Brief in Support of Defendant Wessels Omnibus Motion — United States v. James Wessels (D.N.J., Document 53-2)

Summary

Brief in support of the omnibus motion of defendant James Wessels in United States v. James Wessels, Case 1:24-cr-00267-KMW, District of New Jersey, signed by Mark W. Catanzaro as attorney for Wessels. It argues that the court should sever Counts 1, 2, 3, 4 and 8 from Counts 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 16 and 17 because the indictment charges two separate conspiracies, and it adopts the arguments of Ponzo. It also asks the court to order a bill of particulars identifying the non-operating companies, the recruits and unidentified co-conspirators. The brief states that the indictment alleges the conspiracy netted over $5,000,000.00, while the substantive bank fraud counts identified total $410,000.00.

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Case 1:24-cr-00267-KMW Document 53-2 Filed 12/04/24 Page 1 of 12 PagelD: 359

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
HONORABLE KAREN M. WILLIAMS

UNITED STATES OF AMERICA

Vv. : Criminal No. 24-267 (KMW)

JAMES WESSELS,

Defendant.

BRIEF IN SUPPORT OF DEFENDANT WESSELS OMNIBUS MOTION

/s/ Mark W. Catanzaro

Mark W. Catanzaro, Esquire

21 Grant Street

Mount Holly, New Jersey 08060
Telephone: (609) 261-3400
Facsimile: (856) 235-4332
Mark@catanzarolaw.com
Attorney for Defendant,

James Wessels
Case 1:24-cr-00267-KMW Document 53-2 Filed 12/04/24 Page 3 of 12 PagelD: 361

TABLE OF CITATIONS

Cases Page

Kotteakos v. United States, 328 U.S. 750, 775 (1946). ..... 4
United States v. Barbosa, 666 F.2d 704 (1%* Cir. 1981 ..... 3
United States v. Jackson, 562 F.2d 789 (D.C. Cir. 1977) ....4

United States v. Nettles, 570 F.2d 547, 551-552 (5*" Cir 1978) . 4

United States v. Satterfield, 548 F.2d 1341 (9 Cir 1977) ...4
United States v. Weisman, 624 F.2d 1118 (2? Cir 1980) ..... 3
United States v. Whitehead, 539 F.2d 1023 (4% Cir 1976) ....4

ii
Case 1:24-cr-00267-KMW Document 53-2 Filed 12/04/24 Page 4 of 12 PagelD: 362

STATEMENT OF FACTS?

On April 17, 2024, a grand jury returned an indictment
charging Eric Rivera, Adrienne Ponzo and James Wessels. (A true
and correct copy of the indictment is attached as Exhibit “A”).
The indictment commences with the heading, “COUNT 1 (Conspiracy
to Commit Bank Fraud”. It then provides, “Background” and a
subsection for Individuals and Entities. In doing so, in
paragraph 1, it defines, “Lender-1", “Financial Institution-1",
“Pinancial Institution-2", “Financial Institution-3", “Financial
Institution-4", “Financial Institution-5", The “Small Business
Administration”, “Eric Rivera”, “Adrienne Ponzo”, “James
Wessels”, “William Ingram”, “Yasha Barjona”, “Co~Conspirator-1",
“Co-Conspirator-2", “Co-Conspirator-3", and “Individual-1". It
also defines the Payroll Protection Program created as a result
of the pandemic which utilized banks to fund loans to businesses,
as well as the Economic Injury Disaster Loan Program which
processed loans through the Small Business Administration.
Following the definition section in paragraph 1, is the heading,

“The Bank Fraud Conspiracy”. Paragraph 2 charges Eric Rivera and

‘The defendant is utilizing the language in the indictment as the
motions are directed to severance, dismissal of a count of the
indictment and request for a Bill of Particulars. The law
requires that the parties accept the language in the indictment
for such motions. Wessels does not adopt the contents and
allegations as true for any purpose other than these motions.

1
Case 1:24-cr-00267-KMW Document 53-2 Filed 12/04/24 Page 5 of 12 PagelD: 363

James Wessels in the bank fraud conspiracy. This count describes
Rivera and Wessels involvement in the bank fraud along with
others, some identified and others that are not as occurring
between January, 2021 and December, 2021. In the paragraphs that
follow (3 through 18) describing the alleged conspiracy, Adrienne
Ponzo’s name is not mentioned. Counts 2 though 4 charge Eric
Rivera and James Wessels with three counts of bank fraud. The
frauds were to have occurred on March 19, 2021, April 10, 2021
and April 20, 2021 respectively. Once again Ponzo’s name is not
mentioned. While the indictment alleges that the Conspiracy
netted over $5,000,000.00, the substantive bank fraud counts
identified by the government total $410,000.00. The conspiracy
to commit bank fraud and the bank fraud counts concern the
Payroll Protection Plan established by the government funded
through banks to assist businesses during the pandemic.

