Court filing
Defendant's Affirmation in Opposition to the Government's Motions in Limine
No. 1:21-cr-00746-MKV · Doc. 46 · Docket on CourtListener
Full text
Case 1:21-cr-00746-MKV Document 46 Filed 06/25/22 Page 1 of 7
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------------------X
UNITED STATES OF AMERICA,
AFFIRMATION IN OPPOSITION
- against -
ADEDAYO ILORI, 21 Cr. 746 (MKV)
Defendant.
-----------------------------------------------------------X
Defendant Adedayo Ilori, by and through undersigned counsel, respectfully submits his
Opposition to certain of the Government’s Motions in Limine.
The government’s motion to introduce evidence of prior bad acts in its case-in-chief rests
upon an allegation that it cannot prove and is inherently prejudicial.
In its Motion in Limine, Section B.1., the government seeks to introduce evidence of
uncharged crimes and prior bad acts to, essentially, establish Mr. Ilori’s propensity to commit the
crimes charged herein (though this is obviously not the government’s stated purpose). While
Defendant acknowledges the broadly inclusive rule for introducing such evidence, we also
suggest that the admission of much of this evidence on the government’s case-in-chief is a
prescription for a guilty verdict based not upon the facts in this case but on government
speculation and Mr. Ilori’s past behaviors.
Initially, the Government’s proffer of its factual basis for introducing evidence of prior or
related bad acts rests on a premise that it cannot prove. As stated in its motion, “Ilori worked
with other people including the as yet uncharged CC-1,” an individual whom the government
believe it has identified. The government thus wishes to introduce the alleged vicarious
admissions of CC-1 from a recovered telephone in its case-in-chief.
When in a criminal case the government seeks, under the co-conspirator rationale, to
introduce as an admission the out-of-court statement of a declarant other than the defendant, the
[1]
Case 1:21-cr-00746-MKV Document 46 Filed 06/25/22 Page 2 of 7
trial judge must make a preliminary determination that there is sufficient independent evidence
to establish the following: (1) that a conspiracy existed, United States v. Nixon, 418 U.S. 683,
701 n. 14 (1974); (2) that the conspiracy was still in existence at the time the statement was
made, United States v. DeVaugn, 579 F.2d 225, 227-28 (2d Cir. 1978); (3) that the declarations
were made in furtherance of the conspiracy, United States v. Lang, 589 F.2d 92, 99 (2d Cir.
1978); and (4) that both the declarant and the defendant participated in the conspiracy,
United States v. Cafaro, 455 F.2d 323, 326 (2d Cir.), Cert. denied, 406 U.S. 918 (1972); United
States v. Calabro, 449 F.2d 885, 889 (2d Cir. 1971), Cert. denied, 405 U.S. 928 (1972). See U.S.
v. Lyles, 593 F.2d 182 (2d Cir. 1979).
The government’s assertions regarding the conspiracy among Recamier, Ilori and CC-1
are first posited on the claim that a Samsung phone found in the searched Mercedes belonged to
Mr. Ilori. (The government does not assert that the Samsung phone was recovered from Mr.
Ilori’s person.) The basis for this assumption is that a Telegram app was found on the Samsung
phone that contained conversations that the government asserts and/or speculates were between
Mr. Ilori and CC-1, and Mr. Ilori and Mr. Recamier. None of the individuals in these
conversations are identified by those names in the chats. However, on a few occasions, the
individual asserted to be CC-1 refers to another individual as D, and on one occasion refers to
him as Dayo.
In addition, in the conversation between who the government asserts to be Recamier and
who the government asserts to be Mr. Ilori, there are some references to an apartment on the
same street as an apartment Mr. Recamier rented, as well as some discussions of the other
individual looking for an apartment to rent. No doubt the government asserts that there is some
tangential relation between this individual’s apartment search and Mr. Ilori, who is asserted to
have ultimately rented an apartment under someone else’s name.
