statements does not 
violate the Confrontation Clause.  See United States v. Ford, 761 F.3d 641 (6th Cir. 2014). 
Therefore, the Government respectfully requests that the Court prohibit Diab from 
introducing any of his out-of-court statements at trial through any other witness. 
VIII. 
SUBMITTING THE INDICTMENT TO THE JURY. 
 
The Sixth Circuit has held that the trial judge has the discretion to submit the Indictment 
to the Jury in a criminal case so long as limiting instructions are given to the effect that the 
Indictment is not to be considered as evidence of the guilt of the accused.  United States v. 
Cooper, 577 F.2d 1079, 1089 (6th Cir. 1978) (“It was not error for the trial judge to have 
permitted the jury to have a written copy of the indictment, especially where, as here, the jury 
was fully instructed that it could not consider the indictment as evidence of the crime itself.”) 
Accord United States v. Russo, 480 F.2d 1228, 1244 (6th Cir. 1973) (“The court did not commit 
error in permitting the jury to have the indictment during its deliberation since an instruction was 
given that the indictment is not evidence of guilt and only contains a statement of the charges.”). 
In the 2019 edition of the Sixth Circuit Pattern Jury Instructions (Criminal), the Sixth 
Circuit Committee on Pattern Jury Instructions specifically addressed the issue of submitting the 
Indictment to the jury, either by reading it to the jury or by providing a copy to the jury during 
their deliberations: 
Reading the indictment to the jury is generally within the discretion of 
the district court. United States v. Smith, 419 F.3d 521, 530 (6th Cir. 
2005), citing United States v. Maselli, 534 F.2d 1197, 1202 (6th Cir. 
1976). Instructions stating that “the purpose of an indictment is only to 
cause the person named therein to be brought to trial and to advise him 
of the nature of the charge or charges against him” have been 
characterized as “desirable” and “customary.” United States v. Baker, 
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418 F.2d 851, 853 (6th Cir. 1969). Earlier versions of this commentary 
did not recommend that the trial judge read the indictment to the jury, 
and also recommended that the trial judge not paraphrase the 
indictment. The Committee recognizes that district court practices on 
reading or summarizing the indictment vary widely, and takes no 
position on the best practice.  However, jury confusion can arise, 
particularly in complex cases, if the indictment is not read, accurately 
summarized or sent to the jury room. See, e.g., United States v. 
Bustamante, 1992 WL 126630, 1992 U.S. App LEXIS 13407 (6th Cir. 
1992) (unpublished). As the Eighth Circuit states in Note 2 to its Model 
Criminal Instruction 1.01 (2003 ed.), “Depending on the length and 
complexity of the indictment and the individual practices of each 
district judge, the indictment may be read, summarized by the court, 
summarized by the prosecution or not read or summarized depending 
on what is necessary to assist the jury in understanding the issues 
before it.” If the indictment is furnished in writing to the jury, a limiting 
instruction such as Instruction 1.03(1) must be given. United States v. 
Smith, 419 F.3d 521, 531 (6th Cir. 2005) (omission of limiting instruction 
was error but not plain error). The Committee takes no position on the 
practice in some districts of providing the jury with a copy of the 
indictment.   
 
Reading the indictment to prospective jurors is not an abuse of 
instructions are given to the effect that the indictment is not to be 
considered as evidence of guilt. United States v. Lawson, 535 F.3d 434, 
441 (6th Cir. 2008)  Such a limiting instruction is found in Instruction 
1.03(1). 
 
Committee Commentary 2.02, Sixth Circuit Pattern Jury Instruction – Criminal (2019) 
(emphasis added). 
The Government respectfully requests that the Court submit the Superseding Indictment 
to the jury during deliberations, or alternatively, that the Court read the relevant sections of the 
Superseding Indictment to the jury when providing them the jury instructions. In either case, the 
Court should issue a limiting instruction that the Superseding Indictment is not evidence of 
Diab’s guilt. 
IX. 
ADMISSIBILITY OF SUMMARY EXHIBITS 
 
