Government’s Trial Memorandum — United States v. Keith Lawrence Middlebrook (No. 2:20-cr-00229, C.D. Cal.)
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Document 246 in United States v. Keith Lawrence Middlebrook, No. CR 20-229-DSF, in the U.S. District Court for the Central District of California, filed April 30, 2024: the Government's Trial Memorandum, signed /s/ Kenneth R. Carbajal for the United States Attorney. Its introduction states that the defendant falsely claimed to have developed the cure and treatment for COVID-19, and that the defendant is charged with eleven counts of wire fraud under 18 U.S.C. § 1343. It reports a grand jury indictment returned on June 12, 2020, approximately 17,000 pages of discovery produced in twenty discovery productions, and a government estimate of at most eleven witnesses. A table of contents lists sections on the elements of the charged offenses, the statement of facts and legal and evidentiary issues.
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“Government’s Trial Memorandum — United States v. Keith Lawrence Middlebrook (No. 2:20-cr-00229, C.D. Cal.).”
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Case 2:20-cr-00229-DSF Document 246 Filed 04/30/24 Page 1 of 28 Page ID #:2665
1 E. MARTIN ESTRADA
United States Attorney
2 MACK E. JENKINS
Assistant United States Attorney
3
Chief, Criminal Division
4 KENNETH R. CARBAJAL (Cal. Bar No. 338079)
JOSEPH S. GUZMAN (Cal. Bar No. 310493)
5 Assistant United States Attorneys
General Crimes Section
6 1200/1400 United States Courthouse
312 North Spring Street
7 Los Angeles, California 90012
8 Telephone: (213) 894-3172 / 2438
Facsimile: (213) 894-0141
9 E-mail: Kenneth.Carbajal@usdoj.gov
Joseph.Guzman2@usdoj.gov
10
Attorneys for Plaintiff
11 UNITED STATES OF AMERICA
12 UNITED STATES DISTRICT COURT
13 FOR THE CENTRAL DISTRICT OF CALIFORNIA
14 UNITED STATES OF AMERICA, No. CR 20-229-DSF
15 Plaintiff, GOVERNMENT’S TRIAL MEMORANDUM
16 v. Trial Date: May 7, 2024
Trial Time: 8:30 a.m.
17 KEITH LAWRENCE MIDDLEBROOK, Location: Courtroom of the
Hon. Dale S.
18 Defendants. Fischer
19
Plaintiff United States of America, by and through its counsel
20
of record, the United States Attorney for the Central District of
21
California and Assistant United States Attorneys Kenneth R. Carbajal
22
and Joseph S. Guzman, hereby files its Trial Memorandum.
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Case 2:20-cr-00229-DSF Document 246 Filed 04/30/24 Page 2 of 28 Page ID #:2666
1 The government respectfully reserves the right to supplement or
2 modify this memorandum as may be appropriate.
3 Dated: April 30, 2024 Respectfully submitted,
4 E. MARTIN ESTRADA
United States Attorney
5
MACK E. JENKINS
6 Assistant United States Attorney
Chief, CRIMINAL Division
7
8 /s/
KENNETH R. CARBAJAL
9 JOSEPH S. GUZMAN
Assistant United States Attorney
10
Attorneys for Plaintiff
11 UNITED STATES OF AMERICA
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Case 2:20-cr-00229-DSF Document 246 Filed 04/30/24 Page 3 of 28 Page ID #:2667
1 TABLE OF CONTENTS
2 DESCRIPTION PAGE
3 MEMORANDUM OF POINTS AND AUTHORITIES................................1
4 I. INTRODUCTION...................................................1
5 II. STATUS OF CASE.................................................1
6 A. Indictment................................................1
7 B. Discovery.................................................1
8 C. Trial.....................................................2
9 D. Defendant.................................................2
10 E. Government Witnesses......................................2
11 F. Pretrial Motions..........................................2
12 III. ELEMENTS OF THE CHARGED OFFENSES...............................4
13 IV. STATEMENT OF FACTS.............................................7
14 V. LEGAL AND EVIDENTIARY ISSUES...................................8
15 A. Authentication and Foundation.............................8
16 B. Expert Opinion Testimony..................................8
17 C. Lay Law Enforcement Testimony.............................9
18 D. Defendant’s Statements...................................11
19 E. Cross-Examination of Defendant...........................12
20 F. Recordings, Photographic Evidence, and Transcripts.......13
21 G. Character Evidence.......................................15
22 H. Business Records.........................................17
23 I. Use of Exhibits During Opening Statement.................17
24 J. Summary Witnesses........................................17
25 K. Calling Witnesses For Impeachment........................18
26 L. Affirmative Defenses.....................................20
27 M. Jury Nullification.......................................20
28 N. Reciprocal Discovery.....................................20
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Case 2:20-cr-00229-DSF Document 246 Filed 04/30/24 Page 4 of 28 Page ID #:2668
1 TABLE OF CONTENTS (CONTINUED)
2 DESCRIPTION PAGE
3 VI. CONCLUSION....................................................21
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Case 2:20-cr-00229-DSF Document 246 Filed 04/30/24 Page 5 of 28 Page ID #:2669
1 TABLE OF AUTHORITIES
2
3 Page(s)
4
Other Authorities
5
Diamond Shamrock Corp. v. Lumbermens Mut. Cas. Co.,
6 466 F.2d 722 (7th Cir. 1972) ..................................... 18
Hamling v. United States,
7 418 U.S. 87 (1974) ............................................... 15
Lucero v. Stewart,
8 892 F.2d 52 (9th Cir. 1989) ...................................... 13
Michelson v. United States,
9
335 U.S. 469 (1948) .......................................... 15, 16
10 Ohler v. United States,
529 U.S. 753 (2000) .............................................. 12
11 Territory of Guam v. Ojeda,
758 F.2d 403 (9th Cir. 1985) ..................................... 11
12 United States v. Andersson,
813 F.2d 1450 (9th Cir. 1987) ..................................... 9
13 United States v. Barragan,
14 871 F.3d 689 (9th Cir. 2017) ..................................... 10
United States v. Black,
15 767 F.2d 1334 (9th Cir. 1985) .................................... 12
