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Government’s Trial Brief — United States v. Sissoko (Dkt. 92, C.D. Cal.)

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The government's trial brief in United States of America v. Oumar Sissoko, No. CR 21-187-JFW, in the U.S. District Court for the Central District of California, filed March 15, 2022 for a trial set for March 22, 2022 before Hon. John F. Walter. Filed by Assistant United States Attorney Carolyn S. Small and Trial Attorney Jason Covert of the Department of Justice Fraud Section, it states that the indictment charges Sissoko with four counts of wire fraud under 18 U.S.C. § 1343, summarises the evidence the government expects to present about the defendant's company and PPP loans, and addresses legal and evidentiary issues, including wire fraud on a theory of fraudulent misappropriation. It notes a possible criminal forfeiture phase and a supplemental forfeiture memorandum filed with it.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Filed March 15, 2022 in Oumar Sissoko; one of 2 filings from this case.

Record facts

Court	U.S. District Court for the Central District of California
Filed	2022-03-15

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“Government’s Trial Brief — United States v. Sissoko (Dkt. 92, C.D. Cal.).” U.S. District Court for the Central District of California, No. 2:21-cr-00187, Doc. 92, filed 2022-03-15. Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/us-v-oumar-sissoko/2022-03-15-government-s-trial-brief-dkt-92/, SHA-256 afdd3f0c5657e8091e166f4ab8f9b240363bd2423d83831d5c8579cce901eb36.

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Case 2:21-cr-00187-JFW Document 92 Filed 03/15/22 Page 1 of 20 Page ID #:500

1 TRACY L. WILKISON
United States Attorney
2 SCOTT M. GARRINGER
Assistant United States Attorney
3 Chief, Criminal Division
CAROLYN S. SMALL (Cal. Bar No. 304938)
4 Assistant United States Attorney
Major Frauds Section
5 1100 United States Courthouse
312 North Spring Street
6 Los Angeles, California 90012
Telephone: (213) 894-2041
7 Facsimile: (213) 894-6269
Email: Carolyn.Small@usdoj.gov
8
JOSEPH S. BEEMSTERBOER
9 Acting Chief, Fraud Section
JASON COVERT (Ind. Bar. No. 29268-53)
10 Trial Attorney
Fraud Section, Criminal Division
11 United States Department of Justice
1400 New York Ave. NW
12 Washington, D.C. 20530
Telephone: (202) 307-0659
13 Email: Jason.Covert@usdoj.gov
14 Attorneys for Plaintiff
UNITED STATES OF AMERICA
15

16 Attorneys for Plaintiff
UNITED STATES OF AMERICA
17
UNITED STATES DISTRICT COURT
18
FOR THE CENTRAL DISTRICT OF CALIFORNIA
19
UNITED STATES OF AMERICA, No. CR 21-187-JFW
20
Plaintiff, GOVERNMENT’S TRIAL BRIEF
21
v. Trial Date: March 22, 2022
22 Trial Time: 8:30 a.m.
OUMAR SISSOKO, Location: Courtroom of the
23 Hon. John F. Walter
Defendant.
24

26 Plaintiff United States of America, by and through its counsel
27 of record, Assistant United States Attorney Carolyn S. Small and
28 Trial Attorney Jason Covert, hereby files its Trial Brief.

Case 2:21-cr-00187-JFW Document 92 Filed 03/15/22 Page 2 of 20 Page ID #:501

1 The government respectfully reserves the right to supplement its

2 Trial Brief, if necessary, including by filing a supplemental

3 memorandum regarding criminal forfeiture. 1

4 Dated: March 15, 2022 Respectfully submitted,

5 TRACY L. WILKISON
United States Attorney
6
JOSEPH S. BEEMSTERBOER
7 Acting Chief, Fraud Section

8 SCOTT M. GARRINGER
Assistant United States Attorney
9 Chief, Criminal Division
10
/s/
11 CAROLYN S. SMALL
Assistant United States Attorney
12
JASON COVERT
13 Trial Attorney

14 Attorneys for Plaintiff
UNITED STATES OF AMERICA
15

26
1 Defense counsel has informed the government that if the jury
27 finds defendant guilty of any of the charged offenses, defendant
would request retention of the jury to decide forfeiture. The
28 parties therefore anticipate that there may be a criminal forfeiture
phase of the trial.
2

