Motions in Limine — United States v. Denny Bhakta (Southern District of California, Document 92)

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Motions in Limine filed September 20, 2024, by John D. Kirby and Laura F. Marran for Denny Bhakta in United States Government v. Denny Bhakta, Case No. 2:21-cr-03352-JLS-1. The caption lists numbered motions, including a Motion to Exclude All W-2, 940 and 941 Forms, a Motion to Exclude Mr. Bhakta's Proffer Statement, a Motion to Exclude All ARMPVC Created Documents, and a Notice of Intent to Rely on Advice of Counsel Defense. The background states that a grand jury returned a Superseding Indictment on August 9, 2023, and that the bank fraud charges are based on eighteen Paycheck Protection Program ("PPP") loans. It is signed /s/ by John D. Kirby and Laura F. Marran.

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“Motions in Limine — United States v. Denny Bhakta (Southern District of California, Document 92).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-s-d-cal-no-3-21-cr-03352-dkt-92-s-d-cal-56131c31a0/, SHA-256 6be0287eb3b7cdc373d1e1be975170bfe13359fa6790a8cc2bf12147dcdcc5de.

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Case 3:21-cr-03352-JLS Document 92 Filed 09/20/24 PageID.367 Page 1 of 21

1 JOHN D. KIRBY
CA Bar No. 149496
2 The Law Office of John D. Kirby
3 401 West A Street, Suite 1150
San Diego, CA 92101
4 Tel (619)557-0100
5 jkirby@johnkirbylaw.com
6 LAURA F. MARRAN
7 CA Bar. No. 200374
8
NY Bar. 2310983
Columbia Place, 401 West A. Street
9 San Diego, CA 92101
10 Tel (858) 699-0375
lauramarranattorney@gmail.com
11
12
UNITED STATES DISTRICT COURT
13
SOUTHERN DISTRICT OF CALIFORNIA
14 (HONORABLE JANIS L. SAMMARTINO)
15
16 UNITED STATES GOVERNMENT, Case No: 2:21-cr-03352-JLS-1
17 Plaintiff, MOTIONS IN LIMINE
18 vs. 1. Motion to Exclude All W-2,
940 and 941 Forms.
19 DENNY BHAKTA
2. Motion to Exclude Use of
20 Defendant Evidence in Prosecutor's
21 Opening Statement.
22
3. Motion to Exclude Mr.
Bhakta's Proffer Statement.
23 4. Motion to Exclude
24 Avanindrakumar Patel's
25 Original SEC Report.
5. Motion to Exclude Partial
26
Subscription Agreements.
27 6. Motion to Exclude All
28 ARMPVC Created
Documents.
29
7. Motion for Judicial Notice of
30 Language Contained in

Motions in Limine
U.S. v. Bhakta 21-cr-03352-JLS-1
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Case 3:21-cr-03352-JLS Document 92 Filed 09/20/24 PageID.368 Page 2 of 21

1 Kabbage Settlements.
8. Motion to Exclude Witnesses
2
Not Listed by the Government
3 in Its Trial Brief.
4 9. Motion to Allow Properly
Noticed Forensic Accounting
5
Expert to Testify.
6 10.Motion to Allow “Metadata”
7 Expert.
8
11.Motion to Exclude All
Witnesses From Proceedings.
9 12.Motion to Exclude Defense
10 Investigator From Witness
11
Exclusion List
13.Prohibit the Prosecution From
12 Introducing Late-Produced
13 Evidence.
14 14.Notice of Intent to Rely on
Advice of Counsel Defense.
15
16
MEMORANDUM OF POINTS
17
AND AUTHORITIES
18
19
Denny Bhakta, (Mr. Bhakta), by and through his counsel, John D. Kirby,
20
21 Esq., hereby file this Memorandum of Points and Authorities in Support of Mr.
22
Bhakta’s Motion in Limine.
23
24 I
25 BACKGROUND
26
27 On December 1, 2021, a grand jury returned an Indictment that alleged
28
Mr. Bhakta committed securities fraud, money laundering and criminal
29
30

