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Case 2:23-cr-00132-APG-EJY Document 114 Filed 09/12/24 Page 1 of 7
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2 UNITED STATES DISTRICT COURT
3 DISTRICT OF NEVADA
4 UNITED STATES OF AMERICA, Case No.: 2:23-cr-00132-APG-EJY
5 Plaintiff Order Granting Government’s Motion in
Limine
6 v.
[ECF No. 90]
7 KOFI SARFO and ROSE SARFO,
8 Defendants
9 The United States filed a motion in limine seeking pretrial rulings on various evidentiary
10 issues. ECF No. 90. I grant the motion as detailed below.
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1. The Defendants are precluded from introducing evidence of intent to repay the
12 EIDL Loan.
13 The Government moves to bar the defendants from presenting evidence or argument that
14 they repaid or intended to repay the EIDL Loan. ECF No. 90 at 3-5. “[W]ire fraud requires the
15 intent to deceive and cheat — in other words, to deprive the victim of money or property by
16 means of deception.” United States v. Miller, 953 F.3d 1095, 1103 (9th Cir. 2020) (emphasis in
17 original). “[A]n ‘intent to deceive and cheat’ . . . does not require ‘an intent to permanently
18 deprive a victim of money or property.’” United States v. Sharma, 851 Fed. App’x. 708, 710 (9th
19 Cir. 2021) (quoting Miller, 953 F.3d at 1103) (emphasis in original). Thus, “[i]ntent to repay . . .
20 is not a defense to wire fraud.” Miller, 953 F.3d at 1103. 1
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22 1 See also United States v. Hollis, 971 F.2d 1441, 1452 (10th Cir. 1992) (“A person violates the
bank fraud statute when he knowingly executes a scheme to obtain money from a financial
23 institution by means of false or fraudulent representations. 18 U.S.C. § 1344. Certainly, if a
defendant never intended to provide false information, or if the misrepresentations were
immaterial, then the defendant has a valid defense. However, if a defendant knowingly provided
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1 The Government must prove the defendants intended to deceive and cheat when they
2 filled out and submitted their loan application. To rebut that element of the crime, the defendants
3 may offer evidence and argument that they did not intend to deceive and cheat at that time. But
4 the defendants cannot offer arguments or evidence of intent or subsequent acts to repay the loan.
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2. The Government may introduce the defendants’ statements made to law
6 enforcement.
7 The Government seeks permission to introduce statements made by each defendant to
8 law enforcement officers. ECF No. 90 at 5-11. 2 The defendants respond that this violates the
9 Confrontation Clause of the Sixth Amendment. ECF No. 109 at 8-12.
10 The Confrontation Clause applies only to “testimonial” statements, such as “statements
11 that were made under circumstances which would lead an objective witness reasonably to
12 believe that the statement would be available for use at a later trial . . . .” Crawford v.
13 Washington, 541 U.S. 36, 52 (2004). This includes statements made to police officers
14 conducting an interrogation. Id. at 53. “Under Crawford [therefore], the Confrontation Clause
15 has no application to [out-of-court nontestimonial] statements and therefore permits their
16 admission even if they lack indicia of reliability.” Whorton v. Bockting, 549 U.S. 406, 420
17 (2007). The determination whether a statement is testimonial “focuses on the ‘primary purpose’
18 of the statement, and in particular on how it relates to a future criminal proceeding. . . . A court
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20 materially false information in order to induce the loan, the crime is complete, and it is irrelevant
whether or not he intended to repay it or was capable of repaying it.”).
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The defendants argue that the statements at issue are the subject of a pending motion to
suppress statements made by Rose Sarfo. ECF No. 109 at 8-9 (referring to ECF No. 68). The
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Government replies that the statements that are the subject of its motion in limine are not the
subject of the suppression motion. ECF No. 110 at 5. The Government appears to be correct, as
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the suppression motion addresses statements Rose Sarfo made while in custody (ECF No. 68 at
6-9) while the Government’s motion addresses statements made months before.
