We represent Rafael Martinez in the above-captioned case and submit this letter motion

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A letter motion by counsel for Rafael Martinez to Judge Lewis J. Liman in United States v. Rafael Martinez, 22 Cr. 251 (LJL), Southern District of New York, filed February 24, 2023 as Document 57 in Case 1:22-cr-00251-LJL. It asks the Court to direct the government to file a bill of particulars on Count One of the Superseding Indictment, which the letter says charges violations of 18 U.S.C. §§ 1343 and 2. The defense seeks the alleged deceived parties besides the SBA, the alleged misrepresentations or omissions, when they were made, and who made them if not Mr. Martinez. It cites Federal Rule of Criminal Procedure 7(f), the May 1, 2023 trial date and discovery of almost 270,000 documents. A declaration of counsel under Local Criminal Rule 16.1 states that the parties could not reach agreement.

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        Case 1:22-cr-00251-LJL          Document 57        Filed 02/24/23      Page 1 of 6




                                         tkasulis@maglaw.com
                                             (212) 880-9555


                                         February 24, 2023

Hon. Lewis J. Liman
United States District Judge
Southern District of New York
500 Pearl Street
New York, New York 10007

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

Dear Judge Liman:

        We represent Rafael Martinez in the above-captioned case and submit this letter motion
to request that the Court direct the government to file a bill of particulars in connection with the
allegations in Count One of the Superseding Indictment. Mr. Martinez was arraigned on the
Superseding Indictment on February 17, 2023.

       Count One of the Superseding Indictment

        As the Court is aware, Count One of the Superseding Indictment charges Mr. Martinez
with violations of 18 U.S.C. §§ 1343 and 2. After reciting the statutory language, Count One
alleges that Mr. Martinez “engaged in a scheme to fraudulently obtain millions of dollars in
capital from an insurance company (the ‘Company’) and the Federal Reserve Bank of San
Francisco, in order to issue loans through the Paycheck Protection Program (the ‘PPP’), and
thereby to fraudulently earn PPP lender fees, through false and fraudulent pretenses,
representations, and documents, including by making false statements to the United States Small
Business Administration (the ‘SBA’) in order to obtain approval for [MBE] to become a non-
bank PPP lender.” Superseding Indictment ¶ 1.

       There are no other factual allegations in the Superseding Indictment related to Count
One.
        Case 1:22-cr-00251-LJL           Document 57        Filed 02/24/23       Page 2 of 6




Hon. Lewis J. Liman
February 24, 2023
Page 2

       The Particulars Sought by Mr. Martinez

        Mr. Martinez respectfully requests that the Court direct the government to provide a bill
of particulars setting forth as to Count One: (a) the alleged deceived parties in addition to the
SBA; (b) the alleged material misrepresentations or omissions made to those parties; (c) when
those alleged material misrepresentations or omissions were made; and (d) who made those
alleged material misrepresentations or omissions (if not Mr. Martinez).

        Mr. Martinez has no objection to the Court allowing the government to amend the bill of
particulars, including up to two weeks before trial or any other pretrial date the Court deems
appropriate.

       Relevant Law

        Federal Rule of Criminal Procedure 7(f) “allows a defendant to seek a bill of particulars
in order to (1) identify with sufficient particularity the nature of the charge pending against him,
thereby enabling defendant to prepare for trial; (2) to prevent surprise; and (3) to interpose a plea
of double jeopardy should he be prosecuted a second time for the same offense.” United States
v. Rivera, 89 F. Supp. 3d 376, 400-01 (E.D.N.Y. 2015) (citing United States v. Bortnovsky, 820
F.2d 572, 574 (2d Cir. 1987) (quotation marks omitted)). Whether to grant a bill of particulars is
within the sound discretion of the district court. See United States v. Davidoff, 845 F.2d 1151,
1154 (2d Cir. 1988).

