United States' Motions in Limine — United States v. Mark Schena (N.D. Cal., Dkt. 107, March 25, 2022)

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United States' Motions in Limine, Document 107, filed March 25, 2022, in United States v. Mark Schena, No. 20-CR-00425 EJD, in the U.S. District Court for the Northern District of California, San Francisco Division. The caption lists a trial date of May 10, 2022. The table of contents lists sections asking that the defendant be precluded from offering evidence of any legitimate medical billing or other good conduct as a defense to the charges in the Superseding Indictment, and that the defendant not be allowed to reference punishment to the jury. It also lists a section on statements of the defendant's co-conspirators. The conclusion asks the Court to rule as set forth above if and when the issues arise; the signature blocks name Justin D. Weitz, Jacob Foster, Laura Connelly and Lloyd Farnham.

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“United States' Motions in Limine — United States v. Mark Schena (N.D. Cal., Dkt. 107, March 25, 2022).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-n-d-cal-no-5-20-cr-00425-dkt-107-n-d-cal-f0f74eeacc/, SHA-256 f101eb07b55985052f5ac553deb04f434ebcb0753b757c966a656bc28bc1ad3a.

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Case 5:20-cr-00425-EJD Document 107 Filed 03/25/22 Page 1 of 20

1 STEPHANIE M. HINDS (CABN 154284)
United States Attorney
2
THOMAS A. COLTHURST (CABN 99493)
3 Chief, Criminal Division

4 JUSTIN D. WEITZ (NYBN 5027966)
JACOB FOSTER (CABN 250785)
5 Assistant Chiefs, Fraud Section
LAURA CONNELLY (DCBN 241537)
6
Trial Attorney, Fraud Section
7
U.S. Department of Justice, Fraud Section
8 1400 New York Avenue NW
Washington, DC 20005
9 Telephone: 202-262-3520
Justin.Weitz@usdoj.gov
10 Jacob.Foster@usdoj.gov
11 Laura.Connelly@usdoj.gov

12 LLOYD FARNHAM (CABN 202231)
Assistant United States Attorney
13
450 Golden Gate Avenue, Box 36055
14 San Francisco, CA 94102-3495
Telephone: (415) 436-7200
15 lloyd.farnham@usdoj.gov

16 Attorneys for United States of America

17 UNITED STATES DISTRICT COURT

18 NORTHERN DISTRICT OF CALIFORNIA

19 SAN FRANCISCO DIVISION

20
UNITED STATES OF AMERICA, ) No. 20-CR-00425 EJD
21 )
Plaintiff, )
22 ) UNITED STATES’ MOTIONS IN LIMINE
v. )
23 )
MARK SCHENA, ) Trial Date: May 10, 2022
24 )
Defendant. )
25 )
)
26

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1 TABLE OF CONTENTS

2 I. INTRODUCTION ...........................................................................................................................7

3 II. FACTUAL BACKGROUND ..........................................................................................................7

4 III. DISCUSSION ..................................................................................................................................8

5 A. The Defendant Should be Precluded from Offering Evidence of Any
Legitimate Medical Billing or Other Good Conduct as a Defense to the
6 Charges in the Superseding Indictment ...............................................................................8

7 B. The Defendant Should Be Precluded From Blaming Medicare or Other
Insurance Providers For His Fraud ....................................................................................10
8
C. The Government Should Be Allowed to Introduce Statements of The
9 Defendant’s Co-Conspirators.............................................................................................11

10 D. The Defendant Should Not Be Allowed to Reference Punishment to the Jury...................13

11 E. The Court Should Exclude Any Out-of-Court Statements Made by the
Defendant If Offered To Prove the Truth of the Matter Asserted .....................................14
12
F. The Court Should Preclude The Use of Law Enforcement Agent Interview
13 Reports or Rough Notes for Impeachment of Government Witnesses ..............................15

14 1. Interview Reports Are Not Statements of the Witness Under the Jencks
Act ..........................................................................................................................15
15
2. Proper Use of the Reports at Trial .........................................................................16
16
G. Other Evidentiary Issues .....................................................................................................17
17
1. Argument That Encourages Jurors To Ignore The Law, Not Follow
18 This Court’s Instructions, or Otherwise Violate Their Oaths As Jurors ................18

19 2. Which Other persons Have, or Have Not, Been Charged In This or
Other Cases ............................................................................................................18
20
IV. CONCLUSION ..............................................................................................................................20
21

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1 TABLE OF AUTHORITIES

2 Cases Page(s)
3 Bourjaily v. United States,
483 U.S. 171 (1987) ......................................................................................................... 12, 13
4
Goldberg v. United States,
5
425 U.S. 94 (1976) ................................................................................................................. 16
6
Herzog v. United States,
7 226 F.2d 561 (9th Cir. 1955) .................................................................................................... 9

8 Huitron v. Finn,
2003 WL 22159060 (N.D. Cal. Sept. 15, 2003) ...................................................................... 18
9
Merced v. McGrath,
10 426 F.3d 1076 (9th Cir. 2005) ................................................................................................ 18

11 Palermo v. United States,
360 U.S. 343 (1959) .......................................................................................................... 15, 16
12
Pope v. United States,
13 298 F.2d 507 (5th Cir. 1962) .................................................................................................. 13
14 Rogers v. United States,
422 U.S. 35 (1975) ................................................................................................................. 14
15
Shannon v. United States,
16 512 U.S. 573 (1994) ............................................................................................................... 14
17 United States v. Brewer,