United States v. Bright,
16 588 F.2d 504 (5th Cir. 1979) ..................................... 16
United States v. Chu Kong Yin,
17 935 F.2d 990 (9th Cir. 1991) ...................................... 8
United States v. Collicott,
18
92 F.3d 973 (9th Cir. 1996) ...................................... 12
19 United States v. Cuozzo,
962 F.2d 945 (9th Cir. 1992) ..................................... 12
20 United States v. De Peri,
778 F.2d 963 (3d Cir. 1985) ...................................... 17
21 United States v. Gadson,
763 F.3d 1189 (9th Cir. 2014) ................................. 8, 10
22
United States v. Garlick,
23 240 F.3d 789 (9th Cir. 2001) ...................................... 6
United States v. Halbert,
24 640 F.2d 1000 (9th Cir. 1981) ..................................... 5
United States v. Hedgcorth,
25 873 F.2d 1307 (9th Cir. 1989) .................................... 16
United States v. Jimenez-Chaidez,
26 96 F.4th 1257 (9th Cir. 2024) .................................... 10
27 United States v. Jinian,
725 F.3d 954 (9th Cir. 2013) ................................... 5, 6
28 United States v. King,
i
Case 2:20-cr-00229-DSF Document 246 Filed 04/30/24 Page 6 of 28 Page ID #:2670
1 TABLE OF AUTHORITIES (CONTINUED)
2 DESCRIPTION PAGE
3 587 F.2d 956 (9th Cir. 1978) ..................................... 13
United States v. Lemire,
4 720 F.2d 1327 (D.C. Cir. 1983) ................................... 17
United States v. Lindsey,
5
850 F.3d 1009 (9th Cir. 2017) ..................................... 5
6 United States v. Marin,
669 F.2d 73 (2d Cir. 1982) ....................................... 12
7 United States v. McCollom,
664 F.2d 56 (5th Cir. 1981) ...................................... 16
8 United States v. Milheiser,
--- F.4th ----, 2024 WL 1517377 (9th Cir. Apr. 9, 2024) ........ 6, 8
9 United States v. Miranda-Uriarte,
10 649 F.2d 1345 (9th Cir. 1981) .................................... 12
United States v. Moreno,
11 243 F.3d 551 (9th Cir. 2000) ..................................... 10
United States v. Oaxaca,
12 569 F.2d 518 (9th Cir. 1978) ..................................... 13
United States v. Ortega,
13 203 F.3d 675 (9th Cir. 2000) ..................................... 11
14 United States v. Pino-Noriega,
189 F.3d 1089 (9th Cir. 1999) .................................... 10
15 United States v. Powell,
955 F.2d 1206 (9th Cir. 1992) .................................... 18
16 United States v. Rubino,
431 F.2d 284 (6th Cir. 1970) ..................................... 17
17 United States v. Rude,
88 F.3d 1538 (9th Cir. 1996) ...................................... 5
18
United States v. Santana-Camacho,
19 931 F.2d 966 (1st Cir. 1991) ..................................... 15
United States v. Shirley,
20 884 F.2d 1130 (9th Cir. 1989) .................................... 17
United States v. Soulard,
21 730 F.2d 1292 (9th Cir. 1984) .................................... 18
United States v. Stearns,
22
550 F.2d 1167 (9th Cir. 1977) .................................... 13
23 United States v. Turner,
528 F.2d 143 (9th Cir. 1975) ..................................... 14
24 United States v. VonWillie,
59 F.3d 922 (9th Cir. 1995) ...................................... 10
25 United States v. Warren,
25 F.3d 890 (9th Cir. 1994) ...................................... 11
26 United States v. Willis,
27 759 F.2d 1486 (11th Cir. 1985) ................................... 11
United States v. Young,
28 248 F.3d 260 (4th Cir. 2001) ..................................... 19
ii
Case 2:20-cr-00229-DSF Document 246 Filed 04/30/24 Page 7 of 28 Page ID #:2671
1 TABLE OF AUTHORITIES (CONTINUED)
2 DESCRIPTION PAGE
3 Zal v. Steppe,
968 F.2d 924 (9th Cir. 1992) ..................................... 18
4
Statutes
5
18 U.S.C. § 1343................................................. 1, 6
6
7 Rules
8 F.R.E. 615(3)....................................................... 4
F.R.E. 607......................................................... 18
9 Fed. R. Crim. P. 16(b)(1).......................................... 19
10 Fed. R. Crim. P. 16(c)............................................. 19
Fed. R. Crim. P. 16(d)(2)(C)....................................... 19
11 Fed. R. Evid. 106.................................................. 11
Fed. R. Evid. 405(a)............................................... 16
12 Fed. R. Evid. 608(a)............................................... 16
Fed. R. Evid. 702................................................... 8
13 Fed. R. Evid. 703................................................... 9
14 Fed. R. Evid. 801(d)(2)............................................ 11
Fed. R. Evid. 801(d)(2)(A)......................................... 11
15 Fed. R. Evid. 901(a)............................................... 13
Fed. R. Evid. 902(11).............................................. 16
16 Federal Rules of Criminal Procedure 12.1........................... 19
17
18
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Case 2:20-cr-00229-DSF Document 246 Filed 04/30/24 Page 8 of 28 Page ID #:2672
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 At the onset of the COVID-19 global pandemic, defendant falsely
4 claimed that he had developed the cure and treatment for COVID-19.
5 Defendant filmed videos of himself holding the fake cure and
6 treatment, posted those videos to his millions of social media
7 followers, and sent those videos to potential investors. But
8 defendant did not stop there. He built an elaborate investment fraud
9 scheme around his fake cure and treatment. Defendant created fake
10 companies, lied about high profile individuals endorsing his product,
11 lied about having a patent pending for his cure and treatment, and
12 lied about how investments in his non-existent companies were risk-
13 free and 100% guaranteed. Defendant pitched his investments through
14 text messages, phone calls, and emails, including by sending a
15 detailed prospectus to potential investors. He sent his bank account
16 information to people, and he peppered potential investors with
17 requests to send him hundreds of thousands of dollars.