Case 2:21-cr-00187-JFW Document 92 Filed 03/15/22 Page 3 of 20 Page ID #:502

1 TABLE OF CONTENTS

2 TABLE OF AUTHORITIES...............................................ii

3 MEMORANDUM OF POINTS AND AUTHORITIES................................1

4 I. INTRODUCTION...................................................1

5 II. THE INDICTMENT.................................................1

6 III. STATEMENT OF FACTS.............................................1

7 A. Defendant’s Company, Road Doctor California LLC,
Applies for and Receives a $7.25 Million PPP Loan.........1
8
B. Within Ten Days, Defendant Spends More than $370,000
9 of the PPP Funds on Unauthorized Expenses Before the
Bank Freezes His Accounts.................................3
10
C. Defendant’s False Statements to a Chase Employee and
11 to an Undercover FBI Agent During a Recorded Call in
June 2020.................................................5
12
IV. THE CHARGED OFFENSES...........................................6
13
V. LEGAL AND EVIDENTIARY ISSUES...................................8
14
A. Wire Fraud Based on a Theory of Fraudulent
15 Misappropriation..........................................8

16 B. Defendant’s Statements During a Recorded Call with an
Undercover FBI Agent.....................................10
17
C. Business Records.........................................11
18
D. Judicial Notice..........................................12
19
E. Summary Witness and Exhibits.............................12
20
F. Cross-Examination of Defendant...........................13
21
G. Reciprocal Discovery and Affirmative Defenses............14
22
VI. FORFEITURE....................................................14
23
VII. CONCLUSION....................................................15
24

Case 2:21-cr-00187-JFW Document 92 Filed 03/15/22 Page 4 of 20 Page ID #:503

1 TABLE OF AUTHORITIES

2 Cases

3 Carpenter v. United States,
4 484 U.S. 19 (1987) ................................................ 9
5 Pasquantino v. United States,
6 544 U.S. 349 (2005) .............................................. 10
7 U-Haul Int’l v. Lumbermans Mutual Casualty Co.,
8 576 F.3d 1040 (9th Cir. 2009) .................................... 12
9 United States v. Catabran,
10 836 F.2d 453 (9th Cir. 1988) ..................................... 11
11 United States v. Jones,
12 472 F.3d 1136 (9th Cir. 2007) ..................................... 9
13 United States v. Lindsey,
14 850 F.3d 1009 (9th Cir. 2017) ..................................... 7
15 Ohler v. United States,
16 529 U.S. 753 (2000) .............................................. 13
17 United States v. Black,
18 767 F.2d 1334 (9th Cir. 1985) .................................... 13
19 United States v. Cuozzo,
20 962 F.2d 945 (9th Cir. 1992) ..................................... 13
21 United States v. Garlick,
22 240 F.3d 789 (9th Cir. 2001) ...................................... 8
23 United States v. Jinian,
24 725 F.3d 954 (9th Cir. 2013) ................................... 7, 8
25 United States v. Lemire,
26 720 F.2d 1327 (D.C. Cir. 1983) ................................... 13
27 United States v. Miranda-Uriarte,
28 649 F.2d 1345 (9th Cir. 1981) .................................... 13
ii