18 947 F.2d 404 (9th Cir. 1991) .................................................................................................. 13

19 United States v. Brika,
416 F.3d 514 (6th Cir. 2005) .................................................................................................. 17
20
United States v. Carneglia,
21 2009 U.S. Dist. LEXIS 8450 (E.D.N.Y. Jan. 27, 2009) ......................................................... 18

22 United States v. Claiborne,
765 F.2d 784 (9th Cir.1985) ................................................................................................... 17
23
United States v. Collicott,
24 92 F.3d 973 (9th Cir. 1996) .................................................................................................... 15
25 United States v. Colton,
231 F.3d 890 (4th Cir. 2000) .................................................................................................. 11
26
United States v. Diaz,
27 961 F.2d 1417 (9th Cir. 1992) ................................................................................................ 10
28

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1 United States v. Dimora,
750 F.3d 619 (6th Cir. 2014) .....................................................................................................9
2
United States v. Ellis,
3 2020 WL 1676772 (D. Nev. Apr. 6, 2020) ............................................................................. 18
4 United States v. Ellison,
704 F. App’x 616 (9th Cir. 2017) ........................................................................................... 10
5
United States v. Ellisor,
6
522 F.3d 1255 (11th Cir. 2008) ................................................................................................ 9
7
United States v. Fernandez,
8 839 F.2d 639 (9th Cir. 1988) ................................................................................................... 15

9 United States v. Frank,
956 F.2d 872 (9th Cir. 1992) ............................................................................................ 13, 14
10
United States v. Hill,
11 526 F.2d 1019 (10th Cir. 1975) .............................................................................................. 17

12 United States v. Inadi,
475 U.S. 387 (1986) ............................................................................................................... 11
13
United States v. King,
14 472 F.2d 1 (9th Cir. 1972) ...................................................................................................... 12
15 United States v. Kot,
2012 WL 1657118 (D. Nev. May 10, 2012) .......................................................................... 17
16
United States v. Lara,
17 2018 WL 1225204 (E.D. Calif. 2018) ...................................................................................... 9
18 United States v. Larch,
19 399 F. App’x 50 (6th Cir. 2010) ............................................................................................. 18

20 United States v. Layton,
720 F.2d 548 (9th Cir. 1983) .................................................................................................. 11
21
United States v. Leonardi,
22 623 F.2d 746 (2d Cir.1980) .................................................................................................... 17

23 United States v. Lindsey,
850 F.3d 1009 (9th Cir. 2017) ................................................................................................ 10
24
United States v. Lynch,
25 903 F.3d 1061 (9th Cir. 2018) ................................................................................................ 18
26 United States v. Marrero,
904 F.2d 215 (5th Cir. 1990) .................................................................................................... 9
27
United States v. Ortega,
28 203 F.3d 675 (9th Cir. 2000) ............................................................................................ 14, 15
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1 United States v. Palamarchuk,
791 F. App’x 658 (9th Cir. 2019) ........................................................................................... 11
2
United States v. Paris,
3 827 F.2d 395 (9th Cir. 1987) .................................................................................................. 12
4 United States v. Powell,
955 F.2d 1206 (9th Cir. 1991) ................................................................................................ 18
5
United States v. Powell,
6
982 F.2d 1422 (10th Cir. 1992) .............................................................................................. 12
7
United States v. Re,
8 401 F.3d 828 (7th Cir. 2005) .................................................................................................. 19

9 United States v. Reed,
726 F.2d 570 (9th Cir. 1984) .................................................................................................. 14
10
United States v. Scarpa,
11 897 F.2d 63 (2d Cir. 1975) ....................................................................................................... 9

12 United States v. Simpson,
460 F.2d 515 (9th Cir.1972) ................................................................................................... 18
13
United States v. Svete,
14 556 F.3d 1157 (11th Cir. 2009) ............................................................................................... 11
15 United States v. Thomas,
116 F.3d 606 (2d Cir. 1997) ................................................................................................... 18
16
United States v. Thompson,
17 253 F.3d 700 (5th Cir. 2001) .................................................................................................. 19
18 United States v. Tones,
19 759 F. App’x 579 (9th Cir. 2018) ........................................................................................... 17

20 United States v. Torres,
908 F.2d 1417 (9th Cir. 1990) ................................................................................................ 12
21
United States v. Williams,
22 989 F.2d 1061 (9th Cir. 1993) ................................................................................................ 12

23 United States v. Winograd,
656 F.2d 279 (7th Cir. 1981) .................................................................................................... 9
24
United States v. Yarborough,
25 852 F.2d 1522 (9th Cir. 1988) ................................................................................................ 12
26 United States v. Zavala-Serra,
853 F.2d 1512 (9th Cir. 1988) ................................................................................................ 12
27

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1 Other

2 Fed. R. Evid. 104 ................................................................................................................... 12, 13
Fed. R. Evid. 106 ................................................................................................................... 14, 15
3
Fed. R. Evid. 404 ..................................................................................................................... 9, 10
4 Fed. R. Evid. 613 ......................................................................................................................... 16