18 For these acts, defendant is charged with participating in a
19 scheme to defraud that includes eleven discrete counts of wire fraud,
20 in violation of 18 U.S.C. § 1343.
21 II. STATUS OF CASE
22 A. Indictment
23 On June 12, 2020, a grand jury returned an indictment charging
24 defendant with eleven counts of wire fraud, in violation of 18 U.S.C.
25 § 1343. (Dkt. 40.)
26 B. Discovery
27 The government has produced approximately 17,000 pages of
28 discovery to defense counsel in twenty discovery productions. The
Case 2:20-cr-00229-DSF Document 246 Filed 04/30/24 Page 9 of 28 Page ID #:2673
1 produced discovery includes law enforcement reports, photographs,
2 video recordings, audio recordings, and digital device evidence. As
3 of the date of this Trial Memorandum, defense counsel has produced
4 reciprocal discovery that includes documents, photographs, and video
5 recordings.
6 C. Trial
7 Trial Date: A jury trial in this matter is scheduled to begin on
8 May 7, 2020, at 8:30 a.m., before this Court.
9 Estimated Time: The government anticipates that its case-in-
10 chief will last approximately one to two days.
11 D. Defendant
12 Defendant is on bond.
13 E. Government Witnesses 1
14 The government estimates that it will call at most eleven
15 witnesses in its case-in-chief, including: (1) Federal Bureau of
16 Investigation (“FBI”) Special Agent (“SA”) Madison MacDonald; (2)
17 Inglewood Police Department (“IPD”) Homicide Cold Case Investigator
18 Sean Sterle; 2 (3) Drug Enforcement Administration (“DEA”) Senior
19 Forensic Chemist Monica S. Price; (4) FBI Forensic Examiner Andrew Y.
20 Jaung; (5) FBI SA Kerrie Harney; (6) Dr. Suzanne Donovan; (7) Wayne
21 Jeffries; (8) Ari Friedman; (9) Edward Carlos St. Mary; (10) Ralph
22 Morgan; and (11) Earvin Johnson, Jr. 3
23 F. Pretrial Motions
24
25 1The defense is finalizing their cross examinations; however,
the defense expects the cross examination of each witness to be just
26 as long as the government’s direct examination.
2 Mr. Sterle was formerly employed as FBI UCE 4422.
27
3 This represents the government’s current witness list. The
28 government reserves the right to not call any of these witnesses or
to call additional witnesses, if it deems necessary at trial.
2
Case 2:20-cr-00229-DSF Document 246 Filed 04/30/24 Page 10 of 28 Page ID #:2674
1 The government has filed 14 pretrial motions and motions in
2 limine, including: (1) motion in limine for admission of certified
3 absence of public record from the United States Patent and Trademark
4 Office (Dkt. 81); (2) motion in limine for admission of certified
5 business records (Dkt. 82); (3) motion in limine for admission of
6 certified business record of Google LLC (Dkt. 83); (4) motion in
7 limine to admit certified business records of Facebook Inc. (Dkt.
8 84); (5) motion in limine to admit certified business records of AT&T
9 (Dkt. 85); (6) motion for order for redaction of indictment (Dkt.
10 86); (7) motion in limine to exclude Dr. Ram Durisetti’s testimony
11 (Dkt. 157); (8) motion in limine to exclude Dr. Stephen Phillips’s
12 testimony (Dkt. 164); (9) motion in limine to admit evidence of and
13 argument about defendant’s requests for money transfers below the
14 threshold reporting requirement (Dkt. 159); (10) motion in limine to
15 preclude evidence of and reference to judgment in prior criminal case
16 (Dkt. 160); (11) motion in limine to preclude the assertion of an
17 insanity defense (Dkt. 162); (12) motion in limine for evidence of
18 and reference to defendant’s mental state (Dkt. 163); (13) motion in
19 limine to preclude argument of and reference to jury nullification
20 (Dkt. 166); and (14) motion in limine to preclude reference to or
21 evidence that the alleged false representations are immaterial
22 because no victim relied on the representations or lost money (Dkt.
23 167).
24 Defendant has filed seven pretrial motions and motions in
25 limine: (1) motion in limine to preclude government's use of bank
26 records (Dkt. 161); (2) motion for order to dismiss for selective
27 prosecution (Dkt. 168); (3) motion to suppress digital devices (Dkt.
28 169); (4) motion to suppress evidence (Dkt. 172); (5) motion in
3
Case 2:20-cr-00229-DSF Document 246 Filed 04/30/24 Page 11 of 28 Page ID #:2675
1 limine no. 2 to permit the presence of defense expert, Dr. Stephen
2 Phillips at trial pursuant to F.R.E. 615(3) (Dkt. 173); (6) motion to
3 exclude Dr. Suzanne Donovan (Dkt. 211); and (7) motion to exclude
4 other-act evidence noticed by the government (Dkt. 212).
5 As of the filing of this trial memorandum, the Court has
6 granted: (1) motion in limine for admission of certified absence of
7 public record from the United States Patent and Trademark Office
8 (Dkts. 81, 87); (2) motion in limine for admission of certified
9 business records (Dkts. 82, 87); (3) motion for order for redaction
10 of indictment (Dkt. 86) (orally on 4/22/24); (4) motion in limine to
11 preclude the assertion of an insanity defense (Dkt. 162) (orally on
12 4/22/24); (5) motion in limine for admission of certified business
13 record of Google LLC (Dkt. 83) (orally on 4/22/24); (6) motion in
14 limine to admit certified business records of Facebook Inc. (Dkt. 84)
15 (orally on 4/22/24); (7) motion in limine to admit certified business
16 records of AT&T (Dkt. 85) (orally on 4/22/24).
17 As of the filing of this trial memorandum, the Court has denied:
18 (1) motion for order to dismiss for selective prosecution (Dkts. 168,
19 230).
