Court filing
The Government's Motions in Limine — United States v. Adedayo Ilori
No. 1:21-cr-00746-MKV · Doc. 42 · Docket on CourtListener
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Case 1:21-cr-00746-MKV Document 42 Filed 06/15/22 Page 1 of 28
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
UNITED STATES OF AMERICA : 21 Cr. 746 (MKV)
:
-v.- :
:
ADEDAYO ILORI, :
:
Defendant. :
:
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THE GOVERNMENT’S MOTIONS IN LIMINE
DAMIAN WILLIAMS
United States Attorney
Southern District of New York
Juliana N. Murray
Daniel G. Nessim
Assistant United States Attorneys
Of Counsel
Case 1:21-cr-00746-MKV Document 42 Filed 06/15/22 Page 2 of 28
TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii
PRELIMINARY STATEMENT .................................................................................................... 1
BACKGROUND ............................................................................................................................ 1
ARGUMENT .................................................................................................................................. 5
I. The Court Should Admit Co-Conspirator Statements Against the Defendant ........................ 5
A. Applicable Law .................................................................................................................. 6
B. Discussion .......................................................................................................................... 6
II. The Court Should Permit Evidence and Testimony Regarding Ilori’s Other Instances of
Identity Theft and Fraud Either As Direct Evidence of the Charges or, in the Alternative,
Pursuant to Rule 404(b) ........................................................................................................ 7
A. Applicable Law .................................................................................................................. 7
B. Evidence of Ilori’s Use of Stolen Identities to Commit Fraud During the Time Period of
the Charged Offenses Is Admissible as Direct Evidence or, in the Alternative, Under Rule
404(b) ................................................................................................................................ 9
C. Evidence Concerning Ilori’s Numerous Prior Instances of Committing Fraud and Identity
Theft Is Admissible Under Rule 404(b) .......................................................................... 14
III. Evidence Concerning Ilori’s History of Criminal Activity Should Also Be Admitted If He
Testifies .............................................................................................................................. 18
IV. Evidence or Argument Concerning the Consequences the Defendant Faces if Convicted
Should be Precluded ........................................................................................................... 23
CONCLUSION ............................................................................................................................. 24
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TABLE OF AUTHORITIES
Bourjaily v. United States, 483 U.S. 171 (1987) ........................................................................... 6
Brown v. United States, 356 U.S. 148 (1958) .............................................................................. 19
Cheek v. United States, 498 U.S. 192 (1991) ............................................................................... 12
Costantino v. Herzog, 203 F.3d 164 (2d Cir. 2000) .................................................................... 13
Huddleston v. United States, 485 U.S. 681 (1988) ........................................................... 14, 17, 18
Parker v. Randolph, 442 U.S. 62 (1979) ....................................................................................... 9
Rogers v. United States, 422 U.S. 35 (1975) ............................................................................... 23
Shannon v. United States, 512 U.S. 573 (1994) ........................................................................... 23
United States v. Agudelo, 141 F. App’x 13 (2d Cir. 2005) .......................................................... 18
United States v. Aminy, 15 F.3d 258 (2d Cir. 1994) .................................................................... 17
United States v. Beverly, 5 F.3d 633 (2d Cir. 1993) .............................................................. 19, 20
United States v. Carboni, 204 F.3d 39 (2d Cir. 2000) ................................................................... 7
United States v. Collorafi, 876 F.2d 303 (2d Cir. 1989) .............................................................. 12
United States v. Curley, 639 F.3d 30 (2d Cir. 2011) ................................................................... 18
United States v. DiLapi, 651 F.2d 140 (2d Cir. 1981) ................................................................. 19
United States v. Dupree, 870 F.3d 62 (2d Cir. 2017) .................................................................. 12
United States v. Estrada, 430 F.3d 606 (2d Cir. 2005) .......................................................... 20, 22
United States v. Ferguson, 758 F.2d 843 (2d Cir. 1985) ............................................................. 19
United States v. Figueroa, 618 F.2d 934 (2d Cir. 1980) ............................................................... 9
United States v. Gambino, 951 F.2d 498 (2d Cir. 1991) ............................................................. 20
United States v. Garcia, 936 F.2d 498 (2d Cir. 1991) .................................................................. 20
United States v. Gelzer, 50 F.3d 1133 (2d Cir. 1995) .................................................................... 9
United States v. Gordon, 987 F.2d 902 (2d Cir. 1993) ................................................................ 12
United States v. Guang, 511 F.3d 110 (2d Cir. 2007) ................................................................... 7
United States v. Havens, 446 U.S. 620 (1980) ............................................................................. 19
United States v. Hayes, 553 F.2d 324 (2d Cir. 1977) ............................................................ 20, 21
United States v. Inserra, 34 F.3d 83 (2d Cir. 1994) ..................................................................... 17
ii
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United States v. Kadir, 178 F.3d 115 (2d Cir. 2013) ..................................................................... 8
United States v. Lyle, 919 F.3d 716 (2d Cir. 2019) ....................................................................... 8
United States v. Martino, 759 F.2d 998 (2d Cir. 1985) ............................................................... 18
United States v. Ozsusamlar, 428 F. Supp. 2d 161 (S.D.N.Y. 2006) .......................................... 18
United States v. Pabon-Cruz, 391 F.3d 86 (2d Cir. 2004) ........................................................... 23
United States v. Paone, 782 F.2d 386 (2d Cir. 1986) .................................................................... 6
United States v. Pascarella, 84 F.3d 61 ......................................................................................... 8
United States v. Paulino, 445 F.3d 211 (2d Cir. 2006) ................................................................ 16
United States v. Payton, 159 F.3d 49 (2d Cir. 1998) ............................................................. 20, 22
United States v. Peterson, 808 F.2d 969 (2d Cir. 1987) .............................................................. 13
United States v. Pitre, 960 F.2d 1112 (2d Cir. 1992) .............................................................. 9, 17
United States v. Ramirez, 894 F.2d 565 (2d Cir. 1990) ......................................................... 16-17
United States v. Riley, No. 13 Cr. 339 (VEC),
2014 WL 3435721 (S.D.N.Y. July 14, 2014) ......................................................................... 23
United States v. Roldan-Zapata, 916 F.2d 795 (2d Cir. 1990) ................................................ 8, 13
United States v. Simmons, 923 F.2d 934 (2d Cir. 1988) ................................................................ 6
United States v. Tussa, 816 F.2d 58 (2d Cir. 1987) ....................................................................... 9
United States v. Vega, 589 F.2d 1147 (2d Cir. 1978) .................................................................. 19
United States v. Viviano, 437 F.2d 295 (2d Cir. 1971) ................................................................ 17
United States v. Williams, 205 F.3d 23 (2d Cir. 2000) .................................................................. 8
iii
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PRELIMINARY STATEMENT
The Government respectfully seeks rulings in limine on certain evidentiary issues in
advance of the trial currently scheduled for July 13, 2022. First, the Court should admit statements
made by co-conspirators in furtherance of the scheme under Rule 801(d)(2)(E). Second, the Court
should admit evidence concerning the defendant’s long history of committing fraud and identity
theft offenses as either direct evidence of the charged offenses or, alternatively, under Rule 404(b).
