Court filing
Jury Trial Transcript, Day 5 (October 31, 2022) — United States v. Adedayo Ilori
Summary
A jury trial transcript in United States of America v. Adedayo Ilori, 21 Cr. 746 (MKV), in the U.S. District Court for the Southern District of New York, for proceedings held October 31, 2022 beginning at 9:00 a.m. before District Judge Mary Kay Vyskocil. Before the jury was brought out the court took up a joint request for a new charge 46 on similar acts, confirmed that a charging conference had been held on the Friday afternoon and that the parties would meet again before summations, and ruled that four text-message exhibits admitted the previous day were received not for their truth and would be covered by a limiting instruction. The transcript also records testimony about handling seized computers and phones. The session adjourned to November 1, 2022 at 9:30 a.m. The transcript is 192 pages, filed November 18, 2022 as Document 100.
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No. 1:21-cr-00746-MKV · Doc. 100 · Docket on CourtListener
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Case 1:21-cr-00746-MKV MAVDILO1 1 Document 100 2 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------x 3 UNITED STATES OF AMERICA, 4 v. 5 ADEDAYO ILORI, 6 Defendant. ------------------------------x Filed 11/18/22 Page 1 of 192 21 Cr. 746 (MKV) Jury Trial 7 New York, N.Y. October 31, 2022 9:00 a.m. 8 9 10 Before: 11 HON. MARY KAY VYSKOCIL, 12 District Judge 13 APPEARANCES 14 15 16 17 18 DAMIAN WILLIAMS United States Attorney for the Southern District of New York BY: JULIANA N. MURRAY, ESQ. DAVID R. FELTON, ESQ. Assistant United States Attorneys 19 BRILL LEGAL GROUP, P.C. Attorneys for Defendant BY: PETER E. BRILL, ESQ. 20 ALSO PRESENT: ISABEL LOFTUS, Paralegal Specialist, USAO 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 718 Case 1:21-cr-00746-MKV MAVDILO1 Document 100 Filed 11/18/22 1 (Case called; appearances noted) 2 (Jury not present) 3 THE COURT: 4 out. 5 similar acts. Page 2 of 192 So a few things before we bring the jurors First, I have the joint request for a new charge 46 on 6 This is on consent? 7 MR. BRILL: Yes, your Honor. 8 MS. MURRAY: Yes, your Honor. 9 THE COURT: All right. 10 So I've reviewed it. Thank you. I'm fine with it. I will 11 replace what was charge 46 in what we previously provided to 12 you with this version. 13 14 719 Are you able to get this printed into the version we have? 15 LAW CLERK: Yes. 16 THE COURT: This is not a Word document, but you can 17 cut and paste it in? 18 LAW CLERK: Yes. 19 THE COURT: Two things with respect to jury 20 instructions. We'll obviously have the final charging 21 conference later on this morning, but I just want to confirm 22 with the parties on the record, I think we might have done this 23 off the record, so I'm being overly careful perhaps, but we did 24 have a charging conference on Friday afternoon. 25 is not yet closed, but the parties all consented to us having SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 The evidence Case 1:21-cr-00746-MKV MAVDILO1 Document 100 Filed 11/18/22 Page 3 of 192 1 that charging conference on Friday afternoon with the 2 understanding that we will meet one more time before 3 summations, correct? 4 MS. MURRAY: That's correct, your Honor. 5 MR. BRILL: Yes, your Honor. 6 THE COURT: All right. 7 One other thing that I wanted to discuss with the Thank you. 8 parties. 9 The four exhibits that I admitted at the end of the day, the 10 text messages, the more that I think about particularly our 11 conversation at sidebar, you did not admit those exhibits for 12 the truth of the matter asserted, did you, Ms. Murray? I thought about this a great deal over the weekend. 13 MS. MURRAY: No, your Honor. 14 THE COURT: All right. 15 the authenticity of those. 16 MR. BRILL: (Nodding) 17 THE COURT: And they are admitted not for the truth, We did not. So Mr. Brill has stipulated to 18 so they are, therefore, not hearsay. 19 fact that the conversation took place. They are admitted for the 20 Is that accurate? 21 MS. MURRAY: That is, Your Honor. 22 THE COURT: Mr. Brill, do you agree with that? 23 MR. BRILL: I do. 24 25 720 I still think you have to do that co-conspirator statement analysis. THE COURT: I don't agree with that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAVDILO1 Document 100 Filed 11/18/22 Page 4 of 192 1 MR. BRILL: Okay. 2 THE COURT: So my point is I believe that a limiting 3 instruction is in order with respect to these. 4 Do you disagree with that, Mr. Brill? 5 MR. BRILL: No, your Honor. 6 THE COURT: All right. 7 MS. MURRAY: No, your Honor. 8 THE COURT: All right. 721 Ms. Murray? So when the jury comes out, 9 I'm going to tell them with respect to the last four 10 exhibits -- which I assume may be part of what Mr. Brill will 11 be discussing during his cross, but maybe not -- they will 12 recall they are among the last things that you discussed, 13 Ms. Murray, with the witness. 14 truth of what's contained within each of those four exhibits, 15 but rather to establish that the conversations took place. They were admitted not for the 16 Agreed? 17 MS. MURRAY: Yes, your Honor. 18 THE COURT: Mr. Brill? 19 MR. BRILL: Yes, your Honor. 20 THE COURT: All right. Then is there anything else we 21 need to talk about before we resume with the jury? 22 little early for what we told them, but -- It's a 23 MS. MURRAY: Not from the government. 24 THE COURT: Mr. Brill? 25 MR. BRILL: Nothing on our behalf, Your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAVDILO1 1 2 Document 100 Filed 11/18/22 HEZIR - CROSS THE COURT: All right. Page 5 of 192 722 So we'll stand in recess until 9:30 or until all the jurors are here. 3 All right. Thank you, everyone. 4 (Recess) 5 THE COURT: Do we have the witness? 6 MS. MURRAY: Yes, your Honor. 7 THE COURT: Tell me how you pronounce your name. 8 THE WITNESS: 9 THE COURT: 10 THE WITNESS: 11 THE COURT: Damjan Hezir, your Honor. Hezir? Yes, your Honor. All right. 12 DAMJAN HEZIR, resumed. 13 CROSS-EXAMINATION You may be seated. 14 THE COURT: Good morning, everyone. 15 THE JURORS: Good morning. 16 THE COURT: I hope you had a very nice weekend, and 17 thank you very, very much for being here on time and being here 18 promptly to go this morning. 19 So I want to give you one instruction before we give 20 you Mr. Brill's cross-examination of Agent Hezir, whom, if you 21 recall, was on the stand and Ms. Murray examined at the end of 22 the day on Friday. 23 recall that Ms. Murray talked to the witness about were a group 24 of text messages. 25 truth of what's contained within the text messages, but rather So the very last set of the exhibits as I Those messages were admitted not for the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAVDILO1 Document 100 Filed 11/18/22 HEZIR - CROSS Page 6 of 192 1 simply to establish the fact that those communications took 2 place. 3 4 723 All right? Now, with that, I think we're ready for Mr. Brill's cross. 5 MR. BRILL: Thank you, your Honor. 6 THE COURT: Thank you, Mr. Brill. 7 Q. Good morning, sir. 8 A. Good morning. 9 Q. So you, if I recall from Friday, said you were -- you 10 started with DOJ at OIG in 2018? 11 A. Yes, sir. 12 Q. Okay. 13 time? 14 A. Yes, sir. 15 Q. Okay. 16 auxiliary police officer in Fairfax, Virginia, for about six 17 years before that; is that right? 18 A. That's correct. 19 Q. Okay. 20 A. During that time I was an IT specialist working for the 21 Department of Justice in a different division. 22 Q. Okay. 23 A. Yes, sir. 24 Q. Did you do anything else in addition to your part-time 25 work? That's correct. And with the cyber investigations team the whole And you had mentioned that you had volunteered as an What did you do during that time period? During that whole six-year period? It was part-time, but yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAVDILO1 Document 100 Filed 11/18/22 HEZIR - CROSS Page 7 of 192 724 1 A. I also was a part-time network administrator for a private 2 company. 3 Q. 4 lack of a better word, got you the job at the cyber 5 investigations team? 6 A. 7 network administration and IT specialist skills, yes, I believe 8 so, sir. 9 Q. 10 since you joined cyber investigations, what type of training 11 had you received with regard to searching and securing -- 12 withdrawn -- securing and searching electronic devices? 13 A. 14 with NW3C. 15 have taken a few classes dealing with searching and -- seizing, 16 searching and analyzing digital devices, as well as training at 17 the Federal Law Enforcement Training Center in Georgia. 18 Q. 19 training did you there in this topic? 20 A. Approximately three courses. 21 Q. Okay. 22 you know, longer? 23 A. No, sir. 24 Q. Okay. 25 A. In -- And based upon that experience, is that what, you know, for I think combined with my law enforcement background and my During your work with DOJ in the part-time position, and The training I received, once I started at the OIG, was Okay. That's the National White Collar Crime Center. I So the white collar crime center, about how much Three courses, like one-hour courses, or are they, They span a couple days typically. And then in Georgia? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAVDILO1 Document 100 Filed 11/18/22 HEZIR - CROSS Page 8 of 192 725 1 Q. Sorry. 2 A. Excuse me. 3 Center, I had trained for the digital evidence acquisition 4 specialist training program. 5 also started, unfortunately was interrupted due to the 6 pandemic, for the seized computer evidence recovery specialist 7 training. 8 Again, it's usually two-week courses at FLETC. 9 Q. 10 evidence out of devices after they've already been seized. 11 that an accurate summary? 12 A. I'm sorry. 13 Q. The ones in Georgia, yes. 14 A. No, sir. 15 evidence, and the second, SCERS, the seized computer evidence 16 recovery specialist, that's actually for analyzing data after 17 it's been collected. 18 Q. 19 the searches were October 7 and October 8, right? 20 A. That's correct. 21 Q. 2021? 22 A. Yes. 23 Q. Okay. 24 A. Yes, I was. 25 Q. All right. Okay. Go ahead. Yes, at the Federal Law Enforcement Training That's a two-week program. And I I attended one week there, but didn't finish. The courses sound like they covered how to get Is Were you talking about the FLETC courses? The one in Georgia was specifically for acquiring So with regard to the devices in this case, the dates of And were you present for both searches? And what type of pre-execution of the search SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAVDILO1 Document 100 Filed 11/18/22 HEZIR - CROSS Page 9 of 192 726 1 warrant meetings or planning, you know, that took place before 2 -- let's just separate them out. 3 apartment first. 4 A. 5 that evening. 6 search warrant, at which point I -- I was with my partner at 7 the time in the vehicle. 8 little after the first units entered the door. 9 Q. 10 search? 11 A. 12 there in a supporting role, primarily there for the digital 13 devices. 14 Q. 15 devices, what was the understanding of what you were going to 16 do? 17 A. 18 items as -- basically secure the evidence items for retrieval 19 back to -- to return them back to the office. 20 Q. 21 the October 8 search of Mr. Ilori and the vehicle, what was 22 your role? 23 A. 24 There was only three of us, so my primary goal is officer or 25 agent safety to make sure that we were safe on seen. Sure. Okay. Let's say the search of the We were conducting surveillance a little earlier And then the first half of my team executed the We came and arrived at the scene a So were you assigned a specific role with that I wouldn't say I was assigned a certain role, I was mainly When you say you were primarily there for the digital I was to identify, collect, and then enter those evidence Okay. We'll talk about that in a second. With respect to There were fewer agents there on the search that morning. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 We were Case 1:21-cr-00746-MKV MAVDILO1 Document 100 Filed 11/18/22 HEZIR - CROSS Page 10 of 192 727 1 there to conduct the search, but we were concerned about 2 Mr. Ilori first and then we would conduct the search. 3 as a supporting role, I was there primarily for the digital 4 devices as well. 5 Q. Would that be the same thing, identify, collect, and enter? 6 A. That's correct. 7 Q. When you say enter, you mean kind of log them somewhere so 8 that you have a list of what you got, right? 9 A. That's correct. 10 Q. Okay. 11 don't show up until after Mr. Recamier is removed or is he 12 still there when you get there? 13 A. 14 there. 15 Q. 16 was his situation? 17 A. 18 the living room, speaking with agents. 19 Q. Okay. 20 A. At that point, the apartment had been searched in terms of 21 any kind of potential threats. 22 you know -- went into mode to search for digital devices. 23 Q. And you found two or more than two? 24 A. More than two digital devices. 25 Q. So you found the Mac computer, right? Again, So let's go back to the apartment for a second. You When I arrived at the apartment, Mr. Recamier was still All right. And was he handcuffed? Was he separated? When I arrived, Mr. Recamier was not handcuffed. What He was in And what did you do when you got there? So at that point I wanted to, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAVDILO1 Document 100 Filed 11/18/22 HEZIR - CROSS Page 11 of 192 728 1 A. That's correct. 2 Q. You found the Motorola phone, right? 3 A. That's correct. 4 Q. Okay. 5 A. It was a bit chaotic. 6 were searching, a couple agents would bring evidence up to me, 7 but I do recall we identified an HP Chromebook. 8 Lexar thumb drive that was plugged into the Chromebook. 9 was another laptop -- I believe it was a Lenovo -- there on the 10 kitchen table area. 11 found them, agents would bring to me phones from -- various 12 items. What else did you find? There was a lot of agents. As we There was a There And, again, agents would bring -- as they 13 There were other members of my cyber investigations 14 team who had been trained how to handle digital evidence, and 15 they would bring them to me as they found them. 16 Q. 17 are the devices shut off if they're on, are they left on if 18 they're on? 19 A. 20 cellular network to prevent any kind of new data coming down or 21 data erasure from happening on the device. 22 Q. 23 apartment, would it be fair to say the only one attached to a 24 cellular network would have been the Motorola phone? 25 A. Okay. And when it comes to how you handle that evidence, How does that part work? Typically we -- what we do is we separate them from the So looking at the items you've listed so far found in the The Motorola phone is a mobile device that does connect to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAVDILO1 Document 100 Filed 11/18/22 HEZIR - CROSS 1 the cellular network, yes. 2 Q. 3 someone else? 4 A. 5 were found when and by whom exactly. 6 Q. 7 to it? Okay. 8 9 729 So did you physically take that one first or did I don't recall the process. Okay. Page 12 of 192 I don't recall which devices When you first saw the Motorola, did you do anything MS. MURRAY: Objection, Your Honor. I'm not sure what Mr. Brill means by "do anything to it." 10 THE COURT: The witness can say if he did anything. 11 THE WITNESS: I don't recall what I did to that 12 device. I would have to refer to my notes. 13 Q. Okay. 14 A. I do not have them here, no. 15 Q. Okay. 16 that means. 17 A. 18 actual physical notebook where I would take notes, and 19 sometimes I'd have my forensic laptop where I would take notes 20 using Notepad or something similar. 21 Q. Okay. 22 A. And I don't recall in this case which it was. 23 Q. So just so I understand, either it's a physical notebook or 24 a notepad app on a device, right? 25 A. Do you have those notes available? When you refer to notes, just describe to me what Were you taking notes on a notebook or something? Every search warrant is different. Sometimes I have an It could also be a Microsoft Word document, but it's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAVDILO1 Document 100 Filed 11/18/22 HEZIR - CROSS Page 13 of 192 730 1 basically the same. 2 Q. 3 down? 4 A. That's fair, yes. 5 Q. Okay. 6 recall if it was connected to WIFI or cellular when it was 7 handed to you, either or, or both? 8 A. I don't recall. 9 Q. Okay. 10 search the Chromebook? 11 A. 12 Chromebook, however, with our forensic tools, it wasn't 13 necessarily supported so a manual review of the Chromebook was 14 conducted. 15 Q. 16 was there anything to indicate the ownership of the Chromebook? 17 A. 18 with a photograph, and that was basically as far as I could go 19 with that review. 20 Q. Do you recall what the account was? 21 A. I don't recall. 22 Q. With regard to the Lenovo laptop, was it connected to 23 cellular, WIFI, or both when you received it? 24 A. The laptop itself, I don't recall. 25 Q. Ultimately, did you conduct a search of the laptop, the So some sort of electronic program where you write things Let's stick to the Motorola for a second. And in terms of the Chromebook, did you ultimately We did. Okay. Do you Excuse me, we did ultimately search the And in terms of the manual review of the Chromebook, There was an account on the Chromebook, I documented that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAVDILO1 Document 100 Filed 11/18/22 HEZIR - CROSS Page 14 of 192 731 1 Lenovo? 2 A. Yes, I did. 3 Q. And, as part of your search, was there anything revealed as 4 to an account or owner on the Lenovo? 5 A. I don't recall in terms of the laptop at this time. 6 Q. How about the iMac? 7 laptop? 8 A. The iMac was a desktop computer. 9 Q. Was that connected to cellular or WIFI when you received it 10 or first saw it? 11 A. When I first saw it, I -- I don't recall at this time. 12 Q. Okay. 13 A. No, sir. 14 Q. Someone else on your team? 15 A. That's correct. 16 Q. Okay. 17 search to make sure that the machines don't connect to a 18 network of any sort after you've taken possession of them? 19 A. 20 or -- computer desktops or laptops particularly the process is 21 to power off those devices in the current state that they're 22 in. 23 Q. 24 that we just discussed? 25 A. That's -- was that a desktop or a And you did a search of that one, right? I did not conduct a search of the iMac. So what methods or materials are used during a Strictly speaking, in terms of machines such as computers Okay. And do you recall if that was done for the devices I recall that the iMac was powered off physically, meaning SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAVDILO1 Document 100 Filed 11/18/22 HEZIR - CROSS Page 15 of 192 1 the power was pulled from the iMac. 2 The other devices were collected as is. 3 Q. 4 Motorola? 5 A. The other phones were recovered from that search warrant. 6 Q. There were other phones as well in the apartment? 7 A. Yes. That's correct. 8 Q. Okay. How many other phones? 9 A. I don't have an exact number. 10 Q. Okay. 11 A. Yes. 12 Q. Was there anything on those phones to indicate an account 13 or an individual who owned those phones? 14 A. 15 yes. 16 Q. And do you recall the accounts? 17 A. I don't recall the exact accounts, no. 18 Q. Okay. 19 faraday bag is? 20 A. Yes, I do. 21 Q. What is a faraday bag? 22 A. A faraday bag is used to separate a cellular device from 23 the network. 24 Q. 25 faraday bags with you during the search? Okay. I don't recall by whom. And then there's just the one phone, right? The Did you search those phones? Accounts were identified on the phones that we recovered, Okay. With the phones specifically, do you know what a Were the phones -- well, withdrawn. Did you have SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 732 Case 1:21-cr-00746-MKV MAVDILO1 Document 100 Filed 11/18/22 HEZIR - CROSS Page 16 of 192 733 1 A. I don't recall if I did or did not. 2 Q. Okay. 3 the training you mentioned earlier, were you trained to bring 4 faraday bags as a best practice when conducting search warrants 5 with regard to electronic devices? 6 A. 7 and utilize faraday bags. 8 Q. And why is that? 9 A. Again, faraday bags block the RF, or radio frequency, 10 signals from coming to the cellular device, and it's good to 11 prevent, again, erasure of the device or from new data being 12 written to the device. 13 Q. 14 is unchanged from the moment that you seize it, that's the 15 goal, right? 16 A. Yes. That's correct. 17 Q. Okay. What -- so if you didn't have the faraday bags, what 18 methods, if any, did you take to make sure that these devices 19 were no longer communicating with the network? 20 about the cell phones. 21 A. 22 actually probably the preferred method is to place the device 23 into airplane mode, which it separates it from cellular and 24 WIFI networks. 25 Q. Based upon your training or experience, specifically We were trained in how to -- excuse me -- employ and use Why is that important? Basically, whatever you can do to make sure that the device Let's just talk If a faraday bag cannot be used, our primary go to, and And with regard to all of the phones that were recovered, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAVDILO1 Document 100 Filed 11/18/22 HEZIR - CROSS Page 17 of 192 734 1 were they placed in airplane mode? 2 A. They were eventually placed into airplane mode, yes. 3 Q. What does that mean? 4 time? 5 A. 6 were. 7 my cyber investigations team, which received training how to 8 handle digital forensics, they were familiar with how to place 9 devices in airplane mode. 10 in or when. 11 Q. 12 notes, do you take notes if devices are placed in airplane 13 mode? 14 A. Yes. 15 Q. And a correspond -- like you -- you would put a device 16 specifically and then what you did with it with regard to 17 airplane mode? 18 A. Yes. 19 Q. And when you say notes, that's the same notes you were 20 talking about a couple minutes ago, right? 21 A. That's correct. 22 Q. Okay. 23 electronic devices, the phones and computers, they were not 24 examined in the apartment, right? 25 A. Eventually on the scene or some other For those devices, like I can't specifically say when they I'd have to refer to my notes. Okay. But, again, agents from So, again, I don't know who put them Based upon your general practice when you take That's correct. Yes. The phones specifically were not -- well, all of the That's correct. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAVDILO1 Document 100 Filed 11/18/22 HEZIR - CROSS Page 18 of 192 735 1 Q. Where were they examined? 2 A. The initial forensics took place in the apartment in terms 3 of placing them into airplane mode or powering off depending on 4 the device, at which point they were taken to our lab 5 eventually for analysis. 6 Q. 7 brought for the lab -- I'm sorry. 8 A. Our lab in this case is located in Arlington, Virginia. 9 Q. And between the time they were seized in New York and 10 brought to Arlington, where were they? 11 A. 12 in between -- I don't recall exactly where. 13 Q. 14 did they go other places in between? 15 A. 16 lab. 17 Q. 18 describe it? 19 A. 20 where we have our forensic tools that we use, imagers and other 21 devices that can parse and extract the data from these digital 22 devices. 23 Q. Is the lab shielded from cellular signals? 24 A. The lab is just a typical office space. 25 Q. So no, right? Okay. Between the time they were seized and when they were Where's the lab? They were transported down between New York and Arlington Okay. No. Did they go straight from New York to Arlington or They would have gone only between New York and our And when you say lab, what is your lab? Can you just It's actually my office space and my colleagues'. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 That's Case 1:21-cr-00746-MKV MAVDILO1 Document 100 Filed 11/18/22 HEZIR - CROSS Page 19 of 192 1 A. That's correct. 2 Q. You could make a cell phone call on your own cell phone 3 from your office, right? 4 A. 5 devices in there. 6 call. 736 It's a secure area so, you know, we can't have personal However, yes, you could make a cellular 7 MR. BRILL: Okay. Ms. Loftus, could we take a look at 8 Exhibit 662, please? 9 Q. Agent Hezir, this is the iPhone 12; is that correct? 10 A. That's correct. 11 Q. And where was this recovered from? 12 A. This was recovered from Mr. Ilori's person. 13 Q. And you earlier said, this was not supported by forensic 14 tools, right? 15 A. That's correct. 16 Q. So to clarify that, you use a couple of different devices 17 or programs to extract data from cell phones, right? 18 A. That's correct. 19 Q. One of them would be Cellebrite? 20 A. Yes. 21 Q. There's a couple of others, right? 22 A. Yes. 23 Q. All right. 24 iPhones, they're encrypted, right? 25 A. Thank you. And in terms of the iPhones, the later model Yes, they have encryption. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAVDILO1 Document 100 Filed 11/18/22 HEZIR - CROSS So they come that way? Page 20 of 192 737 1 Q. It's not something that a user has 2 to set on their own, right? 3 A. Correct. 4 Q. And would it be fair to say at the time you did these 5 searches, iPhone 11, and 12 and up were not supported by 6 Cellebrite? 7 A. 8 supported. 9 this specific phone was not supported. 10 Q. Okay. 11 A. This specific iPhone 12 was not supported, correct. 12 Q. All right. 13 means that you plug it into the Cellebrite device and it can't 14 download the data? 15 A. 16 programs and neither were supported. 17 Q. 18 this iPhone? 19 A. Yes, they can be. 20 Q. And did you determine at any point if this specific device 21 had an iPhone -- excuse me, IP address assigned to it? 22 A. 23 would have to have it on a network, and, again, that goes 24 against best practices, so no, I did not determine if there was 25 an IP address on this iPhone. I can't say exactly which models or what was or was not At this time, using our current forensic tools, So the iPhone 12 was not supported, right? Correct. Okay. And when you say not supported, essentially it In this case, we attempted two different software Are IP addresses assigned to specific devices like In this case, to determine if there was an IP address, we SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAVDILO1 Document 100 Filed 11/18/22 HEZIR - CROSS Page 21 of 192 1 Q. Now, there was also an iPhone 11 that was seized, right? 2 A. Yes. 3 Q. And where was that seized from? 4 A. The iPhone 11 was seized from Mr. Ilori's person. 5 Q. Okay. 6 by forensic tools, right? 7 A. I believe so. 8 Q. Essentially, again, you couldn't download the data on the 9 device, right? 10 A. If it wasn't supported. 11 Q. Okay. 12 That's correct. And, again, that was not, in your words, supported MR. BRILL: Ms. Loftus, could we look at Exhibit 631, 13 please? 14 Q. 15 the phone but was some sort of extraction of the SIM card, 16 right? 17 A. 18 Samsung device. 19 Q. All right. Now, this, I think you explained, was not an extraction of No, sir. This is an extraction report for the actual Oh, this is a Samsung. 20 21 738 All right. I'm sorry. We can take that down. I just have the wrong exhibit. 22 At some point you did an extraction of the SIM card 23 that went with the iPhone 11? 24 A. Yes. 25 Q. Okay. Give me one second, please. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAVDILO1 1 MR. BRILL: Document 100 Filed 11/18/22 HEZIR - CROSS I'm sorry. 2 put that up for a second? 3 trouble finding originally. 4 Page 22 of 192 I think it was 660-A. 739 Can we I think that was the one that we had Can we go to the second page? All right. 5 Q. What I was talking about is the SIM card extraction? 6 A. Yes, sir. 7 Q. All right. 8 about whether you were able to do the full extraction of this 9 device? 10 A. 11 SIM phone extraction from the iPhone 11, which is separate from 12 the device. 13 So does this refresh your memory a little bit It doesn't refresh my memory. I do remember this being the (Continued on next page) 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 Document 100 Filed 11/18/22 Hezir - Cross Page 23 of 192 740 1 BY MR. BRILL: 2 Q. 3 normally do a separate SIM card extraction? 4 A. 5 extraction, even if you can't get into the device. 6 Q. 7 iPhone 12, if you recall? 8 A. I don't recall at this time. 9 Q. And so the SIM card extraction, that's the, to be clear, 10 the little tiny card that you usually slip into the side or the 11 bottom of the phone when it gets activated, right? 12 A. Yes, that's correct. 13 Q. And those cards can be changed between phones, correct? 14 A. When you say changed, I'm not sure I -- 15 Q. Sure. 16 from one phone and put into another phone if that second phone 17 is compatible, correct? 18 A. Yes, it can be moved. 19 Q. So at the time of the extraction of the SIM card, was there 20 any way to tell how long the SIM card had been in the iPhone 21 11? 22 A. 23 the iPhone. 24 Q. 25 phone registers that says, this is my new number, for -- Okay. If you can get into the actual device, do you Yes, it's good practice to do a separate SIM card Did you do a SIM card extraction on the other phone, the The card itself, little SIM card, can be removed I'm not sure if there's any way to tell how long it was in Is there any sort of, you know, piece of data that the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 1 withdrawn. Document 100 Filed 11/18/22 Hezir - Cross Page 24 of 192 741 I have to ask you a different question first. The phone number comes with the SIM card, right? 2 3 A. It can, yes. 4 Q. Was it that way with the iPhone 11? 5 A. There was a phone number, or MSISDN, associated with the 6 SIM card, yes. 7 Q. 8 the iPhone register a time when it says, aha, new SIM card, new 9 phone number? 10 A. I'm not sure. 11 Q. So the information that you could get from the SIM card was 12 that this SIM card had a phone number associated with it; is 13 that correct? 14 A. Yes, that's correct. 15 Q. Okay. 16 A. I believe it's on the next page. Okay. So was the -- going back to my other question, does And is that phone number on this page or no? 17 MR. BRILL: 18 Thank you very much. All right. Okay. Could we scroll down, please. 19 Q. So towards the bottom here, it says 20 SIM/USIMMSISDN; that's line 8, right? 21 A. Yes, that's correct. 22 Q. Okay. 23 A. Correct. 24 Q. Looking at the contact above there, what is line 3, 25 voicemail phone, there's a phone number under that on line 3 And that's the phone number ending in 0642, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 Document 100 Filed 11/18/22 Hezir - Cross Page 25 of 192 1 above, right? 2 A. Yes, I see it. 3 Q. Do you know what that means, the 805 number that's there? 4 A. No, I do not. 5 Q. Would that be the number associated with the phone on a 6 previous install or something like that, if you know? 7 A. 8 742 I don't know. MR. BRILL: Okay. Okay. We can take that down. 9 Q. The Motorola was not extracted either, right, the one that 10 was found in the apartment? 11 A. I don't recall. 12 Q. I think on Friday we looked at some pictures of it because 13 you said there was a manual examination; is that correct, or 14 no? 15 A. 16 there was another extraction completed or not. 17 Q. 18 recovered from? 19 A. 20 the vehicle. 21 Q. Okay. 22 A. I did, yes. 23 Q. And so where exactly was it? 24 A. The general area was in between the driver's side and the 25 front passenger seat. There was a manual review conducted. Okay. I don't recall if And then with regard to the Samsung, where was that The Samsung in question, probably this one was the -- from Did you recover it; do you recall? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 Document 100 Filed 11/18/22 Hezir - Cross Page 26 of 192 743 1 Q. All right. So there's a console in between the seats? 2 A. There is. 3 Q. Is that a closed console, you know, one of those ones that 4 would open and click shut, or is it an open console? 5 A. I -- I don't recall in this case for this vehicle. 6 Q. Okay. 7 A. I don't recall the exact model. 8 Q. All right. 9 A. I don't recall. 10 Q. Nice Mercedes? 11 A. It was a nice Mercedes. 12 Q. Okay. 13 Samsung, forensic analysis, nondigital, like fingerprints or 14 DNA or anything like that? 15 A. 16 analysis performed. 17 MR. BRILL: 18 631 should have come up, not -- before. 19 All right. This was a Mercedes S500; is that right? S class? Was there any sort of other analysis done of the I don't recall if they -- if there was any additional Ms. Loftus, could we pull up 631, please. Can we scroll in on the -- sorry -- just 20 this whole box, if we can zoom in on that. 21 Q. 22 activation time, which is, I don't know, about six or seven 23 lines down, it says July 10, 2020, right? 24 A. Yes. 25 Q. Okay. All right. Thank you. So going down this box, we see that the phone Now does that indicate to you that that's the first SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 Document 100 Filed 11/18/22 Hezir - Cross Page 27 of 192 744 1 time the phone was activated or is that when the most recent 2 SIM card was put in? 3 A. I don't know what that specific value indicates. 4 Q. Okay. 5 correct? 6 0642 number, right? 7 A. I see that field, yes. 8 Q. Okay. 9 from the iPhone 11, right? 10 A. Correct. 11 Q. And when you analyze that SIM card, it comes up with the 12 same phone number, 0642, correct? 13 A. Correct. 14 Q. All right. 