5 Fed. R. Evid. 801 ....................................................................................................... 11, 12, 13, 14
18 U.S.C. § 3500 .......................................................................................................................... 15
6

18
19

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1 I. INTRODUCTION

2 The Government respectfully submits the following motions in limine for the Court’s

3 consideration seeking: (1) to preclude evidence of any legitimate medical billing or other good conduct;

4 (2) to preclude evidence and argument blaming the victims of his fraud; (3) to allow the Government to

5 introduce co-conspirator statements pursuant to Fed. R. Evid. 801(d)(2)(E); (4) to preclude reference by

6 the defense to punishment; (5) to preclude the defendant from introducing his own statements; (6) to

7 preclude the use of law enforcement agent interview reports or notes for impeachment purposes; (7) to

8 preclude the defense from arguments and evidence about jury nullification and the Government’s

9 decisions related to other persons who have or have not been charged in this case.

10 The Government would respectfully request the opportunity to supplement these motions in

11 limine in case any additional legal issues requiring the Court’s intervention arise. Likewise, because the

12 defendant has not yet provided any reciprocal discovery as required under Fed. R. Crim. P. 16(b), the

13 Government would also request the opportunity to supplement these motions in limine to address any

14 issues triggered by the defense.

15 II. FACTUAL BACKGROUND

16 Mark Schena (“the defendant”), the president of Arrayit Corporation (“Arrayit”), is charged in a

17 superseding indictment with a scheme commit health care fraud, securities fraud, and to offer and pay

18 illegal kickbacks. Arrayit was a publicly traded medical technology company based in Sunnyvale,
19 California that claimed to employ “microarray technology” for allergy and COVID-19 testing that

20 allows for laboratory testing based on a finger-prick drop of blood that is placed on a paper card and sent

21 by mail to Arrayit’s laboratory. Schena and others were involved in a conspiracy to submit false and

22 fraudulent allergy test claims to the Medicare Program, Medicaid Program, TRICARE program, and

23 private health insurance companies. The superseding indictment alleges that this conspiracy involved,

24 inter alia: (i) the submission of claims for services that were procured through the payment of kickbacks

25 and bribes; (ii) patients receiving medically unnecessary treatment; (iii) services that were not eligible

26 for reimbursement; and (iv) services that were not provided as represented.

27 Prior to 2018, Arrayit offered its microarray technology for sale to third parties. In 2018, Arrayit

28 pivoted to billing insurance for allergy testing that it conducted. Though Medicare’s rules and

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1 regulations limit blood-based allergy testing to situations where skin testing is not possible or not

2 reliable (such as where patients have severe skin conditions) and the number of allergens tested for must

3 be reasonable, Arrayit paid kickbacks and bribes to recruiters and doctors to run a multiallergen blood

4 screening test for 120 allergens (including things ranging from stinging insects to food allergens) on

5 every patient regardless of medical necessity.

6 At the same time, Schena and others also made misrepresentations to potential investors about

7 Arrayit’s allergy test sales, financial condition, future prospects, and business relationships with large

8 public companies and government agencies. Schena used various modes of communication, including

9 press releases, Twitter, and email to promote false and misleading information about Arrayit to

10 investors, including:

11 • Statements about the status of Arrayit’s financial reports;
12 • Statements about the health of Arrayit’s business, including the amount of revenue Arrayit was
13 receiving and the degree to which Arrayit was billing insurance; and

14 • Statements about Arrayit’s relationships with public companies and government agencies,
15 including Sutter Health and the Palo Alto Medical Foundation and the U.S. Department of

16 Veterans Affairs.

17 In March 2020, Schena and others began making misrepresentations about Arrayit’s ability to

18 provide accurate, fast, reliable, and cheap COVID-19 tests in compliance with applicable regulations. In
19 early March 2020, Arrayit began promoting a test for COVID-19 through its website and attempted to

20 exploit the pandemic by claiming that it could test dried blood samples for both allergens and COVID-

21 19. Arrayit also instructed its patient recruiters and clinics to add on or bundle Arrayit’s allergy test and

22 COVID-19 test regardless of medical necessity.

23 III. DISCUSSION

24 A. The Defendant Should be Precluded from Offering Evidence of Any Legitimate
Medical Billing or Other Good Conduct as a Defense to the Charges in the
25 Superseding Indictment
26 The defendant should be precluded from arguing, eliciting on direct or cross examination, or

27 offering any evidence at trial of specific acts of good conduct, including evidence of: (1) legitimate

28 billing by the defendant and (2) the provision of legitimate services by the defendant. This evidence is

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1 not probative of the defendant’s alleged health care and securities fraud schemes. If admitted, the

2 evidence will confuse and mislead the jury. Further, even if the evidence has some probative value, it

3 should nonetheless be excluded under Federal Rule of Evidence 404 because it constitutes inadmissible

4 character evidence.

5 Evidence of the defendant’s legitimate business activities outside the charged conduct is

6 irrelevant to the criminal conduct alleged in the superseding indictment and constitutes inadmissible

7 character evidence. The Ninth Circuit has consistently held that “a defendant cannot establish his

8 innocence of crime by showing that he did not commit similar crimes on other occasions.” Herzog v.