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1 must therefore identify the out-of-court statement introduced, and must determine, given all the
2 ‘relevant circumstances,’ the principal reason it was made.” Smith v. Arizona, 602 U.S. ___, 144
3 S. Ct. 1785, 1801 (2024) (quoting Michigan v. Bryant, 562 U.S. 344, 369 (2011)).
4 Rose’s statements (identified in the Government’s motion at pages 7-8) were not
5 testimonial. She made them during a phone call with an undercover FBI agent posing as a Small
6 Business Administration representative conducting a survey about the loan application process
7 and how the Sarfo’s loan proceeds were spent. ECF No. 90 at 7-8. The defendants do not
8 dispute the Government’s description of this phone call. Given this context, Rose would not
9 have any reason to believe that her statements would be available for use at a later trial. And
10 numerous courts have held that statements made to undercover officers are not governed by the
11 Confrontation Clause. 3
12 On the other hand, Kofi’s statements (identified in the Government’s motion at pages 9-
13 10) were made during an interview with a disclosed FBI agent who was investigating the Sarfo’s
14 loans. Thus, they are deemed testimonial. But that does not automatically preclude their
15 admission at trial because his statements do not directly implicate Rose in committing a crime. 4
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18 3 See, e.g., United States v. Avendano-Soto, No. 2:20-cr-00003-APG-EJY, 2020 WL 4736301, at
*5 (D. Nev. Aug. 14, 2020) (“[S]tatements made unknowingly to a government agent, such as an
19 undercover officer or informant, are nontestimonial, are not governed by the Sixth Amendment
Confrontation Clause, [and] are admissible . . . .”); United States v. Dale, 614 F.3d 942, 956 (8th
20 Cir. 2010) (“W]e join many of our sister circuits, which have similarly concluded that the out-of-
court statement of a co-defendant made unknowingly to a government agent is not ‘testimonial’
21 within the meaning of Crawford.”); United States v. Mooneyham, 473 F.3d 280, 287 (6th Cir.
2007) (“Because McMahan was not aware that Williams was a police officer [posing as a co-
22 conspirator], his remarks were not the product of interrogation and were not testimonial in
nature. Hence, there was no Crawford error in the introduction of those remarks.”).
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Rose’s statements likewise do not directly incriminate Kofi. Thus, even if Rose’s statements
could be considered testimonial, they would still be admissible under this analysis.
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1 “[T]he Bruton 5 rule applies only to directly accusatory incriminating statements, as distinct from
2 those that do not refer directly to the defendant and become incriminating only when linked with
3 evidence introduced later at trial.” Samia v. United States, 599 U.S. 635, 652–53 (2023) (quoting
4 Gray v. Maryland, 523 U.S. 185, 194, 196 (1998)) (simplified). See also United States v. Mikhel,
5 889 F.3d 1003, 1046 (9th Cir. 2018) (“Because Mikhel’s testimony did not facially incriminate
6 Kadamovas, it did not trigger the Bruton rule.”). Here, the statements by Rose and Kofi do not
7 facially incriminate each other. Rose told the undercover agent that Kofi signed the application
8 and it was “his application.” ECF No. 90 at 8. Kofi told the agent that Rose was part of both the
9 family business and the loan process but he would “not put the blame on her.” Id. at 9-10.
10 Neither of the defendants directly incriminated the other or admitted to committing a crime or
11 conspiring with the other to do so. To the extent these statements may corroborate the
12 Government’s evidence, they “become incriminating only when linked with evidence introduced
13 later at trial.” Gray, 523 U.S. at 196 (simplified). See also United States v. Hoac, 990 F.2d 1099,
14 1105 (9th Cir. 1993) (holding “a codefendant’s statement that does not incriminate the defendant
15 unless linked with other evidence introduced at trial does not violate the defendant’s Sixth
16 Amendment rights”). Thus, admitting these statements does not violate the Confrontation Clause
17 or the Bruton rule. The Government may offer these statements into evidence provided the
18 proper foundation is first laid.