15 the phone is 0642 as well, correct? 16 A. This value does indicate that. 17 Q. Okay. 18 that was in use by this phone at the time you seized it? 19 A. 20 the SIM card extraction of this Samsung to determine the 21 current phone number. 22 Q. 23 extraction of the Samsung? 24 A. I don't recall. 25 Q. And do you see the line right below that where it says SIM Do you know what that means? So now you have the current SIM phone number, And that's the same number we looked at before, the So you have a SIM card that's physically removed And this phone says that the current number of Is that the phone number, to your understanding, For my -- based on my knowledge, I would actually refer to Okay. Did you do a SIM code -- sorry -- SIM card SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 Document 100 Filed 11/18/22 Hezir - Cross Page 28 of 192 1 change time, 7/10/2020 at 10:34 p.m., right? 2 A. Yes. 3 Q. Around eight minutes later then from the phone activation 4 time, correct? 5 A. Yes. 6 Q. And would that indicate that the phone had a SIM card 7 swapped out of it or swapped into it after its activation? 8 A. I -- I couldn't say that for sure. 9 Q. Okay. 10 is a 929 phone number, right, over here? 11 A. Yes, I see that. 12 Q. And just so the record is clear, MSISDN number, that's a 13 phone number, correct? 14 A. Correct. 15 Q. Okay. 16 you have "last known use" twice, right? 17 A. Yes. 18 Q. Okay. 19 A. I -- in this case, no. 20 Q. All right. 21 correspond with the MSISDN number that's right below it? 22 A. Based on how the report appears, yes. 23 Q. All right. 24 corresponds to the 0642 number, correct? 25 A. 745 But the MSISDN number following the SIM change time So then at the bottom here, you have two entries; Do you know what "last known use" refers to? So would you agree that "last known use" would So last known use on August 4, 2020, Again, based on the report, yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 I understand. Document 100 Filed 11/18/22 Hezir - Cross Page 29 of 192 746 1 Q. I mean, look, these are reports that you 2 rely on in your job, right? 3 A. Yes. 4 Q. Okay. 5 inaccurate, correct? 6 A. 7 if a particular artifact is irrelevant. 8 Q. 9 you extracted the SIM for this phone, right? 10 A. Not off the top of my head, no. 11 Q. Okay. 12 9691, correct? 13 A. Correct, September 23rd, yes. 14 Q. September 23rd. 15 the search here was October 8th when this phone was recovered, 16 right? 17 A. So you have no reason to believe that they're Not necessarily. Okay. However, we do typically like to verify But as you sit here today, you don't recall whether So the MSISDN number last known use was for a number And just, again, so the record is clear, That is correct. 18 MR. BRILL: Okay. We could take this down. 19 Could we put up 638, please. 20 Q. When -- you're familiar with this exhibit, right? 21 A. Yes. 22 Q. Okay. 23 conversation -- took place on? 24 take place on? 25 A. When -- what app, if you know, was this What app did this conversation This app was the Telegram messaging app. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 Document 100 Filed 11/18/22 Hezir - Cross Page 30 of 192 1 Q. Are you familiar with Telegram? 2 A. Casually, yes. 3 Q. Okay. 4 installed on multiple devices at the same time for the same 5 user? 6 A. That I can't say. 7 Q. Is Telegram associated with a specific phone number when 8 you install it on your phone? 9 A. I haven't installed it personally so I don't know. 10 Q. Okay. 747 And would it be fair to say that Telegram can be So the phone number -- 11 MR. BRILL: 12 first three bubbles. 13 Q. 14 where the Telegram app is getting that information from? 15 getting it from the -- some other part of the phone or is that 16 entered in by the user when they install the app? 17 A. I'm not sure where it's pulling that number from. 18 Q. When it says Unknown, would the app be looking somewhere to 19 try to find a name or a number and not being able to find it; 20 do you know? 21 A. I don't know. 22 Q. Okay. 23 A. February 17, 2021. 24 25 Let's just -- could we just zoom in on the So when up here it says from a specific number, do you know Is it When is the first message on this chain? MR. BRILL: Okay. And Ms. Loftus, could you go to the last page of this conversation. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 Document 100 Filed 11/18/22 Hezir - Cross Page 31 of 192 1 Sorry. 2 Could you just highlight the last two, please. 3 Q. And the last use of this was what date? 4 A. October 6, 2021. 5 Q. Okay. 6 Unknown, correct? 7 A. That's correct. 8 Q. Okay. 9 are missed calls, but it's the same parties, correct? 10 A. There appears to be a call on the right. 11 Q. Outgoing call hangup? 12 A. Duration in seconds, 474 seconds. 13 Q. Yeah. 14 Okay. 15 correct? 16 A. And again, same thing. Between Jonathan and Could we put up -- well, I mean, technically these So that would indicate there might have been a call. But either way, these are phone calls, not messages, That's correct. 17 MR. BRILL: 18 Could we put up 639, please. 19 Q. 20 Jonathan, correct? 21 A. That's correct. 22 Q. And first conversation, February 28, 2021, correct? 23 A. That's correct. 25 All right. Could we take that down. And this one is between this person Teddy Riley and MR. BRILL: 24 748 Okay. And could we go to the last page, please. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 1 Document 100 Filed 11/18/22 Hezir - Cross Page 32 of 192 749 Just highlight the last two, please. 2 Q. The last conversation, May 26th of 2021, correct? 3 A. That's correct. 4 Q. All right. 5 know what that means, at the bottom in the small print? 6 A. It's where it's found in the extraction. 7 Q. All right. 8 cache4.db, right? 9 A. That's what the report demonstrates. 10 Q. Okay. 11 this file was created contemporaneously with the message that 12 is here? 13 A. I'm not sure. 14 Q. Do you know if messages -- I asked you a slightly different 15 version of this question before. 16 download the Telegram app, does it download all of the prior 17 messages of the user that is assigned to that app when the 18 Telegram app is installed? 19 A. 20 so -- 21 Q. Now just looking at the source info, do you So it's found in a file directory called And that is -- again, is there any way to tell that That I don't know. But do you know, if you Again, I have limited use of Telegram I understand. 22 MR. BRILL: 23 please. 24 Q. 25 Jonathan, right? This is 639. Could we just look at 640, And this is a conversation between Googly Eyes and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 Document 100 Filed 11/18/22 Hezir - Cross Page 33 of 192 1 A. That's correct. 2 Q. And the first message here is April 2nd of 2021, correct? 3 A. Correct. 4 Q. Also using Telegram, right? 5 A. Correct. 6 MR. BRILL: All right. Can we go to the last page, 7 please. 8 Q. And again, last conversation, April 7th of 2021, correct? 9 A. Correct. MR. BRILL: 10 Okay. 750 And could we put up 641, please. 11 Q. And again, a conversation between someone named Donald and 12 someone -- and Jonathan again, correct? 13 A. Correct. 14 Q. And 9/11/2020 is the first message, correct? 15 A. Correct. MR. BRILL: 16 And can we go to the last page, please. 17 Q. 9/14/2021 is the last message, correct? 18 A. Correct. 19 MR. BRILL: Okay. And we can take this down. 20 you. 21 Q. 22 found physically on him? 23 A. I believe there were three phones found on him. 24 Q. But this was not one of them, correct? 25 A. Which phone is that? Thank And just -- the search of Mr. Ilori, how many phones were SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 Document 100 Filed 11/18/22 Hezir - Cross 1 Q. Sorry. 2 A. Correct. 3 Q. Okay. 4 console? 5 A. I don't recall. 6 Q. Would that be in your notes? 7 A. It might be in my notes. 8 Page 34 of 192 751 The Samsung. And was the Samsung on when you got it out of the MR. BRILL: Could we pull up 642, please. 9 Q. Agent Hezir, what is this? 10 A. We're looking at a Cellebrite extraction report; looking at 11 calendar entries. 12 Q. This is from the Samsung, right? 13 A. Yes. 14 MR. BRILL: 15 for a second and come back. 16 Q. There are 23 calendar entries here, right? 17 A. Yes. 18 Q. Okay. 19 sec. 21 Q. Can we go to the last page of this During your investigation -- MR. BRILL: 20 Okay. Let's just go back to the first page for a During your investigation did you determine who met -- 22 MR. BRILL: Just blow it up so we can just read like 23 the first three. 24 Q. Do you see meeting with James Sung is the first one, right? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 Document 100 Filed 11/18/22 Hezir - Cross Page 35 of 192 1 Q. Did you determine who met with James Sung? 2 A. Personally, no. 3 Q. Did your investigation determine that? 4 A. I am not sure. 5 Q. Okay. 6 and over again, but did your investigation determine who met 7 with George Psaki or Olga Verdugo? 8 A. No, I -- personally, no. 9 Q. No, I understand that, but you were part of a larger 10 investigative team, correct? 11 A. 12 team, yes. 13 752 And that's a -- not to ask the same question over I performed a supporting role for a larger investigative MR. BRILL: Can we look at Exhibit 730, please. 14 Q. This is a summary chart of information that was received 15 from Google, right? 16 A. Yes, that's correct. 17 Q. Basically your team sent out a bunch of subpoenas to Google 18 for different accounts, and this is just compiled into a chart 19 for ease of reference, right? 20 A. Yes, correct. 21 Q. What is a terms of service IP address, meaning the column 22 on the last one? 23 A. 24 Google records when you create the account. 25 Q. Terms of service IP address is the IP address, in this case Did anyone specifically -- well, let me ask you a different SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 1 Document 100 Filed 11/18/22 Hezir - Cross Page 36 of 192 753 question first. 2 The IP address that has the -- I don't know, I'm not 3 good at my math terms, but the ones with the letters and the 4 numbers, is there a way to figure out why those are different 5 than the ones with just the numbers? 6 A. 7 addresses. 8 numbers that are IPv4. 9 Q. Do different devices use IPv6 versus IPv4? 10 A. It's device-specific and also ISP-specific as well, 11 internet service provider-specific. 12 Q. 13 address assigned to the specific device that logs on? 14 A. 15 service -- is the IP address of the device logging in to accept 16 the terms of service for that Google account. 17 Q. 18 locations they matched up to? 19 A. I don't recall. 20 Q. Would the IP addresses match up to specific locations? 21 A. They could. Yes. There's ones -- the longer ones are actually IPv6 Okay. It's a different standard. And then there are Different versions for 4 and version 6. And a terms of service IP address, is that the IP Yes, the terms of service IP address is the terms of Were these IP addresses subpoenaed to determine what 22 MR. BRILL: Could we put up Exhibit 720, please. 23 Q. With respect to the GX201 entry on Exhibit 720 here, that 24 has the Dayo Ilori name associated with it, right? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 Document 100 Filed 11/18/22 Hezir - Cross 1 Q. 2 previously, correct? 3 A. Exhibit 720 or -- 4 Q. No, I'm sorry. 5 the exhibit associated with it, Exhibit 201? 6 A. Page 37 of 192 Is there a way to determine -- you've seen Exhibit 201 Do you recall? This is Exhibit 720, but you've also seen I reviewed it previously, yes. 7 MR. BRILL: Okay. Why don't we just put it up, just 8 so we can refresh your memory. 9 And if we could just scroll down to the next page. 10 Okay. And we can go back to the first. 11 Q. The IP address up here, what does that correspond to? 12 A. Based on the request sent to Apple, the request was for 13 that specific IP address. 14 Q. 15 from? 16 A. Yes, that's correct. 17 Q. And do you know which device logged on based upon the 18 information you got back from Apple? 19 A. And is this the IP address of where the device logged on I don't recall which device it was. 20 MR. BRILL: Can we look briefly at Exhibit 114, 21 please. 22 Q. We looked at this briefly on Friday, correct? 23 A. Yes. 24 Q. Okay. 25 A. I do not. Do you know if David Dilley is a real person? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 754 Case 1:21-cr-00746-MKV MAV1ILO2 Document 100 Filed 11/18/22 Hezir - Cross Page 38 of 192 1 Q. 2 Gilly, correct? 3 A. Correct. 4 Q. Do you know if David Gilly is a real person? 5 A. I do not know. And previously we also saw a spelling with a G, David 6 MR. BRILL: 7 government for one moment. 8 THE COURT: 9 (Counsel conferring) 10 MR. BRILL: Your Honor, give me one moment. 12 THE COURT: Yes. 13 (Counsel conferring) 11 Your Honor, may I confer with the Sure. BY MR. BRILL: 15 Q. 16 marked as 3501-005 for identification. Agent Hezir, I'm just going to hand to you what's been You had mentioned notes previously. 17 18 notes you were referring to? 19 A. These are my notes. 20 THE COURT: 24 25 Are those the These are notes regarding -- Just answer the question that he asked. Are those the notes you referenced earlier? 22 23 Thank you. 14 21 755 THE WITNESS: Sorry. No. These are not my forensic notes. THE COURT: This is not in evidence yet, so you can't go beyond answering the question, okay? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 Document 100 Filed 11/18/22 Hezir - Cross 1 THE WITNESS: 2 MR. BRILL: Page 39 of 192 756 Understood, your Honor. I'll take it back. Thank you. 3 BY MR. BRILL: 4 Q. 5 prosecutors, and prepped for this case, correct? 6 A. Yes. 7 Q. Okay. 8 wherever you had taken them and provide them to the government? 9 A. 10 report. 11 Q. 12 government? 13 A. So at some point you met with the government, the At any point did you retrieve those notes from Those notes would have been packaged up and sent with my Have you seen those notes at any meeting you had with the Not that I recall. 14 MR. BRILL: Your Honor, may we approach for one 16 THE COURT: Yes. 17 (Continued on next page) 15 moment. 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 Document 100 Filed 11/18/22 Hezir - Cross 1 (At the sidebar) 2 MR. BRILL: Page 40 of 192 I think the government was under the 3 impression that the 3500 material that I just referenced was 4 the notes. 5 government speak for themselves, but I don't think we've ever 6 received those. 7 They're not the notes. MS. MURRAY: 757 Obviously I'll let the Your Honor, I did provide Mr. Brill with 8 660-B, which is the forensic extraction report that Special 9 Agent Hezir put together relating to all the devices that were 10 recovered on October 7th and 8th. 11 particular document because he asked me in the middle of his 12 questioning whether we had provided any notes regarding 13 extractions. 14 referring to, but I can't know exactly what notes he's 15 referencing other than those forensic notes. 16 I pointed Mr. Brill to this I believe 660-B is likely what Mr. Brill is THE COURT: But are there more than just that one 17 document? Because when he was asked that question, his answer 18 was no, that is not his notes. 19 MS. MURRAY: I understand. And I believe what is also 20 660-B, which is also in Special Agent Hezir's 3500, is the 21 forensic notes he's referred to. 22 witnesses' 3500 to Mr. Brill. 23 THE COURT: But is that document more than one page? 24 MR. BRILL: No. 25 THE COURT: But you gave him only one page. We've produced all the I pulled the whole tab. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 Document 100 Filed 11/18/22 Hezir - Cross 1 MR. BRILL: No, I gave him two. 2 THE COURT: Oh. 3 Page 41 of 192 I couldn't really see since I wasn't provided a copy. 4 MS. MURRAY: Yes, I gave Mr. Brill my copy. 5 MR. BRILL: Yes, it was faster that way. 6 660-B, isn't that the actual extraction, the actual 7 Cellebrite extraction? 8 MS. MURRAY: No. 660-A is the SIM card extraction. 9 We marked 660-B, which is also separately in the 3500. 10 the report that lists every single one of the devices that 11 Special Agent Hezir had reported and indicates the log number 12 that DOJ-OIG associated with those devices. 13 MR. BRILL: 14 just step back for a second? 15 THE COURT: 16 (Pause) 17 MR. BRILL: That's Can we just grab that so we can -- can I Sure. 660-B was added later so it's not in -- I 18 have it, but it's not in my binder. 19 it. 20 referring to. 21 it, because this doesn't look like notes; it looks like a 22 report that he produced from the notes. 23 here in another 15 seconds or so. 24 25 758 I have 660-B. But I don't think this is I'll ask the witness if this is what he's My guess—-maybe I'm wrong—-is that this is not THE COURT: But we may be back Well, just so we don't keep going back and forth, what is it that you were asking me? Assuming he says SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 Document 100 Filed 11/18/22 Hezir - Cross Page 42 of 192 759 1 no, what are you asking me? I mean, it's kind of impossible 2 for me to make a judgment right now about whether something was 3 or wasn't produced. 4 MR. BRILL: No, understood. I mean, ultimately the 5 question is, did they secure the devices sufficiently to 6 maintain the data integrity of the device at the time of the 7 seizure. 8 THE COURT: Yes, I understand. 9 MR. BRILL: He says those would be in his notes, 10 whether they were on, or whether they were off, whether they 11 were put in airplane mode or not. 12 for adverse inference, but that's kind of where I'm going. 13 I'm sure we don't want to take an hours-long break while they 14 search for them, but certainly that's the question that's out 15 there. There's a fairly high hurdle 16 THE COURT: So you're kind of forewarned. 17 MS. MURRAY: Understood, your Honor. 18 Another way that Mr. Brill could get to this is he And 19 could point to each and every device extraction report and that 20 would indicate what date the device was extracted, how the data 21 was found. 22 but if that is what he wants -- So, I mean, that would be a slightly longer path, 23 THE COURT: Of course you could do that on redirect. 24 MR. BRILL: Just to be clear, the extraction report 25 would have been conducted in Arlington potentially days after SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 Document 100 Filed 11/18/22 Hezir - Cross Page 43 of 192 1 the seizure, not necessarily indicative of what the device -- 2 the device between the day of the seizure and the day of the 3 extraction. 4 THE COURT: 760 The problem I see with the state of the 5 record is there was an awful lot of "would have" as opposed to 6 "did" in terms of the answers and the questioning. 7 vouch for what the record looks like in that regard. 8 you were asking him hypothetically and sometimes he was 9 answering hypothetically, and I don't know that you pinned it 10 down in every instance to what happened with this device, did 11 you turn it off or was it your practice that it would have been 12 turned off, those kinds of things. 13 MR. BRILL: So I don't Sometimes I don't know. I think the hypothetical generally 14 followed from the "I don't know" or "I don't recall" answer, 15 but -- 16 THE COURT: Look, the record is what it is. I'm just 17 telling you that as I sat here, that was an observation I had, 18 and I wondered if there were going to be objections, and there 19 weren't, so the record is what it is. 20 MR. BRILL: Understood. 21 So this is 660-B? 22 MS. MURRAY: Correct. 23 THE COURT: All right. 24 MR. BRILL: Thank you, your Honor. 25 THE COURT: So I think we're going back, but we might SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 1 Document 100 Filed 11/18/22 Hezir - Cross Page 44 of 192 761 be back. 2 MR. BRILL: Perhaps. 3 (In open court) 4 THE COURT: All right. Mr. Brill. 5 BY MR. BRILL: 6 Q. 7 marked -- entered into evidence as Exhibit 660-B. Agent Hezir, let me show you what's been marked as -- not 8 THE COURT: And do you want this up on the screen? 9 MR. BRILL: Not just yet. 10 THE COURT: Okay. 11 Q. 12 referring to when you were talking about your notes. 13 A. These would not be my notes. 14 Q. Okay. 15 Take a look at that and let me know if that's what you were This is a report. So let me just clarify then one thing. Without your notes, can you determine whether the 16 devices that you seized were isolated from the network at the 17 time, from any network, cellular, WiFi, etc., at the time that 18 they were seized either at the apartment or at the vehicle, the 19 Mercedes? 20 A. 21 when they were pushed into airplane mode. 22 23 24 25 Without my notes, I don't think I could definitively say THE COURT: That's not the question. The question is can you determine whether they were isolated. I'm sorry. It does say at the time. Sorry, Mr. Brill. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 Document 100 Filed 11/18/22 Hezir - Cross 1 Q. So that was your answer. 2 A. Yes, sir. Page 45 of 192 3 MR. BRILL: Give me one moment. 4 Your Honor, may we approach again briefly. 5 THE COURT: 6 (Continued on next page) Sure. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 762 Case 1:21-cr-00746-MKV MAV1ILO2 Document 100 Filed 11/18/22 Hezir - Cross 1 (At the sidebar) 2 MR. BRILL: I'm done with my cross. Page 46 of 192 763 I think that I've 3 made the record as clear as I can under the circumstances, and 4 I have a motion at some point. 5 hear it now or prior to -- we could do it at our final charge 6 conference, I suppose. I don't know if you want to 7 THE COURT: You mean like a Rule 29 motion? 8 MR. BRILL: No, no, no, no. 9 10 11 12 Just for, you know, an instruction with regard to his testimony. THE COURT: Ah. Well, I don't think now is the time for that. MR. BRILL: Right. But unless the government thinks 13 that they can get them in a fairly short order and then we can 14 hold him briefly to be able to cross him about the notes. 15 THE COURT: Are you going to have redirect? 16 MS. MURRAY: Briefly. 17 THE COURT: I mean, we're going to take our break at 18 around 11, so you can redirect now, then we'll take our break, 19 and if you want to have someone in your office be looking for 20 them in the meantime, because when we break, we'll deal with 21 this issue. 22 MS. MURRAY: Okay. 23 THE COURT: Okay? 24 MS. MURRAY: Thank you, your Honor. 25 THE COURT: All righty. Thank you. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 Document 100 Filed 11/18/22 Hezir - Redirect Page 47 of 192 764 1 (In open court) 2 THE COURT: Mr. Brill? 3 MR. BRILL: Thank you, Agent Hezir. 5 THE COURT: All right. 6 Ms. Murray, do you have redirect? 7 MS. MURRAY: 8 REDIRECT EXAMINATION 9 BY MS. MURRAY: 10 Q. 11 cross-examination about the devices that you recovered in this 12 case, correct? 13 A. Correct. 14 Q. That included the Samsung phone that was recovered from the 15 center console of the Mercedes? 16 A. Yes. 17 Q. And you conducted a SIM card extraction of that phone; is 18 that right? 19 A. 4 further. 20 21 I have nothing Thank you. Yes, your Honor. Thank you. Special Agent Hezir, you were asked some questions on Of the Samsung, I don't recall. MS. MURRAY: Ms. Loftus, if you could please publish Government Exhibit 660-A, page 3. 22 Actually, page 2, please, first. 23 Q. Special Agent Hezir, this is the extraction report of the 24 SIM card of the Samsung; is that right? 25 A. I would have to determine log 19 first to verify it's from SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 Document 100 Filed 11/18/22 Hezir - Redirect Page 48 of 192 765 1 that device. 2 Q. 3 Samsung was recovered from the Mercedes and have stipulated to 4 the fact that that Samsung device was the device that we're 5 essentially looking at the SIM card extraction for. 6 purposes of my question to you, on the next page -- Ms. Loftus, 7 again, zooming in on the bottom, SIM data item 8 -- Special 8 Agent Hezir, the phone number associated with the Samsung SIM 9 card at the time the defendant was arrested is this 10 646-575-0642 number, correct? 11 A. Okay. The parties have stipulated to the fact that the So for Correct. 12 MS. MURRAY: 13 please, Government Exhibit 631. 14 And Ms. Loftus, if we could put up, And if we could zoom in on the top portion. 15 Q. Special Agent Hezir, this is another extraction report 16 relating to the devices that you recovered in this 17 investigation; is that right? 18 A. That's correct, yes. 19 Q. And Mr. Brill asked you some questions about this on 20 cross-examination. 21 right? 22 A. Yes, that's correct. 23 Q. And this was one of the phones that was recovered from the 24 defendant; is that right? 25 A. Here again, we see the 0642 number; is that It was recovered from the vehicle the defendant was near. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 1 MS. MURRAY: Document 100 Filed 11/18/22 Hezir - Redirect Thank you, Ms. Loftus. Page 49 of 192 766 We can take that 2 down. 3 Q. 4 with the 0642 number at some point, based on the extraction 5 reports; is that right? 6 A. Yes. 7 Q. And both of those phones were recovered on October 8, 2021, 8 correct? 9 A. Yes. 10 Q. And on that date, they were either on the defendant's 11 person or in proximity to him in the Mercedes; is that right? 12 A. Yes, that's correct. 13 Q. And the defendant was alone that morning, wasn't he? 14 A. Yes. 15 Q. There was no one with him in the Mercedes at the time that 16 you approached him and arrested him? 17 A. That's correct. 18 Q. And Chris Recamier had been arrested the day before; isn't 19 that right? 20 A. Yes, that's correct. 21 Q. And the search warrant on apartment 1805 at Purves Street 22 had been conducted the day before the defendant's arrest, 23 correct? 24 A. Correct. 25 Q. The day before these two phones were recovered. And both of those phones we just looked at were associated SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 Document 100 Filed 11/18/22 Hezir - Redirect Page 50 of 192 1 A. Yes. 2 Q. You were asked some additional questions about Telegram 3 messages. 4 Mr. Brill had pointed out to you. 5 6 767 I just wanted to look at one or two of those that MS. MURRAY: Ms. Loftus, if we could please pull up Government Exhibit 638. 7 If we could zoom in on the top portion, the 8 participants, please. 9 Q. 10 are listed here for the participants. 11 numbers, the number of digits and how the numbers are, are you 12 able to determine whether those are phone numbers or account 13 numbers for a Telegram account? 14 A. It does appear to be account numbers. 15 Q. And how many digits are there in a typical phone number, 16 including area code? 17 A. There are ten, including area code. 18 Q. And then looking at, for example, the Jonathan (owner) 19 number that's associated with this Jonathan (owner) user in 20 this Telegram extraction, focusing on the 3 first, which is 21 after the 1, how many digits are in that number? 22 A. Now Mr. Brill asked some questions about the numbers that Nine. MS. MURRAY: 23 Looking at those Ms. Loftus, if we could please go to 24 Government Exhibit 639, page 115. 25 Q. This is another exhibit that Mr. Brill pointed out to you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 1 Document 100 Filed 11/18/22 Hezir - Redirect Page 51 of 192 768 on cross. MS. MURRAY: 2 If we could just look at the last two 3 messages here. Oh, actually, the last three messages, please. 4 Q. 5 user, how did that user refer to the user of the Samsung? 6 A. Dee. 7 Q. And then looking at the next message, again, that Mr. Brill 8 had pointed out for us, item No. 4, can you read that message. 9 A. 10 It's still processing but they told me wait, they will partner 11 with community banks to fund some businesses." Looking first at the first message from the Teddy Riley "Should I withdraw the PPP application for Mula and Baron? 12 MS. MURRAY: Thank you, Ms. Loftus. You can take that 13 down. 14 Q. 15 questions, both general and specific, about the devices that 16 you secured in the course of this investigation. 17 those questions? 18 A. Yes. 19 Q. For the devices that you recovered from 1805 Purves Street 20 on October 7, 2021, did you secure those devices consistent 21 with your training and experience? 22 A. Yes, I did. 23 Q. And for the devices that you recovered on October 8th from 24 the Mercedes and/or from the defendant—-again, 2021—-did you 25 secure those devices consistent with your training and Now, Special Agent Hezir, you were also asked some SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Do you recall Case 1:21-cr-00746-MKV MAV1ILO2 Document 100 Filed 11/18/22 Hezir - Recross Page 52 of 192 769 1 experience? 2 A. Yes, I did. 3 Q. And during the investigation after the seizure and securing 4 of those devices, after those devices were entered into 5 evidence, did you or someone else from DOJ-OIG conduct a review 6 of the contents of those devices or the reports of the 7 extractions of those devices? 8 A. Yes. 9 Q. Based on that review, do you recall whether there was any 10 indication that any of the data on those devices had been 11 manipulated or deleted after the time of the seizure? 12 A. No. 13 THE COURT: No, you don't recall? 14 THE WITNESS: No, there was no evidence about 15 manipulation or alteration. 16 MS. MURRAY: May I have a moment, your Honor. 17 THE COURT: Yes. 18 MS. MURRAY: No further redirect. 19 THE COURT: All right. 20 Recross? 21 MR. BRILL: 22 RECROSS EXAMINATION 23 BY MR. BRILL: 24 Q. 25 Telegram app, is there a way to determine if a user deletes a Thank you. Brief. Agent Hezir, if you're not particularly familiar with the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 Document 100 Filed 11/18/22 Hezir - Recross Page 53 of 192 770 1 message on one device that it wouldn't then delete the message 2 on the device that you had in your custody? 3 MS. MURRAY: Objection. 4 THE COURT: Sustained, as to form. 5 Q. I'll get back to it. 6 The -- you previously stated that you weren't aware of 7 whether Telegram can be installed on more than one device by 8 the same user; is that correct? 9 A. Yes, that's correct. 10 Q. Okay. 11 two phones had used the same phone number, right, the 0642 12 number? 13 A. Yes, that's correct. 14 Q. Would it be fair to say, based upon your training and 15 experience, that you can't have two phones using the same phone 16 number at the same time? 17 A. 18 phone could use -- theoretically use the same phone. 19 possibility. 20 Q. Did you see any evidence of that here? 21 A. I did not see evidence of that. 22 Q. And based upon your and your team's investigation, when was 23 the last time that Mr. Recamier was in the Mercedes prior to 24 October 7, 2021? 25 A. Ms. Murray showed you records that indicated that It's uncommon. SIM cloning does exist, meaning that a It's a I don't recall seeing Mr. Recamier in the Mercedes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 Document 100 1 Q. Okay. 2 A. Correct, I do not know. Filed 11/18/22 771 So you don't know the last time he was in it? 3 MR. BRILL: All right. Thank you. 4 THE COURT: All right. Thank you. 5 MS. MURRAY: Nothing further. 6 THE COURT: All right. 7 Page 54 of 192 excused, sir. Nothing further. Thank you very much. You are Thank you very much for coming in to help us. 8 THE WITNESS: Thank you. 9 (Witness excused) 10 THE COURT: The government's next witness? 11 MS. MURRAY: At this time the government rests. 12 THE COURT: All right. Ladies and gentlemen, that 13 means the government has completed its presentation of evidence 14 to you with respect to its case against Mr. Ilori, so at this 15 time, a couple minutes early, we'll take our morning break, 16 because I have some things I need to confer with counsel about. If we could be back here at about 11:05. 17 18 need a few extra minutes this morning. 19 long, we'll let you know that, all right? 20 I think I And if we're running So please, you're getting close to the end of your 21 service, or your hearing of evidence in this case. 22 not discuss the case among yourselves during the break, all 23 right? 24 moments more. 25 Have a good break. And put the case aside for a few Thank you. THE DEPUTY CLERK: Please do Rise for the jury. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 Document 100 Filed 11/18/22 Page 55 of 192 1 (Jury not present) 2 THE COURT: 3 So what I'd like to do is just take a five-minute All right. 772 Please be seated, everyone. 4 stretch break for ourselves, and then we'll come back here and 5 regroup on the various things we have to talk about, all right? 6 Thank you. 7 (Recess) 8 (Continued on next page) I will see you all shortly. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 Document 100 Filed 11/18/22 Page 56 of 192 773 1 (Jurors not present) 2 THE COURT: Please be seated. 3 All right. Mr. Brill, are there any motions? 4 MR. BRILL: Your Honor, just to make a clear record, 5 the government indicates, and I don't have any reason to doubt 6 them, that they provided a very large file on May 9th of this 7 year that included all of this agent's work. 8 file within that file, there were hundreds if not thousands of 9 documents related to his work on these devices. 10 that are a couple -- probably more than a couple, a number of 11 text files that include text notes. 12 Included in a zip Included in Now, those were not included in the agent's 3500 13 material, and, again, they were produced five and a half months 14 ago within hundreds or thousands of other documents. 