9 United States, 226 F.2d 561, 565 (9th Cir. 1955). In fraud cases, the Ninth Circuit, and other circuit

10 courts, have affirmed that a defendant engaged in legal, honest conduct some of the time has no

11 relevancy to whether the defendant engaged in, or had knowledge of, fraudulent conduct charged by the

12 Government. See also United States v. Lara, 2018 WL 1225204 at *1 (E.D. Calif. 2018) (defendant

13 charged with filing fraudulent tax returns not allowed to introduce evidence of other, non-fraudulent tax

14 returns to establish innocence of charged conduct.); United States v. Dimora, 750 F.3d 619, 630 (6th Cir.

15 2014) (“For the same reason that prior ‘bad acts’ may not be used to show predisposition to commit

16 crimes, prior ‘good acts’ generally may not be used to show a predisposition not to commit crimes.”);

17 United States v. Ellisor, 522 F.3d 1255, 1270 (11th Cir. 2008) (affirming district court’s ruling

18 precluding the defendant from offering evidence of his legitimate business activities because “evidence
19 of good conduct is not admissible to negate fraudulent intent”); United States v. Marrero, 904 F.2d 215

20 (5th Cir. 1990) (excluding defendant psychologist from offering evidence of legitimate billings in false

21 claims act case because it was irrelevant that the defendant “did not overcharge in every instance in

22 which she had the opportunity to do so”); United States v. Scarpa, 897 F.2d 63, 70 (2d Cir. 1990) (“A

23 defendant may not seek to establish his innocence . . . through proof of the absence of criminal acts on

24 specific occasions.”); United States v. Winograd, 656 F.2d 279 (7th Cir. 1981) (finding defendant’s

25 performance of some legal trades irrelevant to his knowledge of illegal trades).

26 Here, the Government has alleged that the defendant conspired to execute the fraudulent health

27 care and securities schemes outlined in the superseding indictment. The Defendant should not be

28 permitted to introduce any anecdotal evidence of legitimately billing insurance companies or providing

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1 legitimate services because this evidence does not tend to disprove the defendant’s participation in the

2 charged scheme to defraud insurance and federal health care programs. Even if the defendant provided

3 legitimate services and billings in other instances, this evidence does not mean he did not provide

4 illegitimate services or fraudulently billed insurance and federal health care programs in this case. Thus,

5 any evidence of legitimate services provided irrelevant and thus inadmissible.

6 Moreover, evidence of “good acts” or legitimate business activity, when offered by the

7 defendant, is improper character evidence. Fed. R. Evid. 404 (“Evidence of a person's character or a

8 trait of his character is not admissible for the purpose of proving that he acted in conformity

9 therewith.”). While a defendant can offer evidence of his character for general law-abidingness under

10 Rule 404(a)(1), a defendant cannot offer evidence that he lacks the propensity to engage in the type of

11 crime charged. See United States v. Diaz, 961 F.2d 1417, 1419 (9th Cir. 1992) (where defendant could

12 not provide testimony concerning his propensity to engage in drug dealing because this testimony went

13 to the drug charge and not general law-abidingness).

14 In this case, evidence of the defendant's “good acts” or legitimate billing or business activity

15 does not relate to a pertinent character trait and does not establish that the defendant generally has a law-

16 abiding character. Instead, such evidence would only be introduced by the defendant to demonstrate he

17 did not commit fraud in this case, and so is inadmissible under Rule 404(a)(1). Diaz, 961 F.2d at 1419–

18 20.
19 B. The Defendant Should Be Precluded From Blaming Medicare or Other Insurance
Providers For His Fraud
20
The defendant should be precluded from making any argument that because Medicare and other
21
insurance providers failed to detect the defendant’s fraud or paid his claims, he could have not defrauded
22
them or known his practices were illegal. The defendant should not be allowed to shift his culpability to
23
the victims of his fraud. Such evidence is irrelevant and should be excluded.
24
Because evidence of Medicare and other insurance providers’ failure to detect the fraud does not
25
have any tendence to prove or disprove any element of the charged offenses, whether they acted
26
negligently is irrelevant to whether the defendant committed fraud. The Ninth Circuit has held that
27
evidence of a victim’s alleged negligence is not relevant and is properly excluded at trial. United States
28

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1 v. Lindsey, 850 F.3d 1009, 1015 (9th Cir. 2017) (“We join several of our sister circuits in holding that a

2 victim’s negligence is not a defense to wire fraud.”); United States v. Ellison, 704 F. App’x 616, 620

3 (9th Cir. 2017) (“a victim’s negligence is not a defense” to securities fraud); United States v.

4 Palamarchuk, 791 F. App’x 658, 660 (9th Cir. 2019) (“neither individual victim lender negligence nor

5 an individual victim lender’s intentional disregard of relevant information is a defense to mail fraud”);

6 United States v. Svete, 556 F.3d 1157, 1165 (11th Cir. 2009) (“A perpetrator of fraud is no less guilty of

7 fraud because his victim is also guilty of negligence.”); United States v. Colton, 231 F.3d 890, 903 (4th

8 Cir. 2000) (“it makes no difference whether the persons the schemers intended to defraud are gullible or

9 skeptical, dull or bright.”). Furthermore, in Palamarchuk, the Ninth Circuit approved the district court’s

10 exclusion of certain evidence related to “the conduct and motives of the victim lenders,” noting that

11 “neither individual victim lender negligence nor an individual victim lender’s intentional disregard of

12 relevant information is a defense to mail fraud.” 791 F. App’x at 660.