        “Certain charges, such as . . . fraud charges . . . , by their nature carry a greater potential
for causing unfair surprise at trial due to their complexity,” supporting the need for a bill of
particulars. United States v. Kahale, 789 F. Supp. 2d 359, 373 (E.D.N.Y. 2009). “The
Government does not fulfill its obligations [to specify the charges] merely by providing
mountains of documents to defense counsel who were left unguided as to the nature of the
charges pending.” United States v. Wey, No. 15 Cr. 611 (AJN), 2017 WL 237651, at *18
(S.D.N.Y. Jan. 18, 2017) (quoting Bortnovsky). “[A] large volume of discovery warrants a bill
of particulars if it obfuscates the allegedly unlawful conduct and unfairly inhibits the defendant's
preparation for trial.” United States v. Mahaffy, 446 F. Supp. 2d 115, 120 (E.D.N.Y. 2006).

        While certain categories of particulars are typically disfavored – like efforts to determine
the ‘whens,’ ‘wheres,’ and ‘with whoms’ regarding [a] conspiracy,” United States v. Muyet, 945
F. Supp. 586, 599 (S.D.N.Y. 1996) – courts have been more amenable to requiring particulars as
to the nature of claims the government alleges to be false. In United States v. Nachamie, for
example, Judge Scheindlin ordered the government to particularize for each allegedly “false and
misleading” insurance claim it intended to use at trial: “(i) who allegedly prepared each such
form; (ii) who allegedly submitted each such form; (iii) when and where each such form was
prepared and submitted; (iv) each item or entry on each such form which is alleged to be ‘false
and misleading;’ (v) the manner in which such item or entry is allegedly false; (vi) the statement
        Case 1:22-cr-00251-LJL         Document 57       Filed 02/24/23      Page 3 of 6




Hon. Lewis J. Liman
February 24, 2023
Page 3

or amount which the Government contends would have been an accurate statement of each such
item or entry; and (vii) the manner in which each such amount was calculated.” 91 F. Supp. 2d
565, 574 (S.D.N.Y. 2000); see also United States v. Lino, 2001 WL 8356, at *6 (S.D.N.Y. Jan. 2,
2001) (courts “routinely award” requests to particularize allegations of false statements).

       Discussion

       As this Court has recognized, in considering a request for a bill of particulars the
“essential question is whether the defense has been provided sufficient particulars ‘to conduct a
meaningfully directed investigation of the relevant facts and circumstances and be prepared to
respond to the charges.’” United States v. Ray, 2021 WL 3168250, at *3 (S.D.N.Y. Jul. 27,
2021) (LJL) (citing United States v. Bin Laden, 92 F. Supp. 2d 225, 235 (S.D.N.Y. 2000)).

        With respect to the revised Count One in the Superseding Indictment, Mr. Martinez has
not. Mr. Martinez did not raise a particulars request as to Count One in the original indictment,
nor does he now with regard to Counts Two through Five of the Superseding Indictment. But
Mr. Martinez requires these additional particulars solely as to the revised Count One in order to
be able to adequately prepare for the May 1, 2023 trial date in this case.

        While there is a Complaint in this matter, its usefulness with regard to the requested
particulars is limited, as set forth below. And while the government may claim that its discovery
productions to date should cure any lack of particularity in the indictment, we respectfully
submit that the voluminous nature of the discovery cuts in the other direction. The government
has made nine Rule 16 productions to date, comprising almost 270,000 documents. As the
Second Circuit recognized in Bortnovsky, the government cannot “fulfill its obligations [to
specify the charges] merely by providing mountains of documents to defense counsel who [are]
left unguided” as to the preparation of the defense. 820 F.2d at 574; see also Nachamie, 91 F.
Supp. 2d at 574 (200,000 pages of discovery insufficient to meet obligations under Bortnovsky
without particulars).

         Mr. Martinez respectfully submits that consideration of each of the categories of
particulars sought against this backdrop demonstrates their necessity in this case. First, Mr.
Martinez requests the identity of any alleged deceived parties other than the SBA. While the
original indictment mentioned that the Company and the Federal Reserve sent funds to MBE
after it was approved to conduct PPP business, there was not a claim that Mr. Martinez deceived
those entities. The Superseding Indictment, on the other hand, alleges that Mr. Martinez
fraudulently sought to obtain money from the Company and the Federal Reserve through false
representations, “including by” making alleged misrepresentations to the SBA. Superseding
Indictment ¶ 1. Mr. Martinez cannot know if the government is claiming that he also deceived
          Case 1:22-cr-00251-LJL               Document 57           Filed 02/24/23          Page 4 of 6