Third, evidence of the defendant’s history of criminal conduct should be admitted for impeachment
purposes, under certain circumstances. Finally, the defendant should be precluded from making
arguments that are not properly presented to the jury and are simply a guise for jury nullification.
BACKGROUND
Indictment 21 Cr. 746 (the “Indictment”) was filed on December 9, 2021, in six counts.
Count One charges Adedayo Ilori (“Ilori” or the “defendant’) with committing major fraud against
the United States, in violation of 18 U.S.C. §§ 1031 and 2. Count Two charges the defendant with
conspiring to commit wire and bank fraud, in violation of 18 U.S.C. § 1349. Count Three charges
the defendant with wire fraud, in violation of 18 U.S.C. §§ 1343 and 2. Count Four charges the
defendant with bank fraud, in violation of 18 U.S.C. §§ 1344 and 2. Count Five charges the
defendant with aggravated identity theft, in violation of 18 U.S.C. §§ 1028A(a)(1), 1028A(b),
1028A(c)(4)-(5), and 2. Count Six charges the defendant with conspiring to commit concealment
money laundering, in violation of 18 U.S.C. § 1956(h). 1 The Government expects that the evidence
presented at trial will establish the following facts, in substance and in part:
1
Co-defendant Chris Recamier (“Recamier”) was charged together with Ilori in all six counts.
Recamier pled guilty on June 15, 2022, and therefore will not be contesting his guilt at the July
13, 2022 trial in this case.
1
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From at least in or about August 2020 through their arrests in October 2021, Ilori and
Recamier were involved in a scheme to utilize the stolen identities of real people to fraudulently
claim millions of dollars in COVID-19 relief loans guaranteed, or extended, by the Small Business
Administration (“SBA”). These loans included funds from both the Paycheck Protection Program
(“PPP”) and Economic Injury Disaster Loan (“EIDL”) program. The defendants successfully
obtained more than $1 million and attempted to obtain an additional more than $9 million in this
scheme. During the course of the scheme, the defendants made multiple loan applications and
claimed the identities of multiple identity theft victims. The defendants represented that they ran
companies that, together, employed more than 230 employees and paid approximately $3.2 million
in wages on a monthly basis. The defendants also submitted falsified tax and bank documents in
connection with these loan applications. Several of these applications were submitted in the name
of a particular victim (“Identity Theft Victim-1”); others were submitted in the names of additional
victims. The representations on these applications were all lies, and Ilori and Recamier utilized the
fraudulently obtained proceeds for their own benefit, including for cryptocurrency investments,
securities, cash withdrawals, and personal expenses. In many of the interactions with banks and
other entities, Recamier appeared in person or submitted false identification documents bearing
his photograph, while Ilori’s involvement was not as obviously disclosed in documentation.
Law enforcement identified particular investment accounts utilized by Ilori and Recamier
to invest fraudulently obtained funds. Between at least in or about May 2021 and in or about July
2021, a particular IP address was used to access at least one of these investment accounts on
multiple occasions (“IP Address-1”). Based on subscriber records, IP Address-1 was assigned to a
particular apartment in Long Island City (the “LIC Apartment”). As described below, the LIC
Apartment was fraudulently rented by Recamier under the stolen identity of an identity theft
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victim. During particular instances where IP Address-1 was used to access investment accounts
storing fraud proceeds, surveillance videos identify Ilori as present at the LIC Apartment. Law
enforcement also conducted surveillance of both Ilori and Recamier present in the vicinity of the
LIC Apartment.
Ilori and Recamier provided numerous banks with the same phone number as a contact
phone number on their loan applications and/or fraudulent bank accounts (“Phone-1”). Law
enforcement obtained a GPS tracking warrant for Phone-1. In conducting surveillance concerning
the location of Phone-1, law enforcement observed Ilori in the vicinity of Phone-1. In addition,
law enforcement saw that Phone-1 was often located in the vicinity of Ilori’s home address during
the night.
On October 7, 2021, Magistrate Judge Peggy Kuo, of the Eastern District of New York,
signed a search warrant, authorizing law enforcement to search: (a) the LIC Apartment, and
(b) Ilori’s person and the area in his immediate control. On October 7, 2021, at approximately 9:45
p.m., law enforcement officers executed the search at the LIC Apartment. Recamier was present
at the LIC Apartment, and law enforcement officers placed him under arrest. Following his arrest,
Recamier was provided with his Miranda rights, waived those rights, and engaged in an audio-
recorded interview with law enforcement. During this interview, Recamier inculpated both himself
and Ilori in the charged crimes. And, among other things, during the course of the search, law
enforcement recovered an iMac computer (the “Computer”) from the LIC Apartment.
On October 8, 2021, at approximately 10:15 a.m., Ilori left his Queens home and entered a
vehicle (the “Mercedes”), which was parked outside, and as described below, had been
fraudulently leased by Recamier and Ilori. Law enforcement officers approached and executed the
search warrant, as it pertained to Ilori’s person and the area within his immediate control. From
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Ilori’s person, law enforcement recovered, among other things, a key to the LIC Apartment, bank
cards in the name of Identity Theft Victim-1, and three cellular phones, including a Motorola (the
“Motorola”) and an iPhone 12 (the “iPhone”). From the Mercedes’s passenger compartment, law
enforcement recovered, among other things, an additional cellular phone (the “Samsung”). Law
enforcement also searched the trunk of the Mercedes, and recovered, among other things, an
additional cellular phone; ID cards in the names of identity theft victims and bearing Recamier’s
photograph; and bank cards in the names of identity theft victims.