13 In this case, the defendant should be prohibited from arguing that the victims’ negligence or

14 intentional disregard of his false statements absolves him from liability. The superseding indictment

15 alleges the defendant fraudulently billed Medicare, Medicaid, TRICARE, and Commercial Insurers.

16 Thus, the defendant should not be permitted to argue that these victims should have discovered the fraud

17 and denied the fraudulent claims, or to assert that they led him to believe that his conduct was legitimate

18 when they paid these fraudulent claims. Even if the victims were at fault—which they were not—such
19 evidence would still be irrelevant, immaterial, and could not provide any defense to the charged fraud

20 scheme.

21 C. The Government Should Be Allowed to Introduce Statements of The Defendant’s
Co-Conspirators
22
The Government will offer at trial statements that the Defendant and co-conspirators made in
23
furtherance of the illegal kickback and health care fraud conspiracy, and securities fraud conspiracy
24
alleged in Counts One and Four of the Superseding Indictment. These statements will be in the form of
25
witness testimony and documents. Pursuant to Federal Rule of Evidence 801(d)(2)(E), statements of co-
26
conspirators made in furtherance of the fraudulent scheme are not considered hearsay. See United States
27
v. Inadi, 475 U.S. 387, 394-95 (1986); United States v. Layton, 720 F.2d 548, 555 (9th Cir. 1983).
28

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1 Under the Rule, a jury can consider the truth of a co-conspirator’s out-of-court statement when: (1) a

2 conspiracy existed at the time of the statement; (2) the member of the conspiracy against whom the

3 statement is introduced had knowledge of, and participated in, the conspiracy; and (3) the statement was

4 made in furtherance of the conspiracy. Fed. R. Evid. 801(d)(2)(E); Bourjaily v. United States, 483 U.S.

5 171, 175 (1987). A showing that the declarant is not available to testify is unnecessary. United States v.

6 Paris, 827 F.2d 395, 400-01 (9th Cir. 1987). Both oral and written declarations are admissible under the

7 co-conspirator exception to the hearsay rule. United States v. King, 472 F.2d 1, 8-9 (9th Cir. 1972).

8 Additionally, the person to whom the statement was made need not have been a member of the scheme.

9 United States v. Williams, 989 F.2d 1061, 1068 (9th Cir. 1993).

10 To be “in furtherance” of, a statement must advance a common objective of the scheme or set in

11 motion a transaction that is an integral part of the scheme. United States v. Yarborough, 852 F.2d 1522,

12 1535-36 (9th Cir. 1988). In the conspiracy context in Yarborough, the Ninth Circuit delineated some

13 statements that have been found to be in furtherance of a joint venture: (1) statements made to induce

14 enlistment or further participation in the group’s activities; (2) statements made to prompt further action

15 on the part of conspirators; (3) statements made to reassure members of a conspiracy’s continued

16 existence; (4) statements to allay a co-conspirator’s fears; and (5) statements made to keep co-

17 conspirators abreast of an ongoing conspiracy’s activities. Id. In determining if a scheme or conspiracy

18 exists, relevant areas of inquiry include the nature of the scheme; the identity of the participants; the
19 quality, frequency, and duration of each co-conspirator’s transactions; and the commonality of goals and

20 times. United States v. Torres, 908 F.2d 1417, 1425 (9th Cir. 1990).

21 The order of proof is in the sound discretion of the trial judge, and the court may make the

22 determination that a conspiracy exists either prior to trial or during trial or may conditionally admit co-

23 conspirator hearsay prior to a finding of scheme involvement, subject to the hearsay being “connected

24 up” to the alleged co-conspirator. See United States v. Powell, 982 F.2d 1422, 1432 (10th Cir. 1992);

25 see also United States v. Zavala-Serra, 853 F.2d 1512, 1514 (9th Cir. 1988).

26 Federal Rule of Evidence Rule 104(a) provides that

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1 Preliminary questions concerning the qualification of a person to be a
witness, the existence of a privilege, or the admissibility of evidence shall
2 be determined by the court, subject to the provisions of subdivision (b). In
making its determination it is not bound by the rules of evidence except
3 those with respect to privileges.

4 (emphasis added). Consistent with Rule 104’s plain meaning, the Supreme Court has held that in

5 making a preliminary factual determination as to the admissibility of evidence, with the

6 exception of privileged information, a trial court may consider “any evidence whatsoever” and

7 “receive the evidence and give it such weight as his judgment and experience counsel.”

8 Bourjaily v. United States, 483 U.S. 171, 178 (1987). Similarly, “[i]n determining whether the

9 Government established the existence of a conspiracy for the purpose of Fed. R. Evid.

10 801(d)(2)(E), Rule 104 ‘on its face allows the trial judge to consider any evidence whatsoever,

11 bound only by the rules of privilege.’” United States v. Brewer, 947 F.2d 404, 409 (9th Cir.

12 1991) (quoting Bourjaily v. United States, 483 U.S. 171, 178 (1987)).

13 Thus, under Rule 104(a), the Court should look to evidence already presented to it when it

14 decides the admissibility of co-conspirator statements under Rule 801(d)(2)(E) at trial. Such evidence

15 includes, for example, the fact that certain co-conspirators in this case have pleaded guilty and have

16 admitted to their participation in the conspiracy to defraud health care programs and conspiracy to pay

17 and receive kickbacks.