Case 2:21-cr-00187-JFW Document 92 Filed 03/15/22 Page 5 of 20 Page ID #:504

1 United States v. Ortega,

2 203 F.3d 675 (9th Cir. 2000) ..................................... 11

3 United States v. Shirley,

4 884 F.2d 1130 (9th Cir. 1989) .................................... 12

5 United States v. Willis,

6 759 F.2d 1486 (11th Cir. 1985) ................................... 11

7 United States v. Young,

8 248 F.3d 260 (4th Cir. 2001) ..................................... 14

9 Rules
10 Fed. R. Evid. 902(11).............................................. 11

11 Fed. R. Evid. 801(d)(2)............................................ 11

12 Statutes

13 18 U.S.C. § 1343................................................. 1, 7

14 Other Authorities

15 Ninth Circuit Model Criminal Jury Instructions, No. 15.35 (Wire

16 Fraud).............................................................. 7

17 Federal Jury Practice and Instructions § 47.15 (5th ed. 2000)....... 8

iii

Case 2:21-cr-00187-JFW Document 92 Filed 03/15/22 Page 6 of 20 Page ID #:505

1 MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION

3 Jury trial is set for March 22, 2022, at 8:30 a.m. The

4 government estimates approximately two days for its case-in-chief,

5 not including jury selection. The government anticipates calling

6 approximately eleven witnesses, as identified in the government’s

7 Pre-Trial Witness List. Defendant is not in custody pending trial.

8 II. THE INDICTMENT

9 On April 13, 2021, a grand jury returned a four-count Indictment
10 charging defendant OUMAR SISSOKO (“defendant”) with four counts of
11 wire fraud, in violation of 18 U.S.C. § 1343.
12 III. STATEMENT OF FACTS
13 The evidence at trial will prove the following:
14
A. Defendant’s Company, Road Doctor California LLC, Applies
15 for and Receives a $7.25 Million PPP Loan

16 On April 24, 2020, defendant submitted a Paycheck Protection
17 Program (“PPP”) loan application to JPMorgan Chase on behalf of the
18 company Road Doctor California. (Government’s Exhibit (“GX”) 8.) To

19 submit the loan application, Road Doctor completed a form through

20 Chase’s online portal and uploaded the following supporting

21 documents: (1) a completed PDF of a PPP Borrower Application Form

22 (the “Application Form”) (GX 5); (2) a supplemental packet of

23 information in which the applicant quoted portions of the PPP rules

24 and regulations, including the SBA’s PPP Interim Final Rule dated

25 April 15, 2020, and provided a breakdown of anticipated business

26 expenses (the “Supplemental Packet”) (GX 6); and (3) various tax

27 documents (certain of which are contained in GX 7). Although the

28 loan application purportedly was submitted by defendant’s wife, the

Case 2:21-cr-00187-JFW Document 92 Filed 03/15/22 Page 7 of 20 Page ID #:506

1 metadata and document properties from the Supplemental Packet

2 identify “Oumar Sissoko” as the author (GX 72, 73, and 74).

3 Additionally, defendant was listed as the primary contact for Road

4 Doctor on the Application Form, and provided the bank with his cell

5 phone number and email address.

6 The Interim Final Rule dated April 15, 2020 (GX 11) explained

7 how PPP loan proceeds could be used, and it advised: “If you

8 knowingly use the funds for unauthorized purposes, you will be

9 subject to additional liability [beyond repayment] such as charges
10 for fraud.” While these portions of the Interim Final Rule were not
11 referenced in the Supplemental Packet submitted to JPMorgan Chase by
12 defendant, other portions of the Rule were cited, demonstrating that
13 defendant had read the Rule. Defendant also quoted in the
14 Supplemental Packet portions of a document titled “Paycheck
15 Protection Program Loans Frequently Asked Questions (FAQs)” (GX 12),
16 which contained additional guidance from the SBA about the Paycheck
17 Protection Program, demonstrating that he was aware of, and reading
18 the SBA’s guidance on the PPP.

19 According to the Supplemental Packet, Road Doctor was a pothole

20 repair business that was in the process of hiring 450 employees. It

21 calculated anticipated payroll expenses of $2.9 million, which

22 purportedly would cover operations in five states (California,

23 Arizona, Nevada, Oregon, and Washington). According to the breakdown

24 defendant provided the bank, these payroll expenses consisted of

25 monthly salaries, rent for multiple locations in California, cost of

26 goods sold, administrative expenses, and insurance.

27 Both the digital application completed via Chase’s online portal

28 and the Application Form that defendant voluntarily submitted to the

Case 2:21-cr-00187-JFW Document 92 Filed 03/15/22 Page 8 of 20 Page ID #:507

1 bank contained various certifications. The third certification on

2 the Application Form stated:

3 The funds will be used to retain workers and maintain
payroll or make mortgage interest payments, lease payments,
4 and utility payments, as specified under the Paycheck
Protection Program Rule; I understand that if the funds are
5 knowingly used for unauthorized purposes, the federal
government may hold me legally liable, such as for charges
6 of fraud.