Many of the electronic devices recovered during the arrests of Ilori and Recamier provided
additional evidence of the defendants’ involvement in the charged offenses:
The registered user of the Computer recovered from the LIC Apartment was
“DfinebyDayoIlori,” a play on Ilori’s name and the name of Ilori’s supposed personal training
business. Indeed, a business card recovered from Ilori’s person at the time of his arrest identifies
“Dayo Ilori” as the “Founder/Fitness Director” of “DFINE Yourself.” The Computer further
included records relating to businesses and individuals that Ilori and Recamier had impersonated
during the course of their charged fraud and identity theft scheme.
The iPhone, which was recovered from Ilori’s person, was biometrically unlocked using
Ilori’s face, pursuant to the warrant. The listed user of the iPhone is “Dayo Ilori.” The iPhone’s
Notes application includes the name and tax ID of one of the companies that Ilori and Recamier
used to commit the charged offenses. The iPhone also includes emails, addressed to “Dayo,”
concerning the tax documents for multiple corporations that Ilori and Recamier impersonated and
used in the charged offenses. The iPhone also exchanged emails with an email account opened in
the name of Identity Theft Victim-1, whose identity Ilori and Recamier used to create at least
approximately 14 different fraudulent bank accounts, as well as in applying for COVID-19 relief
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loans. The iPhone also includes: (i) a screenshot of the holdings of one of the fraudulent investment
accounts, opened by Ilori and Recamier, in Identity Theft Victim-1’s name; and (ii)
communication records with Phone-1, which was utilized by Ilori and Recamier in the charged
scheme, as described above.
The Samsung includes numerous pieces of identifying evidence establishing that Ilori used
the phone. For example, a co-conspirator (“CC-1”) identified the user of the Samsung as “Dayo”
in a conversation about falsifying supporting records necessary to apply for COVID-19 relief
loans. In addition, there are emails stored on the Samsung that involve Ilori’s email account. The
Samsung also includes communications with CC-1 concerning identity theft victims’ identities,
applying for COVID-19 relief loans, and the documentation required to do so. Among other things,
the Samsung also includes artifacts concerning: (i) Ilori’s and Recamier’s obtaining of fraudulent
COVID-19 relief loans from banks; and (ii) their laundering and use of those loan proceeds.
The Motorola also includes evidence that it was used by Ilori, including multiple audio
recordings by third parties directed to “Dayo,” a play on Ilori’s name and a nickname he was
known by, as described above. Similar to the other devices, the Motorola includes copious
evidence of the charged offenses. Among other things, the Motorola includes photographs of
ledgers tracking identities used in the course of the charged scheme; photographs of ID cards used;
and photographs of documents submitted to banks in connection with fraudulent loan applications.
ARGUMENT
I. The Court Should Admit Co-Conspirator Statements Against the Defendant
The statements made by Recamier and another co-conspirator (“CC-1”) are admissible
against Ilori. These statements were made by these co-conspirators in furtherance of the charged
offenses, and they are thus party admissions under the Federal Rules of Evidence.
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A. Applicable Law
The Federal Rules of Evidence define “hearsay” as an out-of-court statement “offer[ed] in
evidence to prove the truth of the matter asserted.” Fed. R. Evid. 801(c). Rule 801(d)(2)(E) of the
Federal Rules of Evidence provides in relevant part, “[a] statement is not hearsay if . . . the
statement is offered against an opposing party and was made by the party’s coconspirator during
and in furtherance of the conspiracy.” A Court must find two facts by a preponderance of the
evidence to admit a statement pursuant to this rule: first, that a conspiracy that included the
declarant and the defendant existed; and second, that the statement was made during the course
and in furtherance of that conspiracy. Bourjaily v. United States, 483 U.S. 171, 175 (1987).
Once a conspiracy is shown to exist, the “evidence sufficient to link another defendant to
it need not be overwhelming,” and “the ‘in furtherance’ requirement of Rule 801(d)(2)(E) is
satisfied” when, for example, “a co-conspirator is apprised of the progress of the conspiracy, or
when the statements are designed to induce his assistance.” United States v. Paone, 782 F.2d 386,
390-91 (2d Cir. 1986) (internal quotation marks omitted). Statements between co-conspirators that
“provide reassurance, serve to maintain trust and cohesiveness among them, or inform each other
of the current status of the conspiracy,” further the conspiracy. United States v. Simmons, 923 F.2d
934, 945 (2d Cir. 1988).
B. Discussion
As described above, Ilori and Recamier conspired to commit the charged fraud, identity
theft, and money laundering offenses. In addition, Ilori worked with other people including the as-
yet uncharged CC-1. Among other things, Ilori and CC-1 communicated by phone, over encrypted
Telegram messages, to exchange stolen identities, to advance the creation of counterfeit IDs and
bank cards, and to further the fraud scheme. The conversations include specific mention of
individual identities and entities used by the conspirators in furtherance of their fraud scheme. It
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also includes specific discussion concerning the preparation, submission, and review of fraudulent
loan applications created by Ilori and his co-conspirators.
The circumstances of this case make clear that Ilori was in a conspiracy with both Recamier
and CC-1. All statements made by Recamier and CC-1 in furtherance of that fraud, identity theft,
and money laundering conspiracy therefore are admissible as direct evidence against Ilori under
Rule 801(d)(2)(E).
II. The Court Should Permit Evidence and Testimony Regarding Ilori’s Other Instances of
Identity Theft and Fraud Either As Direct Evidence of the Charges or, in the
Alternative, Pursuant to Rule 404(b)
Evidence of Ilori’s (1) fraud and identity theft conduct at the time of the charged crimes;
(2) benefitting from fraud and identity theft conduct committed by Recamier; and (3) long history
of fraud and identity theft offenses are all admissible as trial. Some of these instances of bad
conduct are admissible against Ilori as direct evidence of the charged crimes, while others are
admissible under Rule 404(b) as probative of knowledge, intent, absence of mistake, preparation,
and modus operandi.