20 III. ELEMENTS OF THE CHARGED OFFENSES 4
21 The government must prove the following four elements to prove
22 wire fraud: (1) defendant knowingly devised a scheme or plan to
23 defraud, or a scheme or plan for obtaining money or property by means
24 of false or fraudulent pretenses, representations, or promises; (2)
25 the statements made as part of the scheme were material; that is,
26
27 4The defense objects to the Government’s elements of the
charged offenses. The defense believes that the correct elements are
28 outlined in its proposed wire fraud jury instruction and exhibit
attached to its proposed jury verdict form.
4
Case 2:20-cr-00229-DSF Document 246 Filed 04/30/24 Page 12 of 28 Page ID #:2676
1 they had a natural tendency to influence, or were capable of
2 influencing, a person to part with money or property; (3) defendant
3 acted with the intent to defraud, that is, the intent to deceive or
4 cheat; and (4) defendant used, or caused to be used, an interstate or
5 foreign wire communication to carry out or attempt to carry out an
6 essential part of the scheme. Ninth Circuit Model Criminal Jury
7 Instruction No. 15.35 (modified).
8 It is not necessary for the Government to prove that the
9 defendant was actually successful in obtaining money or property by
10 means of false or fraudulent pretenses, representations, or promises.
11 United States v. Rude, 88 F.3d 1538, 1547 (9th Cir. 1996). “It is
12 not necessary for the Government to prove that anyone lost any money
13 or property as a result of the scheme or plan.” Id. “An
14 unsuccessful scheme to defraud is as illegal as a scheme or plan that
15 is ultimately successful.” Id.
16 The element of materiality is evaluated under an objective test
17 that examines the intrinsic capabilities of the false statement
18 itself. United States v. Lindsey, 850 F.3d 1009, 1014 (9th Cir.
19 2017). To be material a statement need only have the propensity or
20 capacity to influence or affect a decision. Id. “A
21 misrepresentation may be material without inducing any actual
22 reliance. What is important is the intent of the person making the
23 statement that it be in furtherance of some fraudulent purpose.”
24 United States v. Halbert, 640 F.2d 1000, 1009 (9th Cir. 1981)
25 The “interstate” requirement in 18 U.S.C. § 1343 is
26 jurisdictional and not a substantive element of a wire fraud offense.
27 United States v. Jinian, 725 F.3d 954, 965 (9th Cir. 2013). The
28 government is not required to prove a defendant knew his actions had
5
Case 2:20-cr-00229-DSF Document 246 Filed 04/30/24 Page 13 of 28 Page ID #:2677
1 an “interstate nexus” to establish a violation of a statute requiring
2 an “interstate nexus.” Id. Each transmission by wire in interstate
3 commerce to advance, further, or carry out the scheme may be a
4 separate wire fraud count. See United States v. Garlick, 240 F.3d
5 789, 792 (9th Cir. 2001) (“Insofar as we have never expressly held
6 that each use of the wires constitutes a separate violation of 18
7 U.S.C. § 1343, we do so now.”).
8 The Ninth Circuit recently issued a decision in United States v.
9 Milheiser, --- F.4th ----, 2024 WL 1517377 at *7 (9th Cir. Apr. 9,
10 2024), which held that the charged false representation must “go to
11 the nature of the bargain.” In other words, the false representation
12 must be “about something essential to the bargain itself.” Id. at
13 *6. To start, Milheiser is distinguishable from this case because it
14 involved the sale of commodities, not investments. Id. at *1. And
15 “whether a misrepresentation goes to the nature of the bargain may
16 depend on the specific transaction at issue.” Id. at *7. With
17 respect to investment fraud schemes, like this case, the court
18 “rejected the idea that only direct misrepresentations of the price,
19 quality, or advantages of the transaction are material.” Id.
20 (cleaned up) (emphasis added). Instead, materiality in an investment
21 fraud scheme can be satisfied if “[d]efendant’s misrepresentations
22 were designed to give a false impression as to the size and nature of
23 his own company as well as the businesses in which victims were being
24 asked to invest.” Id. (quotation marks omitted). “Because
25 investments are by nature speculative, whether the investment advisor
26 has a large and successful operation will inform the nature of the
27 bargain -- it is relevant information about the value of the
28 investor’s purchase.” Id.
6
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1 Nevertheless, in an abundance of caution, the government
2 believes it is prudent for the court to add a jury instruction that
3 reflects Milheiser and recommends that the Court add the following
4 underlined sentence to Ninth Circuit Model Criminal Jury
5 Instructions, No. 15.35 (2022 ed.): “the statements made as part of
6 the scheme were material; that is, they had a natural tendency to
7 influence, or were capable of influencing, a person to part with
8 money or property, and they directly or indirectly were designed to
9 deceive the person about the nature of the bargain at issue.”
10 IV. STATEMENT OF FACTS 5
11 Defendant Keith Middlebrook is charged with multiple counts of
12 wire fraud in connection with his scheme to fraudulently obtain
13 investment funds for his purported “patent-pending” cure and
14 treatment for COVID-19. (Indict. at 2-5.) Specifically, defendant
15 told potential investors he had incorporated a company to develop and
16 market that cure and treatment, that high-profile individuals served
17 as directors or officers of his company, and that he had already
18 received multiple high-dollar investments in those companies. (Id.
19
5 The defense objects to the Government’s factual basis and
20 proposes the following: Defendant Keith Middlebrook is charged with
eleven counts of wire fraud. He is alleged to have created a
21 fraudulent scheme to obtain investment funds for his purported cure
and treatment for COVID-19. (Indict. at 2-5.) Specifically, it is
22 alleged that defendant knowingly made false representations to
potential investors that the cure and treatment were “patent-
23 pending,” that high-profile individuals served as directors or
officers of his company, and that he had already secured multiple
24 high-dollar investments in the company. (Id. at 2-5.) It is alleged
that the misrepresentations were material and that Defendant made
25 these misrepresentations to potential investors through phone calls,
text messages, and emails. (Id. at 3.) It is further alleged that
26 the defendant solicited money from those potential investors by
providing his bank account information and repeatedly asking them to
27 wire-transfer money into bank accounts he controlled. (Id. at 3-4.)