Count 5 of the indictment charges a separate conspiracy to
commit wire fraud. Paragraph 2 alleges that Eric Rivera and
Adrienne Ponzo committed wire fraud from July 2020 and December,
2020 by obtaining EIDL loans through the SBA. There are no banks
involved. Paragraphs 3 through 10 identify the object of the
conspiracy and the manner and means of the conspiracy. Counts

6 and 7 charge Rivera and Ponzo with substantive counts of wire
Case 1:24-cr-00267-KMW Document 53-2 Filed 12/04/24 Page 6 of 12 PagelD: 364

fraud. The loss alleged in the two substantive counts totals
$288,600.00. Wessels is not mentioned in any manner as to Counts
5, 6 or 7.

Count 8 charges Wessels with Conspiracy to Engage in Money
Laundering. Neither Rivera or Ponzo are mentioned in this count
of the indictment. Count 9 charges Rivera and Ponzo with
Conspiracy to Engage in Monetary Transactions. Counts 10 through
17 charge the substantive offense of Engaging in Monetary
Transactions in Property as to Rivera and Ponzo. Counts 11 and
12 allege Rivera and Ponzo. The balance of the counts are solely
as to Rivera. The indictment does not charge, or allege that
Wessels had any involvement with the EIDL loans or monetary
transactions that involved Ponzo.

THE COURT SHOULD SEVER COUNTS 1,2,3,4 AND 8
FROM COUNTS 5,6,7,9,10,11,12,13,14,15,16 &
17 AS THE INDICTMENT CHARGES TWO SEPARATE

CONSPIRACIES AND ORDER SEPARATE TRIALS AS TO
WESSELS AND PONZO

Wessels adopts the arguments of Ponzo contained in Section
I, IA in its entirety and to a limited extent IB.

It is not required that each defendant be charged in every
count of the indictment. United States v. Barbosa, 666 F.2d 704
(1%* Cir. 1981); United States v. Weisman, 624 F.2d 1118 (2°° Cir

1980). But, because guilt is both individual and personal, a
Case 1:24-cr-00267-KMW Document 53-2 Filed 12/04/24 Page 7 of 12 PagelD: 365

defendant charged with others has “the right not to be tried en
masse for the conglomeration of distinct and separate offenses
committed by others.” Kotteakos v. United States, 328 U.S. 750,
775 (1946). Similarity of offenses is not sufficient for joinder
under Rule 8(b). United States v. Jackson, 562 F.2d 789 (D.C.
Cir. 1977); United States v. Satterfield, 548 F.2d 1341 (9** Cir
1977); United States v. Whitehead, 539 F.2d 1023 (4% Cir 1976).
Charging multiple and unrelated conspiracies will not justify
joinder of defendants in the same indictment. Kotteakas, Supra.;
United States v. Nettles, 570 F.2d 547, 551-552 (5% Cir 1978).

Ponzo submits that the Rivera/Wessels conspiracy was
significantly larger in scope and money so as to prejudice Ponzo.
On it’s face, Ponzo makes a valid point. That being said, the
allegations, as they concern Wessels involve a total of
$410,000.00. Wessels will be asking for a bill of particulars as
did Ponzo. Wessels submits that a bill of particulars will show
that there were in fact more than the Rivera/Wessels conspiracy
and the Rivera/Ponzo conspiracies. Wessels submits that there are
additional conspiracies and had other individuals been charged
in this indictment would have been subject to severance as well.
The indictment appears to bear this out. Had Wessels been

involved in all or part of the other $4,510,000.00 conspiracy,
Case 1:24-cr-00267-KMW Document 53-2 Filed 12/04/24 Page 8 of 12 PagelD: 366

is there any question those loans would have been identified?
At this juncture, Wessels has insufficient information as to
those additional loans. It is likely that in limine motions will
be filed to restrict the scope of Rivera’s much larger and
distinct enterprise’. For the same reasons Wessels should not
have to be tried with Ponzo, he should not have to be tried in
these separate and distinct conspiracies he had nothing to do
with. That Rivera is involved in many conspiracies does not make
it admissible against Wessels. It is anticipated that should
Rivera proceed to trial, Wessels would seek to be severed from
any number of conspiracies Rivera is involved.

There is no doubt that a joint trial involving Rivera, Ponzo
and Wessels will involve at least two and likely many more mini-
trials to the prejudice of Wessels and Ponzo. When the government
presents evidence against Ponzo and Rivera, Wessels will simply
be sitting there allowing alleged evidence of fraud washing over
him. There are no instructions that will wash away the prejudice

to Wessels and Ponzo. Wessels recognizes it is not his place to

? It is anticipated that the government will argue that they have
provided voluminous discovery allowing Wessels to know everything
there is to know. The difficulty is that the production, after
being reduced down, there is at least 2 TB of material and closer
to 3 TB of data. Generative AI indicates that 1 TB is 1000 copies
of the Encyclopedia Britannica, hundreds of movies or thousands
of albums, Millions of documents or photos. Defendant has filed
a motion with regard to the production.