A. Applicable Law
Evidence of uncharged crimes, wrongs, or other acts is not subject to Rule 404(b) if it
constitutes direct evidence of the charged offense. United States v. Guang, 511 F.3d 110, 121 (2d
Cir. 2007). Whether such evidence is direct evidence of the charged offense depends on whether
it (i) “arose out of the same transaction or series of transactions as the charged offense,” (ii) “is
inextricably intertwined with the evidence regarding the charged offense,” or (iii) “is necessary to
complete the story of the crime on trial.” United States v. Carboni, 204 F.3d 39, 44 (2d Cir. 2000)
(citations omitted).
Under Rule 404(b), “[e]vidence of any other crime, wrong, or act is not admissible to prove
a person’s character in order to show that on a particular occasion the person acted in accordance
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with the character.” Fed. R. Evid. 404(b)(1). However, such evidence “may be admissible for
another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2).
The Second Circuit has adopted an “inclusionary rule” that “allows the admission of such
evidence for any purpose other than to show a defendant’s criminal propensity, as long as the
evidence is relevant and satisfies the probative-prejudice balancing test of Rule 403 of the Federal
Rules of Evidence.” United States v. Lyle, 919 F.3d 716, 736 (2d Cir. 2019) (citations omitted). In
making this determination, the Court must consider whether “(1) the evidence [is] offered for a
proper purpose; (2) it [is] relevant to a disputed trial issue; [and] (3) its probative value is
substantially outweighed by its possible prejudice.” United States v. Kadir, 178 F.3d 115, 123 (2d
Cir. 2013) (citation omitted); see also United States v. Pascarella, 84 F.3d 61, 69 (2d Cir. 1996)
(evidence of other crimes, wrongs, or acts is admissible “unless it is introduced for the sole purpose
of showing the defendant’s bad character, or unless it is overly prejudicial under Fed. R. Evid. 403
or not relevant under Fed. R. Evid. 402” (internal citation omitted)).
Whether admitted as direct evidence or pursuant to Rule 404(b), the offered evidence
remains subject to Federal Rule of Evidence 403. The Court must therefore determine whether the
probative value of the offered evidence is “substantially outweighed” by a danger of “unfair
prejudice” or confusion. Fed. R. Evid. 403. The Second Circuit has found admission appropriate
where the offered evidence “‘did not involve conduct any more sensational or disturbing than the
crimes with which [the defendants were] charged.’” United States v. Pitre, 960 F.2d 1112, 1120
(2d Cir. 1992) (quoting Roldan-Zapata, 916 F.2d at 804). Generally speaking, “any proof highly
probative of guilt is prejudicial to the interests of that defendant. The prejudice that Rule 403 is
concerned with involves ‘some adverse effect . . . beyond tending to prove the fact or issue that
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justified its admission into evidence.’” United States v. Gelzer, 50 F.3d 1133, 1139 (2d Cir. 1995)
(quoting United States v. Figueroa, 618 F.2d 934, 943 (2d Cir. 1980)). To the extent there is any
risk of unfair prejudice from otherwise probative evidence, the Court may provide limiting
instructions to remind the jury that the defendants are not on trial for any offense other than the
crimes charged. See United States v. Tussa, 816 F.2d 58, 68 (2d Cir. 1987) (limiting instruction
sufficient to preclude prejudice to defendant); see generally Parker v. Randolph, 442 U.S. 62, 75
n.7 (1979) (“The ‘rule’ – indeed, the premise upon which the system of jury trials functions under
the American judicial system – is that juries can be trusted to follow the trial court’s instructions.”).
B. Evidence of Ilori’s Use of Stolen Identities to Commit Fraud During the Time Period
of the Charged Offenses Is Admissible as Direct Evidence or, in the Alternative,
Under Rule 404(b)
1. Relevant Facts
The Government respectfully seeks an in limine ruling that it may introduce evidence
concerning Ilori’s (a) use of the stolen identities of identity theft victims during the time period of
the conduct charged in the Indictment and (b) benefiting from Recamier’s use of stolen identities
of identity theft victims, as aided and abetted by Ilori, during the same time period.
First, in or about spring 2021, Recamier rented an apartment at 44-41 Purves Street in Long
Island City, New York (the “LIC Apartment”). This apartment was rented under the name of an
identity theft victim (“Identity Theft Victim-2”). Identity Theft Victim-2 is one of the identity theft
victims who Ilori discussed with CC-1. Documentation that Recamier provided in connection with
the lease of the LIC Apartment included a New York State driver’s license in the name of Identity
Theft Victim-2, but bearing Recamier’s photograph. Recamier signed Identity Theft Victim-2’s
name to the leasing application and rental documents. Recamier claimed that Identity Theft
Victim-2 was employed by an entity, Amana Air Charters LLC, that Ilori and Recamier had used
to apply for a charged loan. The management company at the LIC Apartment noticed that Ilori was
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frequently present at the LIC Apartment and told Recamier that Ilori should be formally added as
a registered guest in order to be allowed such frequent access. In response, Recamier identified
Ilori as a co-habitant at the LIC Apartment, with Ilori claiming the name of another identity theft
victim (“Identity Theft Victim-3”). The defendants also attempted to apply for a COVID-19 relief
loan in the name of Identity Theft Victim-3, which is part of the Indictments’ charges.
Although the Government does not believe Ilori resided at the LIC Apartment, Ilori was
frequently present and was captured on surveillance video visiting the LIC Apartment on multiple
occasions, including at times where investment accounts in the name of Identity Theft Victim-1,
which received fraud proceeds, was accessed using IP Address-1, which was assigned to the LIC
Apartment. Ilori also possessed a key to the LIC Apartment at the time of his arrest.
Second, from in or about spring 2021 through in or about fall 2021, on multiple occasions,
Ilori used a bank card in the name of Identity Theft Victim-1 to purchase items at a Manhattan
coffeeshop. The account tied to this bank card was associated with both Identity Theft Victim-1
and a corporation that the defendants used to successfully obtain more than $500,000 in PPP funds.