15 satisfied that he created them contemporaneously with his work 16 based upon that. 17 forward, so I don't have any further questions about it and I 18 don't have a motion. 19 THE COURT: 20 you have any other motions? 21 MR. BRILL: I'm The notes themselves are fairly straight Okay. So the government has rested. Do Your Honor, it is the defendant's position 22 that the government has failed to prove its case beyond a 23 reasonable doubt as to each of the charges, and, as such, we 24 ask the Court to dismiss the charges. 25 THE COURT: All right. You're moving under Rule 29? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 Document 100 Filed 11/18/22 1 MR. BRILL: Yes, your Honor. 2 THE COURT: All right. Page 57 of 192 774 So, as you know, a judgment by 3 the Court of acquittal under Rule 29 is appropriate only if the 4 evidence that the defendant committed the crime alleged is not 5 existent or so meager that no reasonable jury could find guilt 6 beyond a reasonable doubt, and I am bound to view the evidence 7 in the light most favorable to the government. 8 obligated to defer to the jury to make assessments about 9 credibility and weight of the evidence. 10 defendant moving under Rule 29 is quite heavy. 11 I'm also And the burden on a I do find at this time that there is sufficient 12 evidence for each of the six counts to be submitted to the 13 jury, so the motion is denied at this time. 14 All right. So when we bring the jurors back, it will 15 be time for the defendant's case. 16 intending to present any evidence? 17 MR. BRILL: Mr. Brill, is the defense Your Honor, based upon my prior 18 conversations with Mr. Ilori, he was not intending to testify 19 on his own behalf, although I'd ask the Court to inquire 20 directly so again we have a clear record in that regard. 21 22 23 24 25 THE COURT: All right. And do you have any other evidence that you intend to present? MR. BRILL: Given that Mr. Recamier invoked his right against self incrimination, we do not. THE COURT: Very good. So, Mr. Ilori, I want to speak SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 1 Document 100 Filed 11/18/22 Page 58 of 192 775 to you directly, sir. 2 THE DEFENDANT: 3 THE COURT: Yes. You, as the defendant on trial here, have 4 the right to testify, but certainly you have no obligation 5 whatsoever to do so. 6 burden of proof is exclusively on the government to prove 7 beyond a reasonable doubt each of the charges against you, and 8 that you carry no burden whatsoever. 9 I'm going to instruct the jury that the Having said that, if you wish to testify, it is 10 certainly your right to do so. And, at the end of the day, it 11 is your call as the defendant and as the client of Mr. Brill to 12 make the decision whether you wish to testify or not. 13 Do you understand all of that? 14 THE DEFENDANT: 15 THE COURT: 16 THE DEFENDANT: 17 18 Yes, I do. Do you wish to testify? Just a minute. I had a -- I cannot make an educated, intelligent decision at this time. THE COURT: Well, you have to make a decision, sir. 19 Either you take the stand or -- 20 THE DEFENDANT: 21 THE COURT: Well -- -- you don't take the stand, and at the 22 end of the day, it is your call. 23 THE DEFENDANT: Like I had stated to the Court on 24 Friday, I did not -- I am not in possession of any of the 3500 25 material leading up to the trial, and while I'm here, also, I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 Document 100 Filed 11/18/22 Page 59 of 192 1 do not still have them. 2 lawyer that -- and to advise me if I should take the stand or 3 not, because I do not know what evidences are I am up against 4 or if there is anything that I should be wary of. 5 THE COURT: So I cannot in that sense trust my All right. You do know what evidence 6 you're up against because you've sat through the government's 7 case. 8 THE DEFENDANT: 9 THE COURT: 10 You've heard every bit of evidence against you. Yes. Excuse me. Let me finish. So 11 you've made your record about your grievances. 12 the point in the case where it's time for the defense, if it 13 wishes to do so, to present a case. 14 15 Now we're at And the question for you is do you wish to testify or not? 16 THE DEFENDANT: 17 THE COURT: 18 THE DEFENDANT: 19 THE COURT: And given my circumstances, no. No, did you say? Yes. And you understand what I've told you 20 about the government's burden of proof, and that no burden 21 rests on you, and it is your decision? 22 THE DEFENDANT: 23 THE COURT: 24 25 776 Yes, I do understand. All right. And based on where we're at, your decision is you do not wish to testify, correct? THE DEFENDANT: Correct, I do not wish to testify SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 Document 100 Filed 11/18/22 Page 60 of 192 1 because of the reasons I stated to the Court on Friday, and 2 that I'm restating now. 777 3 THE COURT: All right. 4 All right. Anything else from you, Mr. Brill, for the MR. BRILL: Your Honor, based upon one of Mr. Ilori's 5 Thank you. record? 6 7 statements now and a prior statement that was made in the 8 robing room, I just wanted to be clear that there was a 9 protective order entered for the 3500 material. 10 material could not be given to Mr. Ilori without someone 11 present. 12 should be made clear. The 3500 So if there's any confusion on the record, that 13 Beyond that, no, nothing else. 14 THE COURT: All right. So we're going to bring the 15 jury back. 16 the defense wish to call any witnesses or present any evidence. 17 You'll answer on the record. 18 we're at the point where we need to do the charging conference. 19 I'm going to call on you, Mr. Brill, to say does If the answer is no, I think then So, as we talked about Friday, we had talked about 20 letting the jurors take an early lunch, but, quite frankly, my 21 preference is -- I think the charging conference is going to be 22 very brief, because we've discussed the charges several times 23 and they are, as I understand it, all on consent. We now know 24 which of charge 41 and 42 we're going to be using. So I would 25 like to take another very brief break, go into the robing room SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 Document 100 Filed 11/18/22 Page 61 of 192 778 1 -- well, no. 2 Marshals we better let the jurors recess, do the charging 3 conference, and then go right into the government's closing 4 statement, your initial closing statement at that point. 5 we'll see where we're at timing wise, whether we'll hear from 6 you, Mr. Brill, or whether we'll -- you know, when we'll break 7 for lunch. I guess because of the situation with the Then All right. 8 MR. BRILL: Yes, your Honor. 9 THE COURT: All right. 10 Ms. Dempsey, do you want to bring the jurors back out, 11 12 So that's the game plan. please? (Continued on next page.) 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 Document 100 Filed 11/18/22 Page 62 of 192 1 (Jurors present) 2 THE COURT: 3 Thank you very much, ladies and gentlemen. 4 All right. 5 All right. 779 You may be seated. So the government has rested its case. It is time now for the defendant's case, if any. 6 Mr. Brill. 7 MR. BRILL: Your Honor, the defense rests. 8 THE COURT: All right. 9 I'm sorry to have dragged you back out again, but this Thank you. 10 is all a necessary part of the process. 11 point, that means the evidentiary record is closed. 12 to confer briefly with the parties with regard to the 13 instructions that I'm going to be giving you on the law and any 14 other issues that they want to raise, and then we'll be ready 15 after that to hear from the government with its closing 16 argument. 17 So I need So we're going to recess again for another few 18 moments. 19 ask you to leave the courtroom again. 20 I need now -- at this I don't think we'll be very long, but we do need to Thank you. (Continued on next page) 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 Document 100 1 (Jury not present) 2 THE COURT: 3 Okay. Filed 11/18/22 Page 63 of 192 Do we have anybody in the courtroom other than parties to the case, counsel, Marshals? 4 MS. MURRAY: (Shaking head) 5 THE COURT: Okay. Because I'd prefer to just stay 6 here and do the charging conference here given the number of 7 parties and moving parts and all of that. 8 780 So my courtroom deputy has given you each a printed 9 copy of the charges as they now stand. As I said on the record 10 earlier, this was a jointly submitted request, with some minor 11 modifications made by the Court along the way, specifically to 12 insert the Court's standard instructions that you asked me to 13 insert way back when we met in July. I have done that. 14 In July, you all signed off on these. 15 you now have in front of you contains charges 41 and 42. 16 going to strike 41, which is defendant's testimony. 17 leave in defendant's right not to testify, and take out the 18 header -- I assume you're requesting this, Mr. Brill. 19 MR. BRILL: Yes, your Honor. 20 THE COURT: All right. The set that We're And we'll So we'll take out the header, 21 if applicable and requested by the defense. 22 replace charge number 46 with what Ms. Murray submitted to me 23 as a joint request by the parties this morning on similar act 24 evidence. 25 And then I will Correct? MR. BRILL: Yes, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 Document 100 Filed 11/18/22 1 MS. MURRAY: (Nodding head) 2 THE COURT: All right. 3 Page 64 of 192 781 Are there any other objections to the proposed charges as they stand? 4 MS. MURRAY: Not from the government. 5 MR. BRILL: No, your Honor. 6 THE COURT: All right. So I'm going to ask my 7 chambers then to make those two changes that we just talked 8 about, and to print a copy, which we will make available to the 9 jurors when we're ready for me to charge them, which is not 10 yet. 11 12 We're ready then for the government's summation, correct? 13 MR. FELTON: Yes, your Honor. 14 THE COURT: All right. 15 initial summation? Mr. Felton, are you giving the 16 MR. FELTON: Yes, I will, your Honor. 17 THE COURT: All right. 18 And you do intend to sum up after Mr. Brill, right? 19 MS. MURRAY: Yes, Your Honor. I'll be rebutting. 20 THE COURT: All right. 21 MR. FELTON: Your Honor, may I move the lectern? And 22 just for the Court's, everyone's awareness, I expect it to be 23 around an hour, somewhere between 45 minutes, an hour. 24 THE COURT: All right. That's perfect. 25 I assume, Mr. Brill, we'll break at that point, but SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 1 we'll see. 2 We'll see. Document 100 Filed 11/18/22 Page 65 of 192 If he's shorter, maybe we'll keep pressing on. 3 All right. 4 (Continued on next page) So we're ready to bring the jurors back. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 782 Case 1:21-cr-00746-MKV MAV1ILO2 Document 100 Filed 11/18/22 1 (Jurors present) 2 THE COURT: 3 Thank you all very much. All right. 4 forth. 5 moving in the courtroom. Page 66 of 192 783 You may be seated. I'm sorry for the back and I know it was short, but I'm trying to keep everything 6 We're ready at this point for closing arguments from 7 the lawyers, and we begin with the closing statement -- the 8 initial closing statement by the government. 9 Mr. Felton. 10 MR. FELTON: 11 The evidence is now in, and it points overwhelmingly Thank you, your Honor. 12 to one conclusion, the defendant Adedayo Ilori is guilty. He 13 conspired, he agreed with others to commit a massive and 14 sophisticated fraud, and he stole innocent people's identities 15 and taxpayer money to line his own pockets and fund his luxury 16 lifestyle. 17 You have heard from a few of his many victims, Gerald 18 Hanson, Jonathan Herttua, and William Jamieson, and you've seen 19 evidence of countless more victims, innocent people whose most 20 personal information was stolen and used without their 21 knowledge. 22 harms from the defendant's actions. 23 damaged. 24 be hounded by creditors and landlord for debts they do not owe. 25 The defendant used those identities to steal And you heard that these victims experienced real Their reputations were They had to delay retirement. And they continue to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 Document 100 Filed 11/18/22 Page 67 of 192 1 government money that was set aside to help small businesses 2 stay afloat during the COVID pandemic. 3 loans and EIDL applications the defendant and his 4 co-conspirators submitted to steal more than one million 5 dollars. 6 funneled it to his investment and bank accounts, he withdrew 7 bulk cash from various ATM's across New York City, and he 8 funded his lifestyle, driving a Mercedes, renting a luxury 9 apartment, frequently visiting La Colombe, and investing in 10 cryptocurrency. 11 overwhelmingly proves that the defendant is guilty of the 12 charged crimes. 784 You've seen the PPP And you know what Ilori did with the money. He All of the evidence you've seen at this trial 13 Ladies and gentlemen, this closing statement is our 14 opportunity to walk through the evidence that you've seen and 15 heard over the last week. 16 You've seen a lot of documents that we published only briefly, 17 and for those documents, we pointed out just a few of dozens of 18 clear examples of the defendant's crimes. The evidence has come in quickly. 19 So this is my chance to explain how it all fits, and 20 when you put those pieces together, the picture is clear, and 21 it is devastating. 22 The defendant is guilty. Now, before I get to that, let's talk a little bit 23 about the charges. Judge Vyskocil will give you detailed 24 instructions on the charges, and you should follow her 25 instructions on the law. If anything I say differs from what SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 1 Document 100 Filed 11/18/22 Page 68 of 192 785 the judge says, please follow her instructions. 2 Let me briefly go through just some of the highlights 3 of what I expect she will tell you. 4 with six offenses that all relate to the fraud scheme you've 5 heard about over the past week. 6 the United States; Count 2, wire and bank fraud conspiracy; 7 Count 3, wire fraud; Count 4, bank fraud; Count 5, aggravated 8 identify theft; and Count 6, money laundering conspiracy. 9 fraud offenses include major fraud against the United States, 10 bank fraud and wire fraud. 11 The defendant is charged Count 1 is major fraud against The Count 1, major fraud, involves defrauding the U.S. 12 Government in connection with government loans with a value of 13 at least one million dollars. 14 witness testimony and from Government Exhibit 750 and its 15 underlying exhibits that the defendant received over one 16 million dollars in government and government-backed money meant 17 to help small businesses during the pandemic. 18 dispute. 19 defendant received over one million dollars in government and 20 government-backed money. And you know, from the SBA That's not in Here, in Government Exhibit 750, you see that the 21 Count 3, wire fraud, that's committing a fraud where 22 you use interstate wires, such as text messages, phone calls, 23 and emails. 24 either. 25 the bank statements were executed using interstate wires that The use of interstate wires is not in dispute The parties agreed that the financial transactions in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 Document 100 Filed 11/18/22 Page 69 of 192 1 pass through the Southern District of New York. 2 Government Exhibit 1. 3 That's And you saw plenty of interstate wires during this 4 trial, including on the various phones and electronic devices 5 recovered, and extracted where you saw text messages, phone 6 calls, and emails in furtherance of the fraud. 7 The loan application submitted to the SBA also crossed 8 state lines. 9 the SBA's interstate wires involved Denver, Kansas City, 10 Virginia, and Iowa. 11 satisfied here, and not contested. 12 You heard from Kathleen Littwin of the SBA that The use of interstate wires is easily Count 4, bank fraud, that's fraud effecting a bank 13 that is insured by the Federal Deposit Insurance Corporation. 14 You know that each of the banks involved were insured by the 15 FDIC during the charged time period here. 16 agreed to that fact. 17 That is also not in dispute. 18 Again, the parties Government Exhibit 1 is on your scree. Defendant was also charged in Count V with aggravated 19 identity theft. 20 real people without lawful authority when he committed the 21 charged frauds in Counts 1 through 4. 22 786 That's for his use of names and identities of There is no question that identities were stolen and 23 used fraudulently. You saw evidence of that identity theft 24 throughout this trial, and you even heard from several of the 25 victims directly, Gerald Hanson, Jonathan Herttua and William SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 1 Document 100 Filed 11/18/22 Page 70 of 192 787 Jamieson. 2 The defendant is also charged with conspiracies to 3 commit three different crimes: 4 fraud and to commit bank fraud; and in Count 6, to commit money 5 laundering. 6 something criminal, that the defendant agreed with other people 7 to commit crimes. 8 the defendant and Chris Recamier, which we'll discuss in 9 detail. 10 In Count 2, to commit wire A conspiracy just means an agreement to do There's plenty of conspiracy evidence about As for money laundering, it just means that the 11 defendant conducted financial transactions intending in whole 12 or in part to conceal or disguise the nature, the source, or 13 the control of the crime proceeds. 14 You've seen significant evidence where the defendant moved the 15 fraud money around into and among the counts in various 16 identity theft victims' names, and you've seen evidence that he 17 spent the money from those accounts all in an effort to further 18 conceal the illegal source of funds. That's of the money moved. 19 You'll also see on the verdict form that for each of 20 the six counts you'll be asked whether the defendant committed 21 the offense in full or in part after he was released on bail on 22 or about March 6, 2020. 23 Government Exhibit 70 is defendant's appearance bond that he 24 signed setting his bail conditions on or about March 6, 2020. 25 That is also not in dispute. And you know, based on the parties' stipulation, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 Document 100 Filed 11/18/22 Page 71 of 192 788 1 Government Exhibit A, that between in or about March, 2020, and 2 in or about October, 2021, the defendant was released under 3 conditions of bail. 4 750 and its underlying exhibits that all of the fraudulent loan 5 applications were submitted during the time period when the 6 defendant was released on bail. 7 point. 8 And you also know from Government Exhibit There is no question on this So, in short, there are many issues that are not in 9 dispute. 10 fraudulent, nor is there any dispute that individuals' 11 identities were stolen. You saw stolen identity after stolen 12 identity in this case. Five of them are included in this 13 slide, but you know there's even more than that. 14 broad, sophisticated identity theft fraud scheme. 15 It's not in dispute that the SBA loans were This was a You saw the notebook full of stolen identities from 16 the Purves Street apartment. 17 You see how the defendant tracked which stolen identities 18 worked and at which banks. 19 and information in the notebook, victim Thomas Hockenberry's 20 information in the notebook as well. 21 That's Government Exhibit 554. You see victim Gerald Hanson's name It's also not in dispute that bank, email, phone and 22 other accounts were opened using identity theft victims' 23 information. 24 Palmer, she testified about the loan money that was feverishly 25 cycled to a whole series of accounts, from one to another, back You heard the financial analyst, Elizabeth SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 Document 100 Filed 11/18/22 Page 72 of 192 789 1 and forth, over and over, and to Coinbase, and to Robinhood. 2 That's Government Exhibit 701through 709 and their underlying 3 exhibits. 4 Here's Government Exhibit 708 showing an overview of 5 the money movement. 6 testimony showing that as soon as the loans hit the bank 7 accounts, the defendant right away started furiously spending 8 and emptying those accounts and moving those funds in 9 electronic transfers, ATM withdrawals, and debit card 10 purchases, and nobody disputes that documents and IDs were 11 falsified, that more than one million dollars in government 12 funds was stolen, that fraudulent wires passed through the 13 Southern District of New York, and that the defendant was on 14 bail from March 3rd, 2020, through his October 8, 2021, arrest. 15 On this final point, the time period when the defendant was on 16 bail covers the whole period of the charged offenses. 17 You remember the bank records and the So what is in dispute? What's left for you to decide? 18 Just one question, whether the defendant was involved in the 19 charged crimes. 20 That's what's being contested here. Did the defendant do it? Was he involved with 21 Recamier, or is he somehow just an overly trusting friend? 22 of the overwhelming evidence that you've seen and heard points 23 to a single conclusion, the defendant and Recamier, his partner 24 in crime, committed the crimes together. 25 All There was a mountain of evidence introduced at trial SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 Document 100 Filed 11/18/22 Page 73 of 192 1 over the last week, and I'm going to give you seven reasons 2 that you know the defendant is guilty. 3 phone to Ilori. 4 fingerprints also lead to Ilori. 5 Jamieson's identity. 6 at Purves Street. 7 money to Ilori. 8 fraud. 9 790 First, follow the 0642 Second, the physical evidence and digital Third, Ilori's use of William Fourth, Ilori's use of the fraud office Fifth, Ilori's own words. Sixth, follow the And, seventh, Ilori's conviction for similar The first reason that you know that the defendant is 10 guilty is the location of the 0642 phone. 11 lead you straight to the defendant. 12 was holding this phone when he was arrested. 13 Following that phone Of course the defendant In Government Exhibit 750, the third loan from the 14 bottom, that BRS Consulting Corp loan for over $530,000, those 15 funds went to a Capital One BRS Consulting Corp account. 16 in Government Exhibit 155, this is the PPP application for that 17 same loan. 18 phone on that loan application. 19 right in red. 20 Here you can see that the defendant listed the 0642 application. 22 2020. 23 That's Government Exhibit 372. 25 You see that in the bottom The 0642 phone user is responsible for this loan 21 24 Here, That 0642 phone account was set up in August, It was subscribed in the name of Jonathan Herttua. You saw the movements of the phone. You heard a special agent, Harry Lidsky, did good old-fashioned police SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 Document 100 Filed 11/18/22 Page 74 of 192 1 work, surveillance, following that 0624 phone all around New 2 York City. 3 where the 0624 phone number traveled. 4 La Colombe Coffee Shop in Lower Manhattan, not too far from 5 where we are right now. 6 City. 7 apartment capturing the defendant and Recamier together. 8 on the right, that's St. Albans in Queens, where the phone 9 spent every night, as you saw and heard from Special Agent 10 Lidsky. 11 791 Government Exhibit 570, that's the map showing On your left, that's the In the middle, that's Long Island That's the surveillance footage from the Purves Street This is Government Exhibit 571. And This is the map 12 showing the 0624 phone's whereabouts in the middle of the 13 night, showing that it stayed in St. Albans every single night. 14 Ladies and gentlemen, this is a smoking gun. 15 0624 phone is the defendant's, not anybody else's. 16 It shows that the That St. Alban's location is critical. You know 17 that's where agents saw the black Mitsubishi car that drove to 18 La Colombe when the defendant was there, and it's where the 19 defendant and his white Mercedes were when the defendant was 20 arrested. 21 Then there's Government Exhibit 660. Here at the top 22 are pictures of the iPhone 11 that the defendant had on him 23 when he was arrested. 24 not anybody else's phone because it travels with him including 25 to La Colombe, and it again was on him the day he was arrested. We know it's the defendant's phone and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 1 Document 100 Filed 11/18/22 Page 75 of 192 792 On the bottom there's Government Exhibit 660-A, the 2 SIM card extraction from this iPhone 11. 3 phone recovered from the defendant when he was arrested is the 4 0624 phone, the exact phone that Special Agent Lidsky and his 5 team tracked across the city. 6 defendant's phone because it sleeps in St. Albans every night, 7 not at Recamier's house, not anywhere else. 8 the defendant. 9 he had it at the time of his arrest, hours after Recamier was 10 arrested. 11 It shows that the And, again, we know it's the It's always with And we know it's the defendant's phone because Here's the 0624 summary chart, Government Exhibit 12 740-C. This shows just how essential the 0624 phone is to the 13 fraud. It shows that many of the bank accounts in the case 14 listed that 0624 phone number that you know the defendant used 15 and always had on him. 16 About eight lines down, there's that Capital One BRS 17 Consulting Corp account that received the over $530,000 loan. 18 Additionally, you see that there's three different Chase 19 accounts, an HSTC account, two MNC bank accounts, an Apple 20 account, and an Enterprise account that all were subscribed 21 using that 0642 phone. 22 the bank accounts, the Robinhood account, and the Coinbase 23 account all were used to launder the fraud proceeds, and that 24 phone was found on the defendant when he was arrested. 25 possession and control over the 0642 phone is powerful evidence That phone at the center of the fraud, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 His Case 1:21-cr-00746-MKV MAV1ILO2 1 Document 100 Filed 11/18/22 Page 76 of 192 793 of his guilt. 2 The second reason that you know that the defendant is 3 guilty is the damning evidence that was recovered from him when 4 he was arrested. 5 was not all that the defendant had on him. You just heard about the 0624 phone. That Far from it. 6 He was also arrested with the BRS Consulting debit 7 card that he used at La Colombe and that was also associated 8 with the 531,000 dollar PPP loan that we've been discussing. 9 He was arrested with keys to the Purves Street apartment in 10 Long Island City, and he was arrested with keys to the Mercedes 11 that was fraudulently leased and that he was driving, not Chris 12 Recamier. 13 arrested with a fake ID in victim Thomas Hockenberry's name, 14 with Recamier's picture on the ID, as well as two debit bank 15 cards in victim Hockenberry's name. 16 In the Mercedes trunk, as you can see, he was Now let's take a look at some of the additional 17 electronic devices that were recovered. 18 electronic device that law enforcement accessed tied the 19 defendant to the fraud. 20 involvement in the scheme is inescapable. 21 Every single Every single one. The defendant's I'll focus on his personal phone, that's the iPhone 22 12, and the iMac. I'll discuss the contents of the Samsung 23 from the Mercedes a little bit later. 24 iPhone 12 that was on the defendant's body at the time he was 25 arrested. First, there's the You could convict the defendant based on information SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 Document 100 1 found on this phone alone. 2 picture of the phone. 3 Filed 11/18/22 Page 77 of 192 Government Exhibit 661. Here's a How do we know that the defendant used the phone and 4 not someone else? 5 biometrically, face ID recognized his face. 6 from Special Agent Harry Lidsky. 7 evidence as there is. 8 else's face, the defendant's face. 9 That's not all. Well, for one, his face unlocked it You heard that That's about as compelling Not Chris Recamier's face, not someone Look at Government Exhibit 662 on 10 your left. 11 the phone is registered in his name, Dayo, which is short for 12 Adedayo, Ilori. 13 The phone settings. They show as clear as day that Let's look at the next page in the middle of the 14 slide. 15 the defendant. 16 794 What's the name of the phone? Dayo's iPhone. That's Not Recamier's iPhone, not anyone else's. Government Exhibit 663 on the right, when we look at 17 the Gmail account for the iPhone 12 we see the same thing. 18 Dayo is in the Gmail address. 19 the defendant is the user of this phone. There can be no question that 20 Government Exhibit 665 is the Gmail trash folder on 21 this phone, what the defendant tried to get rid of, to hide. 22 In that trash folder you'll see on the left multiple 23 communications with the Jonathan Herttua Gmail email account. 24 The email account that the defendant set up when he was 25 planning the fraud. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 1 Document 100 Filed 11/18/22 Page 78 of 192 795 You know from Mr. Herttua's testimony and from 2 Government Exhibit 750 that that's one of the main victim 3 identities that the defendant used to commit the crime fraud. 4 The defendant used Mr. Herttua's identity for three of the loan 5 applications, including the 530,000 dollar one we've been 6 talking about from BRS Consulting. 7 Back to the defendant's phone. That's the defendant 8 sending documents from his personal email account to the 9 account he controlled in the name of Herttua. 10 evidence right there. 11 That's damning And then in the middle and on the right of the slide, 12 the defendant also accessed the Robinhood account used to 13 launder large portions of the fraud proceeds from this phone, 14 his phone. 15 12 to another one of the companies that the defendant used to 16 receive fraudulent loan money, Twinway. 17 more of the loan applications. 18 Exhibit 750. 19 That's not all. There's a reference on the iPhone That was used for two You see that in Government In the defendant's phone, we're on page five of 20 Government Exhibit 665, here he is receiving financial 21 information to his personal account for Twinway Corporation. 22 Powerful proof of the defendant's guilt. 23 There's more. There's a reference on the iPhone 12 to 24 another one of the companies that the defendant used to receive 25 fraudulent loan money, Appsensible.com, LLC. You see that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 1 Document 100 Filed 11/18/22 Page 79 of 192 796 again in Government Exhibit 750. 2 Look at Government Exhibit 665. Here we see the 3 defendant receiving financial information to his personal 4 account for this company Appsensible.com, LLC. 5 his own phone. That's not all. 6 his iPhone 12. And what does your common sense tell you about 7 this? 8 notes file. 9 name and business identification number of yet another company 10 that he used for a fraudulent SBA loan application. 11 Inc. 12 Right here on Then there's the notes file on That he would have saved important information on his Sure enough, that's where the defendant saved the Appserd, Let's take a look at Government Exhibit 670 and 156 13 side by side. 14 right and the PPP net application for Appserd, Inc., on your 15 left. 16 defendant committed the charged crimes from the personal iPhone 17 12 that undoubtedly was used by the defendant and that the 18 defendant had on him at the time he was arrested. 19 That's the defendant's phone notes file on your 465422859, in both. Incredibly strong evidence that the The next device is the iMac. That's the computer in 20 the picture on your left in the Purves Street apartment. It 21 was loaded with fraudulent documents to further the fraud, and 22 we know that the defendant used this iMac to commit fraud based 23 on the log-ins alone. 24 email accounts set up in identity theft victims' names. 25 computer accessed the victim fraud email accounts and other On the iMac, the defendant signed into SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 That Case 1:21-cr-00746-MKV MAV1ILO2 1 Document 100 Filed 11/18/22 Page 80 of 192 797 accounts used to further the scheme. 2 So how do we know that the defendant and not someone 3 else used this iMac? Government Exhibit 603, the iMac's device 4 info right there, the device's host name, Dayo's iMac. 5 Recamier's, not some unknown other person. 6 defendant's computer. 7 There's more. Not This was the Government Exhibit 604. This shows 16 8 different user accounts on the iMac, all with Dayo in their 9 names. 10 Dayodfine01@gmail.com and Dfinebydayo@gmail.com. 11 Exhibit 604 is the full exhibit. 12 when you go back to deliberate. Not Recamier. Dayo. Here you see two of them. Government I encourage you to look at it 13 And now from the files found again in the trash folder 14 of iMac Government Exhibit 607 that defendant tried to conceal 15 the fraud, he had a whole bunch of fake passport files with his 16 picture on passports in the names of various other people. 17 in Government Exhibit 607, page 12, that's the middle slide 18 here, here we have the defendant's picture on a fake passport 19 in the name of someone else, Nazmul Islam. 