The defendant denies the allegations.
28
7
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1 at 2-5.) These representations to investors were lies. (Id.)
2 Defendant fraudulently made these material misrepresentations to
3 potential investors through phone calls, text messages, and emails.
4 (Id. at 3.) And he solicited money from those potential victim-
5 investors by providing his bank account information and repeatedly
6 asking them to wire-transfer money into bank accounts he controlled.
7 (Id. at 3-4.)
8 V. LEGAL AND EVIDENTIARY ISSUES 6
9 A. Authentication and Foundation
10 Federal Rule of Evidence 901(a) provides that “[t]he requirement
11 of authentication or identification as a condition precedent to
12 admissibility is satisfied by evidence sufficient to support a
13 finding that the matter in question is what its proponent claims.”
14 Under Rule 901(a), evidence should be admitted, despite any
15 challenge, once the government makes a prima facie showing of
16 authenticity or identification so “that a reasonable juror could find
17 in favor of authenticity or identification . . . [because] the
18 probative force of the evidence offered is, ultimately, an issue for
19 the jury.” United States v. Chu Kong Yin, 935 F.2d 990, 996 (9th
20 Cir. 1991) (citations and internal quotation marks omitted); see also
21 United States v. Gadson, 763 F.3d 1189, 1204 (9th Cir. 2014).
22 B. Expert Opinion Testimony
23 A qualified expert witness may provide opinion testimony on a
24 fact at issue if specialized knowledge will assist the trier of fact.
25 Fed. R. Evid. 702. The Court has broad discretion to determine
26
27 6The defense reserves the right to object to the evidence
presented at trial as long as it not precluded by the Court’s ruling
28 on the parties’ motions in limine. The defense’s comments in this
trial memo are not a waiver of that right.
8
Case 2:20-cr-00229-DSF Document 246 Filed 04/30/24 Page 16 of 28 Page ID #:2680
1 whether to admit expert testimony. United States v. Andersson, 813
2 F.2d 1450, 1458 (9th Cir. 1987). Expert opinion may be based on
3 hearsay or facts not in evidence, where the facts or data relied upon
4 are of the type reasonably relied upon by experts in the field. Fed.
5 R. Evid. 703.
6 The government has timely designated and intends to call two
7 experts at trial: (1) Dr. Suzanne Donovan 7 and (2) DEA Senior
8 Forensic Chemist Monica S. Price. The government has noticed their
9 testimony as expert testimony, and has provided defense counsel
10 summaries of their expected testimony. Both are qualified as experts
11 to testify and provide their expert opinions.
12 Dr. Donovan will testify about her experience treating COVID-19
13 patients in March 2020; that the words “cure” and “treatment” have a
14 technical meaning; that in March 2020 there were no cures or FDA-
15 approved treatments for COVID-19; and that Vitamin C, Niacinamide
16 (Vitamin B3), Oxandrolone, Oxymetholone, and Vitamin D were not
17 identified as treatments or cures for COVID-19 in March 2020.
18 Senior Forensic Chemist Price will testify regarding her lab’s
19 chain of custody practices, the methodology she employed to test
20 certain pills recovered from defendant, and the results of her
21 chemical analysis of said pills, including the identification of
22 Oxandrolone, Oxymetholone, and Niacinamide.
23 The government should be permitted to introduce expert opinion
24 testimony from both experts. This testimony will assist the trier of
25 fact in understanding the evidence and determining facts at issue.
26 C. Lay Law Enforcement Testimony
27
28 7The defense objects to the testimony of Dr. Donovan as
outlined in its motion in limine.
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1 Federal Rule of Evidence 701 “permits a lay witness to give
2 opinion testimony as long as the opinion is (a) rationally based on
3 the perception of the witness and (b) helpful to a clear
4 understanding of the witness’s testimony or the determination of a
5 fact in issue.” United States v. Pino-Noriega, 189 F.3d 1089, 1097
6 (9th Cir. 1999) (quotation marks omitted). Lay opinion testimony by
7 law enforcement officers is admissible and not necessarily expert
8 testimony within the meaning of Rule 16(a)(1)(G). See United States
9 v. VonWillie, 59 F.3d 922, 929 (9th Cir. 1995); see also United
10 States v. Barragan, 871 F.3d 689, 703-704 (9th Cir. 2017); Gadson,
11 763 F.3d at 1209 (“[A]n investigator who has accumulated months or
12 even years of experience with the events, places, and individuals
13 involved in an investigation necessarily draws on that knowledge when
14 testifying; indeed, it is those out-of-court experiences that make
15 the witness’s testimony helpful to the jury.”). Rule 16 notice is
16 not required for lay witnesses. United States v. Moreno, 243 F.3d
17 551 (9th Cir. 2000) (“Rule 16 notice was not required, however,
18 because this testimony was properly admitted as the opinion of
19 a lay witness.”). The remaining witnesses are testifying as lay
20 witnesses.
21 The government intends to call FBI Forensic Examiner Andrew Y.
22 Jaung, who will testify that he connected defendant’s cellphone to a
23 extraction device, used software to extract data into reports, and
24 sent those other FBI agents who conducted a review of the phone data.
25 The Ninth Circuit recently concluded that such testimony is not
26 expert testimony. United States v. Jimenez-Chaidez, 96 F.4th 1257,
27 1267 (9th Cir. 2024) (holding that agent’s testimony about the
28 extracted data from a cell phone was not expert opinion testimony,
10
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1 and to the extent it was, it was based on his perception and not
2 specialized knowledge).
3 D. Defendant’s Statements 8
4 The government intends to offer prior, audio-recorded statements
5 made by the defendant to an undercover FBI agent, text messages that
6 the defendant sent to potential investors, and videos that the
7 defendant distributed to potential investors and uploaded to his
8 social media platforms. Under the Federal Rules of Evidence,
9 defendant’s statements are admissible as a party admission if offered
10 against them. Fed. R. Evid. 801(d)(2)(A); see also United States v.