This account was funded with fraud proceeds.
Third, in or about summer 2021, Ilori rented an apartment at 123 Melrose Street in
Brooklyn (the “Melrose Street Apartment”). This apartment was rented under the name of Identity
Theft Victim-3. Documentation that Ilori provided in connection with the lease of the Melrose
Street Apartment included a New York State driver’s license in the name of Identity Theft
Victim-3 but bearing Ilori’s photograph. In submitting this application, Ilori submitted bank
statements purportedly in the name of Identity Theft Victim-3. However, these statements were
substantially identical to bank statements that Ilori and Recamier had submitted in connection with
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loan applications charged in the Indictment, with only dates of transactions and the account name
changing. In both statements, the listed transactions and the associated amounts are identical.
Fourth, in or about September 2021, Recamier leased the Mercedes (a 2021 Mercedes Benz
S580) under the name of another identity theft victim (“Identity Theft Victim-4”). Documentation
that Recamier provided in connection with the lease of the Mercedes included bank cards and a
social security card in Identity Theft Victim-4’s name, as well as a New York State driver’s license
in the name of Identity Theft Victim-4 but bearing Recamier’s photograph. Ilori was observed
driving and otherwise utilizing the Mercedes on multiple occasions. Ilori was also arrested while
preparing to operate the Mercedes. In addition to its use in connection with acquiring the Mercedes,
Ilori and Recamier applied for at least two fraudulent loans using Identity Theft Victim-4’s name
and other identifiers.
2. Discussion
Evidence that Ilori was engaged in these four instances of identity theft and fraud is
admissible as direct evidence because these instances of fraud and identity theft either arose out of
the same transaction or series of transactions as the charged offense and/or are necessary to
complete the story of the charged crimes at trial.
First, these four instances all involve use by Ilori and Recamier of identities, entities,
accounts, or documents that they also utilized in the charged crimes. They thus constitute direct
evidence of the near contemporaneous use by Ilori and his co-conspirator of these identifiers in
the charged offenses. As to the coffeeshop purchases, the lease of the Mercedes, Ilori’s addition to
the LIC Apartment as a co-habitant, and the lease of the Melrose Street Apartment, Ilori and
Recamier utilized individual stolen identities that they also used in filing the charged loan
applications. As to Ilori’s lease of the Melrose Street Apartment, he utilized a bank statement that
he had also submitted in connection with charged loan applications. And as to the lease of the LIC
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Apartment, Ilori and Recamier claimed an association to a corporation they had used to apply for
one of the charged pandemic-relief loans. The use of the same identities and supporting documents
by Ilori and Recamier for these four fraud and identity theft schemes is direct proof of their use of
the same identities, accounts, and documentation in the charged fraud and identity theft scheme.
Second, the four above-described schemes involve the use of funds that are either directly traceable
to fraudulently obtained funds, or the use of cash payments, at the same time that Ilori and
Recamier withdrew large amounts of cash proceeds of the charged scheme. They are inextricably
linked to the charged offenses and necessary to complete the story of the crime at trial.
In addition, and in the alternative, evidence of Ilori’s and Recamier’s involvement in these
four fraud and identity theft schemes is admissible under Rule 404(b) to show knowledge, intent,
and absence of mistake as to the charged offenses. An essential element in all the charges in the
Indictment is knowledge. Accordingly, “trial courts should follow a liberal policy in admitting
evidence directed towards establishing the defendant’s state of mind.” United States v. Collorafi,
876 F.2d 303, 305 (2d Cir. 1989). Here, evidence that Ilori and his co-conspirator were nearly
contemporaneously involved in additional identity theft and fraud schemes, from which they
profited, helps establish that Ilori’s preparation and submission of fraudulent COVID-19 relief
loan applications using stolen identities of innocent third parties was “a voluntary, intentional
violation of a known legal duty,” rather than an innocent error. Cheek v. United States, 498 U.S.
192, 201 (1991) (citation omitted); see also United States v. Dupree, 870 F.3d 62, 76 (2d Cir.
2017) (“[A]court can . . . admit evidence of prior acts as probative of knowledge and intent if the
evidence is relevant to the charged offense, i.e., if there is a similarity or connection between the
charged and uncharged acts.”) (citation omitted); United States v. Gordon, 987 F.2d 902, 908 (2d
Cir. 1993) (“[T]he probative value of the proffered evidence depends largely on whether or not
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there is a ‘close parallel’ between the crime charged and the acts shown.” (internal quotation marks
omitted)); United States v. Peterson, 808 F.2d 969, 974 (2d Cir. 1987) (prior act evidence
admissible if sufficiently similar “to permit the jury reasonably to draw from that act the
knowledge inference advocated by the proponent of the evidence”). The above-described instances
are highly similar to the charged conduct, both with respect to Ilori’s actions and the time period
in which they were undertaken, and are thus very probative.
These instances of identity theft and fraud are also probative of Ilori’s modus operandi,
including his nearly identical conduct in directing Recamier to reveal his face as part of the fraud
scheme, in sending Recamier into banks (which operate video surveillance systems) to conduct
transactions, and in submitting Recamier’s photograph to apply for loans and open accounts. In
the above-described instances involving the lease of the LIC Apartment and the lease of the
Mercedes, Ilori allowed Recamier to engage directly in the fraud scheme in a way that could trace
back to Recamier, while Ilori protected himself from more overt involvement but nevertheless
benefited from the crimes. This is another potent similarity between these instances of identity
theft and fraud and the charged crimes.
Furthermore, the probative value of the evidence is not substantially outweighed by any
prejudice. The allegation that the defendant engaged in additional fraud and identity theft is no
more inflammatory than the crimes for which he has been charged. Indeed, the amount of property
that the defendant obtained and attempted to obtain through these four schemes is far less than the
charged crimes. This evidence does not involve conduct “more sensational or disturbing” than the
charged offenses and any unfair prejudice is therefore minimal. See United States v. Roldan-
Zapata, 916 F.2d 795, 804 (2d Cir. 1990) (evidence that is neither “more sensational” nor “more
disturbing” than the charged crimes will not be deemed unfairly prejudicial); see also Costantino
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v. Herzog, 203 F.3d 164, 174 (2d Cir. 2000) (noting that “virtually all evidence is prejudicial to
one party or another,” and so “to justify exclusion under Rule 403 the prejudice must be unfair”).