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U.S. v. Bhakta 21-cr-03352-JLS-1
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1 forfeiture. ECF No. 1. Count 1, securities fraud; Count 2, money laundering in
2
the amount of $100,000.
3
4 On August 9, 2023, a grand jury returned a Superseding Indictment. ECF
5
No. 64. In addition to the charges in the original Indictment, the Superseding
6
7 Indictment charged Mr. Bhakta with 18 counts of bank fraud, five additional
8
counts of money laundering and criminal forfeiture.
9
10 The bank fraud charges are based on eighteen Paycheck Protection
11
Program (“PPP”) loans, Mr. Bhakta applied for and received between April
12
13 2020 and July 2021. The five money laundering charges are based on Mr.
14
Bhakta’s use of PPP loan funds at casinos June 29, 2020, and between July 16,
15
16 2021 and July 23, 2021.
17
Mr. Bhakta was arraigned on the Superseding Indictment, August 11,
18
19 2023. Mr. Bhakta plead not guilty on all charges.
20
21 II
22 MOTION IN LIMINE
23
1. Motion to Exclude All W-2, 940 and 941 Forms.
24
25 a. The Government Did Not Provide Native Files that Would
Allow Defense to Conduct a Forensic Examination of the W-2s,
26
940s & 941 Forms to Determine Their Origin.
27
28 Mr. Bhakta moves the court to exclude all W-2, 940 and 941, annual
29
“payroll summary report” and as such documents lack metadata indicating the
30

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U.S. v. Bhakta 21-cr-03352-JLS-1
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1 author of such documents. Mr. Bhakta contends that he did not author these
2
documents and without the native documents he cannot substantiate his claim.
3
4 Repeated requests for native files have been made by the defense. Without the
5
metadata contained on the native documents, it is impossible to determine who
6
7 authored these documents.
8
More importantly, there is no evidence to indicate that these documents
9
10 were uploaded using Mr. Bhakta’s Kabbage user account. Mr. Bhakta has made
11
repeated requests for discovery pertaining to Kabbage’s portal. The government
12
13 has not provided Mr. Bhakta with a copy of its subpoena request to Kabbage,
14
nor has it responded to repeated email 1 requests for access what is referred to in
15
16 the Kabbage Inc.’s Affidavit of Certified Response (Bhakta PPP 000037) which
17
refers to an “enclosed hyperlink” and confirms that documents accessible via
18
19 the hyperlink are business records of Kabbage.2
20
Federal Rules of Evidence 1002 provides: "An original writing, recording,
21
22 or photograph is required in order to prove its content unless these rules or a
23
federal statute provides otherwise." Mr. Bhakta contends that he did not author
24
25 these documents and without the native documents he cannot substantiate his
26
27
claim.
28
29
1
See Exhibit G
30
2
See Exhibit H
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1 b. PPP Loans Were not a Regularly Conducted Business Activity.
2
3 Even beyond the metadata issue, the PPP loan documents cannot be
4
admitted as business records in this case. Prior statements are not hearsay if
5
6 contained in business records as defined in Fed. R. Evid. 803(6). Relevant
7
requirements are that, the record was kept in the course of “regularly
8
9 conducted activity,” that “making the record was a regular practice of that
10
activity,” and that “that documents were not created for “personal purpose[s]
11
12 … or in anticipation of any litigation so that the creator of the document ‘had
13
no motive to falsify the record in question.’” United States v. Kaiser, 609
14
15 F.3d 556, 574 (2d Cir. 2010).
16
17 Here, PPP loans were not a regularly conducted activity by either the
18
banks or the Fintechs. The PPP loans were an anomaly, not a regular business
19
20 practice. See First Superseding Indictment at p. 3, (the CARES Act was
21
“designed to provide emergency financial assistance.”). The process was short-
22
23 lived, lasting from March 2020 until May, 2021. Records relating to PPP loans
24
were not “regularly conducted activity.” F.R.E. 803(6). Thus, the Court should
25
26 decline to allow self-authentication of business records for PPP activity.
27
Additionally, it is unclear whether the records produced in discovery were
28
29 prepared and compiled by Bank of America in order to respond to a grand jury
30
subpoena, as opposed to kept in the ordinary course of business.
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1 c. The PPP Documents Contain Double-Hearsay.