19 / / / /
20 / / / /
21 / / / /
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Bruton v. United States, 391 U.S. 123, 135-36 (1968) (holding, among other things, that the
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admission of “the powerfully incriminating extrajudicial statements of a codefendant,” without
affording the codefendant the chance to cross-examine, violates the Confrontation Clause).
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3. I grant the Government’s request to designate certain documents as self-
2 authenticated.
3 The Government requests that I deem some specified records as self-authenticated under
4 Federal Rules of Evidence 902(2) and 902(11). The Government has satisfied the requirements
5 of those two rules, and the defendants have offered no valid reason to deny the motion. I
6 therefore grant the Government’s request and deem as self-authenticated under FRE 902 the
7 documents listed in ECF No. 90 at 12-13.
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4. The defendants may not introduce evidence or make arguments or allegations about
9 their arrest.
10 The Government next moves to preclude the defendants from offering evidence,
11 testimony, or arguments about how they were arrested and that they were shackled at the
12 beginning of their initial court appearances. Id. at 14-16. Such evidence is irrelevant to the
13 charges in this case and the prejudicial effect of such allegations substantially outweigh the
14 (absent) probative value. FRE 403. In response, the defendants offer no relevance or probative
15 value of such allegations, so I grant the Government’s motion.
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5. The Government may introduce evidence about the defendants’ use of proceeds of
17 the PPP and EIDL loans for personal expenditures.
18 The Government next requests permission to introduce evidence that the defendants used
19 the allegedly ill-gotten loan proceeds for personal expenditures, arguing such evidence is
20 “inextricably intertwined” with the charged crimes. ECF No. 90 at 16-17. I agree, and the
21 defendants offer nothing in their response to rebut the Government’s argument. I therefore grant
22 the motion.
23 / / /
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1 6. The defendants may not introduce evidence or argument blaming the victims for
failing to detect fraud.
2
3 The Government moves to preclude the defendants from offering evidence, testimony, or
4 arguments blaming the lenders for not discovering the defendants’ fraud or for being negligent.
5 Id. at 17-18. The Ninth Circuit has held that a “lenders’ negligence, or even intentional
6 disregard, cannot excuse another’s criminal fraud.” United States v. Lindsey, 850 F.3d 1009,
7 1014 (9th Cir. 2017). Thus, the lenders’ negligence, if any, is irrelevant, and such evidence is
8 precluded. Nor can the defendants offer such evidence to show that their allegedly fraudulent
9 misrepresentations were not material:
10 A false statement is material if it objectively had a tendency to influence,
or was capable of influencing, a lender to approve a loan. . . . This standard is not
11 concerned with a statement’s subjective effect on the victim, but only the intrinsic
capabilities of the false statement itself. . . . For this reason we have previously
12 held that misrepresentation may be material without inducing any actual
reliance . . . .
13
That the lenders here might have intentionally disregarded Lindsey’s false
14 statements has little relevance to whether those statements are intrinsically able to
influence a decision. Again, materiality is an objective element, and an absence
15 of reliance does not affect its presence.
16 Id. at 1015-16 (simplified). Thus, I grant the Government’s motion and preclude the defendants
17 from offering such evidence or argument.
18 7. The parties are required to comply with the Federal Rules of Evidence.
19 Finally, the Government seeks to preclude the defendants from engaging in jury
20 nullification, improperly impeaching Government witnesses, and offering evidence of their good
21 acts. ECF No. 90 at 18-22. In essence, the Government asks me to enforce the Federal Rules of
22 Evidence. To that extent, I grant the Government’s motion and expect the parties to follow the
23 rules.
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Case 2:23-cr-00132-APG-EJY Document 114 Filed 09/12/24 Page 7 of 7
1 I THEREFORE ORDER that the Government’s motion in limine (ECF No. 90) is
2 granted as set forth above.
3 DATED this 12th day of September, 2024.
4
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ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE
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