Nor will the evidence be confusing, particularly because, as explained above, much of the evidence
is inextricably linked to the charged offenses. Moreover, any risk of undue prejudice could be
addressed through an appropriately crafted limiting instruction. See Huddleston v. United States,
485 U.S. 681, 691-92 (1988).
C. Evidence Concerning Ilori’s Numerous Prior Instances of Committing Fraud and
Identity Theft Is Admissible Under Rule 404(b)
1. Relevant Facts
In addition to the above-described examples of Ilori’s repeated commission of fraud and
identity theft crimes, the defendant has also been arrested and convicted of multiple prior such
crimes. Evidence related to those offenses, including the convictions themselves, should be
admitted at trial pursuant to Rule 404(b).
Both Ilori and Recamier took part in a fraud and identity theft scheme between in or about
March 2019 and in or about March 2020, which resulted in Ilori’s 2021 conviction in the Southern
District of New York in case 20 Cr. 378 (LJL). This offense involved the submission of fraudulent
business loan applications utilizing the stolen identities of identity theft victims and false claims
of association with corporate entities, as well as the submission of falsified bank and tax
documents. In furtherance of the scheme, Ilori obtained stolen identity information of victims and
falsified documents. Recamier’s role included impersonating identity theft victims and visiting
banks to conduct transactions under the assumed identities. Among other things, Ilori submitted
loans including supporting documents that were essentially identical to supporting documents
submitted in support of loan applications charged in this prosecution. In addition, both Ilori and
his co-conspirators were captured in audio-recorded conversations discussing Ilori’s ability to
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obtain stolen identities and falsify associations with businesses in order to apply for loans on
fraudulent grounds. On or about April 8, 2021, Ilori pleaded guilty to the above-described conduct
in the Southern District of New York.
On or about June 28, 2019, Ilori was arrested when attempting to open bank accounts under
stolen identities. Law enforcement recovered multiple ID cards with identity theft victims’ names
and identifiers, but bearing Ilori’s photograph. Law enforcement also recovered bank cards in the
names of identity theft victims.
On or about June 8, 2006, Ilori was arrested when attempting to open bank accounts using,
among other false documents, counterfeit identification cards in identity theft victims’ names, and
a forged utility bill. On or about April 17, 2007, Ilori was convicted by a jury for possession of a
forged instrument in the second degree, in New York County Supreme Court.
On or about January 12, 2006, Ilori was arrested when attempting to purchase goods using
a fraudulently obtained credit card in the name of an identity theft victim. At the time of his arrest,
Ilori was in possession of the identity theft victim’s personal information and a counterfeit
identification card in that victim’s name. On or about June 1, 2006, Ilori pleaded guilty to for
possession of a forged instrument in the second degree in New York County Supreme Court.
On or about May 31, 2004, Ilori was arrested when attempting to purchase goods using a
stolen credit card. At the time of his arrest, Ilori was also in possession of a fraudulent identification
card. On or about September 20, 2004, Ilori pleaded guilty to possession of a forged instrument in
the third degree in New York County Criminal Court.
On or about September 7, 1999, Ilori attempted to purchase electronics using the stolen
identity of an identity theft victim. In connection with this conduct, Ilori utilized a counterfeit
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identification card. On or about January 28, 2000, Ilori pleaded guilty to the conduct in Nassau
County 1st District Court.
From in or about March 1997 through in or about November 1997, Ilori engaged in a bank
fraud scheme, which involved his opening bank accounts under multiple aliases and depositing
fraudulent checks into those accounts. During that scheme, Ilori attempted to deposit
approximately $100,000 in fraudulent checks, and he successfully obtained $30,000 from financial
institutions. On or about February 17, 1998, Ilori pleaded guilty to theft of government funds in
the Southern District of New York.
2. Discussion
Ilori’s conduct leading to each of the above-described arrests and convictions, involved
identity theft. His conduct also frequently involved fraud. The Government should be permitted to
introduce evidence of Ilori’s prior bank fraud and identity theft conduct and convictions, because
those convictions are probative of Ilori’s knowledge, intent, and absence of mistake with respect
to the charged crimes.
Evidence of Ilori’s prior identity theft and fraud conduct and convictions should be
admitted under Rule 404(b) to show that Ilori had the requisite knowledge or intent to commit the
charged crimes, or to rebut any assertion that he was not the person who committed the crime,
because there is a similarity (indeed, almost an identicality) between the prior and the charged
conduct. See United States v. Paulino, 445 F.3d 211, 221-22 (2d Cir. 2006). Here, knowledge and
intent are considered disputed issues, because the defendant has not expressed a decision not to
dispute that element of the offense. See United States v. Ramirez, 894 F.2d 565, 568 (2d Cir. 1990)
(if the defendant “disavows awareness that a crime was being perpetrated” then “knowledge is
properly put in issue”); United States v. Aminy, 15 F.3d 258, 260 (2d Cir. 1994) (explaining that
sufficient similarity, not “synonymity,” is required to establish the relevance of prior similar
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convictions or bad acts). Accordingly, “evidence of prior or similar acts may be introduced during
the government’s case-in-chief, ‘rather than waiting until the conclusion of the defendant’s case.’”
Pitre, 960 F.2d at 1120 (quoting United States v. Caputo, 808 F.2d 963, 968 (2d Cir. 1987)); see
also United States v. Inserra, 34 F.3d 83, 90 (2d Cir. 1994) (“[A]dmission of similar act evidence
to prove intent or knowledge . . . is admissible during the Government’s case-in-chief if it is
apparent that the defendant will dispute that issue.”).