2
3
Some of the records provided by the Government contain inadmissible
4 hearsay within hearsay, even if the business records exception is otherwise met.
5
6 These records include information that comes from outside sources, which the
7
Fourth Circuit has held prevents those records from coming in under the
8
9 business records exception. In United States v. Pendergrass, 47 F.3d 1166 (4th
10
Cir., 1995) (unpublished), the court reversed a defendant’s money laundering
11
12 conviction where purported business records should not have satisfied the
13
hearsay exception.
14
15
The court held: When the source of the information in the business record
16
17 is an outsider, the only way to save the record from the jaws of hearsay
18
exclusion is to establish that the business recipient took precautions to guarantee
19
20 the accuracy of the given information. Id. at *5 (citing United States v.
21
McIntyre, 997 F.2d 687, 700 (10th Cir., 1993) and United States v. Patrick, 959
22
23 F.2d 991, 1001 (D.C. Cir., 1992). The court noted that “an essential link in the
24
trustworthiness chain fails…when the person feeding the information does not
25
26 have firsthand knowledge.” Id. (citing McCormick on Evidence, § 290, 274 (4th
27
Ed.,1992).
28
29
30

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1 Here, the same issue arises. The banks supplying the records will not be able
2
to demonstrate that steps were taken to verify the information, such as loan
3
4 applications that were submitted to them. The banks did not verify the
5
information provided by Bhakta et al in its’ applications, and that information
6
7 should not be admitted under the business records exception.
8
9 2. Motion to Exclude Use of Evidence in Prosecutor's Opening
Statement.
10
11
An opening statement is intended to forecast to the jury the evidence they
12 will see and hear during the trial. It should therefore reflect the evidence that the
13
14 party intends to introduce at trial. Because the Court does not know whether the
15
testimony is admissible until offered at trial, the government should not be
16
17 allowed to introduce evidence (or charts or exhibits illustrating unadmitted
18
evidence) during its opening statement.
19
20 In most cases, jury selection is completed on the first morning of trial, and
21
counsel should be prepared to give opening statements and begin presentation of
22
23 evidence immediately thereafter. The prosecution should not be permitted to
24
offer non-admitted evidence during voir dire and opening statement.
25
26 Thus, opening statements "should be limited to a statement of facts which
27
the [party] intends or in good faith expects to prove." Leonard v. United States,
28
29 277 F.2d 834, 841 (9th Cir. 1960); see also United States v. McCabe, 131 F.3d
30
149, at *4 [published in full-text format at 1997 U.S. App. LEXIS 33704] (9th
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1 Cir. 1997) (unpublished) (quoting United States v. Dinitz, 424 U.S. 600, 612, 96
2
S. Ct. 1075, 47 L. Ed. 2d 267 (1976)). (noting that opening statements should
3
4 not "refer to matters that are not to be presented as evidence").
5
3. Motion to Exclude Mr. Bhakta's Proffer Statement.
6
On February 22, 2022, Mr. Bhakta signed an agreement with the United
7
8 States with regard to the use of his proffer statement. The United States agreed
9
not to offer in evidence in its case-in-chief any statements made during his
10
11 proffer.
12
13
In relevant part, the following exceptions were agreed to:
14 1. To pursue leads and find other evidence;
15 2. If Mr. Bhakta lies to federal agents, committed perjury, or otherwise
16 obstructed justice during or after the proffer statement;
3. If Mr. Bhakta testifies, to cross-examine him or refute evidence or to
17
refute evidence, arguments, statements, and/or representations offered
18
or elicited by him or on his behalf at trial;
19 4. If the court asks the United States a direct question about information
20 Mr. Bhakta disclosed in the proffer.
21 Unless Mr. Bhakta or his attorneys breach this agreement, any statements
22
23
Mr. Bhakta made during the proffer session should be excluded from use at trial.