7 The digital application completed via Chase’s online portal contained

8 a similar certification that the funds would “be used to retain

9 workers and maintain payroll or make mortgage interest payments,
10 lease payments, and utility payments.”
11 Although defendant did not qualify for a PPP loan based on his

12 application, the bank mistakenly approved Road Doctor for a $7.25

13 million PPP loan. A promissory note was issued for the loan (GX 9),

14 which required the borrower, Road Doctor California LLC, to again

15 agree: “All loan proceeds will be used only for purposes permitted

16 under the Paycheck Protection Program provided for in the CARES Act.”

17 Although defendant made specific representations to the bank

18 regarding how the company would use the proceeds and further

19 certified that the proceeds would only be used for authorized PPP

20 expenses, once the defendant had access to Road Doctor California’s

21 PPP funds, he spent them contrary to his representations to the bank.

22 B. Within Ten Days, Defendant Spends More than $370,000 of the
PPP Funds on Unauthorized Expenses Before the Bank Freezes
23 His Accounts

24 On May 1, 2020, $7.25 million of PPP loan funds were disbursed

25 into Road Doctor’s checking account. There was a negative balance in

26 the account before the PPP funds were disbursed. Over the course of

27 the next ten days, defendant and his family spent hundreds of

Case 2:21-cr-00187-JFW Document 92 Filed 03/15/22 Page 9 of 20 Page ID #:508

1 thousands of dollars of PPP funds on various expenses --- none of

2 which were payroll, mortgage interest, rent, or utilities.

3 One of defendant’s biggest purchases was a new AMG E53 Mercedes-

4 Benz on May 5, 2020, for $113,000. (GX 2, 13.) Defendant also spent

5 $8,780 for optional services contracts for the Mercedes, $7,000 of

6 which he put on a debit card that drew from the PPP funds in Road

7 Doctor’s checking account (Count 3). The Mercedes was registered

8 personally in the name of defendant and his wife; it was not

9 registered in the name of Road Doctor. (GX 13 at 66; GX 69.)
10 In addition to purchasing the Mercedes, defendant spent the PPP
11 money on various other expenditures, which are summarized in
12 Government’s Exhibits 85 and 86. For example, he spent $35,000 to
13 pay a lawyer in Canada; $100,000 to make a down payment on a factory
14 in New Hampshire that he had been trying to acquire for years; and
15 over $5,000 to purchase a computer from Apple.com (Count 4).
16 Defendant also expended over $25,000 in transfers to his children and
17 other individuals and making a cash withdrawal, and he spent nearly
18 $5,000 at places like Costco, Nordstrom, Birkenstock, and GOAT (a

19 sneaker seller). Additionally, $90,000 was transferred to

20 defendant’s wife personal account, and $20,000 from those proceeds

21 were used to pay off a BMW that defendant had leased in 2016

22 (Count 1).

23 Defendant conceded in an audio recording that he and his wife

24 were the only employees of Road Doctor as of June 23, 2020, which

25 shows that defendant’s children and the other individuals to whom

26 defendant sent PPP money were not employees of Road Doctor, and the

27 payments to them therefore were not for payroll. Additionally, a

28 witness from California’s Employment Development Department (“EDD”) -

Case 2:21-cr-00187-JFW Document 92 Filed 03/15/22 Page 10 of 20 Page ID #:509

1 -- which administers California’s payroll tax programs and collects

2 taxes from employers --- will testify that defendant first filed a

3 registration form for Road Doctor on or about December 28, 2020, but

4 that the company never remitted payroll taxes or filed payroll

5 returns for any employees.

6 On or about May 4, 2020, defendant attempted to initiate wire

7 transfers to an entity he controlled in Mauritania called BOS

8 Holdings Mauritania. Because the attempted wire transfers were above

9 defendant’s wire limit, a supervisor at Chase got involved to look
10 into whether the wire limit could be increased. That supervisor will
11 testimony that in the course of looking into this issue, she
12 discovered that defendant’s company had been granted a large PPP
13 loan. She reviewed the loan application materials and realized
14 immediately that the loan should not have been approved. She
15 escalated the issue to her manager, and defendant’s accounts were
16 ultimately suspended. The remaining PPP funds in the amount of
17 approximately $6.8 million were frozen and later clawed back by the
18 bank and applied to the outstanding loan balance.