Evidence concerning Ilori’s similar prior convictions is plainly admissible to show
knowledge or intent to commit the charged crimes. The elements of the charged crimes are nearly
identical to the elements of Ilori’s prior convictions. See Aminy, 15 F.3d at 260. Moreover, the
method and means of the conduct underlying Ilori’s prior convictions—forging documents,
submitting fraudulent applications, falsely claiming association with corporate entities, obtaining
stolen identify information from victims, and possessing and using false ID cards and credit cards
in victims’ names—provides a reasonable basis for inferring that Ilori had knowledge or intent to
commit the charged crimes. See, e.g., Huddleston, 485 U.S. at 687-88. Moreover, admissible
conduct is not limited to prior bad acts involving the exact crimes charged, but rather extends to
any prior misconduct that is probative of the defendant’s readiness to commit the charged crimes.
See United States v. Viviano, 437 F.2d 295, 299 n.3 (2d Cir. 1971) (“[E]vidence of prior criminal
conduct [need not] be formally the same as the crime charged.”) (internal quotation marks
omitted).
The fact that some of these prior convictions took place several years before the charged
conduct does not alter the conclusion that the evidence is admissible. The Second Circuit has held
that “where relevant and adequately probative prior-act evidence will help a jury shed light on the
issues before it, such evidence may be admitted, notwithstanding a relatively longer passage of
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time since the commission of the prior act.” United States v. Ozsusamlar, 428 F. Supp. 2d 161,
171 (S.D.N.Y. 2006) (admitting evidence of prior acts from twelve years before charged period);
see United States v. Curley, 639 F.3d 30, 59 (2d Cir. 2011) (admitting evidence of incidents that
“pre-dated the charged conduct by as much as fifteen years” where they “demonstrate a pattern of
activity that continued up to the time of the charged conduct”); United States v. Martino, 759 F.2d
998, 1005 (2d Cir. 1985) (finding no abuse of discretion in admitting an eleven-year-old conviction
where “the prior conviction of federal narcotics offenses was evidence which could be interpreted
by the fact-finders as shedding light on these key issues . . . [and] the evidence was both relevant
and probative”); United States v. Agudelo, 141 F. App’x 13, 15 (2d Cir. 2005) (summary order)
(affirming district court’s admission of evidence of drug activity from six or seven years prior to
the charged conduct).
And, as described above, such evidence is no more prejudicial than the charged conduct in
this case, which involves far broader identity theft and defrauding the Government of funds
intended to help protect the jobs of many during a cataclysmic global pandemic. Moreover, any
risk of undue prejudice could be addressed through an appropriately crafted limiting instruction.
See Huddleston, 485 U.S. at 691-92.
III. Evidence Concerning Ilori’s History of Criminal Activity Should Also Be Admitted
If He Testifies
For the reasons described above, evidence of Ilori’s prior convictions and uncharged
criminal activity should be admitted in the Government’s case-in-chef as direct evidence of the
charged crimes or under Rule 404(b). However, even if the Court were to preclude that evidence
in the Government’s case-in-chief, Ilori’s prior bad acts and similar criminal convictions should
admitted as impeachment evidence under Rules 608 and 609, to the extent that Ilori testifies in his
defense.
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1. Applicable Law
A testifying defendant “has no right to set forth to the jury all the facts which tend in his
favor without laying himself open to a cross-examination upon those facts.” Brown v. United
States, 356 U.S. 148, 155 (1958) (quotation omitted); see also United States v. Havens, 446 U.S.
620, 627 (1980) (essential to permit Government to pose “proper and effective cross-
examination”); United States v. DiLapi, 651 F.2d 140, 151 (2d Cir. 1981) (Mishler, J., concurring)
(“basic fairness” requires that “story presented on direct [by defendant] is measured for its
accuracy and completeness by uninfluenced testimony on cross-examination”); United States v.
Vega, 589 F.2d 1147, 1151 n.3 (2d Cir. 1978) (defendant should not be allowed to “frustrate the
truth-seeking function of trial by presenting tailored defenses insulated from effective challenge”).
Thus, cross-examination of a defendant appropriately encompasses “all non-collateral matters.”
See United States v. Ferguson, 758 F.2d 843, 849 (2d Cir. 1985) (emphasis added).
Rule 608(b) permits cross-examination of specific instances of conduct of a principal
witness if “probative of the character for truthfulness or untruthfulness” of the witness. Fed. R.
Evid. 608(b). In deciding the extent of proper impeachment material under Rule 608(b), courts
generally apply the balancing considerations of Federal Rule of Evidence 403. See Hynes v.
Coughlin, 79 F.3d 285, 294 (2d Cir. 1996); Fed. R. Evid 608 (b)(2) advisory committee note
(1972); Huddleston, 485 U.S. at 685.
The scope of cross examination allowed the Government in cross examining a defendant
is significantly broader when the Government seeks not just to attack the defendant’s credibility
in a general fashion, but to engage in impeachment by contradiction or “impeachment of specific
falsehoods.” United States v. Beverly, 5 F.3d 633, 639 (2d Cir. 1993). In such a situation, the
restrictions of Rule 608(b) no longer apply. See id. “Where a defendant testifies on direct about a
specific fact, the prosecution is entitled to prove . . . that he lied as to that fact.” Id. (citing United
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States v. Garcia, 936 F.2d 648, 653 (2d Cir. 1991)); see also United States v. Payton, 159 F.3d 49,
58 (2d Cir. 1998); United States v. Gambino, 951 F.2d 498, 503-04 (2d Cir. 1991); United States
v. Garcia, 936 F.2d 648, 653-54 (2d Cir. 1991). “The same holds true for defendant’s false
statements on cross-examination.” Beverly, 5 F.3d at 639-40.
The Government also would be entitled to use Ilori’s prior convictions to impeach him
during cross-examination, pursuant to Federal Rule of Evidence 609. See United States v.
Estrada, 430 F.3d 606, 617 (2d Cir. 2005) (“Rule 609(a)(1) presumes that all felonies are at least
somewhat probative of a witness’s propensity to testify truthfully.”); United States v. Hayes, 553
F.2d 324, 828 (2d Cir. 1977) (prior conviction for importation of cocaine probative on the issue of
accused’s veracity and was properly admitted under Rule 609(a)(1)).