18 D. The Defendant Should Not Be Allowed to Reference Punishment to the Jury
19 The Government moves to preclude, as irrelevant and prejudicial, any reference by the defense to

20 the defendant’s potential sentence during all phases of the trial (including jury selection, opening

21 statements, examination of witnesses, including the defendant if he elects to testify, and summation).

22 That reference could be as overt as, “You understand the defendant is facing a potential life prison term

23 if convicted,” or more subtle such as, “the defendant is facing a lot of time,” “this case has serious

24 consequences for the defendant,” “the defendant’s liberty is at stake in this trial,” or “your decision will

25 have consequences for a long time to come.” Once the jury hears anything about punishment, the bell

26 simply cannot be un-rung or the damage neutralized by a curative instruction.

27 “It has long been the law that it is inappropriate for a jury to consider or be informed of the

28 consequences of their verdict.” United States v. Frank, 956 F.2d 872, 879 (9th Cir. 1992). As explained

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1 in Pope v. United States, 298 F.2d 507 (5th Cir. 1962):

2 To inform the jury that the court may impose minimum or maximum
sentence, will or will not grant probation, when a defendant will be eligible
3 for parole, or other matters relating to disposition of the defendant, tend to
draw the attention of the jury away from their chief function as sole judges
4
of the facts, open the door to compromise verdicts and to confuse the issue
5 or issues to be decided.

6 Id. at 508; see also Shannon v. United States, 512 U.S. 573, 579 (1994) (“[P]roviding jurors sentencing

7 information invites them to ponder matters that are not within their province, distracts them from their

8 fact-finding responsibilities, and creates a strong possibility of confusion”); Rogers v. United States, 422

9 U.S. 35, 40 (1975) (explaining that jury should have been admonished that it “had no sentencing

10 function and should reach its verdict without regard to what sentence might be imposed”); United States

11 v. Reed, 726 F.2d 570, 579 (9th Cir. 1984) (holding that trial judge properly instructed jury that the

12 “punishment provided by law for the offenses charged in the indictment are matters exclusively within

13 the province of the court. It should never be considered by the jury in any way in arriving at an

14 impartial verdict as to the guilt or innocence of the accused”). Therefore, defense counsel should be

15 precluded from making any reference in the presence of the jury to punishment in statements, questions

16 or argument.

17 E. The Court Should Exclude Any Out-of-Court Statements Made by the Defendant If
Offered To Prove the Truth of the Matter Asserted
18
The Government intends to introduce inculpatory statements made by the defendant to federal
19
law enforcement agents and others, and requests that the Court preclude the defendant from offering his
20
own out of court statements in his case or through cross examination of other witnesses. Under Federal
21
Rule of Evidence 801(d)(2), the defendant’s prior out-of-court statements are not hearsay when offered
22
against him by the Government. However, those statements remain inadmissible hearsay when offered
23
by the defendant for the truth of the matter asserted. United States v. Ortega, 203 F.3d 675, 682 (9th
24
Cir. 2000) (“The self-inculpatory statements, when offered by the Government, are admissions by a
25
party-opponent and are therefore not hearsay, see Fed. R. Evid. 801(d)(2), but the non-self inculpatory
26
statements are inadmissible hearsay.”).
27
Moreover, the rule of completeness as codified in Federal Rule of Evidence 106 does not permit
28

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1 the defendant to introduce self-exculpatory hearsay simply because the Government admits other

2 statements of the defendant through its witnesses. Rule 106, on its face, only applies to written or

3 recorded statements, see also Ortega, 203 F.3d at 682, and only when “fairness” dictates that another

4 portion of that writing or recording “ought to be considered at the same time.” Fed. R. Evid. 106. Even

5 then, “Rule 106 ‘does not compel admission of otherwise inadmissible hearsay evidence.’” United

6 States v. Collicott, 92 F.3d 973, 983 (9th Cir. 1996) (quoting Phoenix Assocs. III v. Stone, 60 F.3d 95,

7 103 (2d Cir. 1995)); see also Ortega, 203 F.3d at 682 (“Even if the rule of completeness did apply,

8 exclusion of Ortega’s exculpatory statements was proper because these statements would still have

9 constituted inadmissible hearsay.” (citing Collicott)).

10 If a defendant were allowed to introduce his exculpatory statements without subjecting himself

11 to cross-examination, he would be doing precisely what the hearsay rule forbids. United States v.

12 Fernandez, 839 F.2d 639, 640 (9th Cir. 1988). The defendant should not be permitted to introduce this

13 exculpatory statement through cross-examination of the witness because it is hearsay if offered by the

14 defendant and is not admissible in this Circuit under the Rule of Completeness.