20 left side of the slide, we've got the defendant's picture on a 21 fake passport in the name of someone else, this time Eric 22 Charles Chenworth. 23 that picture was in those fake passports, and there isn't any 24 doubt, also on the iMac there's that same picture in what 25 appears to be a photo of the defendant's actual passport. And Page 13, that's the Then in case there was any doubt about who SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 Document 100 1 That's on the right. 2 defendant's guilt. 3 Filed 11/18/22 Page 81 of 192 798 That right there is proof of the Proof that cannot be explained away. And in Government Exhibit 611, again from the iMac's 4 trash, you see that the defendant tried to erase some fake bank 5 statements formula. That's on the top of the slide. 6 On the bottom of the slide you see that Mula Apps Corp 7 is yet another of the companies that the defendant used for two 8 fraudulent loan applications. 9 That's Government Exhibit 750. Then there's Government Exhibit 610, many pages of 10 Source 4 Jets files on iMac. 11 of the companies that the defendant used for fraudulent loan 12 applications. 13 there on his own computer. 14 We know that that's yet another You see that in Government Exhibit 750, right Here on this slide is the actual EIDL application for 15 Source 4 Jets on the left, and the file for the iMac on the 16 right. 17 of the defendant's personal involvement in the scheme. 18 digital fingerprints are all over this fraud. 19 Collectively, all of this is especially powerful proof The list goes on and on. His The physical and digital 20 evidence in this case points to one inescapable conclusion, 21 that the defendant is guilty. 22 The third reason that you know that the defendant is 23 guilty is his unauthorized use of identity theft victim William 24 Jamieson's identity. 25 defendant's face on it. You all saw that fake ID card with the This is devastating evidence. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 You Case 1:21-cr-00746-MKV MAV1ILO2 Document 100 Filed 11/18/22 Page 82 of 192 1 could convict the defendant based on this fact alone. 2 defendant left zero guesswork about his involvement in the 3 fraud. 799 The This picture is worth a thousand words. 4 And you know from Government Exhibit 750 that Jamieson 5 is not just the victim identity that the defendant used to rent 6 an apartment. 7 defendant used to commit the SBA loan fraud. It's one of the victim identities that the 8 Now let's look at Government Exhibit 341 up top. 9 That's the rental application you saw where the defendant 10 claimed that he was William Jamieson. 11 He used his date of birth. 12 He claimed he was making $250,000 per year and working for an 13 air charter company called Amana Air Charters, LLC. 14 those are lies. 15 told you so. He used Jamieson's name. He used his Social Security number. You know The real William Jamieson came to court and 16 In support of that luxury apartment rental 17 application, the defendant included this completely fake ID in 18 Jamieson's name but with the defendant's own picture on it. 19 And you heard from real estate agent Robert Bateman 20 all about the month-long process dealing with the person he 21 thought was Jamieson, who clearly met the description of the 22 defendant, and not Chris Recamier or anyone else. 23 identified the defendant in open court. 24 that the defendant impersonated one of the identity theft 25 victims so that he could spend some of the fraudulent loan Bateman There was no question SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 Document 100 Filed 11/18/22 Page 83 of 192 1 funds for his own selfish purposes to rent a luxury apartment 2 in Brooklyn using fraud proceeds. 3 800 If that weren't enough, look at Government Exhibit 4 645. 5 which was in the Mercedes center consul the day of the 6 defendant's arrest. 7 The same ID was found on the defendant's Samsung phone, Then you also have emails where the defendant 8 impersonated William Jamieson, e-mailing real estate agent 9 Robert Bateman about the apartment. 10 recovered from the Samsung phone found in the defendant's 11 Mercedes. 12 Those emails also were That's Government Exhibit 636. The lease for that luxury Brooklyn apartment the 13 defendant rented as William Jamieson was also recovered from 14 the defendant's Samsung phone, which was found in the Mercedes, 15 too. That's Government Exhibit 647. 16 Also on the Samsung phone was a letter from the SBA to 17 Jamieson declining the loan application under the EIDL program. 18 That's Government Exhibit 650, also on the Samsung phone. 19 Finally, the defendant's iMac from the Purves Street 20 apartment had files proving that the defendant had manipulated 21 documents. 22 statement, Government Exhibit 612. 23 layer names on the left show the defendant's alteration of bank 24 statements of Amana Air Charters on the right. 25 For example, look at the Amana Air Charters' bank Page two, the spotlight Where we compare the altered documents with the real SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO2 Document 100 Filed 11/18/22 Page 84 of 192 801 1 ones, we see exactly what the defendant did on his iMac to make 2 sure he could rent the apartment. 3 statements to make it seem like a lot more money came into the 4 account than actually did. 5 that the Amana account received over $320,000 in deposits and 6 additions in a single month when the reality was more like, as 7 it says on the left, there was only $3,500 in deposits and 8 additions. 9 actually received. He forged the bank He lied. He claimed on the right That's almost 91 times more than the account 10 Why does this matter? Because it's yet another 11 example of the defendant's blatant fraud. 12 document so he would qualify to rent a nicer apartment. He manipulated the 13 You heard Robert Bateman's testimony on this point, 14 and you know that the real Mr. Jamieson, he never worked for 15 Amana. 16 defendant's repeated and entirely fraudulent use of Jamieson's 17 identity is crushing evidence of his guilt. 18 The documents the defendant submitted were fake. The The fourth reason you know that the defendant is 19 guilty is his use of the Purves Street fraud office. There's 20 no question that the defendant had access to and used the 21 Purves Street apartment. 22 fobs to the apartment on him at the time of his arrest. 23 you know that the other key fob was Recamier's. 24 was recovered from the Purves Street apartment the night 25 Recamier was arrested. The defendant had one of the two key SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 And The other one Case 1:21-cr-00746-MKV MAV1ILO2 1 Document 100 Filed 11/18/22 Page 85 of 192 802 You saw the Purves Street apartment, and you know 2 exactly what it was. 3 fraud office. 4 defendant's key fob was added to the lease so that the 5 defendant could access the fraud office whenever he wanted to. 6 On the left, Government Exhibit 510, is a picture of It was the defendant's and Recamier's The building records confirmed that the 7 Recamier's key fob recovered during the Purves Street apartment 8 search. 9 defendant's key fob recovered during his arrest. 10 Exhibit 282, on the bottom right, those are building records 11 showing the card numbers of the apartment. 12 Government Exhibit 520, on the right, that's the Government Side by side, with the defendant's arrest card on your 13 right, and the building records underneath the picture on the 14 right, you can see that they both end in 28884. 15 had and was arrested with the key fob for the apartment. 16 There's no question about that. 17 18 The defendant And you remember, you passed this key fob around the jury box. You saw this with your own eyes. 19 Then there's Government Exhibits 521 and 552. 20 same business card, Dfine by Dayo Ilori, the defendant. 21 found both on the defendant's person when he was arrested, it 22 was on him, he was holding it, and in the Purves Street 23 apartment, showing his use of the apartment. 24 (Continued on next page) 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 The It was Case 1:21-cr-00746-MKV MAV1ILO4 1 Document 100 Filed 11/18/22 Page 86 of 192 Summation - Mr. Felton MR. FELTON: 803 And then there's the hallway video 2 surveillance from Purves Street showing the defendant coming 3 and going, sometimes with Recamier, and sometimes with others. 4 You saw video of him enter the apartment with another 5 companion. 6 Here are images of the defendant together with 7 Recamier, his partner in crime. 8 Exhibits 316 and 325. 9 These are Government You've heard all about how the Purves Street apartment 10 hallway video matches up with IP records from Robinhood and 11 Charles Schwab, how the records prove that, right when the 12 defendant was in the apartment, that's when loan fraud proceeds 13 were moved into a variety of investment accounts. 14 Take Government Exhibits 308 and 309 and 327 and 325 15 as examples. 16 that the defendant was in the fraud office at critical times, 17 when the fraud proceeds were laundered. 18 a few examples, but you have additional videos in evidence. 19 Those are Government Exhibits 304-328. 20 stamps in Government Exhibit 5. 21 yourself if you'd like. 22 Those video file exhibits and the IP records show We've highlighted just And look at the time You can watch them for And you've seen the IP address records for the 23 672455923 static IP address for the Purves Street apartment. 24 Special Agent Lidsky explained that an IP address is a unique 25 address that at any point in time is assigned to a device SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 Document 100 Filed 11/18/22 Page 87 of 192 Summation - Mr. Felton 1 connected to the internet. 2 devices connected to the internet at the Purves Street 3 apartment. 4 804 The 67 IP address was assigned to Take a look at Government Exhibit 720. You'll note 5 from the IP address records that, in red outlined on the slide, 6 on May 7, 2021, the Robinhood account was accessed at the 7 Purves Street apartment within minutes after there was a login 8 to the defendant's personal Apple account, which is linked to 9 his dayodfine01@gmail.com email address. 10 that that email address is the defendant's account, not 11 Recamier's. 12 DFine, in the name. 13 There is no doubt It has both his name, bio, and his business, And look at June 26, 2021. That's another date. This 14 one's in blue on the slide. We know from the surveillance 15 video—-those are Government Exhibits 308 and 309—-that the 16 defendant was in the Purves Street apartment when the Robinhood 17 account was accessed from the Purves Street apartment based on 18 the IP address records. 19 And on July 21, 2021, that's in yellow on the slide, 20 that's another date when we know that the defendant was at the 21 Purves Street apartment from the surveillance video—-Government 22 Exhibits 327 and 325—-when, sure enough, the Charles Schwab 23 account was accessed at the Purves Street apartment, based on 24 the IP address records. 25 Collectively, this is compelling evidence of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 Document 100 Filed 11/18/22 Page 88 of 192 Summation - Mr. Felton 1 defendant personally controlling and laundering the fraud 2 proceeds from the Purves Street apartment. 805 And you saw photos of this apartment—-a living room 3 4 with no furniture or TV, but rather a shredder, scanner, 5 printer, and computer, falsified documents, and notebooks 6 overflowing with the personal information of identity theft 7 victims. 8 kitchen counter with the defendant's iMac computer that you saw 9 holding all that evidence of fraud. 10 checklist tracking the fraud account used in the SBA fraud, 11 that's Government Exhibit 551. 12 names of those entities. Government Exhibit 581 on the left, that's the The scribbled paper By now, you recognize all the 13 Here you've got Government Exhibits 594 and 595, 14 photos of the shredder, which appeared to be full, and a 15 scanner. 16 was a full-time fraud operation. 17 This was not a typical New York City apartment. This Here's the notebook full of stolen identities from the 18 Purves Street apartment, Government Exhibit 554. Here again, 19 you see how the defendant tracked which stolen identities 20 worked and at which banks. 21 Hockenberry's names and information. 22 witness you heard, at the very start of this trial. 23 remember him. 24 firefighter, who told you how he had to delay his retirement 25 after his identity was stolen. You see Gerald Hanson's and Thomas Hanson was the first You That's the Red Cross volunteer and volunteer SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 Document 100 Filed 11/18/22 Page 89 of 192 Summation - Mr. Felton 1 Here you see loan applications submitted in both of 2 these victims' names—-Hanson up top, and Hockenberry twice on 3 the bottom—-the first and the last victim, both in that same 4 notebook. 806 5 Throughout this point, you saw many chats between 6 Recamier and Ilori about looking for an apartment to rent. 7 Purves Street clearly was a place that they intended to use and 8 did use together for their crimes. 9 and have seen about the Purves Street apartment and the fact 10 that Ilori had the key needed to access the apartment on him at 11 the time he was arrested is strong evidence that the defendant 12 was a key participant in the charged crimes. 13 Everything that you know Now there's a fifth reason that you know the defendant 14 was involved in the fraud. 15 encrypted message catching him in the act. 16 hours going on and on. 17 You saw encrypted message after I could be here for You know Ilori was the person using the Samsung phone. 18 The Samsung phone was found in the Mercedes, the car that the 19 defendant was driving when he was arrested. 20 Recamier. 21 communications when he was impersonating William Jamieson and 22 talking to Robert Bateman to lease an apartment. 23 heard about that. 24 the Samsung phone to communicate with Recamier, who was using 25 the Purves Street Motorola phone. It wasn't with The Samsung phone stored the defendant's We've already And you also know that the defendant used You've seen both sides of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 Document 100 Filed 11/18/22 Page 90 of 192 Summation - Mr. Felton 1 that conversation. The user of the Samsung is referred to as 2 Dee. 3 user is the defendant, and the Motorola user is Recamier. Dee is Dayo Ilori, not Chris Recamier. 4 The Samsung phone Now we walked you through just a small few examples 5 from the Samsung messages that are clear proof of the 6 defendant's guilt. 7 those Telegram messages. 8 Exhibit 638—-those are the messages with Recamier—-and 9 Government Exhibits 639-641. 10 messages, you will be left with absolutely no doubt about the 11 defendant's deep involvement in the fraud, and about the fact 12 that he is guilty beyond any reasonable doubt. But again, I encourage you to flip through Those are Government When you look through those 13 Here are just some of the many examples. 14 Government Exhibit 638. Here on the top left is 15 Recamier asking the defendant, "I need the password to enter 16 Jonathan," referring to victim Jonathan Herttua. 17 minutes later, on the bottom right, the defendant responds, 18 "Actually, don't worry about Jonathan. 19 myself." 20 out the fraud. 21 807 And 12 or 13 I will check it This is the defendant himself, personally carrying Recamier and the defendant constantly discussed what 22 "we" need to do, what "we" need to submit and file, showing 23 that they were working together, that they were in agreement in 24 a joint enterprise. 25 messages. Government Exhibit 638 is full of these I'll just read some of these. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 1 2 Document 100 Filed 11/18/22 Page 91 of 192 Summation - Mr. Felton "Unless we bring work up, there's no way to bring someone else on board." 3 "Do we need the credit card for payment at M&T?" 4 "Are we meeting today?" 5 "We are working tomorrow so shave, look good, and be 6 ready." 7 "We worked on 4 already." 8 This is powerful conspiracy evidence. 9 Then there's Government Exhibit 639. Here, the 10 defendant discusses the need to submit quote-unquote the big 11 one, on March 15, 2021. 12 information about a company called Appserd, Inc. 13 day, March 15, 2021, they submit the largest loan application 14 in the whole scheme on behalf of that very entity, Appserd, 15 Inc., for over $4.4 million. 16 808 Then he and the other person exchange That same The big one. So the fifth reason you know that the defendant was 17 involved in the fraud is that you saw his own words, encrypted 18 message after encrypted message, showing him carrying out the 19 fraud with Recamier and others. 20 The sixth reason that you know the defendant committed 21 the fraud is that following the money leads directly back to 22 the defendant. 23 followed the money and how all the pieces fit. 24 25 You heard Special Agent Lidsky explain how he You all saw, third from the bottom again, that BRS Consulting Corp. $530,000 loan. That was submitted in Jonathan SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 Document 100 Filed 11/18/22 Page 92 of 192 Summation - Mr. Felton 809 1 Herttua's name. 2 account. 3 that Capital One account, we see that the 5953 debit card is 4 linked to the account that received the loan. 5 you're looking at. 6 top right. 7 side. 8 person behind the scheme. 9 It went to a Capital One BRS Consulting Corp. When we followed the funds from loan disbursement to That's what 5953 debit card number, you see that on the These are Government Exhibits 154 and 102, side by Following that 5953 debit card is pivotal to finding a And where was that 5953 debit card found? In the 10 defendant's pocket, at the time of his arrest. That's the 11 bottom middle image on this slide. 12 pocket, holding the very card associated with the $531,218 PPP 13 loan for the Capital One account. Right in the defendant's 14 You also saw the defendant on video at La Colombe 15 coffee shop buying coffee with that same 5953 debit card. 16 have a photo of the video on the top middle and the matching 17 receipt on the top right. 18 manager, he testified that he remembered the defendant 19 regularly buying coffees at his La Colombe NoHo store. 20 identified the defendant in open court. 21 receipts match up to the video. 22 We Josh Sarver, the coffee store Sarver And the La Colombe All the pieces fit. In Government Exhibit 705, you see in financial 23 analyst Elizabeth Palmer's summary exhibit that most of this 24 BRS Consulting PPP loan ultimately ended up going to Coinbase, 25 about $406,000 worth of it. That's on the bottom left of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 Document 100 Filed 11/18/22 Page 93 of 192 Summation - Mr. Felton 1 slide. 2 Jonathan Herttua Capital One bank account. 3 Government Exhibit 252. 4 account and his use and possession of the 5953 debit card 5 proved that he's guilty. 6 you straight to the defendant. 7 810 The Coinbase account is also linked to the same You can see that in The defendant's control over that bank When you follow the money, it leads The seventh and final reason you know that, contrary 8 to what the defense has claimed in its opening, that the 9 defendant was not a victim of circumstances, that he was not 10 merely a gullible friend of Chris Recamier, is because he was 11 convicted of similar conduct, and therefore, this was not all 12 some misunderstanding, as the defense claims. 13 he was convicted of a similar criminal offense. 14 conviction is in evidence in Government Exhibit 7 in the 15 stipulation between the parties. 16 conviction for a similar fraud is evidence of the defendant's 17 criminal intent. 18 what he was doing was wrong and illegal. 19 accident or a mistake, but instead, he knew exactly what he was 20 doing. 21 In April 2021, That The defendant's prior It shows you that the defendant knew that Now I want to be clear. This wasn't some Judge Vyskocil will give a 22 limiting instruction about how this evidence can be considered, 23 and you must follow that instruction, just like you must follow 24 all of her instructions. 25 the limited purpose of determining whether the defendant had You may consider this evidence for SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 Document 100 Filed 11/18/22 Page 94 of 192 Summation - Mr. Felton 811 1 guilty knowledge or criminal intent as to the offenses for 2 which he is charged in this case. 3 parties' stipulation on your screen, Government Exhibit 7, in 4 March 2020, the defendant was arrested and charged with many of 5 the crimes he is charged with here—-conspiracy to commit wire 6 fraud, wire fraud, aggravated identity theft, and conspiracy to 7 commit money laundering. 8 defendant's participation in a scheme to submit fraudulent bank 9 loans. 10 companies and individuals and involved falsified financial 11 statements. 12 that earlier case to a charge of conspiring to commit wire 13 fraud. 14 As you know from the The charges in that case involved the Those applications used the stolen identities of On April 8, 2021, the defendant pled guilty to What do you know from this? You know that it wasn't 15 some accident that the defendant had Jonathan Herttua's debit 16 card in his pocket when he was arrested; it wasn't a mistake 17 that he was spending fraud proceeds at La Colombe using a debit 18 card in Herttua's name; the defendant wasn't unaware of what he 19 was driving when he got behind the wheel of that Mercedes; and 20 the defendant wasn't just hanging around in the Purves Street 21 fraud apartment when fraud proceeds were being laundered. 22 short, the defendant's prior conviction is the seventh reason 23 that the defendant had knowledge of the fraud and possessed 24 criminal intent. 25 In This was not some accident or mistake. As you've heard, there are simply seven -- these are SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 Document 100 Filed 11/18/22 Page 95 of 192 Summation - Mr. Brill 1 simply seven of the many reasons you know the defendant is 2 guilty. 3 Now I'm about to sit down. 812 We told you at the start 4 of this trial that this was a case about lies, about greed, and 5 about brazen theft. 6 significant cost. 7 was specifically set aside to help small businesses who were 8 trying to stay alive during a global public health crisis. You know that the defendant's crimes had a You know that the money the defendant stole 9 Ladies and gentlemen, this is not a close case. 10 the evidence that you've seen points to one and only one 11 conclusion—-that the defendant is guilty. 12 All He tried to cover his tracks, to avoid getting caught, 13 to avoid being in this courtroom today. 14 wool over everyone's eyes. 15 fake identities until he had gotten the money, emptied the bank 16 accounts, and laundered the money in cryptocurrency. 17 the end of the day, he couldn't outrun the law. 18 red-handed. 19 on some other guy. 20 He tried to pull the He tried to hide behind a maze of But at He was caught He can't duck responsibility and try to pin it all Ladies and gentlemen, you can see the defendant; you 21 can see the evidence of his lies and deceit. You can and must 22 hold him to account. 23 back to the jury room to deliberate, when you look at the 24 evidence, and when you use your common sense, you will reach 25 the only verdict that is consistent with the evidence, the law, There's one way to do that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 When you go Case 1:21-cr-00746-MKV MAV1ILO4 Document 100 Filed 11/18/22 Page 96 of 192 Summation - Mr. Brill 1 your common sense, and with every single thing that the 2 defendant did, and that verdict is guilty. 3 Thank you. 4 THE COURT: 5 813 Mr. Brill, are you ready to proceed with the defense summation at this point? 6 MR. BRILL: Yes, your Honor. 7 THE COURT: All right. 8 MR. BRILL: So Mr. Felton mentioned the word 9 "responsibility" just now. 10 that Mr. Ilori did take responsibility. 11 responsibility, as we stipulated to on his previous case. 12 pled guilty on that case. 13 reason, and it's because he's not guilty here. 14 that the act of demanding your constitutional right to a fair 15 trial before a jury is somehow not taking responsibility really 16 doesn't apply here. Thank you. And I think it's important to note He took He He did not plead guilty here for a So to suggest The government hasn't proved their case is what the 17 18 issue is here. The government has proved their case as to 19 Mr. Recamier. Their evidence against Mr. Recamier is damning, 20 certainly, but that's not evidence that is damning and 21 certainly not evidence that is beyond a reasonable doubt to 22 prove that Mr. Ilori engaged in the acts that are before you to 23 decide. 24 The government pointed to the fact that they showed a 25 snapshot of transactions and a snapshot of the evidence among SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 Document 100 Filed 11/18/22 Page 97 of 192 Summation - Mr. Brill 814 1 hundreds or thousands of transactions to suggest that there is 2 overwhelming evidence against Mr. Ilori. 3 is that there is overwhelming evidence against Mr. Recamier. 4 Those hundreds and thousands of transactions were hundreds and 5 thousands of transactions that were in fact Mr. Recamier's 6 transactions, not Mr. Ilori's transactions. 7 And again, the fact Mr. Ilori, you know, would stop by his friend's 8 apartment. 9 with his friend, you know, but his friend -- it's his friend's 10 apartment. 11 rented that apartment. 12 to the key fob and says, well, you know, Mr. Ilori had equal 13 access to the apartment because he had the key fob. But he got 14 the key fob after Mr. Recamier got his own key fob. It's not 15 as if they both applied for this apartment at the same time and 16 said, hey, roomie, here's your key fob, here's my key fob. 17 some point Mr. Recamier said, hey, would you like a key fob, 18 you know, it's easier when you come over, or if you want to use 19 the apartment. 20 least—-more than one point, I think—-Mr. Ilori going to the 21 apartment with a woman. 22 Mr. Ilori may have wanted to use that apartment, not to commit 23 identity theft. 24 25 He would use his friend's WiFi. He would hang out His friend applied for that apartment, his friend And the government, for example, points At You saw at one point on the video, at So there are other reasons why The fact is that you cannot, and the government has not, put Mr. Ilori's hand on a keyboard, his digital SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 Document 100 Filed 11/18/22 Page 98 of 192 Summation - Mr. Brill 815 1 fingerprints on any of these accounts. 2 fingerprints are all over these accounts. 3 fingerprints are probably actually over all the devices as 4 well, because all of the devices were in his apartment, and in 5 his cars. 6 trusting friend. 7 Mr. Recamier's digital Mr. Recamier's Indeed, Mr. Ilori was, as Mr. Felton said, an overly And it doesn't matter that he has a prior conviction 8 for something similar. In fact, you would think that that 9 would warn you against doing something like this again. 10 certainly, again, as Judge Vyskocil will tell you, you cannot 11 use the fact that Mr. Ilori has a prior conviction for 12 something similar to say, well, he did it then, he must have 13 done it now. 14 brought in for. 15 had a prior conviction, that it's not a mistake or it's not a 16 surprise; he shouldn't say, oh, I'm innocent, I didn't know my 17 friend was doing this, I didn't -- I shouldn't have trusted my 18 friend. 19 previously would have been extra careful not to have been in 20 the situation again. 21 So relying on the good graces of your friend and expecting that 22 your friend is not going to, you know, let you do things or 23 cause you to do things, in this case, that would get you into 24 trouble again, I think that that's a much more compelling 25 argument than, oh, he did it before, he must have done it And That's not the point that that evidence was The government is suggesting that because he I think anyone who has been in that situation And that's exactly what Mr. Ilori was. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 Document 100 Filed 11/18/22 Page 99 of 192 Summation - Mr. Brill 816 1 again, which, again, is not the way that you're supposed to 2 look at that evidence. 3 This is a complex identity fraud scheme that the 4 government is trying to make very simple. The government is 5 trying to say, well, the fact is that because someone says or 6 someone uses a name, that must be the name of the person. 7 of course all over this case people are pretending to have 8 different names. 9 we be pointing to -- or should they be pointing to, because I'm 10 not part of this part -- why should they be pointing to this 11 name being a real name but this name is a fake name, just on 12 their say-so, right? 13 the word Dayo on one account but Mr. Hanson on another account, 14 that it's Mr. Hanson whose identity is actually being stolen 15 but Mr. Ilori is involved and not Mr. Recamier using his 16 friend's identity in an illegal way? 17 these are not things that the government can actually fully 18 justify, and that's the problem, right? 19 criminal case is that you hear all of the government's evidence 20 because it's the government that has to prove it, and we then 21 have to poke holes in the government's evidence. 22 you have to be convinced that the government has proved its 23 case to you beyond a reasonable doubt. 24 this in the opening, I'm just repeating it now—-the way I 25 interpret that is that the government then must eliminate all But So why, in the government's evidence, should Why do we trust that when someone uses Again, this is not -- The problem in a Ultimately, And again—-I told you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 1 Document 100 Filed 11/18/22 Page 100 of 192 Summation - Mr. Brill 817 reasonable explanations of the evidence other than theirs. 2 So the government propounds a theory. 3 gives you an idea that this is our theme, this is our 4 story—-that is, the government—-and this is the story you 5 should believe. 6 evidence, saying, well, you know, you can't sit here and say, 7 well, what if aliens came down and did this, right? 8 that's not reasonable. 9 Mount Olympus, you know, came down and, you know, threw his 10 lightning bolt at someone. 11 question is, can you eliminate all other reasonable 12 explanations, and there are other reasonable explanations that 13 you are being offered. 14 The government And you as the jury should be looking at this I mean, You know, what if Zeus, you know, on That's not reasonable. But the Mr. Recamier rented the Purves Street apartment. 15 Mr. Recamier lived in the Purves Street apartment. 16 know where they're coming up with this idea that it's the 17 "fraud office." 18 office; it's Mr. Recamier's apartment, where Mr. Recamier 19 committed fraud, okay? 20 was maybe what his job was, but this is not a fraud office. 21 The only reason the government is calling it that is to make 22 you think that Mr. Ilori is part of it in that same way, that 23 he went to work at the fraud office. 24 saw from his -- excuse me. 25 business card, is a personal trainer. This is a new term for me. I don't It's not a fraud Many people work from home, but that Well, Mr. Recamier, you Mr. Ilori, you saw from his The government points to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 Document 100 Filed 11/18/22 Page 101 of 192 Summation - Mr. Brill 818 1 the single piece of evidence, the one piece of evidence that 2 puts Mr. Ilori's item in the Purves Street apartment. 3 his business card as a personal trainer. 4 as a personal trainer, you would give your business card out to 5 your clients. 6 fact that Mr. Ilori gave Mr. Recamier his business card. 7 That's You would think that That does not indicate anything other than the Mr. Recamier clearly used the devices in the Purves 8 Street apartment, right? 9 text messages, with his face on it. 10 the Purves Street apartment. 11 records, his notebook with all of this info of people's 12 identities. 13 You saw his Motorola phone, with his It's all of his stuff in It's his clothes, his medical The times are also a little confusing because the 14 government suggests that, for example, the Robinhood logins all 15 match up to times when Mr. Ilori was in the apartment. 16 course they cannot eliminate Mr. Recamier being in the 17 apartment at the exact same time. 18 Mr. Ilori was doing it and Mr. Recamier wasn't, how do they do 19 that? 20 right, of the people going into and out of this apartment, but 21 the witness said that they didn't actually pull all the video 22 for all of the people's comings and goings. 23 of them, and you can't tell when Mr. Ilori is there, when 24 Mr. Ilori left, when Mr. Recamier is there, when Mr. Recamier 25 left. Of So again, to suggest that All they have are the comings and goings in the hallway, So you have a few You can tell sometimes when they appear, sometimes when SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 Document 100 Filed 11/18/22 Page 102 of 192 Summation - Mr. Brill 819 1 they leave. But how is the government, you know -- we missed 2 the secret x-ray vision part where the government can tell you 3 who's in the apartment when these logins are happening. 