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Case 1:24-cr-00267-KMW Document 53-2 Filed 12/04/24 Page 9 of 12 PagelD: 367

champion Ponzo’s position. He does so because he suffers the same
fate as she suffers from a joint trial. While an indictment may
have an air of validity, the court should not forget the famous
quote from the New York Chief Judge Sol Wachtler that “a good
prosecutor would indict a ham sandwich, if that’s what you
wanted”. It is highly unlikely the government explained the
joinder rules to the grand jury. This court has to be backstop
to this type of conduct by the government.

There is also an evidential problem which arises in this
Matter. If the past is any indicator of the future, it is clear
the government will seek to introduce co-conspirator statements.
Clearly, simply based upon the structure of the indictment, Ponzo
and Wessels are not co-conspirators. Does the court permit the
introduction of co-conspirator statements involving the Ponzo
conspiracy during the joint trial of Wessels. The same equally
applies to the opposite scenario. The defendants are not left
with the hope that a curative instruction cures all the ills of
this often devastating evidence.

There is very little in the way of judicial economy from a
joint trial. The government will prove the Rivera/Wessels bank
fraud conspiracy/bank fraud/money laundering case and then prove

the Rivera/Ponzo wire fraud conspiracy/wire fraud/monetary
Case 1:24-cr-00267-KMW Document53-2 Filed 12/04/24 Page 10 of 12 PagelD: 368

instrument conspiracy. The perils of a joint trial do not
accomplish the goals that it seeks to achieve in this case.

THE COURT SHOULD ORDER THE GOVERNMENT TO
FILE A BILL OF PARTICULARS DISCLOSING THE
IDENTITY OF THE NON-OPERATING COMPANIES, THE
RECRUITS AND ALL UNIDENTIFIED INDIVIDUALS
SUCH AS CO-CONSPIRATORS AND OTHERS

Wessels adopts the arguments of Ponzo as they are equally
applicable to him. Wessels would argue it is more important to
him than Ponzo in light to the nature of the allegations against
him.

The government brought this case so it is clear they
understand each of the loans and various participants. The
government has dropped between 2 TB and 3 TB of discovery on the
defendant. They actually dropped over 10 TB of information upon
the defendants which has been culled down to something under 3
TB of material. It is an overwhelming task trying to go through
all the material. It is not unusual when a defendant brings these
applications that the government indicates that the defendant
knows who he interacted with. In this case that is equally true.
Wessels cannot rely upon the information in the indictment.
Wessels has no idea if the government intends on introducing
evidence involving Rivera and others he has no knowledge of or
any reason to be aware of who they are.

The sheer enormity of the case should not be lost on the

7
Case 1:24-cr-00267-KMW Document 53-2 Filed 12/04/24 Page 11 of 12 PagelD: 369

court. The indictment alleges there were 35 PPP loans which
disbursed almost $5,000,000.00 to non-operating companies. (Count
1, 715) As to Wessels it indicates he created tax forms for
“Recruits’ Non-Operating Companies”. (Count 1, 7 14). In Counts
two through four, the government identifies four businesses
Wessels prepared tax documents for and are attributed to Rivera
as well. There can be no doubt that the government knows who the
“Recruits” are, who the “Non-Operating Companies”, and who the
unindicted co-conspirators are. The defendant should not have to
search and spend inordinate amounts of time attempting to
identify the various participants to each alleged transaction.
Disclosure of the information readily available to the government
will cause the government to disclose its trial strategy or
otherwise prejudice the government. It will merely allow the
defendant to utilize the limited resources available to him in
defending this case and allow for him to more clearly focus the
defense. The Bill of Particulars allows for the defendant to
prepare a defense without any detriment to the government. What
prejudice is there to the government to identify the “Recruits”
when presumably they are all identified in the 2 to 3 TB of
discovery? What prejudice is there to the government to identify

each of the “Non-Operating Companies” when presumably they are
Case 1:24-cr-00267-KMW Document53-2 Filed 12/04/24 Page 12 of 12 PagelD: 370

presumably identified in the 2 to 3 TB discovery? What prejudice
is there to the government to identify each of the “unidentified
co-conspirators” when presumably they are presumably identified
in the 2 to 3 TB discovery?

The problem is not limited to the three counts of
substantive bank fraud but the conspiracy. The mass of discovery
provided makes it nearly impossible to locate all the people.
If the government provides the information, the defendant can
then do targeted searches, locate the specific information and
further his investigation. As it currently stands, defendant
finds himself swimming in an ocean with no sight of land in
preparing his defense. Clearly the government alleges one
conspiracy with 35 loans and $5,000,000.00. They identify three
loans totaling $410,000.00 with Mr. Wessels name tied to them
(Counts 2 through 4). Defendant submits it is not too much to ask
for the government to provide this basic information so defendant
can adequately prepare his defense.

Respectfully Submitted
/s/ Mark W. Catanzaro

Mark W. Catanzaro


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