[2]
Case 1:21-cr-00746-MKV Document 46 Filed 06/25/22 Page 3 of 7
In making these assertions, the government wholly ignores the fact that it is alleging the
existence of a sophisticated identity theft ring, had charged Mr. Recamier with engaging in
identity theft and fraud, and believes the individual it asserts to be CC-1 also was involved in that
ring. In other words, the government asks the Court to rely on its ascribing true identities to
individuals who were actively and repeatedly, as per the government, assuming the identities of
others, based upon conversations it ascribes to these same individuals. However, in this instance,
as opposed to the many instances of asserted identity theft, the government is apparently
suggesting that the true identities of these same individuals are easily ascertainable and its
conclusions as to these identities is not something that must be proven. Rather, the government
appears to say that this Court should rely on the government’s claim that it found conversations
that reveal the individuals’ true identities in order to rule that other alleged acts of identity theft
are properly admissible—that the government’s hand-picked conversations are by who the
government says they are. This is circular logic and cannot be credited.
If pressed, the government must also admit that sophisticated identity thieves routinely
rely on spoofing, phishing and other methods of gathering individuals’ private information
through deceit. The theft of an individual’s personal identifying information has, in recent years,
led to routine cloning of the victim’s devices and apps to gain access to their finances. See, e.g.,
“When Customers Say Their Money Was Stolen on Zelle, Banks Often Refuse to Pay,” The New
York Times, June 20, 2022.1 Indeed, one of the touted features of the Telegram app is that “You
can use Telegram on all your devices at the same time — your messages sync seamlessly across
1
Found at https://www.nytimes.com/2022/06/20/business/zelle-money-stolen-
banks.html?searchResultPosition=1 on June 22, 2002.
[3]
Case 1:21-cr-00746-MKV Document 46 Filed 06/25/22 Page 4 of 7
any number of your phones, tablets or computers.” Telegram FAQ.2 The reliability of the
government’s claims that the phone in question was used by the perpetrators of the identity theft
and not the victims is not supportable by the evidence proffered thus far.
The government’s surmise as to the identities of the individuals it identifies as CC-1 and
Recamier are also insufficiently reliable grounds for the Court to allow such evidence to be
introduced before a jury. Even if the government could assert in good faith and with a solid
evidentiary basis that the Samsung phone belonged to Mr. Ilori, it cannot be proved that the
conversations in the Telegram app originated from that phone. In sum, the government cannot
satisfy the requirements for admitting these out-of-court statements as those of co-conspirators.
Without the statements, the evidence of prior bad acts alleged to have been committed both
knowingly and intentionally by Mr. Ilori lack the requisite indicia of reliability for this Court to
allow the government to introduce on its case-in-chief.
Mr. Ilori’s work relationship and friendship with Mr. Recamier is an unreliable
basis to assert his connection to the identity theft and fraud scheme.
Mr. Ilori does not deny that he worked as Mr. Recamier’s personal trainer or that they
developed a friendship. Mr. Recamier leased the Mercedes and he regularly allowed Ilori to drive
it. This does not establish Ilori’s knowledge that the Mercedes was leased fraudulently.
Recamier also occasionally bought Mr. Ilori coffee. The government’s assertion that the
fact Mr. Ilori used a bank card with someone else’s name on it ascribes knowledge of the name
on the card to Mr. Ilori is without basis in fact. How often does anyone look at the name on the
card they are using to buy anything, especially a small item like a coffee, and especially when a
friend offers his card to use for the purchase? You take the card, swipe it in the reader, and put it
2
Found at
https://telegram.org/faq#:~:text=You%20can%20use%20Telegram%20on,downloaded%20apps
%20in%20the%20world on June 22, 2022.
[4]
Case 1:21-cr-00746-MKV Document 46 Filed 06/25/22 Page 5 of 7
in your pocket; you don’t stare at it. The government is ascribing knowledge and mens rea to an
innocent activity engaged in by people every day.