4 can see around the same time maybe Mr. Ilori goes in or around 5 the same time Mr. Recamier goes in, but you don't have the 6 video from before that where Mr. Recamier left or the video 7 after that when Mr. Ilori left. 8 cherry-picking little bits of evidence to try to make a case to 9 you that may not actually be the case in reality. You So again, they're And again, as I said in the opening, the ID theft 10 11 evidence is overwhelmingly against Mr. Recamier. It's his face 12 on all of the IDs. 13 meeting in the bank. 14 government didn't go and track down every piece of video 15 surveillance from every meeting that we saw, for example, on 16 the iPhone, but you don't have Mr. Ilori anywhere except 17 looking at an apartment, and that's not really part of this 18 identity theft scheme, right? 19 signing up for government loans, stealing the money, putting it 20 into an account, trading it, etc. 21 wants to do is they want to relate the apartment to the theft 22 from the government. 23 it is. 24 Mr. Jamieson's name in that specific circumstance does not then 25 logically lead to a logical conclusion that he was then using It's his face whenever he has to go to a As far as we could tell, again, the The identity theft scheme is And what the government And yeah, I mean, the apartment is what But Mr. Ilori's -- the fact that Mr. Ilori was using SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 Document 100 Filed 11/18/22 Page 103 of 192 Summation - Mr. Brill 820 1 that identity to steal from the government. So the major fraud 2 against the government, the wire fraud, the bank fraud, that's 3 all part of the scheme to steal from the government, right? 4 Not to rent an apartment under someone else's name. 5 evidence that he used stolen funds to rent that apartment; 6 there's no evidence that he did anything really other than use 7 someone else's name when he rented the apartment. There's no 8 So ultimately Mr. Recamier appears again and again and 9 again in this evidence; far, far, far more likely to have been 10 the driving force behind this identity theft. 11 and thousands of trades through Robinhood all appear from a 12 different IP address, not the one that was linked to Mr. Ilori. 13 And again, it's linked to Mr. Ilori in a very strange way. 14 It's the one time when Mr. Ilori walks in the apartment and 15 logs in through his Apple account using that IP address, right? 16 Again, I asked Agent Lidsky, hey, did you ever go to someone's 17 house and ask for their WiFi password? 18 time. 19 The thousands It happens all the Then they say then Jonathan Herttua logs on. Okay. 20 That's not Mr. Ilori; that's Jonathan Herttua. So who is the 21 person logging in as Mr. Herttua? 22 to make a leap—-it's not a logical conclusion, it's a logical 23 leap—-that because Mr. Ilori logged on around the same time, 24 then therefore that must mean that Mr. Ilori is also logging on 25 as Herttua. The government is asking you Again, not eliminating Recamier as the actual SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 1 Document 100 Filed 11/18/22 Page 104 of 192 Summation - Mr. Brill 821 perpetrator of this fraud. The Mercedes is leased by Mr. Recamier. 2 3 Mercedes. 4 let Mr. Ilori drive it. 5 of Mr. Recamier's generosity. 6 It is his The fact that he may have let Mr. Ilori drive it, he Mr. Ilori was the beneficiary of some And it's Mr. Recamier's phone that is recovered from 7 the center console of the Mercedes. 8 government's word for it, not only did Mr. Ilori have three 9 phones on him, but apparently now he needed a fourth phone that 10 he just happened to leave in the car. 11 getting back into the car when he was stopped. 12 foresight or the habit or what have you to carry the three 13 phones around with him and then he just left this phone in the 14 car because it was his; it was important, but I'm going to 15 leave that one in the car. 16 it was because it was Mr. Recamier's phone. 17 digital evidence the government is saying, well, this must be 18 the Samsung phone, this is Mr. Recamier speaking to Mr. Ilori 19 because that's Mr. Ilori's phone, the only reason why that's 20 Mr. Ilori's phone, from the government's perspective, is 21 because it was in the car. 22 driving the car and the phone was in the car, it's Mr. Ilori's 23 phone. 24 Mr. Recamier's phone. 25 No. If you take the Because remember, he was So he had the The reason it was in the car, So a lot of this So therefore, because Mr. Ilori was Well, it's not Mr. Ilori's phone. Mr. Recamier's car, And the digital evidence is even more confusing SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 Document 100 Filed 11/18/22 Page 105 of 192 Summation - Mr. Brill 822 1 because of the phones that the government recovered. 2 Apparently at one point this 0642 number was associated with 3 one phone fairly briefly, then associated with a Samsung phone, 4 which neither of those phones appeared to have been using the 5 0642 number at the time of the transactions that the government 6 is concerned about and alleging were fraudulent. 7 Mr. Recamier puts in the 0642 number, as we saw on some of 8 those applications, but the date of the application and the 9 date that the phone was used -- or the phones that were 10 recovered, I should say, were used with the 0642 number don't 11 match up. So 12 So did Mr. Recamier use that number as a studied and 13 experienced person involved in identity theft, used the number 14 briefly, get rid of it, give a phone to Mr. Ilori, leave the 15 phone in the car unattended? 16 explanations that do not synch with the government's 17 explanation. 18 There are, again, multiple Similarly, the dates of the Telegram chats don't match 19 up. There are hundreds of Telegram chats, as you saw. We 20 scrolled through 150 pages, on at least one example. 21 kind of clean picture that the government wants to portray to 22 you is much more messy. 23 benefited from some of these things. 24 car, on occasion. 25 Mr. Recamier around, because the white male who was seen in the But the There is no doubt that Mr. Ilori He got to drive a nice I mean, mostly it seemed he was chauffeuring SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 Document 100 Filed 11/18/22 Page 106 of 192 Summation - Mr. Brill 823 1 Mitsubishi or the white male who was seen in the other rental 2 car previously from Avis, where ultimately the Mercedes that 3 was purchased, and this, you know, this was not Mr. Recamier -- 4 excuse me, Mr. Ilori's car to drive around as he saw fit. 5 right. 6 have been something that Mr. Ilori was doing, driving 7 Mr. Recamier around. 8 It's a Mercedes S class. 9 it around. He got to bring it home. 10 out of it. But, you know, he benefited, as we talked about a 11 minute ago, also from being able to use this ID to rent this 12 apartment. 13 knowledge or intent to engage in a fraud in the way that the 14 government asserts. 15 about why is someone using someone else's name, but that's not 16 the crime that is charged here in that way. 17 had to have known Mr. Jamieson was a real person; had to have, 18 as the indictment says, engaged in aggravated identity theft. 19 There are very specific legal requirements for what that 20 actually means, that, again, the government hasn't proved. All Based upon the limited evidence that we have, seems to But, you know, he benefited from that. It's a nice car. It's nice to drive He apparently got a phone But again, ultimately, there is no proof or I mean, obviously you have a question Because Mr. Ilori 21 So there's no proof that Mr. Ilori stole an identity. 22 There's no proof that, as I said, the apartment that he rented 23 wasn't paid for legitimately. 24 shows that Mr. Ilori, as I said at the beginning of this case, 25 was a friend and a personal trainer of Mr. Recamier. And ultimately, the proof really SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 He Case 1:21-cr-00746-MKV MAV1ILO4 Document 100 Filed 11/18/22 Page 107 of 192 Rebuttal - Ms. Murray 824 1 enjoyed his friend's generosity. And ultimately the charges 2 here are a stretch for the government, and a stretch really 3 means that the government hasn't proved them. 4 through each and every element of these charges—-and that's not 5 my job, that's the judge's job to read them to you—-and 6 obviously you're going to have a written copy when you go back 7 so you can look through it and say, okay, did they prove that, 8 did they prove that. 9 them to their proof, because that's the issue here. 10 well, do we think someone might have done something, or maybe 11 they did something or probably they did something, right? 12 Ultimately it's an issue of, did the government prove this to 13 me beyond a reasonable doubt, which is the requirement that we 14 have in this court, under the Constitution. 15 government has not proved that person guilty beyond a 16 reasonable doubt, then that person is not guilty. 17 requirement of you as the jurors, that's the requirement of the 18 law, and that's the reason why we have the system we have, 19 because it should be very hard to prove someone guilty. But ultimately, you really have to hold 20 So I thank you for your attention. 21 THE COURT: 22 23 You have to go All right. It's not, And if the That is the Take care. Ms. Murray, final word on behalf of the government. MS. MURRAY: Ladies and gentlemen, what you just heard 24 was an experienced and skillful defense attorney. 25 working very hard to do his best for his client. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 He is Case 1:21-cr-00746-MKV MAV1ILO4 1 2 3 4 5 Document 100 Filed 11/18/22 Page 108 of 192 Rebuttal - Ms. Murray Mr. Brill is a very good lawyer, but he's not a magician. He can't make evidence disappear. He can't make the fact that the defendant had the 0642 phone with him when he was arrested disappear. He can't make the GPS data for that phone 6 disappear—-the data showing that that phone slept at the 7 defendant's house every night. 8 9 He can't make the 5953 Herttua BRS debit card that was in the defendant's pocket when he was arrested disappear. 10 He can't make the Purves Street key fob that was in 11 the defendant's pocket at the time of his arrest disappear. 12 825 He can't make the defendant's iMac that lived at the 13 Purves Street apartment—-the fraud office—-disappear. 14 He can't make the false IDs and fraudulent, 15 manipulated documents on that iMac, the defendant's iMac, 16 disappear. 17 He can't make all of the evidence of the fraudulent 18 scheme, which was found on each and every one of the devices 19 that was recovered from the defendant, disappear. 20 As best he tried, he can't make the William Jamieson's 21 driver's license with the defendant's picture on it disappear. 22 Now because Mr. Brill can't make this evidence 23 disappear, he tried to explain it to you, to explain why each 24 piece of evidence points to some conclusion other than the fact 25 that his client is guilty. Now let me be clear. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 The defendant Case 1:21-cr-00746-MKV MAV1ILO4 Document 100 Filed 11/18/22 Page 109 of 192 Rebuttal - Ms. Murray 1 has no burden. 2 arguments, so I'm going respond to those arguments. 826 But defense counsel has chosen to make 3 But first, if you just take a step back and look at 4 the big picture, you'll realize that what Mr. Brill is really 5 trying to tell you is that the defendant, Adedayo Ilori, is the 6 unluckiest man in the world. 7 Mr. Brill says the defendant just happened to have the 8 5953 debit card on him when he was arrested. Who knows how it 9 got there. 10 He just happened to have used that card for months, just 11 happened to have started using it right after that Capital One 12 account was funded with a fraudulent government loan. He was the beneficiary of his friend's generosity. 13 Defendant just happened to have three phones on him, 14 on his person, when he was arrested, including the 0642 phone. 15 He just happened to take that 0642 phone home with him every 16 single night. 17 And he just happened to hang out at his friend's 18 apartment all the time, the apartment that you saw with no 19 living room furniture, no TV, just an iMac belonging to the 20 defendant, a shredder, and piles of evidence of the fraud. 21 just happened to hang out at that apartment multiple times when 22 the IP address that belonged to that apartment connected to 23 various of the accounts in victims' names that were used in 24 furtherance of the fraud. 25 computer at his friend's place, because that's where it would He He happened to keep his own desktop SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 Document 100 Filed 11/18/22 Page 110 of 192 Rebuttal - Ms. Murray 827 1 make sense to keep your computer. 2 defendant's iMac just happened to have numerous fraud documents 3 saved to it. 4 were manipulated in Photoshop to show the defendant's face on 5 passports with other people's names. 6 And that iMac, the And those include the identity documents that Ladies and gentlemen, let's get real. The defendant 7 is not the unluckiest man in the world. 8 he is a money launderer. 9 people's identities and to use those identities for his own and 10 for Chris Recamier's purpose, including to steal over a million 11 dollars in government pandemic relief funds, and he did it 12 again, and again, and again. 13 tricked him. 14 one's that unlucky. 15 points to is one conclusion—-the defendant is guilty. 16 He is a fraudster, and He made the choice to steal innocent No one made him do it. No one He's not the unluckiest man in the world. No What the proof you've heard and seen Now I want to briefly address just a few of the points 17 that Mr. Brill made in his closing statement. 18 address everything he said, frankly, because I don't need to. 19 You've seen and heard the evidence. 20 he said simply does not add up. 21 I'm not going to You know that much of what Now Mr. Brill said that the government hasn't put the 22 defendant's fingers on any of the fraudulent conduct. That's 23 absolutely false. 24 Government Exhibit 274. 25 name of Gerald Hanson, one of the identity theft victims here. When you go to deliberate, take a look at That's a Gemini account record in the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 Document 100 Filed 11/18/22 Page 111 of 192 Rebuttal - Ms. Murray 1 Take a look at that exhibit. 2 fingers on the fraud. 828 You'll see the defendant's And consider what was right at the defendant's 3 4 fingertips when he was arrested on October 8, 2021, in his 5 pocket, within reach—-the 5953 debit card; the phone with 6 communications with his co-conspirators about the fraud. 7 And Mr. Brill also said that there was only one piece 8 of evidence in the Purves Street apartment that connected the 9 defendant to that apartment; it was a business card for his 10 personal training business. 11 that there was voluminous electronic evidence in that apartment 12 tied directly to the defendant. 13 again, but the defendant's own desktop computer, Dayo's iMac, 14 that was in the apartment. 15 you by saying that of all the pieces of evidence, the only one 16 that had the defendant's true name on it was this one innocent 17 business card. 18 better than that. 19 That statement ignores the fact I'm not going to go over that Mr. Brill was trying to distract You've seen and heard the evidence. You know And I have to tell you, I can't quite keep track of 20 the explanation that Mr. Brill provided. Was the defendant 21 just visiting Recamier at Purves Street to hang out with a 22 friend? 23 Chris Recamier was one of the defendant's personal training 24 clients? 25 at one point Mr. Brill said that maybe the defendant just That's what he suggested at one point. Or was it that That was another suggestion that Mr. Brill made. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 And Case 1:21-cr-00746-MKV MAV1ILO4 Document 100 Filed 11/18/22 Page 112 of 192 Rebuttal - Ms. Murray 1 borrowed Recamier's WiFi password, that that would be the 2 explanation, the innocent explanation for everything you've 3 seen. 4 829 Mr. Brill also said that the defendant was a 5 beneficiary of his friend's generosity. 6 friends like that. 7 S class? 8 apartment? And I tell you, I need He's just letting him bring home a Mercedes Giving him a phone? Giving him total access to his It doesn't add up. Now at various points Mr. Brill argued that DOJ-OIG 9 10 should have taken certain investigative steps but they didn't. 11 This is another distraction. 12 examples, but first and foremost, I expect that Judge Vyskocil 13 will instruct you that there is no legal requirement that law 14 enforcement agents investigate crimes in a particular way, or 15 that the government prove its case through any particular 16 means. 17 whether the evidence DOJ-OIG did gather proves the defendant's 18 guilt. 19 I'll talk about a couple of the All that matters, all that you need to decide, is And of course it does. I want to briefly respond to just one example that 20 Mr. Brill has raised. He's argued that no one ever saw the 21 defendant send messages, nobody ever put the various phones in 22 the defendant's hands, nobody was in that Purves Street 23 apartment who could tell us exactly what happened at times that 24 you know the defendant and Chris Recamier were there, at times 25 that you know that accounts were accessed in furtherance of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 1 Document 100 Filed 11/18/22 Page 113 of 192 Rebuttal - Ms. Murray 830 fraud. 2 Ladies and gentlemen, Mr. Brill is basically 3 suggesting that the government should have figured out a way to 4 look inside the Purves Street apartment, to get inside the 5 defendant's car, the defendant's house, to surveil each and 6 every moment the defendant did anything, so that they could 7 confirm exactly which phone he was using at the time, exactly 8 who he was communicating with, so they could come in and parade 9 every single bit of evidence in front of you and say, we can 10 prove that the defendant was using this because we were 11 watching him the whole time. 12 didn't need to do that, because the texts and the emails and 13 the fake documents, and all of the evidence that you've seen 14 speaks for itself. 15 That's preposterous. And they When Mr. Brill opened in this case, he told you that 16 the defendant was a victim of circumstance. And again today, 17 he told you he just happened to be friends with Chris Recamier. 18 Wrong person, wrong time. 19 would the defendant have met with a real estate agent and 20 texted and emailed with that real estate agent using an email 21 account in that victim's name, all while holding himself out to 22 be William Jamieson? 23 defendant have submitted a false driver's license with his 24 picture and an identity theft victim's information, an identity 25 theft victim whose name was used to submit one of the Now if that were the truth, why It doesn't make sense. Why would the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 Document 100 Filed 11/18/22 Page 114 of 192 Rebuttal - Ms. Murray 831 1 fraudulent PPP COVID loan applications? 2 that to rent an apartment? 3 would that fake ID, the William Jamieson ID, just happen to be 4 in the name of one of the identity theft victims that the 5 defendant alleges only Mr. Recamier was involved in putting 6 loan applications in for? 7 Why would he submit It doesn't make sense. And how It doesn't make sense. And why would the defendant be exchanging victim 8 information with other people, with Chris Recamier, with the 9 various other individuals you saw on the chat? 10 information included victims' names, their dates of birth, 11 their addresses, their Social Security numbers. 12 cannot credibly tell you that the defendant didn't know these 13 were real people. 14 and Mr. Recamier and others were tracking these people's 15 information, verifying their information, using that 16 information for their own purposes. 17 were setting up the scheme. 18 together. 19 That Mr. Brill You've seen the evidence that the defendant And that's because they They were committing the fraud Now I want to make one point about what a conspiracy 20 is. And I expect Judge Vyskocil will instruct you on the law. 21 A conspiracy is simply an agreement between two or more people 22 to do something—-in this case, to violate certain laws. 23 you need for a conspiracy is for two people to agree together 24 or with others that they are going to take an action. 25 Mr. Brill tried to distract you. All Again, He tries to point the finger SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 Document 100 Filed 11/18/22 Page 115 of 192 Rebuttal - Ms. Murray 1 at Chris Recamier. "Some other dude did it. 2 client. 3 the government does not disagree that Chris Recamier was 4 involved in this fraud. 5 you that Mr. Ilori did this alone. 6 in lockstep with his co-conspirators, with Chris Recamier, with 7 other people. 8 fraud. My client wasn't involved." 832 It wasn't my But ladies and gentlemen, We're not coming to you and telling Absolutely not. He worked Together they conspired and they committed this But you also know that the defendant is central to the 9 10 fraud. 11 And I know we've spent a lot of time talking about that phone 12 during this trial, but that's because that phone was integral 13 to the fraud. 14 that started the entire investigation. 15 bank account that received those loan proceeds, the bank 16 account that the defendant had the debit card for in his pocket 17 when he was arrested—-the 5953 card. 18 of the other fraudulent loan applications, and two additional 19 bank accounts that were tied to those loans. 20 to the business records for numerous accounts the defendant and 21 Chris Recamier and their other co-conspirators set up in 22 victims' names and used to commit the fraud, including Apple, 23 Robinhood, Coinbase, and Enterprise Rental Car. 24 25 For this point, look no further than the 0642 phone. It is connected to the BRS Consulting Corp. loan It was connected to the It was connected to two It was connected And Mr. Brill told you that the 0642 phone was actually Recamier's phone. Now you've seen Telegram messages SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 Document 100 Filed 11/18/22 Page 116 of 192 Rebuttal - Ms. Murray 833 1 that prove to you that the defendant had control over the 0642 2 phone, that he used it. 3 co-conspirator we talked about yesterday, where the 4 co-conspirator writes and says, "I need the code sent to the 5 Jonathan Herttua phone for the Capital One account." 6 does the defendant respond? 7 in control of the phone, the phone that is receiving 8 information for sign-ins to various of the fraudulent accounts. 9 There's no question. 10 0642 phone that slept at the defendant's house every single 11 night. And those are messages with another And what He responds with the code. He is And as we've discussed, you've seen the 12 Now Mr. Brill asked Special Agent Hezir some questions 13 this morning about the 0642 number, the fact that it was listed 14 as last used in one extraction and it was listed as the SIM 15 phone number in another. 16 distract you. 17 the phones that Mr. Brill was asking Special Agent Hezir 18 questions about, both of those phones that were associated with 19 0642, those were recovered when the defendant was arrested, 20 when he was alone, when no one else was around. 21 was in the defendant's pocket. 22 that he was the person using that phone. 23 Again, don't let those questions Here's what you need to keep in mind. Both of The 0642 phone There is simply no question You also know that the defendant is central to the 24 fraud because you followed the money. You've seen the flow of 25 funds, from the government loans to bank accounts, and then you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 Document 100 Filed 11/18/22 Page 117 of 192 Rebuttal - Ms. Murray 834 1 saw where the money went and how it led to the defendant. And 2 just remember what Special Agent Lidsky told you about the 3 times when the 0642 phone and the money led to the same place, 4 and importantly, who DOJ-OIG found in those places at those 5 times. 6 both in the same place, at La Colombe. 7 defendant on video surveillance on that day, alone. You saw 8 that he used the 5953 debit card to buy his coffee. And then 9 again, the phone and the money led DOJ-OIG to the same place on 10 October 8, 2021—-to St. Albans. 11 arrested, as he was getting into the white Mercedes that was 12 leased with fraudulent loan proceeds. 13 phones in his pocket that day, the 0642 phone. On September 22, 2021, the phone and the money were And you saw the That's when the defendant was And again, one of the 14 There is no doubt. All roads lead to the defendant. 15 And look again at the damning evidence the defendant 16 was arrested with on October 8th. We just talked about the 17 0642 phone, the fraud phone in his pocket. 18 he have? 19 for his own personal expenses for months. 20 12, Dayo's iPhone, and you saw that that iPhone had clear 21 evidence linking him to the fraudulent loan accounts. 22 his own key fob for the Purves Street apartment. 23 acknowledged, that key fob was assigned after Mr. Recamier 24 first rented the apartment. 25 to that apartment. But what else did He had the 5953 debit card, which he had been using He had his iPhone He had As Mr. Brill It gave the defendant 24/7 access SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 1 Document 100 Filed 11/18/22 Page 118 of 192 Rebuttal - Ms. Murray And then look at the Mercedes itself. The Mercedes 2 itself and the fact that the defendant was alone in that car 3 when he was arrested proves that it was his car. 4 leased in the name of an identity theft victim for the 5 defendant's use. 6 was not a generous offer from a friend. 7 That car was It was not a gift from Chris Recamier. Then we have the Samsung. 835 It Now Mr. Brill suggested to 8 you that the Samsung may not have been Ilori's. 9 suggested to you that the Samsung was Chris Recamier's. 10 you recall, when we looked at the Samsung and we looked at the 11 Motorola that was recovered from the Purves Street apartment, 12 we can see the mirror of the same conversation. 13 good trick. 14 conversation with myself using two different phones. 15 doesn't add up. 16 was using the Samsung. 17 Recamier and others on that phone. 18 tie him to that phone. 19 where the Samsung was found. 20 defendant's Mercedes, the car that he drove, the car that he 21 took home, in the center console—-the defendant's own car, 22 which he was alone in at the time of his arrest. 23 He actually And as Now that is a I'd like to know how I can have a text It doesn't make sense. It You know the defendant You've seen the messages he's had with You've seen a document to And you know where the defendant -It was found in the Mercedes, the And we haven't even talked about the bag of evidence 24 in the trunk of the Mercedes. You saw that that included a 25 debit card in the name of Thomas Hockenberry, which is another SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 Document 100 Filed 11/18/22 Page 119 of 192 Rebuttal - Ms. Murray 836 1 one of the identity theft victims—-another person whose 2 personal information you saw jotted down in that notebook, an 3 identity theft victim whose name was on the account that funded 4 $30,000 to a Robinhood account. 5 Ladies and gentlemen, these pieces of evidence 6 collected from the defendant himself and the Mercedes when he 7 was arrested, they prove he's guilty. 8 And you know that the defendant was on pretrial 9 release for similar charges at the time that he committed these 10 offenses, and that he pled guilty to one of those charges in 11 the middle of this loan fraud and money laundering scheme, 12 right around the time he put in the loan application for the 13 big one, the $4.4 million loan at M&T Bank. 14 mistake or happenstance, as the defense wants you to believe, 15 that the defendant was caught red-handed with the debit card in 16 Herttua's name and the phone that was central to the fraud, 17 driving a Mercedes taken out in another identity theft victim's 18 name. 19 circumstance. 20 It was not some Simply put, the defendant was not an innocent victim of (Continued on next page) 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 Document 100 Filed 11/18/22 Page 120 of 192 Rebuttal - Ms. Murray 1 MS. MURRAY: 2 full well what he was doing. 3 sophisticated. 4 name and his face out of it, to stay behind the scenes so he 5 would not get caught. 6 He was not a gullible friend. 837 He knew It was carefully planned. It was And every step was arranged to try to keep his What you've seen is evidence that the defendant took 7 advantage of Chris Recamier and others. 8 Chris Recamier and others. 9 joint operation, but he sent Recamier in to banks and other 10 companies so that Recamier's face and not the defendant's face 11 would be associated with those stolen identities. 12 Recamier's photo and the photos of the other people that you've 13 seen on the fraudulent IDs, people who looked nothing like the 14 defendant on those fake IDs. 15 defendant purposely kept his name and face off these accounts 16 for one reason, to avoid getting caught. 17 He conspired with He worked with them. This was a He put That was no accident. And he messed up the once. The He messed up with William 18 Jamieson, and from that driver's license with the defendant's 19 face and William Jamieson's information, that driver's license 20 that he submitted for an apartment, when he met with somebody 21 as William Jamieson, that alone is all the proof you need to 22 know the defendant was acting with intent. 23 mistake. 24 at every stage of the fraud, and he was profiting from the 25 scheme, hiding his money in accounts that were not in his own This was not a He knew exactly what he was doing. He was involved SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 Document 100 Filed 11/18/22 Page 121 of 192 Rebuttal - Ms. Murray 838 1 name, having Chris Recamier rent the Mercedes that he was going 2 to use. 3 Classic money laundering. You heard from Mr. Brill about reasonable doubt. 4 Judge Vyskocil will instruct you about what that term means in 5 a few minutes, and as you listen to Judge Vyskocil's 6 instructions, please just keep this in mind. 7 There is nothing magical or mysterious about the term 8 beyond a reasonable doubt. 9 that is applied in criminal cases every single day in every 10 single courtroom in this country, and it's been that same 11 burden of proof since this country was founded. 12 juries reach verdicts. 13 It is the very same burden of proof And every day Every criminal defendant is entitled to a trial, 14 absolutely, but not every case is a close case. 15 it's not close at all. And this one, The defendant is guilty. 16 THE COURT: All right. Thank you, Ms. Murray. 17 So, ladies and gentlemen, the next step in this 18 process is that I am going to instruct you on the law. 19 we do that, though, we'll take our lunch break. 20 Before Please leave your notebooks here for the last time. 21 Please do not discuss the case while you are on your lunch 22 break. 23 If you can be back here in 45 minutes, that would be 24 terrific. It's now 1:00, so I will see you all at 1:45. 25 will charge you on the law, and then you'll retire to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 I Case 1:21-cr-00746-MKV MAV1ILO4 1 deliberate. Document 100 Filed 11/18/22 Page 122 of 192 Rebuttal - Ms. Murray All right? 2 Thank you very much, and have a good lunch. 3 (Continued on next page) 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 839 Case 1:21-cr-00746-MKV MAV1ILO4 Document 100 Filed 11/18/22 Page 123 of 192 Rebuttal - Ms. Murray 840 1 (Jurors not present) 2 THE COURT: 3 I just want to say on the record, Mr. Brill mentioned All right. Please be seated, everyone. 4 earlier the 3500 protective order. I just want to note for the 5 record I believe you're talking about ECF No. 56. 6 transmitted to the Court on July 7th by cover letter from the 7 U.S. Attorney's office. 8 tells me that it was on consent or with no objection. 9 fairly standard order as I understand things. 10 for the record. And that cover letter is ECF 55 and 11 Anything else, Ms. Murray? 12 MS. MURRAY: No, your Honor. 13 THE COURT: Mr. Brill? 14 MR. BRILL: No, your Honor. 15 THE COURT: All right. 16 That was It's a All right. So, Thank you. So have a good lunch, everyone, and I'll see you back shortly before 1:45. 17 (Recess) 18 THE COURT: 19 Is there anything that we need to discuss before the 20 All right. Please be seated, everyone. jurors come out? 21 MS. MURRAY: No, your Honor. 22 MR. BRILL: No, your Honor. 23 THE COURT: All right. Mr. Brill, we can talk about 24 the issue that you raised once we get the jury charged and -- 25 okay? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 Document 100 Filed 11/18/22 Page 124 of 192 Rebuttal - Ms. Murray 1 MR. BRILL: Yes, your Honor. 2 THE COURT: All right. 