11 Warren, 25 F.3d 890, 895 (9th Cir. 1994); Territory of Guam v. Ojeda,
12 758 F.2d 403, 408 (9th Cir. 1985) (explaining that a statement need
13 not be incriminating to be an admission). Defendants may not,
14 however, elicit their own prior statements from a witness (including
15 themselves), because they are hearsay when offered by them. Fed. R.
16 Evid. 801(d)(2); United States v. Ortega, 203 F.3d 675, 682 (9th Cir.
17 2000); United States v. Willis, 759 F.2d 1486, 1501 (11th Cir. 1985)
18 (defendant’s exculpatory statements inadmissible when offered by
19 defense). By eliciting some of defendant’s prior statements, the
20 government does not thereby open the door to defendant to introduce
21 other out-of-court statements.
22 The only potential limitation on this principle is the “rule of
23 completeness,” Fed. R. Evid. 106, which has been applied by some
24 courts to require that all of a particular prior statement by
25
26 8 While the defense acknowledges that Mr. Middlebrook’s
statements are admissible as a party admission, the statements of the
27 other individuals heard on the audio recordings are not and are
inadmissible hearsay.
28
11
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1 defendant be admitted where necessary to explain the admitted portion
2 of the statement, to place it in context, or to avoid misleading the
3 jury. United States v. Marin, 669 F.2d 73, 84 (2d Cir. 1982). “The
4 completeness doctrine does not, however, require introduction of
5 portions of a statement that are neither explanatory of nor relevant
6 to the admitted passages.” Id. at 84. The rule of completeness also
7 does not apply to conversations that are not written or recorded.
8 See United States v. Collicott, 92 F.3d 973, 983 (9th Cir. 1996).
9 E. Cross-Examination of Defendant
10 The government is unaware whether defendant intends to testify
11 at trial. If defendant does testify, the government should be
12 permitted to fully cross-examine him. A defendant who testifies at
13 trial waives his right against self-incrimination and subjects
14 himself to cross-examination concerning all matters reasonably
15 related to the subject matter of his testimony. See, e.g., Ohler v.
16 United States, 529 U.S. 753, 759 (2000) (“It has long been held that
17 a defendant who takes the stand in his own behalf cannot then claim
18 the privilege against cross-examination on matters reasonably related
19 to the subject matter of his direct examination.”). A defendant has
20 no right to avoid cross-examination on matters that call into
21 question his claim of innocence. United States v. Miranda-Uriarte,
22 649 F.2d 1345, 1353-54 (9th Cir. 1981). The scope of a defendant’s
23 waiver is co-extensive with the scope of relevant cross-examination.
24 United States v. Cuozzo, 962 F.2d 945, 948 (9th Cir. 1992); United
25 States v. Black, 767 F.2d 1334, 1341 (9th Cir. 1985) (“What the
26 defendant actually discusses on direct does not determine the extent
27 of permissible cross-examination or his waiver. Rather, the inquiry
28 is whether ‘the government’s questions are reasonably related’ to the
12
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1 subjects covered by the defendant’s testimony.”).
2 F. Recordings, Photographic Evidence, and Transcripts 9
3 The government intends to introduce video and audio recordings
4 of defendant’s statements, and photographs. A recording is
5 admissible upon a showing that it is “accurate, authentic, and
6 generally trustworthy.” United States v. King, 587 F.2d 956, 961
7 (9th Cir. 1978). The government need not necessarily call a specific
8 witness to admit a particular video or photograph. Rule 901(a)
9 simply requires that a proponent of evidence make a prima facie
10 showing of authenticity so that a reasonable juror could find “that
11 the item is what the proponent claims it is.” Fed. R. Evid. 901(a).
12 Similarly, photographs are generally admissible as evidence. See
13 United States v. Stearns, 550 F.2d 1167, 1171 (9th Cir. 1977)
14 (photographs of crime scene admissible). Photographs should be
15 admitted so long as they fairly and accurately represent the event or
16 object in question. United States v. Oaxaca, 569 F.2d 518, 525 (9th
17 Cir. 1978). Photographs may be authenticated by a witness who
18 “identif[ies] the scene itself [in the photograph] and its
19 coordinates in time and place.” See Lucero v. Stewart, 892 F.2d 52,
20 55 (9th Cir. 1989) (internal quotation marks omitted).
21 Here, the government has identified certain video and audio
22 recordings that it intends to introduce at trial. These include
23 videos and audio recordings of Investigator Sean Sterle speaking and
24 meeting with defendant. These recordings may be authenticated by
25
26 9 While the defense acknowledges that Mr. Middlebrook’s
statements are admissible as a party admission, the statements of the
27 other individuals heard on the audio recordings are not and are
inadmissible hearsay.
28
13
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1 Investigator Sterle who was present for the recorded conversations.
2 In addition, the recordings may be authenticated by Special Agent
3 MacDonald who has repeatedly reviewed the video and audio recordings
4 taken in this case. The government has also identified video
5 recordings that the defendant sent to potential investors and
6 uploaded to his social media platforms. The recordings that the
7 defendant sent to potential investors can be authenticated by the
8 potential investors who received the videos. Furthermore, Special
9 Agent MacDonald can authenticate both the video recordings that the
10 defendant sent to potential investors and the videos that the
11 defendant uploaded to his social media platforms because she has
12 repeatedly reviewed the videos. These witnesses have personal
13 knowledge and familiarity of the items depicted on the audio and
14 video recordings and thus can authenticate them.
15 In addition, the government has prepared transcripts to serve as
16 an aid to the jury while listening to those recordings. Transcripts
17 will be displayed on the monitors synced with the playing
18 audio/video. The government does not intend to provide physical
19 transcripts to the jury. The government has provided all of the
20 current transcripts it intends to present at trial to defendant. 10
21 The government has currently received no objections to its proposed
22 transcripts. Because the conversations occurred entirely in English,
23 the underlying recordings, and not the transcripts, constitute the
24
25
26 To the extent, the government needs to prepare additional
10
transcripts, it will do so immediately and disclose them to the
27 defense. And while defendant has not identified any objections to
the transcripts, the government will continue to meet and confer with
28 the defense to ensure the transcripts are accurate when presented to
the jury.