24 See Exhibit A (signed agreement for use of proffer).
25
26
Hence, the admissibility of the proffer statement would be triggered if Mr.
27 Bhakta testified, or if he or his attorney presented any evidence or made any
28
29 arguments and/or representations at trial that were inconsistent with his proffer
30
statements. See United States v. Rebbe, 314 F.3d 402, 407 (9th Cir. 2002),
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U.S. v. Bhakta 21-cr-03352-JLS-1
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1 quoting United States v. Krilich, 159 F.3d 1020, 1025 (7th Cir. 1998)
2
("Introduction of the statements thus was proper if either his testimony or
3
4 evidence that he presented through the testimony of others contradicted the
5
proffer.") (citations omitted).
6
7 4. Motion to Exclude Avanindrakumar Patel's Original SEC Report.
8 To date, the Government has failed to provide Patel’s original SEC report
9
10
for our inspection. Including his communications with the US Secret Service
11 (docket# 74).
12
13
Rule 16(a)(1)(E) provides: Documents and Objects. Upon a defendant’s
14 request, the government must permit the defendant to inspect and to copy or
15 photograph books, papers, documents, data, photographs, tangible objects,
16 buildings or places, or copies or portions of any of these items, if the item is
17
within the government’s possession, custody, or control and:
18
(i) the item is material to preparing the defense;
19
(ii) the government intends to use the item in its case-in-chief at trial; or
20
21
(iii) the item was obtained from or belongs to the defendant.
22 "The sanctions to be imposed for failure to comply with discovery rest in
23
the sound discretion of the trial court." See United States v. Altamirano-
24
25 Ramirez, 1993 U.S. App. LEXIS 31025, (9th Cir. 1993), quoting United States
26
v. Burgess, 791 F.2d 676, 681 (9th Cir. 1986) (citations omitted).
27
28 Mr. Bhakta moves the court to exclude Patel’s SEC report unless the
29
original report is provided prior to trial. In addition, the defense reserves the
30

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1 right to object to the introduction of Mr. Patel’s report to the SEC on hearsay or
2
other evidentiary grounds.
3
4 5. Motion to Exclude Partial Subscription Agreements.
5 Counsel for Mr. Bhakta, in a previous Discovery motion requested
6
production of all original investor agreements (“subscription agreements”) that
7
8 the Government planned to use in their case-in-chief. The government has
9
provided some but not all of the subscription agreements in this case, and in
10
11 some cases only partial agreements.
12
13
Mr. Bhakta moves the court to exclude all subscription agreements not
14 provided before the discovery cut-off in this case.
15
16
As noted above, in several circumstances the government in discovery
17 has produced several disjointed fragments of the subscription agreements (and
18
19 related documents) in this case. In particular, the government has produced the
20
second page of Exhibit E to the Private Placement Memorandum that was part
21
22 of the subscription agreements. This second page of Exhibit E contains projected
23
profit & loss numbers for the TurboRes business model. However, the
24
25 government has not produced the first page of Exhibit E, which clearly states
26
clearly that the profit & loss numbers contained in the Exhibit are indeed
27
28 projections. 3 Exhibit E, along with the entire investment agreements were
29
30
3
See Exhibit I.
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1 produced by Mr. Bhakta to the SEC in discovery, and was also produced by the
2
defense in this case. The government should be precluded from introducing
3
4 only a portion of Exhibit E in an attempt to infer that the profit & loss numbers
5
contained in the exhibit were represented to be actual as opposed to projected.
6
7 The principle that a full document should be introduced, as opposed to a
8
fragment or portion of the document, is set forth in what is colloquially known
9
10 as the “rule of completeness.” See, e.g., United States v. Collicott, 92 F.3d 973,
11
982 (The rule of completeness requires that a full document must be introduced
12
13 when misunderstanding or distortion can be averted only through presentation of
14
another portion). See also United States v. Castro-Cabrera, 534 F. Supp. 1156,
15
16 1160 (“[T]he Rule of Completeness was designed to prevent the Government
17
from offering a ‘misleading snippet.”).
18
19 Here, the government’s introduction of only the second page of Exhibit E
20
of the subscription agreements distorts the meaning of Exhibit E, and requires
21
22 the first page of Exhibit E to give context to the document as a whole.
23
6. Motion to Exclude All ARMPVC Created Documents.
24
25 The government should be excluded from producing any promotional
26
27
or other materials created and disseminated under ARMPVS, LLC. This entity
28 was created by Avanindrakumar (“Andy”) Patel, Mukesh Patel, Vishal Patel and
29
30

