Government’s Opposition to Defendant’s Motion in Limine — United States v. Buoi (Dkt. 152, D. Mass.)

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The government's opposition to the defendant's motion in limine in United States of America v. Elijah Majak Buoi, Criminal No. 20-cr-10130-FDS, in the U.S. District Court for the District of Massachusetts, filed February 21, 2022. The defendant seeks to bar testimony that the defendant applied for and received unemployment benefits while claiming, in loan applications, to run a business with a monthly payroll of approximately $3,000,000, $800,000 or $150,000. The government argues that the motion comes on the eve of trial though it disclosed the evidence in its 21-day letter and trial brief, that the motion misreads the narrow testimony planned, and that the evidence is intrinsic to the crimes charged or admissible under Federal Rule of Evidence 404(b).

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Case 1:20-cr-10130-FDS Document 152 Filed 02/21/22 Page 1 of 5



                          IN THE UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF MASSACHUSETTS


UNITED STATES OF AMERICA                      )
                                              )
                                              )
       v.                                     )      Criminal No. 20-cr-10130-FDS
                                              )
ELIJAH MAJAK BUOI,                            )
                                              )
                       Defendant              )

        GOVERNMENT’S OPPOSITION TO DEFENDANT’S MOTION IN LIMINE

       The defendant seeks to preclude the government from eliciting limited testimony that the

defendant applied for and received unemployment benefits while claiming to operate a business with

payroll of approximately $3,000,000 a month, $800,000 a month, or $150,000 a month — depending

on the loan application. The defendant’s motion comes on the literal eve of trial, although the

government explicitly stated that it intended to introduce this evidence in its 21-day letter (provided

five weeks ago) and confirmed the same in its trial brief. Dkt __. Tardiness aside, the defendant’s

motion should be denied on the merits. As a preliminary matter, it misconstrues the scope of the

narrow testimony the government intends to elicit. Moreover, the evidence is intrinsic to the crimes

charged, and even if the Court concludes it is not, Federal Rule of Evidence 404(b) renders the

evidence admissible.

                                           ARGUMENT

       Contrary to the defendant’s assertions, the government does not plan on eliciting conclusory

testimony that the defendant was committing unemployment fraud. It does intend to establish through

Massachusetts Department of Unemployment Assistance Compliance Officer Andrew Devney that

the defendant applied for and received unemployment benefits in 2019 and 2020. Mr. Devney’s

testimony provides necessary context for the charged offenses. Put simply, the fact that the defendant

was applying for and receiving unemployment benefits at the same exact time he was claiming to run

           Case 1:20-cr-10130-FDS Document 152 Filed 02/21/22 Page 2 of 5



a company with hundreds of employees and millions in average monthly payroll is further evidence

of the fraud.1 The testimony of Mr. Devney will also establish: (1) that the defendant did not

reference Sosuda Tech in his 2020 application for unemployment benefits; (2) that the defendant

filled out weekly claim forms after he incorporated Sosuda Tech, beginning in 2019, confirming

he was not working. He also filed weekly claims summaries at the same exact time he was filing

PPP loan applications on behalf of Sosuda Tech; (3) that the defendant’s unemployment application

forms show the defendant previously held professional jobs, and that he received his master’s

degree. This evidence “is admissible to ‘complete the story of the crime by proving the immediate

context of events in time and place.’”   See United States v. Simon, 12 F.4th 1, 47 (1st Cir.

2021) (evidence of defendant’s prior employment was intrinsic to aspects of the charged offense).

        But even assuming the Court determines that the anticipated testimony and documentary

evidence is extrinsic, it should nonetheless be admitted as proof of motive, intent, and absence of

mistake. See Rule 404(b). The defendant’s receipt of unemployment benefits while he was the CEO

of Sosuda Tech and while he was applying for the PPP loans is evidence of motive to engage in the

fraud scheme. It is also necessary to show intent and the absence of any mistake—while applying for

those loans, the defendant failed to list Sosuda Tech on his unemployment application or on his

weekly claim forms. United States v. O’Neil, 839 F. Supp. 2d 1030, 1036 (S.D. Iowa, 2011) (the

defendant’s unemployment history relevant to show motive for the defendant’s alleged activities and

not unfairly prejudicial to the defendant); United States v. Russell, No. 1:11-cr-00238-TWP-DKL,

2013 U.S. Dist. LEXIS 6428, at *8 (S.D. Ind. Jan. 16, 2013) (denying motion in limine, finding

evidence of defendant’s unemployment and financial difficulties was relevant and not unfairly

prejudicial).



1
  As noted above, and in the Indictment, the claimed monthly payroll varied depending on the
application.
                                                2

           Case 1:20-cr-10130-FDS Document 152 Filed 02/21/22 Page 3 of 5



       At the same time, the limited evidence the government intends to offer surrounding the

defendant’s unemployment applications is not unfairly prejudicial. The evidence the government

intends to present does not involve conduct that is “unduly inflammatory.” United States v. Van

Horn, 277 F.3d 48, 48 (1st Cir. 2002). Even if the government intended to elicit testimony concluding

that the defendant committed unemployment fraud, the charges in the instant case are similar. Put

simply, the unemployment applications concern representations (or, stated differently, a lack of

representations) concerning Sosuda Tech.

       Given the highly probative value of the evidence, any prejudicial impact is, by comparison,

insufficient to justify its exclusion. See United States v. Roldan-Zapata, 916 F.2d 795, 804 (2d Cir

1990) (in prosecution for conspiracy to distribute drugs, evidence of defendant’s prior drug dealing

with co-conspirator was not unduly prejudicial insofar as it “did not involve conduct any more

sensational or disturbing than the crimes” charged); United States v. Shaw, No. CR 14-00338(4)-SJO,

2018 U.S. Dist. LEXIS 230054, at *11 (C.D. Cal. Feb. 5, 2018) (holding that the probative value of

the defendant's unemployment history as evidence that defendant's unexplained wealth came from

the drug conspiracy is not substantially outweighed by unfair prejudice). Moreover, any such

prejudice can be appropriately mitigated by a cautionary instruction that limits the jury’s

consideration of other acts evidence to the specific purposes for which it is admitted.

       Finally, the defendant’s concern that the government may potentially waste the Court or the

jury’s time is unfounded, as the government anticipates Mr. Devney’s direct testimony will last

approximately fifteen-twenty minutes.

                                          CONCLUSION

       For the foregoing reasons, the defendant’s motion in limine should be denied.




                                                  3

        Case 1:20-cr-10130-FDS Document 152 Filed 02/21/22 Page 4 of 5



      Respectfully Submitted,

      RACHAEL S. ROLLINS                           JOSEPH S. BEEMSTERBOER
      U. S. ATTORNEY                               ACTING CHIEF, FRAUD SECTION

By:   /s/ Mackenzie Queenin
      Mackenzie Queenin                      By:   /s/ Della Sentilles
      Assistant United States Attorney             Della Sentilles
      U.S. Attorney’s Office                       Trial Attorney, Fraud Section
      One Courthouse Way                           U.S. Department of Justice
      Boston, MA 02210                             1400 New York Ave NW
                                                   Washington, DC 20530




                                         4

          Case 1:20-cr-10130-FDS Document 152 Filed 02/21/22 Page 5 of 5



                                       Certificate of Service

       I, Mackenzie A. Queenin, hereby certify that this document was this day filed through the
ECF system and will be sent electronically to the registered participants as identified on the Notice
of Electronic Filing (“NEF”).


Date: February 21, 2022                                      /s/ Mackenzie A. Queenin
                                                             Mackenzie A. Queenin




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