3 4 So, Ms. Dempsey, do you want to bring out our jurors? (Continued on next page) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 841 Case 1:21-cr-00746-MKV MAV1ILO4 Document 100 Filed 11/18/22 Page 125 of 192 Rebuttal - Ms. Murray 842 1 (Jurors present) 2 THE COURT: Please be seated, everyone. 3 All right. So good afternoon, ladies and gentlemen. 4 We've reached the point in the case where it is my duty at this 5 point to instruct you on the law. 6 while, and then you'll retire to deliberate. This will take a little All right? 7 So it's your duty to accept these instructions of law 8 as I'm about to give them to you and apply them to the facts as 9 you determine them. 10 -- I'm sorry. Over the course of the trial, I've ruled Have we distributed? 11 COURTROOM DEPUTY: 12 THE COURT: 13 THE DEPUTY CLERK: 14 THE COURT: Not yet. I'm sorry. It's okay. We'll give you a copy of these, because 15 it's sometimes easier. People might want to follow along. But 16 I would just suggest to you, it's up to each of you, but you 17 might want to think about just listening to the instructions. 18 You'll have a copy of them that you can take with you, but it's 19 entirely up to you. 20 read along and don't read ahead of where I'm at. If you are going to read along, please Okay? 21 All right. Thank you, everyone. 22 So as I started to say, over the course of the trial 23 I've ruled on what testimony and evidence is relevant and 24 admissible under the law for your consideration. 25 the law as I give it to you. You must take If any of the lawyers has stated SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 Document 100 Filed 11/18/22 Page 126 of 192 Rebuttal - Ms. Murray 843 1 a legal principle different from any that I state to you in 2 these instructions, it is my instruction that you must follow. 3 You shouldn't single out any instruction as alone stating the 4 law, but you should consider my instructions as a whole when 5 you retire to deliberate in the jury room. 6 of you, be concerned about the wisdom of any rule of law that I 7 state. 8 the law may be or what it ought to be, it would violate your 9 sworn duty to base a verdict upon any other view of the law 10 than that which I give you. 11 You should not, any Regardless of the opinion that you may have as to what Your final role is to pass upon and decide the fact 12 issues that are in this case. 13 are the sole and exclusive judges of the facts. 14 the weight of the evidence. 15 the witnesses. You resolve such conflicts as there may be in 16 the testimony. And you draw whatever reasonable inferences you 17 decide to draw from the facts as you have determined them. 18 I'll later discuss with you how to pass upon credibility or 19 believability of witnesses. 20 You, the members of the jury, You pass upon You determine the credibility of In determining the facts, you must rely upon your own 21 recollection of the evidence. The evidence before you consists 22 of the answers given by witnesses as they sat here in the 23 witness stand, the testimony they gave as you recall it, and 24 the exhibits that were received in evidence. 25 of the parties are also evidence, and so are the exhibits that The stipulations SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 Document 100 Filed 11/18/22 Page 127 of 192 Rebuttal - Ms. Murray 844 1 were received pursuant to those stipulations, including audio 2 recordings, photographs, and physical evidence. 3 consider the exhibits that were admitted as demonstratives. 4 You may also What the lawyers have said to you during opening 5 statements, in closing arguments, in any objections, or in the 6 questions to the witnesses are not evidence. 7 in mind that a question put to a witness is never evidence. 8 is only the answer that is evidence. 9 any answer if I directed you to disregard or if I directed that 10 anything be stricken from the record. 11 You should bear It But you may not consider Nothing that I may have said during this trial or may 12 say during these instructions with respect to a fact issue 13 should be taken in substitution for your own individual 14 recollection. 15 sole and exclusive judges of the facts, I do not mean to 16 indicate any opinion as to the facts or what your verdict 17 should be. 18 indication of what -- of my views of what your decision should 19 be as to whether or not the guilt of the defendant has been 20 proven beyond a reasonable doubt. 21 What I say is not evidence. Since you are the The rulings I've made during the trial are not any I ask you to draw no inference from the fact that upon 22 occasion I interacted with certain witnesses. Anything I said 23 was only intended for clarification or to expedite matters, and 24 certainly was not intended to suggest any opinion on my part as 25 to the verdict you should render or whether any witnesses may SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 Document 100 Filed 11/18/22 Page 128 of 192 Rebuttal - Ms. Murray 1 have been more credible than any other witnesses. 2 expressly to understand that the Court, meaning me, has no 3 opinion as to the verdict you should render in this case. 4 845 You are You are to perform your duties of finding of facts 5 without bias or prejudice as to any party. You must have an 6 attitude of complete fairness and impartiality. 7 important to the government for the enforcement of criminal 8 laws is a matter of prime concern to the community. 9 it is important to the defendant, who is charged with serious 10 crimes. The case is Equally, 11 The fact that the prosecution is brought in the name 12 of the United States of America entitles the government to no 13 greater consideration than that accorded to any other party to 14 a litigation. By the same token, it is entitled to no less 15 consideration. All parties, whether the government or an 16 individual, stand as equals at the bar of justice. 17 The defendant has pleaded not guilty to the charges in 18 the superseding indictment. To convict the defendant, the 19 burden is on the prosecution to prove the defendant's guilt of 20 each element of the charge beyond a reasonable doubt. 21 burden never shifts to the defendant. The 22 The law does not require the defendant to call any 23 witnesses or to produce any evidence or to testify at trial. 24 The defendant starts with a clean slate, and is presumed 25 innocent of the charges until such time, if ever, that you as a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 Document 100 Filed 11/18/22 Page 129 of 192 Rebuttal - Ms. Murray 1 jury are satisfied that the government has proven that the 2 defendant is guilty of the charge beyond a reasonable doubt. 3 What is reasonable doubt? 846 It is a doubt based upon 4 reason. 5 carefully weighing all the evidence. 6 cause a reasonable person to hesitate to act in a matter of 7 importance in his or her own life. 8 doubt must, therefore, be proof of a convincing character that 9 a reasonable person would not hesitate to rely upon in making 10 an important decision. 11 It is a doubt that a reasonable person has after It's a doubt that would Proof beyond a reasonable A reasonable doubt is not caprice or whim, it's not 12 speculation or suspicion, it is not an excuse to avoid the 13 performance of an unpleasant duty. 14 the government to prove guilt beyond all possible doubt. 15 beyond a reasonable doubt is sufficient to convict. 16 fair and impartial consideration of the evidence, you have a 17 reasonable doubt as to the defendant's guilt with respect to 18 the charges in this case, you must find the defendant not 19 guilty. 20 consideration of all the evidence you are satisfied beyond a 21 reasonable doubt of the defendant's guilt with respect to the 22 charges, you should find the defendant guilty. 23 The law does not require Proof If, after On the other hand, if, after fair and impartial The defendant, Adedayo Ilori, was formally charged 24 with a federal crime by a grand jury in a superseding 25 indictment. As I instructed you at the outset of this case, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 Document 100 Filed 11/18/22 Page 130 of 192 Rebuttal - Ms. Murray 1 the superseding indictment is a charge or an accusation. 2 not evidence. 3 crime other than the offenses in the superseding indictment. 4 847 It is The defendant is not charged with committing any The superseding indictment charges the defendant 5 Adedayo Ilori with six counts. Count 1 of the superseding 6 indictment charges that from at least in or about August 2020 7 through at least in or about October 2021, in the Southern 8 District of New York and elsewhere, the defendant committed or 9 attempted to commit major fraud against the United States. 10 Count 2 of the superseding indictment charges that 11 from in -- from at least in or about August, 2020, through at 12 least in or about October 2021, in the Southern District of New 13 York and elsewhere, the defendant conspired to commit wire and 14 bank fraud. 15 Count 3 of the superseding indictment charges that 16 from at least in or about August of 2020 through at least in or 17 about October of 2021, in the Southern District of New York and 18 elsewhere, the defendant committed wire fraud. 19 Count 4 of the superseding indictment charges that 20 from at least in or about August of 2020 through at least in or 21 about October of 2021, in the Southern District of New York and 22 elsewhere, the defendant committed bank fraud. 23 Count 5 of the superseding indictment charges that 24 from at least in or about August of 2020 through at least in or 25 about October of 2021, in the Southern District of New York and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 1 Document 100 Filed 11/18/22 Page 131 of 192 Rebuttal - Ms. Murray 848 elsewhere, the defendant committed aggravated identity theft. 2 Count 6 of the superseding indictment charges that 3 from at least in or about August 2020 through at least in or 4 about October of 2021, in the Southern District of New York and 5 elsewhere, the defendant conspired to commit money laundering. 6 Count 1 charges the defendant Adedayo Ilori with 7 committing major fraud against the United States. 8 Specifically, Count 1 charges Mr. Ilori with fraudulently 9 obtaining and attempting to obtain more than one million 10 dollars in government guaranteed loans intended to assist small 11 businesses during the COVID-19 pandemic. 12 In order to prove the defendant Adedayo Ilori guilty 13 of committing major fraud against the United States, the 14 government must establish the following four elements beyond a 15 reasonable doubt: 16 First, there was a scheme to defraud the United States 17 or a scheme to obtain money or funds from the United States 18 Government by means of materially false or fraudulent 19 pretences, representations, or promises as charged in the 20 superseding indictment. 21 Second, that the defendant executed or attempted to 22 execute the scheme with the intent to defraud the United States 23 government. 24 Third, that the scheme took place with respect to a 25 loan, guarantee, or other form of federal assistance extended SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 1 Document 100 Filed 11/18/22 Page 132 of 192 Rebuttal - Ms. Murray 849 by the United States Government. 2 And, fourth, that the value of that loan, guarantee or 3 other form of federal assistance was at least one million 4 dollars. 5 I will now explain each of these elements in more 6 detail. The first element that the government must prove 7 beyond a reasonable doubt is that there was a scheme to defraud 8 the United States and/or a scheme to obtain money or property 9 from the United States Government through false or fraudulent 10 pretences, representations, or promises. 11 A scheme to defraud is defined as a pattern or a 12 course of conduct concerning a material matter designed to 13 deceive the Federal Government into releasing money or property 14 with the intent to cause the government to suffer a loss. 15 A representation is fraudulent if it was falsely made 16 with the intent to deceive. 17 truths, the concealment of material facts, and the expression 18 of an opinion not honestly entertained may constitute false or 19 fraudulent representations under the statute. 20 Deceitful statements of half The deception need not be premised upon spoken or 21 written words alone. 22 circumstances in which they are used may convey a false and 23 deceptive appearance. 24 manner in which it is accomplished does not matter. 25 The arrangement of the words or the If there is intentional deception, the A fraudulent representation must relate to a material SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 Document 100 Filed 11/18/22 Page 133 of 192 Rebuttal - Ms. Murray 850 1 fact or matter. 2 be expected to be of concern to a reasonable and prudent person 3 in relying upon the representation or statement in making a 4 final decision. 5 statement of fact to have been false, you must determine 6 whether that statement was one that a reasonable person might 7 have considered important in making his or her decision. 8 same principle applies to fraudulent half truths or omissions 9 of material fact. 10 A material fact is one which would reasonably This means that if you find a particular The Although it is not necessary for the government to 11 prove an actual loss of funds by the government, the government 12 must prove beyond a reasonable doubt that by executing or 13 attempting to execute the scheme alleged in the superseding 14 indictment, the defendant placed the government at risk of loss 15 and that the government did not knowingly accept such a risk. 16 The second element that the government must prove 17 beyond a reasonable doubt is that the defendant executed or 18 attempted to execute the scheme knowingly, willfully, and with 19 specific intent to defraud the government. 20 act voluntarily and deliberately, rather than mistakenly or 21 inadvertently. 22 purposefully, with an intent to do something the law forbids. 23 That is to say, with bad purpose either to disobey or to 24 disregard the law. 25 willfully and with the specific intent to deceive for the Knowingly means to Willfully means to act knowingly and To act with intent to defraud means to act SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 1 2 Document 100 Filed 11/18/22 Page 134 of 192 Rebuttal - Ms. Murray 851 purpose of causing some financial loss to another. The question of whether a person acted knowingly, 3 willfully, and with an intent to defraud is a question of fact 4 for you to determine, like any other fact question. 5 question involves one's state of mind. 6 This Direct proof of knowledge and fraudulent intent is 7 almost never available. 8 be shown that a person wrote or stated that as of a given time 9 in the past, he committed an act with fraudulent intent. 10 direct proof is not required. 11 It would be a rare case where it could Such The ultimate facts of knowledge and criminal intent, 12 though subjective, may be established by circumstantial 13 evidence based upon a person's outward manifestations, his 14 words, his conduct, his acts, and all the surrounding 15 circumstances disclosed by the evidence and the rational or 16 logical inferences that may be drawn therefrom. 17 Circumstantial evidence, if believed, is of no less 18 value than direct evidence. 19 elements of the crime charged must be established beyond a 20 reasonable doubt. 21 In either case, the essential In order to prove that the defendant attempted to 22 execute the scheme, the government must prove beyond a 23 reasonable doubt that, one, the defendant intended to execute 24 the scheme alleged in the superseding indictment; and, two, 25 that the defendant did some overt act that was a substantial SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 Document 100 Filed 11/18/22 Page 135 of 192 Rebuttal - Ms. Murray 1 step in an effort to execute the scheme. Merely preparing to 2 commit a crime is not a substantial step. The defendant must 3 go beyond mere preparation, and his act must strongly confirm 4 that he intended to execute the scheme. 5 However, the government does not have to prove that 6 the defendant did everything except the last act necessary to 7 complete the scheme. 8 preparation is enough. 9 A substantial step beyond mere The third element that the government must prove 10 beyond a reasonable doubt is that the scheme took place with 11 respect to a loan, guarantee, or other form of federal 12 assistance, including through an economic stimulus, recovery 13 and rescue plan provided by the Federal Government. 14 852 The fourth element that the government must prove 15 beyond a reasonable doubt is that the value of the loan, 16 guarantee, or other form of federal assistance was at least one 17 million dollars. 18 Count 2 of the superseding indictment charges Adedayo 19 Ilori with participating in a conspiracy to commit wire fraud 20 and bank fraud. 21 partnership, a combination or agreement of two or more persons 22 to join together to accomplish some unlawful purpose. 23 A conspiracy is a kind of criminal The crime of conspiracy to violate a federal law is an 24 independent offense. It is separate and distinct from the 25 actual violation of any specific federal law which the law SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 1 Document 100 Filed 11/18/22 Page 136 of 192 Rebuttal - Ms. Murray 853 refers to as substantive crimes. 2 In order to satisfy its burden of proof with respect 3 to the allegation of conspiracy, the government must prove 4 beyond a reasonable doubt the following two elements: 5 First, that the conspiracy charged in Count 2 of the 6 superseding indictment existed. 7 agreement or understanding between two or more people to commit 8 wire fraud and/or bank fraud as charged in the superseding 9 indictment; 10 11 That is, that there was an And, second, that the defendant knowingly and willfully became a member of the alleged conspiracy. 12 The first element that you must find is that the 13 conspiracy charged in Count 2 of the superseding indictment 14 existed. 15 of conspiracy, an agreement, and, second, an illegal goal or 16 goals. 17 There are two parts to the first element of the crime The actual commission of the crime that is the object 18 of the conspiracy is not required. In this case, Count 2 of 19 the superseding indictment alleges what is called a 20 multi-object conspiracy, which charges that the objectives of 21 the conspiracy were to commit wire fraud and bank fraud -- 22 It should be and/or bank fraud. 23 MS. MURRAY: (Nodding) 24 THE COURT: Okay? 25 So if you have your copies and you want to annotate It should be and/or bank fraud. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 Document 100 Filed 11/18/22 Page 137 of 192 Rebuttal - Ms. Murray 854 1 it, we're on page 23, the last line before "a agreement." 2 should read "conspiracy or to commit wire fraud and/or bank 3 fraud." 4 And both Ms. Murray and Mr. Brill agree? 5 MS. MURRAY: Yes, your Honor. 6 MR. BRILL: Yes, your Honor. 7 THE COURT: All right. 8 9 It Let's talk about the agreement aspect. A conspiracy is just an agreement. To meet its burden 10 of proof on this element, the government must prove beyond a 11 reasonable doubt that there was an agreement to engage in the 12 criminal object I will describe to you in a moment. 13 government is not, however, required to prove that the alleged 14 conspirators stated in words or writing what the scheme was, 15 its object, or its purpose, or every precise detail of the 16 scheme, or the means by which its object or purpose was to be 17 accomplished. 18 or manner expressly, impliedly, or tacitly came to a mutual 19 understanding to violate the law. 20 The It is enough if two or more people in some way You may find that the existence of the agreement has 21 been established by direct proof. However, since conspiracy is 22 by its very nature characterized by secrecy, you may also infer 23 its existence from the circumstances of this case and the 24 conduct of the parties involved. 25 conspiracy charge, actions often speak louder than words. In the context of a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 1 Document 100 Filed 11/18/22 Page 138 of 192 Rebuttal - Ms. Murray 855 In this regard, you may, in determining whether an 2 agreement existed here, consider the actions and statements of 3 all of those whom you found to or find to be participants as 4 proof that a common design existed on the part of the persons 5 involved in the conspiracy to act together to accomplish an 6 unlawful purpose. 7 The second part of the first element is an illegal 8 goal. 9 Count 2 had the goals of committing wire fraud, and/or 10 committing bank fraud. 11 government must prove that the conspiracy involved a plan to 12 commit at least one or both of those separate substantive 13 crimes. 14 objects charged beyond a reasonable doubt. 15 The government alleges that the conspiracy charged in In order to satisfy its burden the The government does not have to prove both of the In other words, to find the defendant guilty of Count 16 2, you do not need to find that the defendant agreed to 17 accomplish both wire fraud and bank fraud. 18 agreement to accomplish either the objective of wire fraud or 19 the objective of bank fraud is sufficient. 20 that the defendant agreed to commit either wire fraud or bank 21 fraud, the illegal purpose element of conspiracy will be 22 satisfied. 23 has proven beyond a reasonable doubt at least one of these two 24 alleged objectives of the conspiracy. 25 unanimous as to which of the two types has been proven. Rather, an Thus, if you find You must, however, be unanimous that the government You must also be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 Document 100 Filed 11/18/22 Page 139 of 192 Rebuttal - Ms. Murray 1 Substantive wire fraud and bank fraud are charged in 2 Counts 3 and 4 respectively, and I'll explain the elements of 3 those substantive offenses to you in a few minutes. 4 856 If you conclude that the government has proven beyond 5 a reasonable doubt that the conspiracy charged in Count 2 6 existed and that the conspiracy had as its object at least one 7 of the unlawful purposes charged in the superseding indictment, 8 that is, wire fraud or bank fraud, then you must next determine 9 whether the defendant knowingly and willfully participated in 10 the conspiracy with knowledge and in furtherance of one or both 11 of its unlawful purposes. 12 I've already instructed you on what the terms 13 knowingly and willfully mean in my instruction for the second 14 element of Count 1. 15 well. 16 You should apply that instruction here as Again, direct proof of state of mind is not required. 17 The ultimate facts of knowledge and criminal intent are 18 subjective, and they may be established by circumstantial 19 evidence based on someone's outward manifestations, words, 20 conduct, acts, or all the surrounding circumstances disclosed 21 by the evidence and the rational or logical inference that may 22 be drawn therefrom. 23 In the context of a conspiracy, it is not necessary 24 that the defendant be fully informed as to all of the details 25 of the conspiracy or have known the identities of each and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 Document 100 Filed 11/18/22 Page 140 of 192 Rebuttal - Ms. Murray 857 1 every member of the conspiracy or be apprised of all of the 2 co-conspirator's activities in order to justify an inference of 3 knowledge on his part. 4 need not have known the full extent of the conspiracy or all of 5 its activities or all of its participants, nor is it necessary 6 that the defendant receive any monetary benefit from 7 participating in a conspiracy or that he have a financial stake 8 in the outcome, so long as he in fact participated in the 9 conspiracy in the manner I have explained. 10 To have guilty knowledge, the defendant However, you are instructed that while proof of a 11 financial interest in the outcome of a scheme is not essential, 12 if you find that the defendant had such an interest, that is a 13 factor which you may properly consider in determining whether 14 or not the defendant was a member of the conspiracy charged in 15 the superseding indictment. 16 The duration and extent of defendant's participation 17 has no bearing on the issue of the defendant's guilt. A 18 conspirator's liability is not measured by the extent or 19 duration of his or her participation. 20 the conspiracy may perform separate and distinct acts, and may 21 perform them at different times. 22 major roles, while others may play minor roles in the scheme. 23 An equal role is not what the law requires. 24 single act may be sufficient to draw the inference -- I'm 25 sorry, to draw the defendant within the ambit of the Indeed, each member of Some conspirators may play In fact, even a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 1 Document 100 Filed 11/18/22 Page 141 of 192 Rebuttal - Ms. Murray 858 conspiracy. 2 I want to caution, however, that a defendant's mere 3 presence at the scene of the alleged crime does not by itself 4 make him a member of the conspiracy. 5 association with one or more members of the conspiracy does not 6 automatically make the defendant a member. 7 Similarly, mere A person may know or be friendly with a criminal 8 without being a criminal himself. 9 or the fact that they may have assembled together and discussed 10 common aims and interests does not necessarily establish 11 membership in the conspiracy. 12 Mere similarity of conduct I also want to caution you that mere knowledge or 13 acquaintance -- or acquiescence, I'm sorry, without 14 participation in the unlawful plan is not sufficient. 15 Moreover, the fact that the acts of the defendant without 16 knowledge merely happened to further the purposes or objectives 17 of the conspiracy does not make the defendant a member. 18 is required under the law. 19 defendant must have participated with knowledge of at least 20 some of the purposes or objectives of the conspiracy and with 21 the intention of aiding in the accomplishment of those unlawful 22 ends. More What is necessary is that the 23 In sum, the defendant, with an understanding of the 24 unlawful character of the conspiracy, must have intentionally 25 engaged, advised, or assisted in it with the purpose of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 Document 100 Filed 11/18/22 Page 142 of 192 Rebuttal - Ms. Murray 1 furthering an illegal undertaking. 2 becomes a knowing and willing participant in the unlawful 3 agreement, that is to say, a conspirator. 859 The defendant thereby 4 If you find a conspiracy existed and that the 5 defendant was a member, you may take into account against the 6 defendant any acts or statements made during and in furtherance 7 of the conspiracy by any of his co-conspirators, even though 8 such acts or statements were not made in the presence of the 9 defendant or even if they were made without his knowledge. 10 Count 3 charges the defendant Adedayo Ilori with 11 committing wire fraud. In order to prove the defendant Adedayo 12 Ilori guilty of committing wire fraud, the government must 13 establish the following three elements beyond a reasonable 14 doubt. 15 to defraud; or, B, a scheme or artifice to obtain money or 16 property by means of materially false and fraudulent pretences, 17 representations or promises. First, the existence of either, A, a scheme or artifice 18 Second, that the defendant participated in the scheme 19 or artifice to defraud with knowledge of its fraudulent nature 20 and with specific intent to defraud. 21 22 23 Third, in the execution of the scheme, the defendant used or caused to be used interstate wires. As to the first element, a scheme or artifice is 24 simply a plan for the accomplishment of an object. 25 general term. Fraud is a It includes all the possible means by which a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 Document 100 Filed 11/18/22 Page 143 of 192 Rebuttal - Ms. Murray 860 1 person seeks to gain some unfair advantage over another person 2 by false representation, false suggestion, false pretences, or 3 concealment of the truth. 4 a plan to deprive another of money or property by trick, 5 deceit, deception, or swindle. 6 Thus, a scheme to defraud is merely Apart from proving a scheme or artifice to defraud, as 7 I've just explained it to you, the wire fraud statute 8 alternatively provides that it can be satisfied by the 9 existence of a scheme or artifice to obtain money or property 10 by means of false or fraudulent pretences, representations, or 11 promises. 12 A pretense, representation, statement, or document is 13 fraudulent if it was made falsely and with intent to deceive. 14 A reputation -- a representation, statement, claim or document 15 may also be fraudulent if it contains half truths or if it 16 conceals materially -- material facts in a manner that makes 17 what is said or represented deliberately misleading or 18 deceptive. 19 The deception need not be premised on spoken or 20 written words alone. The arrangement of words or the 21 circumstances in which they are used may convey the false and 22 deceptive appearance. 23 which it is accomplished does not matter. 24 not require that any particular person actually relied on or 25 actually suffered damages as a consequence of any fraudulent If there is deception, the manner in This element does SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 Document 100 Filed 11/18/22 Page 144 of 192 Rebuttal - Ms. Murray 861 1 representation or concealment of facts. Nor need you find that 2 the defendant profited from the fraud. It is enough that a 3 false statement or statement omitting material facts that made 4 what was said deliberately misleading, was made as part of a 5 fraudulent scheme in the expectation that it would be relied 6 on. 7 You must concentrate on whether there was such a 8 scheme, not on the consequences of the scheme. 9 proof concerning the accomplishment of the goals of the scheme 10 may be the most persuasive evidence of the existence of the 11 scheme itself. 12 Of course, In addition, the false or fraudulent representation or 13 failure to disclose must relate to a material fact or matter. 14 A material fact is one which would reasonably be expected to be 15 of concern to a reasonable and prudent person in relying upon 16 the representation or statement in making a decision. 17 means that if you find a particular statement or representation 18 false, you must determine whether that statement or 19 representation was one that a reasonable person might have 20 considered important in making his or her decision. 21 That The same principle applies to fraudulent half truths 22 or omissions. 23 to defraud need not be shown by direct evidence, but may be 24 established by all the circumstances and facts in the case. 25 That is, failures to disclose facts. A scheme Second, the government must establish beyond a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 Document 100 Filed 11/18/22 Page 145 of 192 Rebuttal - Ms. Murray 862 1 reasonable doubt that the defendant devised or participated in 2 the fraudulent scheme knowingly, willfully, and with the 3 specific intent to defraud. 4 "participated" are words that you're familiar with, and 5 therefore I don't need to spend much time defining them for 6 you. 7 The words "devised" and To do devise a scheme to defraud is to concoct or to 8 plan it. 9 associate one's self with it with a view and an intent towards 10 making it succeed. 11 in a scheme to defraud, it is not necessary that a participant 12 be someone who personally and visibly executives the scheme to 13 defraud. 14 To "participate" in a scheme to defraud means to While a mere onlooker is not a participant The government must prove that the defendant knowingly 15 and willfully participated in the charged scheme with the 16 intent to defraud. 17 and those definitions apply here as well. I've already defined those terms for you, 18 In order to satisfy this element, it is not necessary 19 for the government to establish that the defendant originated 20 the scheme to defraud. 21 scheme to defraud existed even if originated by another, and 22 that the defendant, while aware of the scheme's existence, 23 knowingly participated in it. 24 25 It is sufficient if you find that a It is also not required that the defendant participate in or have knowledge of all of the operations of the scheme. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 Document 100 Filed 11/18/22 Page 146 of 192 Rebuttal - Ms. Murray 863 1 The guilt of the defendant is not governed by the extent of his 2 participation. 3 have participated in the alleged scheme from the beginning. 4 person who comes in at a later point, with knowledge of the 5 scheme's general operation, although not necessarily all of its 6 details, and intentionally acts in a way to further the 7 unlawful goals, becomes a member of the scheme and is legally 8 responsible for all that may have been done in the past in 9 furtherance of the criminal objective, and all that is done 10 thereafter. It is also not necessary that the defendant A 11 Even if the defendant participated in the scheme to a 12 lesser degree than others, he is nevertheless equally guilty so 13 long as that defendant became a member of the scheme to defraud 14 with knowledge of its general purpose and scope. 