14
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1 admissible evidence. See United States v. Turner, 528 F.2d 143, 167
2 (9th Cir. 1975).
3 G. Character Evidence 11
4 Defense counsel has not indicated whether defendant will be
5 calling character witnesses to testify on his behalf. Nevertheless,
6 the Supreme Court has recognized that character evidence --
7 particularly cumulative character evidence -- has weak probative
8 value and great potential to result in confusion of the issues and
9 prejudice the jury. Michelson v. United States, 335 U.S. 469, 480,
10 486 (1948). The Court has thus given trial courts wide discretion to
11 limit the presentation of character evidence. Id. at 486. Federal
12 Rule of Evidence 403 also “gives the district court broad discretion
13 in excluding cumulative evidence.” See Hamling v. United States, 418
14 U.S. 87, 127 (1974). Federal Rule of Evidence 404(a) governs the
15 admissibility of character evidence. Rule 404(a) permits a defendant
16
17 11 The defense objects to the government eliciting character
evidence from the potential investors as it would run afoul to its
18 representation to the Court that it will not address the 2014 federal
case and/or Mr. Middlebrook’s credit-cleaning business in its case
19 and chief. The government has indicated it may introduce character
evidence regarding Mr. Middlebrook’s reputation for truthful or
20 untruthfulness pursuant to Rule 608. However, doing so runs afoul to
the government’s indication that it “will not offer during direct
21 examination of tis witnesses any evidence of the defendant’s ‘credit
cleaning’ scheme as charged in the Southern District of California in
22 United States v. Keith Lawrence Middlebrook, Case No. 3:14-cr-2950-H
(the ‘2014 Case’).” Based on the discovery produced by the
23 government, the defense believes that the character evidence elicited
from the potential investors will be intrinsically linked to the 2014
24 case. For example, according to an FBI 302 report produced in
discovery (produced at USAO_00016840), alleged potential investor
25 W.J. stated that he “did not trust Middlebrook as a businessman due
to his previous problems and run ins with the FBI and the AUSA.”
26 Therefore, allowing the government to elicit character evidence from
the potential investors would preclude the defense from challenging
27 the reputation and opinion evidence without opening the door to the
2014 case.
28
15
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1 to introduce evidence only of a “pertinent” trait of character. A
2 non-pertinent or misleading character trait is not admissible. See
3 United States v. Santana-Camacho, 931 F.2d 966, 967-68 (1st Cir.
4 1991) (testimony of defendant’s daughter purportedly showing that
5 defendant was a good family man inadmissible character evidence
6 inasmuch as such character traits were not pertinent to charged
7 crime). As a general rule, character witnesses called by defendant
8 may not testify about specific acts demonstrating a particular trait
9 or other information acquired only by personal observation and
10 interaction with the defendant; the witness must summarize the
11 reputation or opinion of the defendant as known in the community.
12 Fed. R. Evid. 405(a); Michelson, 335 U.S. at 477; United States v.
13 Hedgcorth, 873 F.2d 1307, 1313 (9th Cir. 1989). On cross-examination
14 of a defendant’s character witness, however, the government may
15 inquire into specific instances of defendant’s past conduct relevant
16 to the character trait at issue. Fed. R. Evid. 405(a). For example,
17 a defendant’s character witnesses may be cross-examined about their
18 knowledge of the defendant’s past crimes, wrongful acts, and arrests.
19 Michelson, 335 U.S. at 479, 481 n.18. The only prerequisites are
20 that: (1) there be a good-faith basis that the incidents inquired
21 about occurred; and (2) the incidents are relevant to the character
22 trait at issue. United States v. McCollom, 664 F.2d 56, 58 (5th Cir.
23 1981); United States v. Bright, 588 F.2d 504, 512 (5th Cir. 1979).
24 The government may, however, introduce character witnesses who
25 can testify as to defendants’ character for truthfulness or
26 untruthfulness in the form of reputation or opinion evidence. Fed.
27 R. Evid. 608(a).
28
16
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1 H. Business Records
2 Federal Rule of Evidence 902(11) provides that certified
3 domestic records of regularly conducted activities can be self-
4 authenticating and may therefore be admitted under Rule 803(6),
5 provided certain requirements are met. See Fed. R. Evid. 902(11).
6 This Court has already granted several of the government’s motions in
7 limine to admit certain business records, subject to a determination
8 of relevance. (See, supra Section II.G.) The government reserves
9 the right to introduce additional documents, if necessary, through
10 the business records exception.
11 I. Use of Exhibits During Opening Statement
12 Exhibits may be used by the government in the opening statement,
13 and so long as the opening statement “avoids references to matters
14 that cannot be proved or would be inadmissible, there can be no
15 error, much less prejudicial error.” United States v. De Peri, 778
16 F.2d 963, 979 (3d Cir. 1985); see also United States v. Rubino, 431
17 F.2d 284, 290 (6th Cir. 1970). The government intends to notify
18 defendant regarding which, if any, exhibits it intends to use during
19 its opening statement, so long as defendant agrees to do so as well.
20 The government expects to meet and confer with defendant on an
21 appropriate deadline to identify such documents.
22 J. Summary Witnesses
23 This case involves a large number of documents, in particular,
24 financial records. To assist in the jury’s understanding of the
25 case, the government intends to offer into evidence charts and
26 summaries of those materials under Federal Rule of Evidence 1006.
27 The government may have summary witnesses testify about, and use
28 these charts to summarize, evidence that has already been admitted.