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1 Nishith Patel.4 The promotional materials created under this LLC were created
2
by the Patels without the authorization or knowledge of Mr. Bhakta for use in
3
4 recruiting 3rd party sub-investors by the Patels – who were the initial outside
5
investors in Mr. Bhakta’s travel booking business. There is no evidence that Mr.
6
7 Bhakta was consulted or even aware of the creation of these promotional
8
materials. The government should be precluded from introducing these
9
10 materials in its case against Mr. Bhakta, as he had no hand in creating them and
11
did not authorize their creation or use by the Patels in this case.
12
13 7. Motion for Judicial Notice of Language Contained in Kabbage
14 Settlements.
15
Judicial notice under Federal Rule of Evidence 201 permits a court to
16
17 notice an adjudicative fact if it is “not subject to reasonable dispute.” Knoja v.
18
Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018). A fact is “not
19
20 subject to reasonable dispute” if it is “generally known,” or “can be accurately
21
and readily determined from sources whose accuracy cannot reasonably be
22
23 questioned.” Id.
24
Courts have held that factual admissions from previous cases or
25
26 settlements can be the subject of judicial notice. See, e.g., Castellucci v. JP
27
Morgan Chase Bank, N.A., 2020 U.S. Dist. LEXIS 152766 (judicial notice of
28
29
30
4
See Exhibit A
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U.S. v. Bhakta 21-cr-03352-JLS-1
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1 settlement agreements). See also, United States v. Smith, 2021 U.S. Dist LEXIS
2
213731 (Dist. Guam 2021) (In criminal matters, a court may generally take
3
4 judicial notice of court filings and other matters of public record); Taylor v.
5
Newsom, 2020 U.S. Dist. LEXIS 9974 (CDCA 2020) (The Court takes judicial
6
7 notice of these court records and files as well as those of the Court of Appeals
8
for the Ninth Circuit, as necessary therein) (citing Harris v. Cnty. Of Orange,
9
10 682 F.3d 1126, 1131-21 (9th Cir. 2012).
11
Kabbage, Inc., processed nine (9) of the PPP loan applications processed
12
13 on behalf of Mr. Bhakta, including the loan packages containing the fraudulent
14
W-2s the government seeks to introduce in the case. Mr. Bhakta seeks to
15
16 introduce several statements contained in the settlement agreements entered into
17
between Kabbage, Inc. and the Department of Justice related to its’ processing
18
19 of Paycheck Protection (“PPP”) loans, and specifically the fraudulent conduct
20
Kabbage undertook as part of its processing of PPP loans.5 These statements are
21
22 subject to judicial notice, and are relevant to Mr. Bhakta’s assertion that
23
employees/contractors of Kabbage misused and created documents during its’
24
25 processing of Mr. Bhakta’s PPP loans.
26
27
8. Motion to Exclude Witnesses Not Listed by the Government in Its
Trial Brief.
28
29
5
See Exhibit E (Excerpts of Settlement Agreement between the United States and the bankruptcy
30 estates of Kabbage, Inc. D/B/A KServicing (the “Wind Down Estates”) and David Berteletti (“Relator”)
(collectively “the Parties’), at Sections L(a) & (b) (attached) Case No. 20 cv12114-GAO.
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1 Under Mr. Bhakta’s motion for discovery, he requested the Government
2
to identify all victims that will testify at trial. Mr. Bhakta moves the court to
3
4 exclude victim witnesses not previously listed.
5
"Although [Federal] Rule [of Criminal Procedure] 16 does not expressly
6
7 mandate the disclosure of nonexpert witnesses, it is not inconsistent with Rule
8
16 and Rule 2 for a court to order the government to produce a list of such
9
10 witnesses as a matter of its discretion." United States v. W.R. Grace, 526 F.3d
11
499, 510 (9th Cir. 2008) (en banc) (emphasis in original). "The rule does not
12
13 entitle the defendant to a list of such witnesses, but by the same token it does not
14
suggest that a district court is prohibited from ordering such disclosure." Id. at
15
16 511 (emphasis in original).
17
Requiring the government to produce a list of the victim witnesses it
18
19 intends to call will prevent unfair surprise, and also prevent the need for in-trial
20
continuances should the government call a previously undisclosed witness. The
21
22 government, including the SEC, had variously claimed between thirty (30) to
23
more than forty (40) victims in this case, 6 and yet have only identified twelve
24
25 (12) victims by name during the course of this case. The government should be
26
27
prevented from calling some previously undisclosed “victims” without notice
28 during trial.
29
30
6
See Exhibit C (SEC complaint, page two); (Exhibit D) (February 2, 2024, hearing transcript, page 5).
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1 9. Motion to Allow Properly Noticed Forensic Accounting Expert to
Testify.
2
3 This District routinely permits experts to testify in the area of forensic
4
accounting analysis when, as here, it is relevant to the case. Ms. Kessler has
5
6 specialized knowledge that “will help the trier of fact to understand the evidence
7
or to determine a fact in issue.” See Fed. R. Evid. 702, see also adv. cmt. (“The
8
9 rule is broadly phrased. The fields of knowledge which may be drawn upon are
10
not limited merely to the ‘scientific’ and ‘technical’ but extend to all
11
12 ‘specialized’ knowledge.”)
13
The advisory committee notes make clear that the “the expert is viewed,
14
15 not in a narrow sense, but as a person qualified by ‘knowledge, skill, experience,
16
training, or education.’
17
18 Thus, within the scope of the rule are not only experts in the strictest
19
sense of the word, e.g., physicians, physicists, and architects, but also the large
20
21 group sometimes called ‘skilled’ witnesses, such as bankers or landowners
22
testifying to land values.” Fed. R. Evid. 702, adv. cmt.
23
24 Ms. Kessler is qualified to testify as an expert in the area of forensic
25
26
accounting analysis. Ms. Kessler has been the Managing Director of CBIZ
27 Forensic Consulting Group since 2017. She has performed forensic accounting
28
29
and business valuations for over twenty-five years. She has previously been
30 qualified as and testified as an expert in forensic accounting numerous times.