With respect to a conviction within the last ten years (or a conviction resulting in
confinement within the past ten years), it (1) may be admitted to “attack a witness’s character for
truthfulness” if the crime was punishable by more than one year of imprisonment, and the
admission is not barred by Federal Rule of Evidence 403; and (2) must be admitted for this purpose
“for any crime regardless of the punishment . . . 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(a). The party “desiring to take advantage of automatic admission of
a conviction under the second prong must demonstrate to the court that a particular prior conviction
rested on facts warranting the dishonesty or false statement description.” Hayes, 553 F.2d at 827
(internal quotation marks omitted).
With respect to an older conviction, it is admissible only if: “(1) its probative value,
supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and
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(2) the proponent gives an adverse party written notice of the intent to use it so that the party has
a fair opportunity to contest its use.” Fed. R. Evid. 609(b).
Impeachment evidence involving a defendant’s prior criminal convictions must also satisfy
Rule 403, which provides that a court may exclude evidence “if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”
Fed. R. Evid. 403. In balancing probative value against prejudicial effect under this rule, courts
examine the following factors: (1) the impeachment value of the prior crime, (2) the remoteness
of the prior conviction, (3) the similarity between the past crime and the conduct at issue, and (4)
the importance of the credibility of the witness. See 4 Weinstein’s Federal Evidence § 609.04[2][a],
at 609–20 (1997); Hayes, 553 F.2d at 828.
2. Discussion
As described above, in addition to the charged conduct, which includes the use of false IDs
in the names of identity theft victims and the submission of falsified documentation to fraudulently
obtain pandemic relief loans and the laundering of the proceeds of that scheme, the defendant has
also engaged in other criminal and bad acts. The defendant and Recamier engaged in various fraud
and identity theft crimes, including some leveraging the same false IDs that they used in connection
with the charged crimes. In the event that the defendant takes the stand in his own defense and
asserts that he is generally law-abiding and could not have committed the charged crimes, his
history of prior criminal activity and bad acts would be highly relevant impeachment material. See
Fed. R. Evid. 608(b).
As a threshold matter, the Government anticipates Ilori may argue that he did know
knowingly enter into a conspiracy or knowingly possess or conspire to possess false IDs. If Ilori
were to testify, for example, that he did not possess the requisite knowledge or intent to participate
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in the charged conduct, he should not be permitted to conceal from the jury facts that impugn his
credibility, such as a character for engaging in fraud. See Estrada, 430 F.3d at 617 (noting in
context of Fed. R. Evid. 609 that crimes of “fraud” are more probative of dishonesty than those of
violence).
Should Ilori decide to testify, his credibility is likely to be the key issue at trial. In that case,
his prior convictions are clearly admissible for purposes of impeachment. As described above,
Ilori’s 2021 conviction in case 20 Cr. 378 (LJL) involved substantially identical conduct to the
charged crimes—including, specifically, the submission of fraudulent loan applications, utilizing
the stolen identities of identity theft victims. Ilori pled guilty to conspiracy to commit mail and
wire fraud, in violation of 18 U.S.C. § 1349, and also admitted to money laundering conspiracy,
in violation of 18 U.S.C. § 1956. That conviction constitutes a crime of dishonesty that is
automatically admissible for impeachment purposes under Rule 609(a)(2). Fed. R. Evid. 609(a)(2);
Estrada, 430 F.3d at 614-15.
Ilori’s additional similar prior convictions, which are more than 10 years old, are similarly
admissible for purposes of cross-examination. As outlined above, all those convictions involved
“dishonesty or false statements” and are therefore per se probative of credibility and admissible
for impeachment purposes under Rule 609(b). While the convictions are more remote in time, they
involved substantially similar conduct to the charged crimes. Moreover, based on the specific facts
and circumstances of those convictions, they are probative both of Ilori’s knowledge and intent to
commit the charged offenses and his credibility. Fed. R. Evid. 609(b); United States v. Payton,
159 F.3d 49, 57-58 (2d Cir. 1998). And because the fraud offenses Ilori committed in the instant
case are on a larger scale than Ilori’s prior fraud convictions, the prejudicial effect of those crimes
is substantially outweighed by their probative value. See Payton, 159 F.3d at 58-59.
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IV. Evidence or Argument Concerning the Consequences the Defendant Faces if
Convicted Should be Precluded
Argument and evidence concerning the possible consequences of conviction should be
precluded. It is well established that the jury’s function is to find the facts and to determine
whether, based on those facts, the defendant is guilty of the crimes charged. Where the jury has no
role at sentencing—such as in this case—it “should be admonished to ‘reach its verdict without
regard to what sentence might be imposed.’” Shannon v. United States, 512 U.S. 573, 579 (1994)
(quoting Rogers v. United States, 422 U.S. 35, 40 (1975)). Information regarding the potential
consequences of a guilty verdict is irrelevant to the jury’s task. See id. Providing jurors with such
information invites them to consider matters that are outside of their province, distracts them from
their fact-finding responsibilities, and creates a strong possibility of confusion. See id.; see also
United States v. Riley, No. 13 Cr. 339 (VEC), 2014 WL 3435721, at *2 (S.D.N.Y. July 14, 2014).
The Second Circuit has directly held that a jury should not be instructed on or aware of possible
mandatory minimum sentences. See United States v. Pabon-Cruz, 391 F.3d 86, 91-92 (2d Cir.
2004).
These rules exist for good reason. As discussed above, arguments concerning incarceration
are irrelevant to the jury’s task and threaten to confuse the jury and risk nullification. But there are
additional reasons these arguments should be precluded. Allowing the defendant to submit these
arguments to the jury creates a gap where the Government must, in effect, remain silent because
the contrary arguments are plainly improper to submit to a jury. Considering the clear impropriety
of the Government making such arguments to the jury, the defendant is no more able to make the
converse arguments to the jury. Rather, all of these arguments concerning the consequences of a
conviction should be made to a judge in connection with sentencing. The defendant should
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accordingly be precluded from offering evidence or argument that has no purpose other than to
seek to persuade the jury to consider punishment, or any other potential consequence of conviction.
CONCLUSION
For the foregoing reasons, the Government’s motions in limine should be granted.
Dated: New York, New York
June 15, 2022
Respectfully submitted,
DAMIAN WILLIAMS
United States Attorney
By: /s/
Juliana N. Murray
Daniel G. Nessim
Assistant United States Attorneys
(212) 637-2314 / -2486
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