19 C. Defendant’s False Statements to a Chase Employee and to an
Undercover FBI Agent During a Recorded Call in June 2020
20

21 On May 7, 2020, after defendant’s attempted wire transfers to

22 BOS Holdings Mauritania failed to go through, defendant emailed a

23 Chase employee and attempted to persuade the employee to release his

24 funds. (GX 33.) In the email, defendant falsely represented that

25 BOS Holdings Mauritania had an agreement with John Deere to supply

26 equipment for highway projects abroad. A custodian of records from

27 Deere & Company has searched Deere & Company’s records and determined

28 the company has no records related to defendant or BOS Holdings at

Case 2:21-cr-00187-JFW Document 92 Filed 03/15/22 Page 11 of 20 Page ID #:510

1 all. Furthermore, a former employee for a heavy machine dealer

2 located in Riverside, will testify that he provided defendant a quote

3 for a machine in 2017, after which defendant made no further contact.

4 Later, on June 23, 2020, when to defendant’s knowledge the PPP

5 funds were still frozen, an undercover FBI agent purporting to be a

6 contractor with the bank (the “UC”) placed a recorded call to

7 defendant’s wife, who, as noted above, was the signatory on the PPP

8 loan application. Immediately after the UC said she was calling from

9 the bank, defendant took the call over from his wife and spoke to the
10 UC for nearly an hour. In response to questioning about how the PPP
11 funds had been spent, defendant stated he had spent $100,000 to make
12 a down payment on a factory and had spent $35,000 to hire a Canadian
13 lawyer. After being pressed further about his expenditures,
14 defendant admitted he had purchased a Mercedes-Benz, which he
15 characterized as a “corporate car,” contrary to his statement to the
16 Mercedes salesman that defendant was purchasing the car for his son.
17 When asked about the wires to his subsidiary in Africa, defendant
18 again falsely claimed to have an agreement with John Deere to provide

19 all of the equipment for Road Doctor and his overseas mining

20 operation. Although he was asked several times during the call

21 whether he had made other expenditures with the PPP funds, defendant

22 failed to disclose numerous inappropriate uses of the proceeds.

23 IV. THE CHARGED OFFENSES

24 The elements of wire fraud, in violation of 18 U.S.C. § 1343,

25 are as follows:

26 1. The defendant knowingly participated in, devised, or

27 intended to devise a scheme or plan to defraud, or a scheme or plan

28 for obtaining money or property by means of false or fraudulent

Case 2:21-cr-00187-JFW Document 92 Filed 03/15/22 Page 12 of 20 Page ID #:511

1 pretenses, representations, promises, or omitted facts. Deceitful

2 statements of half-truths may constitute false or fraudulent

3 representations;

4 2. The statements made or facts omitted as part of the scheme

5 were material; that is, they had a natural tendency to influence, or

6 were capable of influencing, a person to part with money or property;

7 3. The defendant acted with the intent to defraud, that is,

8 the intent to deceive and cheat; and

9 4. The defendant used, or caused to be used, an interstate or
10 foreign wire communication to carry out or attempt to carry out an
11 essential part of the scheme.
12 Ninth Circuit Model Criminal Jury Instructions, No. 15.35 (Wire
13 Fraud).
14 “[A] fraud victim’s negligence is not a defense to criminal

15 charges under the federal fraud statutes.” United States v. Lindsey,

16 850 F.3d 1009, 1014-15 (9th Cir. 2017). This legal principle remains

17 true even when the victim is an entity. Indeed, the Ninth Circuit

18 has specifically held in the mortgage-fraud context that a lender’s

19 negligence in verifying loan application information, or even

20 intentional disregard of the information, is not a defense to fraud.

21 Id. at 1014; see also Ninth Circuit Model Criminal Jury Instructions,

22 No. 15.35 (Wire Fraud) (note regarding cases involving mortgage

23 fraud).

