The defendant in the above -captioned action has filed a motion to dismiss Count One of

Summary

A letter dated January 13, 2023 from the United States Attorney's Office for the Southern District of New York to the Honorable Lewis J. Liman, filed as Document 47 in United States v. Rafael Martinez, 22 Cr. 251 (LJL). The government asks the court to adjourn oral argument on the defendant's motion to dismiss Count One of the Indictment, scheduled for January 18, 2023. The letter summarizes the dispute: the defendant reads Count One as charging an effort to defraud the Small Business Administration of its approval to become a non-bank PPP lender, while the government contends it charges a scheme to obtain PPP capital and lender fees from the Federal Reserve and an insurance company. The government states that it intends to seek a superseding indictment within fourteen days and asks for an adjournment of approximately thirty days, which defense counsel oppose.

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Full text

        Case 1:22-cr-00251-LJL          Document 47 Filed 01/13/23 Page 1 of 2
                                                  U.S. Department of Justice
[Type text]
                                                      United States Attorney
                                                      Southern District of New York

                                                      The Silvio J. Mollo Building
                                                      One Saint Andrew’s Plaza
                                                      New York, New York 10007


                                                      January 13, 2023


BY ECF
The Honorable Lewis J. Liman
United States District Judge
Daniel Patrick Moynihan United States Courthouse
500 Pearl Street
New York, New York 10007

       Re:     United States v. Rafael Martinez, 22 Cr. 251 (LJL)

Dear Judge Liman:

        The defendant in the above-captioned action has filed a motion to dismiss Count One of
the Indictment. Oral argument is scheduled for this coming Tuesday, January 18, 2023 at 10:00
a.m. The Government writes to request an adjournment of the argument, for the reasons set forth
below.

        As the Court is aware, the defendant seeks to dismiss Count One because, in his estimation,
it charges a scheme to defraud the Small Business Administration (the “SBA”) of its approval to
become a non-bank lender through the Paycheck Protection Program (the “PPP”). (Def. Rep.
Mem. at 1). The Government, by contrast, contends that Count One charges a scheme to obtain
millions of dollars in PPP capital and in lender fees from both the Federal Reserve and an insurance
company (the “Company”), a scheme effectuated, in part, by making false statements to the SBA.
(Govt. Opp. at 12). In his reply brief in support of the motion to dismiss, the defendant focuses on
the precise language of the “to wit” clause contained in Count One, arguing that that language
supports his view of the conduct at issue. (Id. at 3-5). As set forth in the Government’s opposition,
the “to wit” clause need not specify all the particulars of how and from whom Martinez
fraudulently obtained the fund at issue. See, e.g., United States v. Bastian, 770 F.3d 212, 221 (2d
Cir. 2014) (“[W]e have never suggested that a ‘to wit’ clause binds the government to prove the
exact facts specified in a criminal indictment.”). Nevertheless, in an abundance of caution, the
Government intends to seek a superseding indictment in this matter, to clarify the language in the
“to wit” clause in Count One.

      Because oral argument on the defendant’s motion to dismiss will no doubt involve
discussion of the operative charging language, the Government submits that a short adjournment
        Case 1:22-cr-00251-LJL        Document 47        Filed 01/13/23     Page 2 of 2

                                                                                          Page 2


of the scheduled oral argument is appropriate 1. Accordingly, the Government intends to seek a
superseding indictment within fourteen days and respectfully requests that oral argument be
adjourned approximately thirty days. 2 The Government has conferred with defense counsel, who
oppose the motion to adjourn the oral argument.

                                             Respectfully submitted,

                                             DAMIAN WILLIAMS
                                             United States Attorney


                                         by: ___________________________
                                             Katherine Reilly
                                             Micah F. Fergenson
                                             Katherine Reilly
                                             Assistant United States Attorneys
                                             (212) 637-6521/2190


cc: Defense Counsel (By ECF)




1
  The Court has also indicated its intent to hold the Curcio hearing requested in the Government’s
January 4, 2023 letter this coming Tuesday. The Government submits that the Curcio hearing
could also be adjourned to the date of any rescheduled argument.
2
  As the Court is aware, AUSA Fergenson is scheduled to begin a trial before Judge Abrams on
February 18, 2023. The Government expects that trial to take approximately two weeks.


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