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1 Ms. Kessler, per the expert notice filed in this case on September 25, 2024, will
2
testify as to her analysis of the financial transactions related to Turbores and Mr.
3
4 Bhakta’s related business entities to determine the amount of money that was
5
invested into those entities, by whom, and what happened to that money once it
6
7 was invested.
8
10. Motion to Allow “Metadata” Expert.
9
10 Mr. Neil Broom is the President and Laboratory Director of Technical
11 Resource Center. He is a certified computer examiner, a licensed private
12 investigator, and has been qualified as an expert witness in federal and state
13
court for computer forensics.
14
Mr. Broom will testify as to the lack of any meaningful metadata of the
15
W-2 7, that there is nothing showing that this W-2 was prepared by or originated
16
17 from Mr. Bhakta.
18 Mr. Broom will testify that the August 9 email 8 which was provided to
19 the SEC by Andy Patel can only show that at some point on August 9, 2017, Mr.
20 Bhakta email communicated with Andy Patel’s server, and that Andy Patel
21
forwarded an email from Mr. Bhakta to Mike Patel purporting to have three
22
attachments (whose attachments could have been added by Andy Patel ) and
23
whose subject line could have been modified by Andy Patel. Mr. Broom will
24
25 also testify that the Government could have searched the two computers from
26 Andy Patel and Mike Patel as well as Andy’s Samsung GALAXY S 5 to
27
28
29
7
See Exhibit B (page 8 of governments’ motion in limine with W2 on page)
30
8
See Exhibit F (August 9 email)
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1 determine whether the attachments originated with Denny Bhakta or Andy
2 Patel.
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4 11.Motion to Exclude All Witnesses From Proceedings.
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Mr. Bhakta is entitled to exclusion of government witnesses as a matter of
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8 law. Federal Rule of Evidence 615 provides that at “the request of a party the
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court shall order witnesses excluded so that they cannot hear the testimony of
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11 other witnesses.” Because the truthfulness of witness testimony and the ability to
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detect fabricated testimony is best achieved through a comprehensive exclusion
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14 order, this Court should extend the scope of its order to cover opening and
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closing arguments, as well as motion hearings.
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17 12. Motion to Exclude Defense Investigator From Witness Exclusion
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19 The presence of licensed investigator, Mr. Alan Poleszak is essential to
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the defense and should be exempt from any witness exclusion order. Rule 615
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22 includes an exception to witness exclusion for a “person whose presence a party
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shows to be essential to present the party’s claim or defense.” Fed. R. Evid.
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25 615(c). The exception has been applied to permit defense investigators to be
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present at trial, even when it is anticipated they may testify. See United States v.
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28 Ortiz, 10 F. Supp. 2d 1058 (N.D. Iowa, 1998).
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30

Motions in Limine
U.S. v. Bhakta 21-cr-03352-JLS-1
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1 As the Ortiz court noted, excepting an essential defense investigator from
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a witness exclusion order is both authorized by statute and required by
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4 considerations of fairness.
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Even one case agent available to the government has access to almost
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7 unlimited law enforcement investigative resources-federal, state, and local- to
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perform the necessary footwork if unanticipated issues come up during trial.
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10 Against this full panoply of resources available to the government, a criminal
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defendant can reasonably show the presence of one investigator in the
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13 courtroom, who must also then perform the footwork of necessary investigations
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and testify upon the results of his or her investigations, is “essential” within the
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16 meaning of the Rule 615(3) exemption.
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Id. at 1066. Mr. Alan Poleszak is the defense investigator in this case and
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19 is familiar with the facts and witnesses. It is critical to the defense that he be
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permitted to remain in the courtroom, so he can respond to witness testimony
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22 with prompt investigation and assist defense counsel. Consequently, he should
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be designated as essential and exempt from witness exclusion orders under Rule
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25 615.
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13. Prohibit the Prosecution From Introducing Late-Produced
28 Evidence.
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Motions in Limine
U.S. v. Bhakta 21-cr-03352-JLS-1
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Case 3:21-cr-03352-JLS Document 92 Filed 09/20/24 PageID.385 Page 19 of 21