24 The “interstate” requirement in 18 U.S.C. § 1343 is

25 jurisdictional and not a substantive element of wire fraud. United

26 States v. Jinian, 725 F.3d 954, 965 (9th Cir. 2013). The government

27 therefore is not required to prove a defendant knew his actions had

28 an “interstate nexus” to establish a violation of a statute requiring

Case 2:21-cr-00187-JFW Document 92 Filed 03/15/22 Page 13 of 20 Page ID #:512

1 an “interstate nexus.” Id. Each transmission by wire in interstate

2 commerce to advance, further, or carry out the scheme may be a

3 separate wire fraud count. See United States v. Garlick, 240 F.3d

4 789, 792 (9th Cir. 2001) (“Insofar as we have never expressly held

5 that each use of the wires constitutes a separate violation of 18

6 U.S.C. § 1343, we do so now.”); see also 2A O’Malley, Grenig & Lee,

7 Federal Jury Practice and Instructions § 47.15 (5th ed. 2000).

8 Here, the wire fraud counts are based on defendant’s use of PPP

9 loan proceeds for the following four expenditures:
10 (1) $20,000 to fund a cashier’s check that was used to pay off a
11 debt defendant owed on a BMW (Count 1);
12 (2) $111,000 to fund a cashier’s check that was used to purchase
13 a Mercedes-Benz (Count 2);
14 (3) A $7,000 debit transaction to purchase optional services
15 contracts for the Mercedes-Benz that is the subject of Count 2
16 (Count 3); and
17 (4) A $5,876 debit transaction to purchase a 27” Apple iMac Pro
18 computer (Count 4).

19 Each of these transactions involved the use of interstate wires.

20 V. LEGAL AND EVIDENTIARY ISSUES

21 A. Wire Fraud Based on a Theory of Fraudulent Misappropriation

22 The government intends to prove at trial that defendant’s

23 fraudulent scheme consisted of misappropriating PPP funds by using

24 those funds to make unauthorized purchases.

25 The Supreme Court and the Ninth Circuit have repeatedly adopted

26 a “broad understanding of fraud” that includes not just the

27 fraudulent taking of money or property from a victim, but also the

28 “fraudulent appropriation” of money or property that a victim has

Case 2:21-cr-00187-JFW Document 92 Filed 03/15/22 Page 14 of 20 Page ID #:513

1 entrusted to a defendant. See, e.g., United States v. Jones, 472

2 F.3d 1136, 1140 (9th Cir. 2007) (emphasis added) (quotations

3 omitted). Jones, for instance, rejected the defendant’s contention

4 that his conduct did not fall within the ambit of the wire-fraud

5 statute because he did not make any false representations prior to

6 receiving money from victims. Id. There, the defendant solicited

7 money from investors to purchase luxury cars that purportedly were

8 being sold at cut rate prices as part of an attempt to liquidate the

9 estate of a wealthy car collector. Id. at 1137. The defendant told
10 investors he would collect their money for safekeeping and would not

11 turn over their funds to the estate until the cars were delivered.

12 Id. at 1137. In reality, neither the cars nor the estate existed,

13 though it was undisputed that the defendant did not know of the

14 fraudulent nature of the investment at the time he first solicited

15 the investments. Id. However, contrary to the defendant’s

16 representations that he would use the money to acquire the luxury

17 cars from the estate, the defendant instead spent the money on

18 himself. Id. The Ninth Circuit held that this conduct constituted

19 wire fraud. Id. at 1140. In reaching that conclusion, the court

20 explained that although the defendant “did not possess a fraudulent

21 intent when he received the money, his fraudulent appropriation of

22 the funds still satisfies the elements of § 1343.” Id. The court

23 also noted that the Supreme Court “has interpreted § 1343 broadly and

24 twice held that individuals who retain or misappropriate the money or

25 property of others, regardless of how they acquired it, fall within

26 the purview of mail or wire fraud.” Id. at 1139 (emphasis added);

27 see also Carpenter v. United States, 484 U.S. 19, 27 (1987) (“The

28 concept of ‘fraud’ includes the act of embezzlement, which is

Case 2:21-cr-00187-JFW Document 92 Filed 03/15/22 Page 15 of 20 Page ID #:514

1 fraudulent appropriation to one’s own use of the money or goods

2 entrusted to one’s care by another.” (internal quotations omitted));

3 Pasquantino v. United States, 544 U.S. 349, 356 (2005) (“[F]raud at

4 common law included a scheme to deprive a victim of his entitlement

5 to money.”).