The government again makes assertions that fail to reach the threshold for admissibility
when it claims that Ilori and Recamier submitted bank statements “in connection with loan
applications charged in the Indictment” that were similar to those submitted by Mr. Ilori when
applying for an apartment lease. Even assuming, arguendo, that Mr. Ilori submitted documents
under someone else’s name when applying for the apartment, the government cannot establish
that he maintained exclusive control over those documents or that Recamier did act alone when
applying for government loans using those documents. It is just as likely that, under the
government’s own theory, Mr. Ilori was given those documents by Mr. Recamier, who otherwise
maintained control over them, so that Ilori could apply for the apartment.
The government’s further unsupported assertion that “Ilori and Recamier applied for at
least two fraudulent loans using Identity Theft Victim-4’s name and other identifiers” is just that,
an assertion unsupported by sufficiently reliable evidence to allow it to be introduced on the
government’s say-so.
The government’s application that such evidence be admitted to show knowledge and
intent should also fail. The evidence shows, at best, the knowledge and intent of Mr. Recamier,
who has already pleaded guilty, not Mr. Ilori.
As the old trope goes, we should be thinking of horses here, not zebras. If Mr. Recamier
“reveal[ed] his face,” it is because Mr. Recamier was committing fraud. If Mr. Recamier was on
video, it was because Mr. Recamier was committing fraud. Ilori’s involvement in Recamier’s
fraud is mere speculation that the government wishes were more. As such, it is certainly
inflammatory and prejudicial to introduce these alleged acts without evidence that Mr. Ilori was
knowingly and intentionally involved in anything other than a friendship.
[5]
Case 1:21-cr-00746-MKV Document 46 Filed 06/25/22 Page 6 of 7
As such, we suggest that the government’s application is highly speculative and would
lead to unwarranted and highly prejudicial assumptions against Mr. Ilori by a jury. The evidence
should be excluded.
Admission of evidence of Mr. Ilori’s prior arrests and/or convictions is improper.
The government’s wish to introduce Mr. Ilori’s past arrests and/or convictions will lead
to improper prejudice against him and an inability to receive a fair trial on the pending charges.
Mr. Ilori was convicted after a guilty plea in 2021 in this Court and sentenced before
Judge Liman after he was arrested on this matter. The potential for prejudice if the jury were to
hear of this conduct is enormous, given the proximity in time to the current alleged activity. The
potential for the jury to make a decision based on propensity is huge.
The 2019 case in New York County Supreme Court was dismissed.
As for the earlier convictions, they are too far removed in time to have any relevance to
the charged conduct. The 2007 conviction was over 15 years ago. The 2006 conviction is over 16
years old. The 2004 conviction is nearly 18 years old. The 2000 conviction is over 22 years old.
The 1998 conviction is over 24 years old.
The Defendant agrees that these arguments are less persuasive should he choose to
testify.
The Defendant has no intention of raising the potential consequences he faces if convicted.
As the Defendant has no intention of raising the potential consequences he faces if
convicted, this motion should be moot.
[6]
Case 1:21-cr-00746-MKV Document 46 Filed 06/25/22 Page 7 of 7
Dated: New York, New York
June 25, 2022
Respectfully submitted,
Brill Legal Group, P.C.
Attorneys for Adedayo Ilori
________________________
By: PETER E. BRILL, ESQ.
306 Fifth Avenue, Penthouse
New York, NY 10001
TO: DAMIAN WILLIAMS, ESQ.
United States Attorney
Southern District of New York
One St. Andrew’s Plaza
New York, NY 10007
Attn: AUSA Daniel Nessim
[7]
File and source
- File
- gov.uscourts.nysd.571512.46.0.pdf
- Size
- 221,694 bytes
- SHA-256
- 64b8c0785c6e60284756e7f7c6b0c0af0e9734a4b655659bcef440f42df705b2
- Original
- PACER (login required)