Michael Capps, Theory of Prosecutorial Misconduct (D. Kan., Dkt. 321-2, filed 02/24/26)

Summary

Doc. 321-2 in Case 6:21-cr-10073-EFM (D. Kan.), filed February 24, 2026, is an e-mail dated May 31, 2023 from Michael Capps with the subject "Capps / Theory of Prosecutorial Misconduct", sent to an addressee with the trial transcript of direct and cross testimony attached. It forwards a May 2, 2023 message from Michael Capps to Kurt Kerns that sets out page and line references to the testimony, including a jury question about applying for a grant for a company being closed. The forwarded message states that it seems this would rise to prosecutorial misconduct, and says that Capps was acquitted on all loan issues pertaining to Midwest Business Group.

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Case 6:21-cr-10073-EFM Document 321-2 Filed 02/24/26 Page1of1

From: Michael Capps cappsm@me.com @
Subject: Capps / Theory of Prosecutorial Misconduct
Date: May 31, 2023 at 7:32PM :
To: jacob_rasch-chabot@fd.org

Attached is the trial transcript containing my direct/cross testimony. The below theory was provided to Kurt previously - we didn’t break it down
entirely, but there was enough in Kurt's opinion on the surface, he included it in his draft Motion for Release as an allegation of misconduct.

Begin forwarded message:

From: Michael Capps <cappsm@gmail.com>
Subject: Theory of Prosecutorial Misconduct
Date: May 2, 2023 at 2:33:43 PM CDT

To: Kurt Kerns <kurtpkerns@aol.com>

Follow along with me if you will - attached is the full transcription of my testimony, as you provided earlier, | will reference page and line
numbers:

Background:

Page 80-83

Metzger presents me with a letter sent to you regarding discovery materials and things he claims we didn’t submit

| continuously assert no knowledge

On Page 83, Line 6 - Judge admonishes Metzger regarding not asking me about a document I have no knowledge of - without foundation
Issue:

Page 97, Line 21 - Asked about a recalling a order in aid hearing in August 2020

Line 25 - | do not recall

Page 98, Line 9 - Directed to reference page 12 of a document Metzger handed me
Line 10 - Mr. Metzger, I’ver never seen this document before

Continues pushing in Line 11/12 - asks again to turn to page 12

| respond again, I’m still telling you I’ve never seen this before

You can continue to read this page yourself, no need for me to cut/paste

| continue to assert no knowledge of the document 2 more times, then he instructs me to read from the document, out loud
| assert never seeing the document a fourth time

He then proceeds to ask me questions about dissolution of the companies based on the required reading from a document without
foundation in evidence

Now move on to Page 123, Lin 10 - jury questions “Why would you apply for a grant for a company you were closing.”

This is directly tied to the forced reading of a document not in evidence and shows a juror was impacted by Metzger’s misconduct at some
level

Further - | was acquitted on all loan issues pertaining to Midwest Business Group - not Krivacy - which was specifically pushed by Metzger

Is this a reach - it seems this would rise to prosecutorial misconduct as | was essentially coerced into reading from a document | had
repeatedly denied knowledge of, statements which were prejudicial and is demonstrated by a juror question to the same


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