17
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1 The Court and jury are entitled to have a witness “organize and
2 evaluate evidence [that] is factually complex and fragmentally
3 revealed.” United States v. Shirley, 884 F.2d 1130, 1133-34 (9th
4 Cir. 1989) (DEA agent’s testimony regarding her review of various
5 telephone records, rental receipts, and other previously offered
6 testimony held to be proper summary evidence, as it helped jury
7 organize and evaluate evidence; summary charts properly admitted);
8 United States v. Lemire, 720 F.2d 1327, 1348 (D.C. Cir. 1983)
9 (“[J]ust as an expert can assist a jury by imparting special
10 knowledge that helps the jury to understand technical evidence, a
11 non-expert summary witness can help the jury organize and evaluate
12 evidence which is factually complex and fragmentally revealed in the
13 testimony of a multitude of witnesses throughout the trial.”).
14 A summary witness may rely on the analysis of others where the
15 summary witness has sufficient experience to judge another person's
16 work and incorporate as his or her own the fact of the witness’s
17 expertise. The use of other persons in the preparation of summary
18 evidence goes to its weight, not its admissibility. See United
19 States v. Soulard, 730 F.2d 1292, 1299 (9th Cir. 1984); Diamond
20 Shamrock Corp. v. Lumbermens Mut. Cas. Co., 466 F.2d 722, 727 (7th
21 Cir. 1972) (“It is not necessary . . . that every person who assisted
22 in the preparation of the original records or the summaries be
23 brought to the witness stand.”).
24 K. Calling Witnesses For Impeachment
25 Federal Rule of Evidence 607 provides that “[a]ny party,
26 including the party that called the witness, may attack the witness’s
27 credibility.” Yet, a party may not call a witness in its case-in-
28 chief as a pretext for impeaching that witness’ credibility and thus
18
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1 present to the jury evidence that would be inadmissible but for the
2 impeachment. See United States v. Johnson, 802 F.2d 1459, 1466 (D.C.
3 Cir. 1986) (“Impeachment evidence is to be used solely for the
4 purpose of impeachment, and it may not be used as a mere subterfuge
5 to get before the jury evidence not otherwise admissible.” (internal
6 quotations omitted); see also United States v. Gomez-Gallardo, 915
7 F.2d 553, 555 (9th Cir. 1990) (holding that the government improperly
8 called a witness “for the primary purpose of impeaching him”); United
9 States v. Crouch, 731 F.2d 621, 623 (9th Cir. 1984) (“[T]he maximum
10 legitimate effect of the impeaching testimony can never be more than
11 the cancellation of the adverse answer by which the party is
12 surprised.”) (internal quotations omitted).
13 The exception to Rule 607 authorizes the Court to preclude the
14 defense from calling a witness for the purpose of impeaching him, or
15 impeaching its own witnesses. See, e.g., United States v. Libby, 475
16 F. Supp. 2d 73, 80-84 (D.D.C. 2007) (barring the defense from
17 impeaching its witness on hearsay statements); see also United States
18 v. Lattin, 108 F.3d 1374 (4th Cir. 1997)(affirming district court
19 order prohibiting defense from calling a witness on the ground that,
20 “[w]hile a party may impeach its own witness, the district court did
21 not abuse its discretion here because the Government did not call
22 [the witness] to testify”) (citation omitted); see also Beasly v.
23 United States, 218 F.2d 366, 408 (D.C. Cir. 1955) (“The defense may
24 not call a witness who has not testified merely to attempt to
25 discredit him in the course of eliciting adverse testimony[.]”).
26 Here the defense has subpoenaed three FBI SAs: (1) Madison
27 MacDonald; (2) Jamila McKnight; (3) Lynn Zellhart. The defense should
28
19
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1 not be permitted to call these witnesses for the purpose of
2 impeaching them.
3 L. Affirmative Defenses
4 Defendants have not given notice of their intent to rely on any
5 defense of entrapment, mental incapacity, alibi, or any other
6 affirmative defense, despite the government’s request for such notice
7 of intent. Therefore, to the extent defendants may attempt to rely
8 on such a defense, the government reserves the right to object and to
9 move to preclude defendants from asserting such a defense.
10 M. Jury Nullification
11 The government reserves the right to object to any evidence
12 and/or argument relating to any possible jury nullification defense,
13 including concerning punishment or monetary loss. A defendant has no
14 right to present evidence relevant only to such a defense. United
15 States v. Powell, 955 F.2d 1206, 1213 (9th Cir. 1992); Zal v. Steppe,
16 968 F.2d 924, 930 (9th Cir. 1992) (Trott, J., concurring) (“[N]either
17 a defendant nor his attorney has a right to present to a jury
18 evidence that is irrelevant to a legal defense to, or an element of,
19 the crime charged.” (emphasis in original)).
20 N. Reciprocal Discovery
21 Rule 16 requires defendant to produce to the government three
22 categories of materials that he intends to introduce as evidence at
23 trial: (1) documents and tangible objects; (2) reports of any
24 examinations or tests; and (3) expert witness disclosures. Fed. R.
25 Crim. P. 16(b)(1). Rule 16 imposes on defendants a continuing duty
26 to disclose these categories of materials. Fed. R. Crim. P. 16(c).
27 In those circumstances where a party fails to produce discovery as
28 required by Rule 16, the rule empowers the district court to
20
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1 “prohibit the party from introducing evidence not disclosed, or it
2 may enter such other order as it deems just under the circumstances.”
3 Fed. R. Crim. P. 16(d)(2)(C), (D).
4 Defendant has produced some reciprocal discovery. To the extent
5 that there exists reciprocal discovery to which the government is
6 entitled under Federal Rules of Criminal Procedure 12.1, 12.2, 16(b),
7 or 26.2 that defendant has not produced, the government reserves the
8 right to seek to have such materials excluded at trial. See United
9 States v. Young, 248 F.3d 260, 269-70 (4th Cir. 2001) (upholding
10 exclusion under Rule 16 of audiotape evidence defendant did not
11 produce in pretrial discovery where defendant sought to introduce
12 audiotape on cross-examination of government witness not for
13 impeachment purposes, but as substantive “evidence in chief” that
14 someone else committed the crime).
15 VI. CONCLUSION
16 The government respectfully reserves the right to supplement or
17 modify this Trial Memorandum as may be appropriate.
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