15 The third and final element that the government must 16 establish beyond a reasonable doubt as to Count 3 is that 17 interstate wires, for example, phone calls, email 18 communications, or text messages were used in furtherance of 19 the scheme to defraud. 20 interstate wire. 21 states. 22 The wire communication must be an That is, it must pass between two or more The use of the wire need not itself be a fraudulent 23 representation. 24 way in carrying out the scheme to defraud. 25 It must, however, further or assist in some It is not necessary for the defendant to be directly SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 Document 100 Filed 11/18/22 Page 147 of 192 Rebuttal - Ms. Murray 864 1 or personally involved in any wire communication, as long as 2 the communication is reasonably foreseeable in the execution of 3 the alleged scheme to defraud in which the defendant is accused 4 of participating. 5 establish this element of the crime if the evidence justifies a 6 finding that the defendant caused the wires to be used by 7 others. 8 have specifically authorized others to execute a wire 9 communication. In this regard, it would be sufficient to And this does not mean that the defendant himself must 10 When one does an act with knowledge that the use of 11 the wires will follow in the ordinary course of business, or 12 where such use of wires can reasonably be foreseen, even though 13 not actually intended, then he causes the wires to be used. 14 Incidentally, this wire communication requirement is satisfied 15 even if the wire communication was done by a person with no 16 knowledge of the fraudulent scheme, including a victim of the 17 alleged fraud. 18 Let me also add the following: Only the wire 19 communications must be reasonably foreseeable, not the 20 interstate component. 21 communication was reasonably foreseeable, and the interstate 22 wire communications actually took place, then this element is 23 satisfied even if it was not foreseeable that the wire 24 communication would cross state lines. 25 Thus, if you find that the wire Count 4 charges the defendant Adedayo Ilori -- I'm SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 Document 100 Filed 11/18/22 Page 148 of 192 Rebuttal - Ms. Murray 1 sorry, Adedayo Ilori with committing bank fraud. 2 prove the defendant Adedayo Ilori guilty of committing bank 3 fraud, the government must establish the following three 4 elements beyond a reasonable doubt. 5 865 In order to First, the existence of either, A, a scheme or 6 artifice to defraud a bank; or, B, a scheme or artifice to 7 obtain money owned by or under the custody or control of a bank 8 by means of material, false, or fraudulent pretences, 9 representations, or promises. 10 Second, that the defendant knowingly and willfully 11 engaged in the scheme or the artifice. 12 with knowledge of the fraudulent nature of the scheme and with 13 the specific intent to defraud the bank or to obtain by 14 deceiving the bank money owned or control by that bank. 15 16 That is, that he acted And, third, that the bank was involved -- that the bank involved was federally insured. 17 The first element requires that the government prove 18 that the defendant either, A, executed or attempted to execute 19 a scheme or artifice to defraud a bank, or, B, executed or 20 attempted to execute a scheme or artifice to obtain money owned 21 by or under the custody and control of a bank by means of 22 material, false, or fraudulent pretences, representations or 23 promises. 24 I've already defined these terms to you in the context 25 of Count 1 and Count 3, and those definitions apply here, too. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 1 2 Document 100 Filed 11/18/22 Page 149 of 192 Rebuttal - Ms. Murray 866 Here, the scheme or artifice must be directed toward a bank. The second element that the government must prove 3 beyond a reasonable doubt is that the defendant participated in 4 the scheme knowingly, willfully, and with the specific intent 5 to defraud. 6 those definitions apply here as well. I've already defined those terms for you, and 7 The third element of the crime of bank fraud is that 8 the deposits of at least one of the banks that was the target 9 of the scheme were federally insured. 10 matter of law, that banks insured by the Federal Deposit 11 Insurance Corporation, or FDIC, are federally insured. 12 I instruct you, as a It is not necessary for the government to prove that 13 the defendant knew the identity of the particular financial 14 institution, or that the defendant knew that the deposits of 15 the institution were federally insured. 16 All right. We're turning now to Count 5, and if 17 you're following along with me, I see there's a typo on this 18 one as well. 19 I apologize for that. We're on page 44. So Count 5, not Count 3, charges the defendant Adedayo 20 Ilori with aggravated identity theft. 21 proof, the government must prove each of the following three 22 elements beyond a reasonable doubt: 23 24 25 To sustain its burden of First, that the defendant knowingly used, transferred, or possessed a means of identification of another. Second, that the defendant used the means of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 Document 100 Filed 11/18/22 Page 150 of 192 Rebuttal - Ms. Murray 1 identification during and in relation to Count 2, the 2 conspiracy to commit wire fraud. 3 4 And this also should be and/or bank fraud. Ms. Murray. 5 6 MS. MURRAY: Yes, your Honor. I agree that should be wire and/or bank fraud. 7 THE COURT: Mr. Brill? 8 MR. BRILL: Just one moment, Your Honor. 9 THE COURT: On page 44. 10 MR. BRILL: Yes. 11 THE COURT: Ah. 12 MS. MURRAY: Your Honor, on this point, per the I'm looking at the indictment. 13 indictment, the aggravated identity theft relates to Counts 1 14 through 4. 15 MR. BRILL: I agree. 16 THE COURT: So it should be wire and/or bank fraud, 18 MS. MURRAY: Yes. 19 MR. BRILL: Yes, your Honor. 20 THE COURT: All right. 21 So again, ladies and gentlemen, my apologies. 22 So the second element on this aggravated identity 17 right? 23 theft is that the defendant used the means of identification 24 during and in relation to Count 2 through -- 25 867 MS. MURRAY: Counts 1 through 4, Your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO4 Document 100 Filed 11/18/22 Page 151 of 192 Rebuttal - Ms. Murray 1 THE COURT: So this should read 1 through 4. 2 MS. MURRAY: Correct. 3 (Continued on next page) 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 868 Case 1:21-cr-00746-MKV MAV1ILO6 1 2 THE COURT: Document 100 Charge Filed 11/18/22 Page 152 of 192 869 Which we've already talked about up to this point. 3 All right. We're on Count Five now. 4 The third element is that the defendant acted without 5 lawful authority; alternatively, that the defendant aided and 6 abetted others to do the same. 7 The first element which the government must prove is 8 that the defendant knowingly used, transferred, or possessed a 9 means of identification of another person. 10 identification" means any name or number that may be used alone 11 or in conjunction with any other information to identify a 12 specific individual, including any name, signature, Social 13 Security number, date of birth, official state or 14 government-issued driver's license or identification number, 15 alien registration number, government passport number, or 16 employer or taxpayer identification number. 17 government must prove both that the means of identification was 18 that of an actual person, living or deceased, and that the 19 defendant knew that the means of identification was that of 20 another person. 21 The term "means of In addition, the To act "knowingly" means to act voluntarily and 22 intentionally and not by mistake or accident. I instructed you 23 earlier on the manner of proof you may consider when making a 24 decision about the defendant's state of mind. 25 instructions apply to your decision here in determining whether Those same SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO6 Document 100 Charge Filed 11/18/22 Page 153 of 192 1 the defendant acted knowingly, with respect to his use, 2 transfer, or possession, if any, of a means of identification 3 of another person. 870 4 As you may have noticed, the charge of aggravated 5 identity theft requires proof of guilt on at least one of 6 Counts One, Two, Three, and Four. 7 not guilty on all four of those counts, then you must find the 8 defendant not guilty on this Count Five. 9 because the second element which the government must prove is 10 that the defendant used, transferred, or possessed the means of 11 identification during and in relation to at least one of the 12 offenses charged in Counts One, Two, Three, and Four. 13 phrase "during and in relation to" means that the government 14 must prove that the use, transfer, or possession of the means 15 of identification facilitated or had the potential to 16 facilitate the offense in question. 17 If you find the defendant All this is relevant The The third element which the government must prove is 18 that the defendant acted without lawful authority. "Lawful 19 authority" means authorization recognized by statute or 20 regulation. 21 authorization recognized by statute or regulation. 22 the "without lawful authority" element, the government need not 23 prove that the means of identification were stolen. 24 proof that the means of identification were stolen would 25 certainly satisfy the "without lawful authority" element. Thus, "without lawful authority" means without SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 To prove However, Case 1:21-cr-00746-MKV MAV1ILO6 1 Document 100 Charge Filed 11/18/22 Page 154 of 192 871 "Without lawful authority" includes situations in 2 which the defendant comes into lawful possession of identifying 3 information and had the lawful authority to use that 4 information for a lawful purpose, but used the information for 5 an unlawful purpose. 6 the person whose identity was used in furtherance of a crime 7 consented to or gave permission for that use. 8 9 10 Count Six. The term also includes situations where Count Six charges the defendant, Adedayo Ilori, with conspiracy to commit money laundering. I've already instructed you on the elements of a 11 conspiracy charge generally, and these instructions apply to 12 Count Six, which charges a money laundering conspiracy. 13 elements of a money laundering conspiracy are: 14 The First, that two or more persons entered into an 15 unlawful agreement to violate specified laws of the United 16 States prohibiting money laundering; and 17 18 19 Second, that the defendant knowingly and wilfully entered into the agreement. In other words, the elements of the conspiracy charged 20 in Count Six are the same elements the government is required 21 to prove with respect to the conspiracy alleged in Count 22 Two—–namely, the existence of an agreement to violate the law 23 and knowing and willful entry of the defendant into that 24 agreement. 25 Count Six charges the defendant with participating in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO6 Document 100 Charge Filed 11/18/22 Page 155 of 192 1 a conspiracy whose object was to engage in financial 2 transactions involving the proceeds of wire and/or bank fraud 3 in order to conceal or disguise the nature, location, source, 4 ownership, or control of those criminal proceeds. 5 need to find that the defendant actually committed this crime 6 of concealment, money laundering. 7 agreed with others to commit it. You do not You must only find that he 8 Concealment money laundering has four elements: 9 First, that the defendant conducted a financial 10 872 transaction. 11 The term "conducts" includes the action of 12 initiating, concluding, or participating in initiating or 13 concluding a transaction. 14 A "transaction" includes a purchase, sale, loan, 15 pledge, gift, transfer, delivery, or other disposition of 16 property. 17 The term "financial transaction" means a transaction 18 involving a financial institution that is engaged in, or the 19 activities of which affect, interstate or foreign commerce in 20 any way or degree, or transaction that in any way or degree 21 affects interstate or foreign commerce and involves the 22 movement of funds by wire or other means, or involves one or 23 more monetary instruments. 24 financial institution" includes a deposit, withdrawal, transfer 25 between accounts, exchange of currency, loan, extension of A "transaction involving a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO6 Document 100 Charge Filed 11/18/22 Page 156 of 192 1 credit, purchase, or sale of any stock, bond, certificate of 2 deposit, or other monetary instrument, use of a safe deposit 3 box, or any other payment, transfer, or delivery by, through, 4 or to a financial institution by whatever means. 873 5 Interstate commerce includes any transmission, 6 transfer, or transportation of goods or services, both tangible 7 or intangible, communications, and/or persons, between persons, 8 places, or entities located in one state (including the 9 District of Columbia), and other persons, places or entities 10 located in another state, regardless of whether done for a 11 business purpose or otherwise. 12 thing except it is between a person, place, or entity in the 13 United States and a person, place, or entity in a foreign 14 country. 15 Foreign commerce means the same In determining whether someone is engaged in, or 16 whether his activities affect interstate or foreign commerce, 17 the involvement in interstate or foreign commerce can be 18 minimal. 19 Any involvement at all will satisfy this element. You do not have to decide whether the effect on 20 interstate or foreign commerce was harmful or beneficial to a 21 particular business or to commerce in general. 22 satisfies its burden of proving an effect on interstate or 23 foreign commerce if it proves beyond a reasonable doubt any 24 effect, whether it was harmful or not. 25 The government In addition, it is not necessary for the government to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO6 Document 100 Charge Filed 11/18/22 Page 157 of 192 874 1 show that the defendant actually intended or anticipated an 2 effect on interstate or foreign commerce by his actions or that 3 commerce was actually affected. 4 the natural and probable consequence of the acts the defendant 5 agreed to take would affect interstate or foreign commerce. 6 All that is necessary is that The second element of concealment money laundering is 7 that the financial transactions must involve the proceeds of 8 specified unlawful activity. 9 activity" is wire fraud and bank fraud, in violation of 10 Title 18, United States Code, Sections 1343 and 1344. 11 Here, the, "specified unlawful I instruct you as a matter of law that the term 12 "specified unlawful activity" includes wire and bank fraud. 13 However, it is for you to determine whether the funds were the 14 proceeds of that unlawful activity. 15 Count Three charges wire fraud and Count Four charges 16 bank fraud, and I've instructed you on the elements for those 17 offenses in my earlier instructions. 18 The term "proceeds" means any property derived from or 19 obtained or retained, directly or indirectly, through some form 20 of unlawful activity, including the gross receipts of such 21 activity. 22 money. 23 Proceeds can be any kind of property, not just The third element of concealment money laundering is 24 that the defendant knew that the financial transactions at 25 issue involved the proceeds of some form, though not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO6 Document 100 Charge Filed 11/18/22 Page 158 of 192 875 1 necessarily which form, of unlawful activity. 2 must have known that the property involved in the transactions 3 represented proceeds from some form, though not necessarily 4 which form, of activity that constitutes a felony under state, 5 federal, or foreign law. 6 government does not have to prove that the defendant 7 specifically knew that the property involved in the 8 transactions represented the proceeds of wire fraud, bank 9 fraud, or any other specific offense, or that the defendant 10 personally participated in the wire fraud and bank fraud 11 schemes. 12 knew that the property involved in the transactions represented 13 the proceeds of some illegal activity that was a felony. 14 instruct you as a matter of law that wire fraud and bank fraud 15 are felonies under federal law. 16 The defendant Thus, to satisfy this element, the The government only has to prove that the defendant The fourth and final element of concealment money 17 laundering concerns the knowledge and intent of the 18 transaction. 19 I Specifically, the government must prove beyond a 20 reasonable doubt that the defendant conducted financial 21 transactions with knowledge and intent that the transactions 22 were designed in whole or in part to conceal or disguise the 23 nature, location, source, ownership, or control of the proceeds 24 of the specified unlawful activity. 25 As I previously instructed, to act knowingly means to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO6 Document 100 Charge Filed 11/18/22 Page 159 of 192 876 1 act purposefully and deliberately, and not because of mistake 2 or accident, mere negligence, or other innocent reason. 3 is, the acts must be the product of the defendant's conscious 4 objective. 5 reasonable doubt that the defendant knew the purpose of the 6 particular transaction in issue and the transaction was either 7 designed to conceal or disguise the true origin of the property 8 in question, then this element is satisfied. 9 disguise or conceal need not be the sole motivating factor. 10 However, if you find that the defendant knew of the transaction 11 but did not know that it was either designed to conceal or 12 disguise the true origin of the property in question, but 13 instead thought that the transaction was intended to further an 14 innocent transaction, you must find that this element has not 15 been satisfied and find the defendant not guilty. 16 instructed you earlier, proof of knowledge and intent of the 17 purpose of the financial transaction may be established by 18 circumstantial evidence or reasonable inference from evidence 19 of the defendant's words, actions, or other acts of outward 20 manifestation. That If you find that the evidence establishes beyond a Intent to Again, as I 21 For the fourth element to be satisfied, the defendant 22 need not know which specified unlawful activity he was agreeing 23 to help conceal. 24 financial transaction was concealing the nature, location, 25 source, ownership, or control of the funds. He need only know that a purpose of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO6 Document 100 Charge Filed 11/18/22 Page 160 of 192 877 1 Now in addition to charging the defendant with the 2 substantive counts of major fraud against the United States, 3 wire fraud, bank fraud, and aggravated identity theft, all four 4 of these counts also charge the defendant with what is called 5 aiding and abetting. 6 Aiding and abetting a crime is one manner of 7 committing that crime. The defendant can be convicted of 8 committing a crime if he helps someone else to commit the 9 crime. 10 reasonable doubt that the defendant committed the aggravated 11 identity theft alleged in, just as an example, Count Five, then 12 you need not consider aiding and abetting with respect to that 13 count. 14 beyond a reasonable doubt that the defendant engaged in 15 aggravated identity theft, to continue using Count Five as an 16 example, you should consider whether the government has 17 nonetheless proved beyond a reasonable doubt that the defendant 18 aided and abetted someone else in the commission of aggravated 19 identity theft as alleged in that count. For example, if the government proves beyond a If, however, you find that the government did not prove 20 The concept of aiding and abetting is alleged in all 21 four substantive counts; that is, Counts One, Three, Four, and 22 Five. 23 will see this in the verdict sheet that we'll be sending back 24 with you into the jury room when you deliberate. 25 Counts Two and Six are the conspiracy counts. And you Under the federal aiding and abetting statute, whoever SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO6 Document 100 Charge Filed 11/18/22 Page 161 of 192 878 1 aids, abets, counsels, commands, induces, or procures the 2 commission of an offense is punishable as a principal. 3 person who aids and abets another to commit a substantive crime 4 is just as guilty of that crime as if he had personally 5 committed it. 6 find beyond a reasonable doubt that the government has proven 7 that someone committed the substantive offense and that the 8 defendant helped or assisted that person in the commission of 9 the offense. 10 A You may thus find the defendant guilty if you The first requirement of aiding and abetting liability 11 is that somebody else has committed the crime at issue. The 12 defendant cannot be convicted of aiding and abetting if nobody 13 committed the underlying crime. 14 underlying crime at issue was committed by someone other than 15 the defendant, you should consider whether the defendant aided 16 and abetted the person who actually committed the crime. 17 To aid and abet another to commit a crime, the But if you do find that the 18 defendant must have wilfully and knowingly associated himself 19 in some way with the crime and he must have willingly and 20 knowingly sought by some act to help make the crime succeed. 21 Participation in a crime is willful if action is taken 22 voluntarily and intentionally. 23 The mere presence of the defendant in a place where a 24 crime is being committed, even coupled with knowledge that a 25 crime is being committed, is not enough to make him an aider SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO6 Document 100 Charge Filed 11/18/22 Page 162 of 192 879 1 and abettor. 2 conduct of others, even with guilty knowledge, is not enough to 3 establish aiding and abetting. 4 his own affirmative interest in the criminal venture. 5 6 7 8 9 10 11 12 13 14 The defendant's acquiescence in the criminal An aider and abettor must have To determine whether the defendant aided and abetted the commission of the crime, ask yourself these questions: Did someone other than the defendant commit the crime at issue? If no, please go on to the next count. Did the defendant participate in the crime charged as something that he wished to bring about? Did he associate himself with the attempt to commit the crime by other people knowingly and wilfully? Did he seek, by his actions, to make the criminal venture succeed? 15 If so, the defendant is an aider and abettor and 16 therefore he is guilty of the offense under consideration. 17 not, then he is not an aider and abettor and he is not guilty 18 of the offense under consideration. 19 If As I've explained, all six counts alleged in the 20 superseding indictment require the government to prove that the 21 defendant acted knowingly. 22 defendant acted knowingly, you may consider whether the 23 defendant deliberately closed his eyes to what otherwise would 24 have been obvious. 25 In determining whether the I would like to point out that the necessary knowledge SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO6 Document 100 Charge Filed 11/18/22 Page 163 of 192 880 1 on the part of the defendant with respect to any particular 2 charge cannot be established by showing that the defendant was 3 careless, negligent, or foolish. 4 and intentionally remain ignorant of a fact material and 5 important to his conduct in order to escape the consequences of 6 criminal law. 7 willful blindness. 8 either that the defendant actually knew the goal of a given 9 crime or he consciously avoided knowledge of that goal. However, one may not wilfully The law calls this conscious avoidance or In other words, the government can prove 10 Thus, if you find beyond a reasonable doubt that the 11 defendant was aware that there was a high probability a crime 12 was being committed but that the defendant deliberately and 13 consciously avoided confirming this fact, such as by purposely 14 closing his or her eyes to it or intentionally failing to 15 investigate it, then you may treat this deliberate avoidance of 16 positive knowledge as the equivalent of knowledge, unless you 17 find that the defendant actually believed that he was not 18 engaged in such unlawful behavior. 19 defendant cannot avoid criminal responsibility for his own 20 conduct by deliberately closing his eyes or remaining 21 purposefully ignorant of facts which would confirm to him that 22 he was engaged in unlawful conduct. 23 cannot look at all sorts of things that make it obvious to any 24 reasonable person what is going on and then claim in court that 25 because he deliberately avoided learning what was explicitly In other words, the Put another way, a person SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO6 1 Document 100 Charge Filed 11/18/22 Page 164 of 192 881 obvious, he did not know the incriminating fact. 2 You must also keep in mind that there is an important 3 difference between knowingly and intentionally taking part in 4 the crime, which I just explained to you, and knowing the 5 specific goal of the crime on the other hand. 6 conscious avoidance in deciding whether the defendant knew the 7 objective of the conspiracy—-that is, whether he reasonably 8 believed that there was a high probability that a goal of the 9 conspiracy was to commit the crime charged as objects of the 10 conspiracy and took deliberate and conscious action to avoid 11 confirming that fact but participated in the conspiracy anyway. 12 But conscious avoidance cannot be used as a substitute for 13 finding that the defendant knowingly and intentionally joined 14 the conspiracy in the first place. 15 for the defendant to intend and agree to join a conspiracy if 16 he or she does not actually know it exists. 17 find beyond a reasonable doubt that the defendant knowingly 18 chose to participate in such a joint undertaking, you may 19 consider whether the defendant took deliberate and conscious 20 action to avoid confirming otherwise obvious facts about the 21 purpose of that undertaking. 22 You may consider It is logically impossible However, if you In sum, if you find that the defendant believed there 23 was a high probability that a fact was so and that the 24 defendant took deliberate and conscious action to avoid 25 learning the truth of that fact, you may find that the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO6 Document 100 Charge Filed 11/18/22 Page 165 of 192 882 1 defendant acted knowingly with respect to that fact. 2 if you find that the defendant actually believed the fact was 3 not so, then you may not find that he acted knowingly with 4 respect to that fact. 5 However, With respect to each count in the superseding 6 indictment, in addition to proving the essential elements of 7 that charge, the government must also prove that at least one 8 act in furtherance of the charge occurred in the Southern 9 District of New York. This is called establishing venue. 10 The Southern District of New York includes all of 11 Manhattan and the Bronx, as well as Westchester, Rockland, 12 Putnam, Dutchess, Orange, and Sullivan counties. 13 The government does not have to prove that a completed 14 crime was committed within the Southern District of New York or 15 that the defendant was ever in the Southern District of New 16 York. 17 act in furtherance of the crime charged occurred in this 18 district. 19 act need not have been taken by the defendant, so long as the 20 act was part of the crime that you find the defendant 21 committed. 22 It is sufficient to satisfy the venue requirement if any The act itself may not be a criminal act, and the Unlike the elements of the offenses, which must be 23 proven beyond a reasonable doubt, the government is only 24 required to prove venue by a preponderance of the evidence. 25 preponderance of the evidence means that it is more probable SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 A Case 1:21-cr-00746-MKV MAV1ILO6 Document 100 Charge Filed 11/18/22 Page 166 of 192 1 than not that some act in furtherance of the crime you are 2 considering occurred in the district. 883 3 The superseding indictment charges that the defendant 4 committed the offenses charged in Counts One through Six of the 5 superseding indictment while he was released on bail. 6 would be in violation of Section 3147 of Title 18 United States 7 Code. That 8 Therefore, if you find the defendant guilty of any of 9 Counts One through Six, you must make one additional finding: 10 whether the government has proven beyond a reasonable doubt 11 that the defendant committed those offenses while he was 12 released on bail. 13 receive where you can record your findings on this question for 14 each count. 15 There's a place on the verdict form you'll It is unimportant whether a victim might have 16 discovered the charged fraud schemes had the victim probed 17 further. 18 existed, it is irrelevant whether you believe that a victim was 19 careless, gullible, or even negligent. 20 21 If you find that a scheme or artifice to defraud Negligence, carelessness, or gullibility on the part of the victims is no defense to a charge of fraud. 22 The superseding indictment alleges that the defendant, 23 Adedayo Ilori, engaged in the charged offenses from at least in 24 or about August 2020 through at least in or about October of 25 2021. It is not essential that the government prove that the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO6 Document 100 Charge Filed 11/18/22 Page 167 of 192 884 1 defendant committed the charged offenses during these exact 2 time frames. 3 between the dates alleged in the superseding indictment and the 4 date or dates established by the evidence. 5 The law only requires a substantial similarity In deciding whether or not the government has met its 6 burden of proof, you may consider both direct and 7 circumstantial evidence. 8 Direct evidence is evidence that proves a disputed 9 fact directly. 10 he or she saw, heard, or observed, that is called direct 11 evidence. 12 For example, when a witness testifies to what Circumstantial evidence is evidence that tends to 13 prove a disputed fact by proof of other facts. 14 simple example, suppose that when you came into the courthouse 15 today, the sun was shining and it was a nice day. 16 courtroom blinds were drawn and you could not see outside. 17 Then later, as you were sitting here, someone walked in with a 18 dripping wet umbrella. 19 with a dripping wet raincoat. 20 cannot look outside of the courtroom and you cannot see whether 21 or not it is raining, so you have no direct evidence of the 22 fact, but on the combination of the facts about the umbrella 23 and the raincoat, it would be reasonable for you to infer that 24 it had begun to rain. 25 To give just a But the And soon after, someone else walked in Now on our assumed facts, you That's all there is to circumstantial evidence. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Using Case 1:21-cr-00746-MKV MAV1ILO6 Document 100 Charge Filed 11/18/22 Page 168 of 192 1 your reason, experience, and common sense, you infer from 2 established facts the existence or nonexistence of some other 3 fact. 4 885 The law makes no distinction between direct and 5 circumstantial evidence. 6 value than direct evidence, and you may consider either or both 7 and may give them such weight as you conclude is warranted. 8 Circumstantial evidence is of no less Now I just used the term "inference." I said that you 9 can infer, on the basis of your reason, experience, and common 10 sense, from one or more established facts, the existence of 11 some other fact. 12 An inference is not a suspicion or a guess. 13 reasoned, logical decision to conclude that a disputed fact 14 exists on the basis of another fact that you know exists. 15 It is a There are times when different inferences may be drawn 16 from facts, whether proved by direct or circumstantial 17 evidence. 18 inferences, while the defense asks you to draw another. 19 for you and you alone to decide what inferences you will draw. The government asks you to draw one set of It is 20 You've heard reference in the arguments of defense 21 counsel in this case to the fact that certain investigative 22 techniques were or were not used by law enforcement 23 authorities. 24 enforcement agents investigate crimes in a particular way or 25 that the government prove its case through any particular There is no legal requirement that law SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO6 Document 100 Charge Filed 11/18/22 Page 169 of 192 886 1 means. 