Hon. Lewis J. Liman
February 24, 2023
Page 4

the Company, the Federal Reserve, or any other person or entity. 1 This modest information is
needed so that Mr. Martinez can assess the government’s evidence of any alleged deception of
those entities, including questions as to materiality and causality. 2

         Second, Mr. Martinez requests that the government identify the alleged
misrepresentations made to any non-SBA parties. The Complaint indicates that “various
documents” were submitted to the Company, including allegedly “fraudulent 2019 financial
statements.” Complaint ¶¶ 12 ,20. It is not clear if the government is asserting – or will assert at
trial – that there were any other potentially misleading documents or oral representations
transmitted to the Company, let alone to the Federal Reserve or any other (non-SBA) third party.
As the Court is aware, each misrepresentation or set of misrepresentations must be analyzed in
turn. What might be material to the SBA could be immaterial to the Company or the Federal
Reserve, or vice versa. This raises some of the concerns animating the grant of fraudulent
statement particulars in Nachamie.

       Third, Mr. Martinez requests that the government identify when those alleged
misrepresentations were made. This is in no way an effort to hem in the date range of the alleged
charge. Instead, Mr. Martinez needs to be able to assess the alleged misrepresentations in the
context of the larger chronology of discussions with the SBA, the Company, and the Federal
Reserve. Context can render a representation immaterial just as easily as it makes it material,
and the same can also be true as to whether a statement is misleading. Given that Mr. Martinez
is himself pivoting in preparing to answer the broader range of potential theories in the revised
Count One, he requires this information in order to be ready to try the case on May 1.

       Fourth, Mr. Martinez requests that the government indicate if anyone else made the
alleged misrepresentations instead of Mr. Martinez. In the event someone else made an alleged
misrepresentation, Mr. Martinez would need time to research the context around that
representation and potentially to interview that person or secure his testimony for trial.

        In short, Mr. Martinez is requesting limited particulars as to only one count in a
superseding instrument that broadened the potential theories against him only a few months
before trial. We respectfully submit that the provision of limited particulars is appropriate in this
case.



1
 The Complaint alleges in two locations that Mr. Martinez sent to the Company the “fraudulent 2019 Audited
Financial Statements” it sent to the SBA. See Complaint ¶¶ 12, 32(a). The Complaint does not allege those
materials were sent to the Federal Reserve or any other party.
2
  In our efforts to resolve these issues without the need for application to the Court, the government provided the
identity of the “Company” in the Superseding Indictment but refused to provide any additional information,
including as to whether it intended to argue at trial that other parties were deceived.
        Case 1:22-cr-00251-LJL        Document 57        Filed 02/24/23     Page 5 of 6




Hon. Lewis J. Liman
February 24, 2023
Page 5

                                        CONCLUSION

       Mr. Martinez’s request for a limited bill of particulars only as to Count One should be
granted.

                                             Respectfully submitted,

                                             MORVILLO ABRAMOWITZ GRAND IASON &
                                             ANELLO, P.C.

                                             /s/ Telemachus P. Kasulis
                                             Telemachus P. Kasulis
                                             Elkan Abramowitz

                                             WILLKIE FARR & GALLAGHER LLP

                                             Michael S. Schachter
                                             Randall Jackson

                                             Counsel for Rafael Martinez

cc:    AUSA Katherine C. Reilly
       AUSA Micah F. Fergensen
        Case 1:22-cr-00251-LJL           Document 57        Filed 02/24/23       Page 6 of 6




Hon. Lewis J. Liman
February 24, 2023
Page 6

                                             Declaration

        Prior to the filing of this motion, I attempted to resolve the request for particulars set
forth herein by conferring with counsel for the government pursuant to Local Criminal Rule
16.1. The parties have been unable to reach an agreement.

       I declare under penalty of perjury that the foregoing is true and correct, pursuant to Title
28, United States Code, Section 1746.

       New York, New York                              /s/ Telemachus P. Kasulis
       February 24, 2023                               Telemachus P. Kasulis


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