6 Jones is squarely on point in this case. The government intends

7 to prove that, contrary to defendant’s representation to the bank

8 that the PPP funds would be “used to retain workers and maintain

9 payroll or make mortgage interest payments, lease payments, and
10 utility payments, as specified under the Paycheck Protection Program
11 Rule,” defendant in fact used the money to purchase two luxury cars;
12 send money to his children and individuals abroad; put a down payment
13 on a factory in New Hampshire; buy items from Nordstrom, Costco,
14 Birkenstock, GOAT (a sneaker seller), and Apple.com; and make various
15 other unauthorized expenditures. This conduct falls within the
16 purview of the wire-fraud statute, regardless of how defendant
17 acquired the PPP funds in the first instance. See Jones, 472 F.3d at
18 1140. Moreover, the half-truths, misrepresentations, and omissions

19 defendant made to a bank employee and the undercover agent, whom he

20 believed worked for the bank, after he received and misappropriated

21 the funds is evidence of his fraudulent intent and consciousness of

22 guilt.

23 B. Defendant’s Statements During a Recorded Call with an
Undercover FBI Agent
24
As set forth in Government’s Motion In Limine #1 (“MIL #1”)
25
(Dkt. 72), the government intends to offer prior, audio-recorded
26
statements made by defendant to an undercover law enforcement
27
officer. These statements, when offered by the government, are
28

Case 2:21-cr-00187-JFW Document 92 Filed 03/15/22 Page 16 of 20 Page ID #:515

1 admissible under Rule 801(d)(2) of the Federal Rules of Evidence

2 because they are opposing-party statements. Defendant may not,

3 however, elicit his own prior statements from a witness (including

4 himself), because they are hearsay when offered by him. Fed. R.

5 Evid. 801(d)(2); United States v. Ortega, 203 F.3d 675, 682 (9th Cir.

6 2000); United States v. Willis, 759 F.2d 1486, 1501 (11th Cir. 1985)

7 (defendant’s exculpatory statements inadmissible when offered by

8 defense). Nonetheless, defendant has informed the government that he

9 intends to offer as evidence his own prior statements from the
10 recording. The government has sought to preclude defendant from
11 introducing these hearsay statements in MIL #1. That motion is
12 currently pending before the Court. A hearing on the motion is set
13 for March 18, 2022, at 9:00 a.m. 1
14 C. Business Records

15 During trial, the government will seek to admit documents

16 obtained from various institutions as self-authenticating business

17 records pursuant to Federal Rule of Evidence 902(11). The government

18 has provided notice to defendant of which documents it intends to

19 Computer printouts that are compilations of data regularly

20 maintained by a business, such as printouts from a bank’s internal

21 systems that the bank maintains in the ordinary course of its

22 business, are admissible as records of regularly conducted activity

23 pursuant to Fed. R. Evid. 803(6). See United States v. Catabran, 836

24 F.2d 453, 458 (9th Cir. 1988) (questions as to accuracy “of business

25 records, would have affected only the weight of the printouts, not

26 their admissibility.”); U-Haul Int’l v. Lumbermans Mutual Casualty

28
1 No other motions in limine have been filed by either party.
11

Case 2:21-cr-00187-JFW Document 92 Filed 03/15/22 Page 17 of 20 Page ID #:516

1 Co., 576 F.3d 1040, 1043-44 (9th Cir. 2009) (computer records kept in

2 the regular course of business activity properly admitted under Fed.

3 R. Evid. 803(6)).

4 D. Judicial Notice

5 The government intends to request that the Court take judicial

6 notice of the SBA’s April 15, 2020, PPP Interim Final Rule (GX 11).

7 See 44 U.S.C. § 1507 (“The contents of the Federal Register shall be

8 judicially noticed....”); Mora v. Vasquez (In re Mora), 199 F.3d

9 1024, 1028 n. 7 (9th Cir.1999) (judicially noticing postal
10 regulations that were incorporated into the Code of Federal
11 Regulations). The April 15, 2020, PPP Interim Final Rule, which was
12 published in the Federal Register at 85 F.R. 20811, applied to
13 applications submitted under the Paycheck Protection Program through
14 June 30, 2020, or until funds made available for that purpose were
15 exhausted. The parties have submitted a proposed stipulated jury
16 instruction on this issue (Stipulated Jury Instruction 3).
17 E. Summary Witness and Exhibits

18 This case involves a large number of financial records. To

19 assist in the jury’s understanding of the case, the government has

20 prepared charts and summaries of those materials under Federal Rule

21 of Evidence 1006. Those exhibits are marked as GX 75-86. The

22 government intends to have a summary witness, Special Agent Erin

23 Bourassa of the Federal Deposit Insurance Corporation Office of

24 Inspector General, testify about, and use these charts to summarize

25 admissible evidence.