2 presented, you need not speculate as to why certain techniques 3 were used or why others were not used. 4 on trial, and law enforcement techniques are not your concern. 5 Your concern is to determine whether or not, based on the 6 evidence or the lack of evidence, the guilt of the defendant 7 has been proven beyond a reasonable doubt. 8 While you are to carefully consider the evidence The government is not You've heard testimony about evidence seized in 9 connection with certain searches or seizures conducted by law 10 enforcement officers, and in particular, of email and other 11 electronic evidence obtained pursuant to court-approved search 12 warrants. 13 was properly admitted in this case and may be properly 14 considered by you. 15 appropriate law enforcement actions. 16 disapprove of how evidence was obtained should not enter into 17 your deliberations, because I instruct you that the 18 government's use of the evidence is entirely lawful. 19 Evidence obtained from these searches and seizures Such searches and seizures were entirely Whether you approve or You must, therefore, regardless of your personal 20 opinions, give this evidence full consideration along with all 21 the other evidence in the case in determining whether the 22 government has proven the defendant's guilt beyond a reasonable 23 doubt. 24 25 You've heard evidence in the form of stipulations of testimony. A stipulation of testimony is an agreement among SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO6 Document 100 Charge Filed 11/18/22 Page 170 of 192 887 1 the parties that, if called as a witness, the person would have 2 given certain testimony. 3 that the witness would have given that testimony. 4 you, however, to determine the effect to be given to that 5 testimony. 6 You should accept as true the fact It is for You've also heard evidence in the form of stipulations 7 of fact. 8 parties that a certain fact is true. 9 agreed facts as true. 10 effect to be given to any stipulated fact. 11 A stipulation of fact is an agreement among the You should regard such It is for you, however, to determine the It must be clear to you by now that the government and 12 the defense are asking you to draw very different conclusions 13 about various factual issues in this case. 14 issues will involve making judgments about the testimony of the 15 witnesses you have listened to and observed. 16 judgments, you should carefully scrutinize all of the testimony 17 of each witness, the circumstance under which each witness 18 testified, and any other matter in evidence that might help you 19 decide the truth and the importance of each witness's 20 testimony. 21 Deciding these In making these Your decision whether or not to believe a witness may 22 depend on how that witness impressed you. How did the witness 23 appear? 24 the witness seem to be evasive or suspect in some way? 25 the way the witness testified on direct examination compare Was the witness candid, frank, and forthright; or did SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 How did Case 1:21-cr-00746-MKV MAV1ILO6 Document 100 Charge Filed 11/18/22 Page 171 of 192 1 with how the witness testified on cross-examination? 2 witness consistent or contradictory? 3 know what he or she was talking about? 4 you as someone who was trying to report his or her knowledge 5 accurately? 6 sense questions you should ask yourself in deciding whether a 7 witness is or is not truthful. 8 888 Was the Did the witness appear to Did the witness strike These are only examples of the kinds of common How much you choose to believe a witness might also be 9 influenced by the witness's bias. Does the witness have a 10 relationship with the government, or with the defendant, that 11 may affect how he or she testified? 12 incentive, loyalty, or motive that might cause him or her to 13 shade the truth? 14 or hostility that may cause the witness to give you something 15 other than a completely accurate account of the facts he or she 16 testified to? Does the witness have some Does the witness have some bias, prejudice, 17 You should also consider whether a witness had an 18 opportunity to observe the facts he or she testified about. 19 Also, you should consider whether the witness's recollection of 20 the facts stands up in light of the other evidence in the case. 21 In other words, what you must try to do in deciding 22 credibility is to size up a person just as you would in any 23 important matter when you are trying to decide if a person is 24 truthful, straightforward, and accurate in his or her 25 recollection. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO6 1 Document 100 Charge Filed 11/18/22 Page 172 of 192 889 You've heard testimony from law enforcement officers 2 and employees of the United States Department of Justice Office 3 of the Inspector General. 4 employed by the DOJ-OIG does not mean that his or her testimony 5 is necessarily deserving of more or less consideration, or 6 greater or lesser weight than that of an ordinary witness. The fact that a witness may be 7 In this context, defense counsel was allowed to try to 8 attack credibility of such a witness on the grounds that his or 9 her testimony may be colored by a personal or professional 10 interest in the outcome of the case. 11 It is your decision, after reviewing all the evidence, 12 whether to accept the testimony of the law enforcement officer 13 or employee witnesses and to give that testimony the weight you 14 find it deserves. 15 Now the defendant did not testify in this case. 16 our Constitution, the defendant has no obligation to testify or 17 to present any evidence, because it is the government's burden 18 to prove the defendant's guilt beyond a reasonable doubt. 19 burden remains with the government throughout the entire trial, 20 and it never shifts to the defendant. 21 required to prove that he is innocent. 22 Under That The defendant is never You may not attach any significance to the fact that 23 the defendant did not testify. No adverse inference against 24 him may be drawn by you because he did not take the witness 25 stand. You may not consider this against the defendant in any SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO6 1 Document 100 Charge Filed 11/18/22 Page 173 of 192 890 way in your deliberations in the jury room. 2 You heard evidence during the trial that some 3 witnesses had discussed the facts of the case and their 4 testimony with the lawyers before the witnesses appeared here 5 in court. 6 Although you may consider that fact when you are 7 evaluating a witness's credibility, I should tell you that 8 there is nothing unusual or improper about a witness meeting 9 with lawyers before testifying so that the witness can be aware 10 of the subjects he or she will be questioned about, focus on 11 those subjects, and have the opportunity to review relevant 12 exhibits before being questioned about them. 13 helps conserve your time and the Court's time. 14 would be unusual for a lawyer to call a witness without such 15 consultation. Such consultation In fact, it 16 Again, the weight you give to the fact or the nature 17 of the witness's preparation for his or her testimony and what 18 inferences you draw from such preparation are matters 19 completely within your discretion. 20 There are individuals whose names you have heard 21 during the course of this trial who did not appear here to 22 testify. 23 opportunity, or lack of opportunity, to call any of these 24 witnesses. 25 reach any conclusions as to what they would have testified to I instruct you that each party had an equal Therefore, you should not draw any inference or SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO6 Document 100 Charge 1 had they been called. 2 judgment in any way. Filed 11/18/22 Page 174 of 192 Their absence should not affect your You should, however, remember my instruction that the 3 4 law does not impose on the defendant in a criminal case the 5 burden of proof or the duty of calling any witnesses or 6 producing any evidence. 7 You may not draw any inference, favorable or 8 unfavorable, towards the government or the defendant from the 9 fact that any person other than the defendant is not on trial 10 here in this case. 11 why other persons are not on trial. 12 outside your concern and have no bearing on your function as 13 jurors. 14 You also may not speculate as to the reason Those matters are wholly The government has offered evidence tending to show 15 that on different occasions, the defendant, Adedayo Ilori, 16 engaged in conduct similar to the charges in the indictment. 17 In particular, the parties stipulated in Government Exhibit 7 18 to the government's prior arrest on March 4, 2020, and 19 conviction on April 8, 2021. 20 Government Exhibit 8 that the defendant was released under 21 conditions of bail between March of 2020 and October 8, 2021. 22 891 MS. MURRAY: The parties also stipulated in Excuse me, your Honor. Just on that 23 point, I believe the Court may have misspoken and said 24 stipulated to the government's prior arrest on March 4th, 25 just to make that clear for the record. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO6 Document 100 Charge Page 175 of 192 892 1 THE COURT: 2 In particular, the parties stipulated in Government 3 Exhibit 7 to the defendant's prior arrest -- if I misspoke, I 4 apologize -- on March 4, 2020, and conviction on April 8, 2021. 5 The parties also stipulated in Government Exhibit 8 that the 6 defendant was released under conditions of bail between March 7 of 2020 and October 8, 2021. 8 Oh. Filed 11/18/22 Of course. In that connection, let me remind you, the defendant 9 is not on trial for committing acts not alleged in the 10 indictment in this case. 11 this evidence of similar acts as a substitute for proof that 12 the defendant committed the crimes charged in this case. 13 may you consider this evidence as proof that the defendant has 14 a criminal personality or bad character. 15 other similar acts was admitted for a much more limited purpose 16 of proving the defendant's knowledge, intent, identity, motive, 17 lack of accident, or absence of mistake, and you may consider 18 it only for that limited purpose. 19 Accordingly, you may not consider Nor The evidence of the Similarly, the evidence that the defendant was 20 released under conditions of bail between March of 2020 and 21 October 8 of 2021 was admitted for the limited purpose of 22 proving whether the defendant committed the acts charged in the 23 indictment in this case while he was released on bail. 24 25 If you determine that the defendant committed the acts charged in the indictment and similar acts as well, then you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO6 Document 100 Charge Filed 11/18/22 Page 176 of 192 893 1 may, but need not, draw an inference that in doing the acts 2 charged in the indictment, the defendant acted knowingly and 3 intentionally and not because of some mistake, accident, or 4 other innocent reason. 5 may not be considered by you for any other purpose. 6 Specifically, you may not use this evidence to conclude that 7 because the defendant committed the other act or acts, or 8 because the defendant was on pretrial release relating to the 9 other act or acts, he must also have committed the acts charged 10 in the indictment. 11 However, evidence of other similar acts Now some of the exhibits that were admitted into 12 evidence were in the form of charts and summaries. 13 charts and summaries that were admitted into evidence, you 14 should consider them as you would any other evidence. 15 For these You will soon go into the jury room to begin your 16 deliberations. Juror No. 1, Ms. Singfield, will be the 17 foreperson of the jury unless for any reason she prefers not to 18 act in that capacity. 19 business will be to select a foreperson. 20 however you decide to proceed, please, as your first act of 21 business, send me a note, signed and dated, identifying the 22 foreperson. 23 Court, which I will discuss more in a moment. 24 has reached a verdict, the foreperson will notify the Marshal 25 that the jury has reached a verdict. In that event, your first order of In either case, The foreperson will send out any notes to the When the jury When you come out into SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO6 Document 100 Charge Filed 11/18/22 Page 177 of 192 1 open court, the foreperson will be asked to state what the 2 verdict is. 894 If during your deliberations you want to see or to 3 4 hear any of the exhibits, upon request they will be sent to you 5 in the jury room or you'll be brought back into the courtroom 6 to examine them. 7 If you want any of the testimony read, that also can 8 be done. Please remember, though, that it's not always easy to 9 locate what you might want, so please be as specific as you 10 possibly can in requesting exhibits or portions of testimony 11 that you may want. 12 Your requests for exhibits or testimony and any other 13 communications with the Court should be made to me in writing, 14 signed by your foreperson, and given to one of the Marshals. 15 Notes must include the date and the time that they were sent, 16 and they should be as clear and as precise as possible. 17 from the jury will become part of the record in this case. Notes 18 I will respond to any questions and requests that you 19 have as promptly as possible, either in writing or I may have 20 you return to the courtroom so that I may speak to you in 21 person. 22 Do not tell me or anyone else how the jury stands on 23 the issue of the defendant's guilt until after a unanimous 24 verdict is reached on each count. 25 During the trial, I permitted you to take notes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 As I Case 1:21-cr-00746-MKV MAV1ILO6 Document 100 Charge Filed 11/18/22 Page 178 of 192 895 1 told you at the start of the case, those notes are to be used 2 solely to assist you and they are not to substitute for your 3 recollection of the evidence in the case. 4 particular juror has taken notes entitles that juror's views to 5 no greater weight than those of any other juror, and your notes 6 are not to be shown to any other jurors during your 7 deliberations. 8 deliberations you have any doubt as to any of the testimony, 9 you will be permitted to request that the official trial 10 transcript, which was made of these proceedings, be read to 11 you. 12 The fact that a As I just explained, if during your Under your oath as jurors, you are not to be swayed by 13 sympathy. You are to be guided solely by the evidence in this 14 case. 15 through the evidence is: 16 of the defendant beyond a reasonable doubt with respect to each 17 of the elements of the offenses charged? The crucial question you must ask yourself as you sift 18 Has the government proven the guilt It is for you alone to decide whether the government 19 has proven beyond a reasonable doubt that the defendant is 20 guilty of the crimes for which he is charged solely on the 21 basis of the evidence or the lack of evidence, and subject to 22 the law as I have explained it to you. 23 prejudice, bias, or sympathy interfere with your thinking, 24 there is a risk that you will not arrive at a true and just 25 verdict. Once you let fear, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO6 1 Document 100 Charge Filed 11/18/22 Page 179 of 192 896 If the government has failed to establish the 2 defendant's guilt beyond a reasonable doubt, you must acquit 3 him. 4 government has met its burden of proving the defendant's guilt 5 beyond a reasonable doubt, you should not hesitate because of 6 sympathy or any other reason to render a verdict of guilty. 7 But on the other hand, if you should find that the The question of possible punishment of the defendant 8 is of no concern to you. It must not enter into or influence 9 your deliberations. 10 exclusively upon the Court. 11 cannot allow consideration of the punishment that might be 12 imposed on the defendant if he were convicted to influence your 13 verdict in any way. The duty of imposing sentence rests Under your oath as jurors, you 14 Your function now is to weigh the evidence in this 15 case and to determine whether the government has proven the 16 guilt of the defendant beyond a reasonable doubt with respect 17 to the charges in the superseding indictment. 18 You must base your verdict solely on the evidence or 19 lack of evidence, and these instructions as to the law, and you 20 are obliged under your oath as jurors to follow the law as I 21 have instructed you, whether you agree or disagree with the 22 particular law in question. 23 The verdict must represent the considered judgment of 24 each juror. In order to return a verdict, it is necessary that 25 each juror agree with it. Your verdict, whether guilty or not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO6 1 Document 100 Charge Filed 11/18/22 Page 180 of 192 897 guilty, must be unanimous. 2 It is your duty as jurors to consult with one another, 3 and to deliberate with a view to reaching an agreement, if you 4 can possibly do so without violence to individual judgment. 5 Each of you must decide the case for himself or herself, but do 6 so only after an impartial discussion and in consideration of 7 all of the evidence in the case with your fellow jurors. 8 the course of your deliberations, do not hesitate to reexamine 9 your own views and change an opinion if convinced it is 10 erroneous. 11 the weight or effect of the evidence solely because of the 12 opinion of your fellow jurors. 13 In But do not surrender your honest conviction as to Remember, at all times you are not partisans. 14 judges—-judges of the facts. 15 truth from the evidence in this case. You are Your sole interest is to seek the 16 If you are divided, do not report how the vote stands, 17 and if you have reached a verdict, please do not report what it 18 is until you are asked to do so here in open court. 19 In conclusion, ladies and gentlemen, I'm sure that if 20 you listen to the views of your fellow jurors and if you apply 21 your own common sense, you will reach a fair verdict here. 22 23 24 25 Remember, your verdict must be rendered without fear, without favor, and without prejudice or sympathy. So with that, I'm going to ask you please to collect your belongings and you may retire to the jury room. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Remember Case 1:21-cr-00746-MKV MAV1ILO6 Document 100 Filed 11/18/22 Page 181 of 192 1 that, as I asked you, your first note to me should be to tell 2 me who the foreperson of the jury is. 898 It's up to you how long you wish to deliberate and 3 4 whether to take a short break before you begin your 5 deliberations. I'd ask you not to leave the courthouse at this 6 point, though. It's 3:40. 7 deliberations at whatever point you're all ready to do that 8 this afternoon. 9 at whatever point you collectively determine you're going to 10 leave for the day. 11 through the Marshals, who your foreperson is, when you leave 12 for the day, and if you have any questions or requests. 13 right? 14 As I say, you can begin your You also may stay as long as you wish or leave I would just ask you to please let us know, Thank you, all. All With that, I'm going to ask my 15 courtroom deputy, before you all hop up -- Mr. Ilori, please be 16 seated. 17 accompany the jurors then to the deliberation room. Ms. Dempsey is going to swear the Marshal, who will 18 (Marshal sworn) 19 THE DEPUTY CLERK: 20 THE COURT: 21 Thank you. All right. If you'd all please rise and follow the Marshal to the jury deliberation room. 22 (Jury not present) 23 THE COURT: All right. 24 All right. So Ms. Dempsey will give to the Marshals 25 her contact information. You may be seated. They will let us know when we have SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO6 Document 100 Filed 11/18/22 Page 182 of 192 899 1 notes from the jury. 2 foreperson, so it's up to you whether you want to wait for that 3 or not. 4 each of you know. 5 will ask you to give her your I guess cellphone or other 6 contact information so that she can be in touch with you, okay? 7 And then Mr. Brill, you asked us to look into 8 I asked them to send out the name of the But each time we receive a note, Ms. Dempsey will let I don't know if she's asked you yet, but she something? 9 MR. BRILL: I don't think it's ripe. 10 THE COURT: I don't either. I just was going to tell 11 you it's not something we're going to be able to deal with just 12 yet, but all in due course, okay? 13 MR. BRILL: Okay. 14 THE COURT: If appropriate. 15 Anything else? 16 MS. MURRAY: No, your Honor. 17 MR. BRILL: Nothing. 18 THE COURT: Okay. 19 contact information? 20 say on the record, thank you to both of our court reporters. 21 Only one is here with us right now, but I thank you both very 22 much for your patience with us throughout the trial. Thank you, your Honor. Ms. Dempsey, do you have the We can go off the record. 23 THE REPORTER: 24 THE COURT: 25 Thank you. Just let me Thank you. I'm sorry. I neglected to discharge the two alternates, so Ms. Dempsey, do you want to just ask the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO6 Document 100 Filed 11/18/22 Page 183 of 192 1 Marshals to let them know, come back out here. 2 (Alternate jurors present) 3 THE COURT: 4 I'm sorry. If you could just have a seat for one second, I'll be right with you. 5 Thank you. All right. So ladies and gentlemen, you 6 two are alternate jurors in this case. 7 going to excuse you. 8 rest of the jurors to deliberate. JUROR: 9 10 11 900 So at this point I am You're not permitted to be back with the I was sending that question out to you right now. THE COURT: You're way ahead of me. It's been a long 12 day and I'm a little tired, so I really apologize to you. 13 should have done that in the presence of your fellow jurors. 14 I I am going to ask you, though, to please refrain from 15 talking about the case to anybody. The job of an alternate is, 16 if something should arise with respect to any of the jurors and 17 they're not able to continue their service, we would need to 18 reach out to you to ask first one, then perhaps both of you to 19 step in to fill those roles, so I'm going to ask you please, 20 don't discuss the case with anyone until you hear from 21 Ms. Dempsey. 22 promise we will let you know when the case has concluded and 23 what the outcome is and that you're now discharged from your 24 service completely. 25 you are free to talk about the case at that point. If you give her your contact information, I You are technically discharged, but that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 All right? Case 1:21-cr-00746-MKV MAV1ILO6 1 JUROR: 2 THE COURT: 3 JUROR: 4 5 6 Document 100 Filed 11/18/22 Page 184 of 192 901 Okay. Thank you both, very, very much. I have one question, your Honor. Our notebooks, do we leave them here, do we give them to you? THE COURT: Leave them here. Everybody leaves them here when they're finished deliberating, and we shred them. 7 JUROR: Do we leave them out here or in there? 8 is on top of the cupboard. 9 THE COURT: 10 JUROR: 11 THE COURT: Mine And yours? On the table. So we will collect them at the end of the 12 day and shred them along with all the rest of them that get 13 shredded when the case concludes, all right? 14 All right. 15 JUROR: 16 THE COURT: Thank you both very, very much. Thank you. Can I ask the Marshal to accompany both of 17 you back. First, tell the jurors we're going to interrupt them 18 and they should stop talking. 19 alternates back to retrieve their belongings. 20 retrieve your notebooks and give them to Ms. Dempsey. 21 way, we don't have any risk that anybody else is looking at 22 your notes. All right? Can you accompany our two Why don't you Thank you both very much. 23 JUROR: You're welcome. 24 (Alternates discharged) 25 THE COURT: You may all be seated. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 That Thank you. Case 1:21-cr-00746-MKV MAV1ILO6 Document 100 Filed 11/18/22 Page 185 of 192 902 1 All right. So the Marshal has a note from our jurors. 2 All right. So this is October 31, 2022, at 3:44 p.m. 3 Jury agrees that the foreperson will be Dana Lynn Singfield, 4 Juror No. 1. 5 of the case, marked as Exhibit 1, or Note 1. 6 All right? So we will put this with the record And with that, as I say, I'm going to recess, and it's 7 entirely up to you whether you all wish to stay here or not. 8 All right? Thank you. 9 (Recess pending verdict, 3:48 p.m.) 10 (In open court; jury not present; 4:57 p.m.) 11 THE COURT: 12 So we will bring the jurors out in a moment. Please be seated, everybody. 13 three notes from them. 14 Mr. Ilori gone? 15 16 MR. BRILL: 19 20 21 22 Is I think they brought him downstairs until we told them we needed him back. THE COURT: 17 18 None of them are substantive. We have I don't think we need him back for any of these. But the three notes are, in the order in which they came, which were within a few minutes of each other: 4:52 p.m., 31 October 2022: "Will lunch be provided or can we go out for lunch to the cafeteria tomorrow?" 23 So the answer is: We will give them the order forms 24 and order lunch for them tomorrow. 25 deliberating, the Court does provide lunch. Once they begin Any disagreement, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO6 1 Document 100 Filed 11/18/22 Page 186 of 192 903 problem, issue? 2 MS. MURRAY: No, your Honor. 3 MR. BRILL: No, your Honor. 4 THE COURT: Next note, 4:30 -- I guess it's 4:55 p.m. 5 31 October 2022. 6 tomorrow?" 7 4:55 p.m. "Can we leave the room at all And the answer is no. Only to return to the courtroom 8 if there's any evidence or anything they ask to have read back, 9 but otherwise, the answer is no. MR. BRILL: 10 Agree? I think you gave them an instruction that 11 if they were smokers, that they might be able to leave for that 12 purpose. 13 THE COURT: I did not give them any such instruction. 14 MR. BRILL: No? 15 maybe at the outset. 16 sorry. 17 THE COURT: Not with the instructions. I thought Maybe it was a different trial. I'm That is an interesting issue, though. 18 Maybe that's what they're asking about. 19 have any experience with this. 20 MR. BRILL: Hmm. I honestly don't Do either of you? Yes, your Honor. Generally they're told 21 they have to all stop deliberating until they're all back 22 together. 23 THE COURT: Yes. 24 MR. BRILL: But, you know, beyond bathroom breaks and 25 smoking, I never knew juries to go out for any reason. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO6 1 2 Filed 11/18/22 Page 187 of 192 904 THE COURT: Even bathroom breaks, there are restrooms MR. BRILL: I know, but technically they have to stop there. 3 4 Document 100 deliberating. 5 THE COURT: Yes. 6 MS. MURRAY: I have no different view, your Honor. 7 THE COURT: All right. 8 4:56 p.m., 31 October 2022: 9 9:30 a.m." 10 we'll find out. And then one minute later, "Jury will start tomorrow at Which I take to mean they're ready to go home, but All right? 11 So Ms. Dempsey, do you want to ask the Marshals to -- 12 MR. BRILL: Your Honor, just in an abundance of 13 caution, I don't want there to be an issue if Mr. Ilori is not 14 present. 15 16 I know it's not substantive, but -THE COURT: brought up. No, that's true. So let's have him So who arranges that? 17 THE DEPUTY CLERK: 18 THE COURT: I can call the Marshals. All right. And then as soon as we do 19 that, we'll let the Marshals know that we'll bring them out as 20 soon as the defendant comes up. 21 I've asked Ms. Dempsey to confirm that there is a 22 Marshal available that if a juror feels the need to go out to 23 smoke, they need to be accompanied by a Marshal, I believe. 24 They really shouldn't be outside the presence of a Marshal 25 during deliberations. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO6 Document 100 Filed 11/18/22 Page 188 of 192 1 MR. BRILL: Agreed. 2 THE COURT: So she's going to check and let us know 3 that. But yes, Mr. Brill, thank you. 4 (Pause) 5 THE COURT: I should put on the record that the 6 Marshals had answered that they do not accompany the jurors 7 when they take a break, so I'm going to encourage them to 8 please try not to. 9 (Defendant present) 10 THE COURT: 11 Mr. Ilori, there are three notes from the jurors. All right. Please have a seat. 12 They're all scheduling type of things. 13 be present, so we're going to bring the jurors back out and 14 answer their questions. 15 (Jury present, 5:11 p.m.) 16 THE COURT: 17 905 All right. But you have a right to Thank you. Please be seated, everyone. 18 So we have three notes from you. 19 The first note, dated 4:52 p.m., today's date: "Will 20 lunch be provided or can we go out for lunch to the cafeteria 21 tomorrow?" 22 no, you cannot go out for lunch. 23 in the morning and we will have lunch brought in for you to the 24 jury deliberation room. 25 stop your deliberations while you're having lunch, for however The answer is, once you begin your deliberations, We'll give you an order form You should recess your deliberations, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO6 Document 100 Filed 11/18/22 Page 189 of 192 906 1 long you all collectively decide, enjoy your lunch, and then 2 resume deliberations, but we ask you to please not leave in the 3 middle of deliberations to go to the cafeteria. 4 All right? The next note: "Can we leave the room at 5 all tomorrow?" This is I believe at 4:55 p.m. today. The 6 answer is really no. 7 because someone has a need to smoke. 8 than that, and you really, really -- if you really, really, 9 really need to smoke, I'm not going to say you cannot leave the 10 room to go do that. 11 building because there's no smoking in the building. 12 anybody does that, though, the jury needs to stop deliberating. 13 Deliberations cannot continue if somebody leaves the building 14 to go smoke. 15 short as possible and get back and join your fellow jurors. 16 But unless you're talking about something like that, then no, 17 you really cannot leave the room during deliberations. I'd ask 18 you to remain together as a group during the daytime. You 19 leave for the day whenever you decide you're leaving for the 20 day, but otherwise, no, you shouldn't leave the jury room. 21 right? But I don't know if you're asking me that If it's anything other It would mean you have to leave the If And I would ask you all to please keep it as All 22 And the last question, a minute later -- well, it's a 23 note really to tell me that you're going to start tomorrow at 24 9:30. 25 So we appreciate your letting us know that. So with that, you can return to the jury room and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO6 Document 100 Filed 11/18/22 Page 190 of 192 1 leave at whatever time you elect to leave tonight. 2 from your note perhaps that's now. 3 Marshal know that and he'll let us know that. 4 907 I take it But you'll just let the All right? I'm just going to remind you again, when you leave for 5 the day, please leave your notebooks in the jury room. 6 bring them home with you in the evenings. 7 breaks -- most critically important during deliberations -- do 8 not discuss the case with anyone and do not do any research 9 when you adjourn for the day. 10 then when you're back in the morning through the Marshals, let 11 us know that everyone's there and that you're beginning 12 deliberations again. 13 the day today, if you'd please let the Marshal know that too so 14 that he can let Ms. Dempsey know and we can let the court 15 reporter, who's waiting here in case there's anything we have 16 to put on the record, and let the parties as well know that 17 they can leave for the day as well. 18 19 Do not And do not, over the And if you all just let us know And whatever time you decide to leave for All right? So thank you all very much, and you can return to the jury room then. Thank you. 20 THE DEPUTY CLERK: 21 (Jury not present) 22 THE COURT: 23 It's up to you all whether you want to wait around for 24 a moment or two for the jury to tell us whether or not they're 25 leaving for the day. Okay. Rise for the jury. You may be seated. Their note suggested they were, but I'm SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV MAV1ILO6 Document 100 Filed 11/18/22 Page 191 of 192 1 not a good reader of poker faces, so I don't know whether 2 they're adjourning for the day. They're leaving for the day. So why don't 4 we just give them a chance to clear the hallway. And they told 5 us they're coming back at 9:30. 6 available. 3 7 8 9 10 11 All right. 908 You all need to be around and Mr. Ilori, they'll bring you back here tomorrow as well to be back here at that time. All right. you tomorrow. Okay? Everyone have a good evening and I'll see Thank you. (Adjourned to November 1, 2022, at 9:30 a.m.) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case 1:21-cr-00746-MKV 1 Document 100 Filed 11/18/22 Page 192 of 192 INDEX OF EXAMINATION 2 Examination of: Page 3 DAMJAN HEZIR 4 Cross By Mr. Brill 5 Redirect By Ms. Murray . . . . . . . . . . . . 764 6 Recross By Mr. Brill . . . . . . . . . . . . . 769 . . . . . . . . . . . . . 722 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 909
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