15 F. The Court Should Preclude The Use of Law Enforcement Agent Interview Reports
or Rough Notes for Impeachment of Government Witnesses
16
1. Interview Reports Are Not Statements of the Witness Under the Jencks Act
17
The court should preclude defense counsel from using interview reports prepared by Government
18
agents to cross examine witnesses that were the subjects of these memoranda because they are not
19
“statements” made by those witnesses. A statement within the meaning of the Jencks Act is defined as
20
(1) “a written statement made by said witness and signed or otherwise adopted and approved by him,”
21
(2) a recording or transcription that “is a substantially verbatim recital of an oral statement made by said
22
witness and recorded contemporaneously,” or (3) a statement made by a witness to the grand jury. 18
23
U.S.C. § 3500(e)(1)–(e)(3). In Palermo v. United States, the Supreme Court affirmed that congress
24
intended for “only those statements which could properly be called the witness’ own words [to] be made
25
available to the defense” under the Jencks Act. 360 U.S. 343, 352 (1959) (holding that Federal Bureau
26
of Investigation interview reports do not constitute statements requiring disclosure under Jencks Act
27
because witness did not approve the statements contained therein and because they were not drafted
28

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1 contemporaneously with the witness' accounts). The Court held that “summaries of an oral statement

2 which evidence substantial selection of material” or “statements which contain [an] agent’s

3 interpretations or impressions” are “not to be produced.” Id. at 352–53.

4 Consistent with Palermo, the interview reports in this case are not discoverable under the Jencks

5 Act because they are not statements of the witness within the meaning of subsection (e)(1) of the statute.

6 While subsection (e)(1) does apply to statements adopted or approved by the witness, here, the witness

7 has neither adopted nor approved statements, therefore, the adoption requirement “clearly is not met

8 [because] [] the [writer] [did] not read back, or the witness [did] not read, what the [writer] has written.”

9 Goldberg v. United States, 425 U.S. 94, 110 n.19 (1976).

10 In sum, although the Government has consistently turned over relevant interview reports in this

11 case, there are no interview reports that have been adopted or approved by the witness under subsection

12 (e)(1) such that they can be considered statements of the witness. They are statements of Government

13 agents summarizing the substance of a witness interview. It would be improper to cross-examine a

14 witness on the summary created by another individual, and defense counsel should be precluded from

15 doing so.

16 2. Proper Use of the Reports at Trial

17 The Court should limit the use of the interview reports consistent with the law and rules of

18 evidence. The defense should be precluded from introducing the contents of the interview reports to
19 impeach witnesses based on prior inconsistent statements because the interview reports are not

20 considered statements of the witnesses. See Fed. R. Evid. 613. Additionally, defense counsel should be

21 precluded from publishing the contents of the interview reports to the jury, holding up the interview

22 report and reading parts of it before the jury in the form of a question posed to the witness, or otherwise

23 suggesting to the jury that the interview report is a statement of the witness. To allow otherwise would

24 subvert the meaning of the Jencks Act and the Supreme Court’s decision in Palermo, which held that it

25 would “be grossly unfair to allow the defense to use statements to impeach a witness which could not

26 fairly be said to be the witness’ own rather than the product of the investigator’s selections,

27 interpretations and interpolations.” Palermo, 360 U.S. at 350.

28 While the defense is free to ask a witness whether he or she made a statement that is reflected in

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1 an interview report, the defense may not publish or introduce the contents of the report as a prior

2 inconsistent statement if the defense is not satisfied with the witness’ answer. The Ninth Circuit has

3 held, generally, that “a third party’s characterization of a witness's statement is not attributable to the

4 witness for impeachment purposes.” United States v. Tones, 759 F. App’x 579, 585 (9th Cir. 2018)

5 (finding the district court did not abuse its discretion in declining to admit statements of two cooperating

6 witnesses in law enforcement reports that they had not seen to impeach them). More specifically, “every

7 circuit court to address [this] question, including the Ninth Circuit, has held that FBI 302s generally are

8 not discoverable under the Jencks Act.” United States v. Kot, 2012 WL 1657118, at *1 (D. Nev. May 10,

9 2012), aff’d, 583 F. App'x 716 (9th Cir. 2014); see also United States v. Claiborne, 765 F.2d 784, 801

10 (9th Cir.1985), abrogated on other grounds by Ross v. Oklahoma, 487 U.S. 81 (1988) (because “the

11 summaries represent ... the agents’ selection of certain information ... the district court properly

12 characterized the summaries as non-Jencks Act material.”); United States v. Brika, 416 F.3d 514, 529

13 (6th Cir. 2005), abrogated on other grounds by, United States v. Booker, 543 U.S. 222 (2005) (holding

14 that “[s]uch documents [i.e., interview reports] have been deemed inadmissible for impeaching

15 witnesses on cross-examination because they represent the ‘investigator’s selections, interpretations and

16 interpolations”); United States v. Hill, 526 F.2d 1019, 1026 (10th Cir. 1975) (upholding the trial court’s

17 decision to “not allow counsel to use the 302 statement to impeach a witness because the witness did not

18 prepare or sign the document and probably never adopted it”); United States v. Leonardi, 623 F .2d 746,
19 757 (2d Cir.1980) (holding that because “the written statement of the FBI agent was not attributable to

20 [the witness]” it was “properly rejected as a prior inconsistent statement”).

21 Further, the defense may not use the interview report in a way that suggests to the jury the

22 interview report is a statement of the witness. See Kot, 2012 WL 1657118, at *2 (citing United States v.

23 Marks, 816 F.2d 1207, 1210–11 (7th Cir.1987) (holding that where defense counsel read from a 302

24 during cross-examination in a way that would “seem authoritative” and potentially confuse the jury, the

25 judge was entitled to require the witness be shown the 302 and given the opportunity to adopt or reject it

26 as a statement, although such a practice was no longer required by the Federal Rules of Evidence)).