The Government has obtained voluminous bank, financial, and IP records pertaining to 
this case.  To present relevant evidence contained within these voluminous records in an 
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effective and efficient manner, law enforcement agents have created summary charts to which 
they will testify during the Government’s case-in-chief.  Federal Rule of Evidence 1006 permits 
the use of summary charts by providing that “contents of voluminous writings, recordings, or 
photographs which cannot conveniently be examined in court may be presented in the form of a 
chart, summary, or calculation.”  The Sixth Circuit has approved the use of summary materials.  
See United States v. Bray, 139 F.3d 1104, 1112 (6th Cir. 1998).   
The summary charts will accurately depict the evidence to be presented to the jury and 
will streamline the trial considerably by condensing the records.  In accordance with established 
practice in the Sixth Circuit and other circuits, the Government intends to use in its case-in-chief 
summary charts detailing and organizing the Government’s evidence, in conjunction with the 
testimony of certain Government witnesses.  See United States v. Bray, 139 F.3d 1104, 1112 (6th 
Cir. 1998); United States v. Scales, 594 F.2d 558 (6th Cir.), cert. denied, 441 U.S. 946 (1979).  
So long as the summary charts are properly authenticated and the contents of both the charts and 
the summary witness’s testimony are limited to evidence which is admissible or has been 
admitted, the use of such charts and witnesses will contribute to an orderly and informed trial 
and will not prejudice the rights of Diab. 
The use of summary exhibits is permitted by Fed. R. Evid. 1006: 
 
The contents of voluminous writings, recordings, or photographs 
may be presented in the form of a chart, summary or calculation. 
The originals, or duplicates, shall be made available for 
examination or copying, or both, by other parties at a reasonable 
time and place. The court may order that they be produced in court. 
 
In Scales, a leading case on the use of summary charts which has been followed in courts 
across the country, the Sixth Circuit discussed Rule 1006: 
There is no requirement in Rule 1006, however, that it be literally 
impossible to examine the underlying records before a summary or 
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26 
chart may be utilized. All that is required for the rule to apply is that 
the underlying “writings” be “voluminous” and that in-court 
examination not be convenient. 
 
Id. at 562.  In Scales, the court approved the government’s use of a series of large summary  
 
charts introduced through the testimony of a special agent.  The first chart summarized all the 
charges contained in the indictment, and each of the remaining charts summarized a count or an 
overt act, or both, by reproducing or making reference to some of the documentary proof already 
in evidence.  The court specifically approved the use of a special agent, who was not an expert 
witness, to present the charts.  Because the agent had properly catalogued the exhibits previously 
admitted into evidence, had knowledge of the analysis of records referred to in the charts, and 
had supervised the compilation of the charts, the court held that the agent was the proper person 
to attest to their authenticity and accuracy. 
Other circuits have cited Scales as authority for upholding the admissibility of summary 
 
charts and summary testimony, where such summaries assisted the jury in organizing the proof 
and understanding the charges against the defendant.  In United States v. Lemire, 720 F.2d 1327, 
1328 (D.C. Cir. 1983), cert. denied, 467 U.S. 1226 (1984), the court held that “a non-expert 
summary witness can help the jury organize and evaluate evidence which is factually complex 
and fragmentally revealed in the testimony of a multitude of witnesses throughout the trial.”  
The D.C. Circuit specifically rejected the defendant’s contentions that a special agent was an 
improper summary witness because he was not an “expert,” and that the summary witness 
provided an unwarranted second closing argument for the government.  In United States v. 
Jennings, 724 F.2d 436, 443 (5th Cir. 1984), cert. denied, 467 U.S. 1227 (1984), the Fifth 
Circuit relied upon Scales, in holding that a special agent is qualified to present summary charts 
which do not contain complicated calculations requiring the need of an expert witness for 
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accuracy.  See United States v. Scales, 594 F.2d 558, 563 (6th Cir. 1979) (purpose of a summary 
witness is simply to aid the jury in examination of evidence already admitted). 
The Government’s proposed use of summary charts and summary witness testimony in 
this case will, consistent with the above-cited authority, assist the jury as finder of fact in 
organizing the proof and understanding the charges against Diab.  The summary charts, and the 
testimony of the summary witnesses concerning the charts, will be limited to evidence which is 
admissible or has been admitted and has been made available to the defense for examination and 
copying. 
Respectfully submitted, 
 
CAROL M. SKUTNIK 
Acting United States Attorney 
 
By: 
/s/ Vanessa V. Healy  
Vanessa V. Healy (OH: 0092212) 
Brenna L. Fasko (OH: 0084897) 
Assistant United States Attorneys 
United States Court House 
801 West Superior Avenue, Suite 400 
Cleveland, OH 44113 
(216) 622-3652/3618 
(216) 522-2403 (facsimile) 
Vanessa.Healy@usdoj.gov 
Brenna. Fasko@usdoj.gov 
 
 
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