1 Pursuant to Rule 16(d)(2), Mr. Bhakta requests that the Court prohibit the
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government from introducing any evidence not yet produced in discovery by the
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4 discovery cut-off date of September 27, 2024, set by this Court.
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On the date of the discovery cut-off date, trial will be approximately three
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7 weeks away, and Mr. Bhakta respectfully asks the Court to prohibit the
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government from introducing any discoverable evidence that it has not yet
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10 turned over. Of course, should the government discover any Brady evidence
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after September 27, 2024, the defense requests that the government immediately
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13 produce such evidence.
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14. Notice of Intent to Rely on Advice of Counsel Defense.
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While it is not required by the federal rules of evidence, the defense gives
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18 notice that it intends to rely, in part, upon the defense of reliance of counsel.
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Mr. Bhakta intends to argue that he relied on his attorneys Kaylan Pokala and
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21 Susanne Mulvihill for advice related to his securities offers in this case as well
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as his applications for loans under the Paycheck Protection Program (“PPP”).
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24 Specifically, Mr. Bhakta relied upon the legal advice of Mr. Pokala in the
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development of his stock agreements of 2018, the validity of the exemption of
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27 his securities offerings under Section 4(a)(2) of the Securities Act of 1933 and
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Section 506(b), the private placement memorandum produced in 2018, the
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30 eligibility of his businesses under the PPP hospitality rules, and financial

Motions in Limine
U.S. v. Bhakta 21-cr-03352-JLS-1
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1 transactions with Avanindrakumar (“Andy”), Mukesh and Vishal Patel related to
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his hospitality business..
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4 Mr. Bhakta also relied upon the legal advice of Susanne Mulvihill of the
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firm of Haight Brown & Bonesteel for advice related to the securities exemption
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7 under Section 4(a)(2) and Section 506(b), the contents of the convertible note
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subscription agreements used with his investors, the content of the private
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10 placement memorandum for TurboRes, and his investment disputes with Andy,
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Mukesh and Vishal Patel.
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13 “Advice of counsel” is an affirmative defense that a defendant may seek
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to prove at trial. See Patterson v. New York, 432 U.S. 197, 211, 97 S.Ct. 2319
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16 (1977). In a fraud case, an advice-of-counsel defense is “evidence that, if
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believed, can raise a reasonable doubt in the minds of the jurors about whether
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19 the government has proved the required element of the offense that the
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defendant had an ‘unlawful intent.’” United States v. Scully, 877 F.3d 464, 476
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22 (2d Cir. 2017) (quoting United States v. Beech-Nut Nutrition Corp., 871 F.2d
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1181, 1194 (2d Cir. 1989). To warrant an instruction on advice of counsel, a
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25 defendant must show that he presented all material facts to his attorney and
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acted in accordance with the advice he received. See United States v. Ibarra-
28 Alcarez, 830 F. 2d 968, 973 (9th Cir. 1987); United States v. Grace, 439 F. Supp.
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30 1125 (D. Mo. 2006).

Motions in Limine
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1 In this case, the defense will prove that Mr. Bhakta presented all material
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facts to his attorneys in the matters described above, and that he reasonably
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4 acted in accordance with their advice in determining his actions. He will
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therefore be entitled to an instruction on the advice of counsel defense at the
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7 close of this case.
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To the extent not already produced, the defense will produce all
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10 documents relevant to this defense prior to the September 27, 2014, discovery
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cut-off.
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DATED: September 20, 2024. Respectfully Submitted,
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/s/John D. Kirby
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John D. Kirby,
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Attorney for Denny Bhakta
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/s/Laura F. Marran
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Laura F. Marran
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Attorney for Denny Bhakta
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Motions in Limine
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