27 G. Other Evidentiary Issues

28 The Government sets forth its position that the defendant should be precluded from eliciting

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1 testimony or otherwise producing evidence on the following topics:

2 1. Argument That Encourages Jurors To Ignore The Law, Not Follow This
Court’s Instructions, or Otherwise Violate Their Oaths As Jurors
3
The defendant should be precluded from arguing or seeking to admit evidence for the purpose of
4
encouraging the jury to nullify its verdict. Jury nullification is “a violation of a juror’s oath to apply the
5
law as instructed by the court.” United States v. Lynch, 903 F.3d 1061, 1079 (9th Cir. 2018) (quoting
6
United States v. Thomas, 116 F.3d 606, 614 (2d Cir. 1997)). The Ninth Circuit also made clear that “no
7
juror has the right to engage in nullification” and courts have a “duty to forestall or prevent such
8
conduct.” Merced v. McGrath, 426 F.3d 1076, 1079–80 (9th Cir. 2005) (quoting United States v.
9
Thomas, 116 F.3d 606, 617 (2d Cir. 1997). Moreover, a “defendant has no right to a [nullifying]
10
instruction informing the jury of that power, and the court has no duty to give one.” Huitron v. Finn,
11
2003 WL 22159060, at *2 (N.D. Cal. Sept. 15, 2003); see also United States v. Powell, 955 F.2d 1206,
12
1213 (9th Cir. 1991) (upholding the refusal of defendant’s request for an instruction on nullification
13
because “our circuit’s precedent indicates that the [defendant is] not entitled to jury nullification
14
instructions.”) (citing United States v. Simpson, 460 F.2d 515, 519 (9th Cir.1972)).
15
Because “trial courts have the duty to forestall or prevent such conduct,” Merced, 116 F.3d at
16
616, the Government moves to exclude evidence and to preclude argument designed to convince the jury
17
to acquit not because the Government failed to prove the charged crimes, but rather because a guilty
18
verdict would be contrary to one’s sense of justice, morality, or fairness.
19
2. Which Other Persons Have, or Have Not, Been Charged in This or Other Cases
20
This Court should prohibit the defendant from presenting evidence that other individuals or
21
entities should have been charged in a like manner as the defendant. “The law is well settled
22
that government charging decisions and motivations for such decisions is an issue for the court to
23
resolve before trial; it is not a proper consideration for the jury.” United States v. Ellis, 2020 WL
24
1676772, at *1 (D. Nev. Apr. 6, 2020); see also United States v. Carneglia, 2009 U.S. Dist. LEXIS
25
8450, at *3 (E.D.N.Y. Jan. 27, 2009) (“Evidence related to the government’s charging decisions may be
26
excluded at trial based on lack of relevance”); United States v. Larch, 399 F. App’x 50, 55-56 (6th Cir.
27
2010) (explaining that guilt of another does not excuse a defendant from liability for his actions).
28

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1 The identity and quantity of individuals charged in connection with this fraud, the reasons behind

2 those charging decisions, and the culpability of the defendant as compared to other individuals are all

3 examples of irrelevant and unfairly prejudicial evidence aimed at jury nullification. See, e.g., United

4 States v. Thompson, 253 F.3d 700 (5th Cir. 2001) (upholding granting government’s motion in limine to

5 prevent defense counsel from comparing defendant’s conduct with that of other uncharged or

6 immunized witnesses); United States v. Re, 401 F.3d 828, 832 (7th Cir. 2005) (government’s exercise of

7 prosecutorial discretion is not proper subject for cross-examination).

8 Evidence that the Government could have charged other individuals with committing similar

9 violations is irrelevant. The particular charging choices of the Government may rely upon a variety of

10 considerations, and those decisions regarding one individual do not necessarily speak to the separate

11 issue of another individual’s guilt or innocence.

12 The possible guilt of others in unrelated matters is irrelevant to the question of whether the

13 defendant is guilty of the crimes charged in this Superseding Indictment. This type of cross-examination

14 can have no other purpose except to unfairly prejudice the Government by raising issues of prosecutorial

15 discretion that have nothing to do with the crimes charged or the evidence presented in this case. Thus,

16 the defendant should be precluded from making arguments or comments to the jury, and from eliciting

17 statements on cross-examination, that are irrelevant to the record evidence and crimes charged and that

18 are, instead, designed to encourage a verdict in disregard of the law.
19

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Case 5:20-cr-00425-EJD Document 107 Filed 03/25/22 Page 20 of 20

1 IV. CONCLUSION

2 For all of the foregoing reasons, the Court should rule as set forth above if and when the issues

3 identified arise. The Government would respectfully reserve the right to supplement these motions in

4 limine if additional issues requiring the Court’s ruling arise.

6 DATED: March 25, 2022 Respectfully submitted,

7 STEPHANIE M. HINDS
United States Attorney
8

9
_/s/_______________________
10 JUSTIN D. WEITZ
JACOB FOSTER
11 Assistant Chiefs
LAURA CONNELLY
12 Trial Attorney
Fraud Section, U.S. Department of Justice
13

14 _/s/_______________________
LLOYD FARNHAM
15 Assistant United States Attorney
16

18
19

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