26 The Court and jury are entitled to have a witness “organize and

27 evaluate evidence [that] is factually complex and fragmentally

28 revealed[.]” United States v. Shirley, 884 F.2d 1130, 1133 (9th Cir.

Case 2:21-cr-00187-JFW Document 92 Filed 03/15/22 Page 18 of 20 Page ID #:517

1 1989) (DEA agent’s testimony regarding her review of various

2 telephone records, rental receipts, and other previously offered

3 testimony held to be proper summary evidence, as it helped jury

4 organize and evaluate evidence; summary charts properly admitted);

5 United States v. Lemire, 720 F.2d 1327, 1348 (D.C. Cir. 1983)

6 (“[J]ust as an expert can assist a jury by imparting special

7 knowledge that helps the jury to understand technical evidence, a

8 non-expert summary witness can help the jury organize and evaluate

9 evidence which is factually complex and fragmentally revealed in the
10 testimony of a multitude of witnesses throughout the trial.”).
11 F. Cross-Examination of Defendant

12 The government does not know whether defendant intends to

13 testify at trial. If defendant does testify, he waives his right

14 against self-incrimination and subjects himself to cross-examination

15 concerning all matters reasonably related to the subject matter of

16 his testimony. See, e.g., Ohler v. United States, 529 U.S. 753, 759

17 (2000) (“It has long been held that a defendant who takes the stand

18 in his own behalf cannot then claim the privilege against cross-

19 examination on matters reasonably related to the subject matter of

20 his direct examination” (internal citation and quotation marks

21 omitted)). A defendant has no right to avoid cross-examination on

22 matters that call into question his claim of innocence. United

23 States v. Miranda-Uriarte, 649 F.2d 1345, 1353-54 (9th Cir. 1981).

24 The scope of a defendant’s waiver is co-extensive with the scope of

25 relevant cross-examination. United States v. Cuozzo, 962 F.2d 945,

26 948 (9th Cir. 1992); United States v. Black, 767 F.2d 1334, 1341 (9th

27 Cir. 1985) (“What the defendant actually discusses on direct does not

28 determine the extent of permissible cross-examination or his waiver.

Case 2:21-cr-00187-JFW Document 92 Filed 03/15/22 Page 19 of 20 Page ID #:518

1 Rather, the inquiry is whether ‘the government’s questions are

2 reasonably related’ to the subjects covered by the defendant’s

3 testimony.”).

4 G. Reciprocal Discovery and Affirmative Defenses

5 As of the date of this filing, defendant has not produced to the

6 government any reciprocal discovery to which the government may be

7 entitled under Rules 16(b) and 26.2 of the Federal Rules of Criminal

8 Procedure. 2 Further, defendant has not provided the government with

9 notice of any affirmative defenses. To the extent defendant attempts
10 to introduce or use any documents at trial that he has not produced,
11 or seeks to rely on an undisclosed affirmative defense, the
12 government reserves the right to object and to request that the Court
13 exclude defendant’s undisclosed documents or affirmative defense.
14 See United States v. Young, 248 F.3d 260, 269-70 (4th Cir. 2001)
15 (upholding exclusion under Rule 16 of audiotape evidence defendant

16 did not produce in pretrial discovery where defendant sought to

17 introduce audiotape on cross-examination of government witness not

18 for impeachment purposes but as substantive “evidence in chief” that

19 someone else committed the crime).

20 VI. FORFEITURE

21 Defense counsel has informed the government that if the jury

22 finds defendant guilty of any of the charged offenses, defendant

23 intends to request retention of the jury to decide forfeiture. The

24 parties therefore anticipate there may be a criminal forfeiture phase

25 of the trial immediately following the guilt phase of the trial. A

27
2Defendant has provided notice that he intends to call Bella
28 Wang as an expert who will testify regarding PPP loans and has
provided some background information about Ms. Wang.
14

Case 2:21-cr-00187-JFW Document 92 Filed 03/15/22 Page 20 of 20 Page ID #:519

1 supplemental trial memorandum regarding criminal forfeiture is filed

2 concurrently herewith.

3 VII. CONCLUSION

4 The government requests leave to supplement this trial

5 memorandum as may become appropriate during the course of trial.

9
10

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