Memorandum Opinion — United States v. Rabbitt and Aguilar, 3:23-cr-00320 (D.N.J., Document 78)

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Document 78, filed 09/04/24, in Case 3:23-cr-00320-MAS, is a Memorandum Opinion by District Judge Shipp in United States of America against Jean E. Rabbitt and Kevin Aguilar in the District of New Jersey, on Rabbitt's omnibus motion (ECF No. 57). It states that Rabbitt seeks to dismiss Counts 1-9 and 13, sever Rabbitt's trial from Aguilar's, require unredacted discovery or a privilege log, and require disclosure of all Brady material in advance of trial. On Count 1, charging conspiracy to commit bank fraud, the Court declines to dismiss based on Rabbitt's argument that the Government failed to plead a "materiality" element, describing a conspiracy that led to approval of approximately $3.3 million in PPP loans. The conclusion states that the omnibus motion is granted in part and denied in part.

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Case 3:23-cr-00320-MAS Document 78 Filed 09/04/24 Page 1 of 21 PagelD: 421

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

UNITED STATES OF AMERICA, , ;
Criminal Action No, 23-320 (MAS)

v. MEMORANDUM OPINION

JEAN E. RABBITT & KEVIN AGUILAR.

SHIPP, District Judge

This matter comes before the Court upon Defendant Jean E. Rabbit’s (“Defendant” or
“Rabbitt”) omnibus motion (ECF No. 57). The United States of America (the “Government”)
opposed (ECF No. 66), and Rabbitt replied (ECF No. 67). The Court has carefully considered the
parties’ submissions and decides the matter without oral argument pursuant to Local Civil Rule
78.1, which is applicable to criminal cases under Local Civil Rule 1.1. For the reasons set forth
herein, Rabbitt’s omnibus motion is granted in part, denied in part.

I. BACKGROUND

A. The Indictment

On April 19, 2023, Rabbitt and Kevin Aguilar (“Aguilar”) (collectively, “Defendants”)
were indicted in the District of New Jersey by a grand jury for the following Counts:
(1) Conspiracy to Commit Bank Fraud, in violation of 18 U.S.C. § 1349 (Count 1); (2) Bank Fraud,
in violation of 18 U.S.C. §§ 1344 and 2 (Counts 2-8); (3) Conspiracy to Commit Wire Fraud, in
violation of 18 U.S.C. § 1349 (Count 9); (4) Wire Fraud, in violation of 18 U.S.C. §§ 1343 and 2
(Counts 10-12); (5) Conspiracy to Engage in Monetary Transactions in Property Derived from
Specified Unlawful Activity, in violation of 18 U.S.C. § 1956(h) (Count 13); (6) Engaging in

Monetary Transactions in Property Derived from Specified Unlawful Activity, in violation of 18
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U.S.C. §§ 1957 and 2 (Counts 14, 15'); and (7) Aggravated Identity Theft, in violation of 18 U.S.C.
§§ 1028A(a)(1) and 2 (Count 16). (Indictment 7 1-24, ECF No. 37.) Rabbitt was also indicted for
False Statements in a Loan Application, in violation of 18 U.S.C. §§ 1014 and 2 (Count 17).
(Indictment ¥ 24; see also Gov’t’s Opp’n Br. 4.)

B. The Instant Motion?

On May 1, 2024, Rabbitt filed an omnibus motion raising several requests. (Def.’s Moving
Br., ECF No. 57.) Specifically, Rabbitt seeks to: (1) dismiss Counts 1-9 and 13 of the Indictment
“for failure to state an offense and failure to charge essential elements”; (2) sever Rabbitt’s trial
from Aguilar’s to protect Rabbitt’s Sixth Amendment Rights; (3) require the Government to
disclose unredacted copies of already produced discovery or produce a privilege log of the same;
(4) require the Government to disclose all Brady material in advance of trial; and (5) be permitted
to file any additional motions or join any of Aguilar’s motions as necessary. (/d.)

The Government opposed (Gov’t’s Opp’n Br., ECF No. 66) and Rabbitt replied (Def.’s
Reply Br., ECF No. 67).

Il. DISCUSSION

A. Motion to Dismiss Counts 1-9 and 13
1. Legal Standard
An indictment is sufficient if it is “a plain, concise, and definite written statement of the
essential facts constituting the offense charged.” Fed. R. Crim. P. 7(c)(1); see also United States

v. Resendiz-Ponce, 549 U.S. 102, 110 (2007) (“[D]etailed allegations . . . are not contemplated

' Count 14 is specific to Rabbitt only, and Count 15 is specific to Aguilar only. (Indictment
{| 17-20.)

* Aguilar did not request to join in on Rabbitt’s omnibus motion.

2
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by [Federal] Rule [of Criminal Procedure] 7(c)(1).”3). Nevertheless, a defendant may move to
dismiss an indictment for “lack of specificity” or “failure to state an offense.” Fed. R. Crim. P.
12(b)(3)(B). In the Third Circuit, an indictment is facially sufficient to warrant a trial on the merits
if it:

(1) contains the elements of the offense intended to be charged,

(2) sufficiently apprises the defendant of what he must be prepared

to meet, and (3) allows the defendant to show with accuracy to what

extent he may plead a former acquittal or conviction in the event of

a subsequent prosecution.
United States v. Vitillo, 490 F.3d 314, 321 (d. Cir 2007) (quoting United States v. Rankin, 870
F.2d 109, 112 (3d Cir. 1989)). Accordingly, an indictment that recites the statutory language of
the offense charged is adequate “so long as there is sufficient factual orientation to permit the
defendant to prepare his defense and to invoke double jeopardy in the event of a subsequent
prosecution.” Rankin, 870 F.2d at 112; see also Resendiz-Ponce, 549 U.S. at 109 (“[A]n indictment
parroting the language of a federal criminal statute is often sufficient.’”); but see Russell v. United
States, 369 U.S. 749, 765 (1962) “Undoubtedly, the language of the statute may be used in the
general description of an offense, but it must be accompanied with such a statement of the facts
and circumstances as will inform the accused of the specific offense, coming under the general
description, with which he is charged.” (citations omitted)). Yet, “such dismissals may not be
predicated upon the insufficiency of the evidence to prove the indictment’s charges.” United States
v. DeLaurentis, 230 F.3d 659, 661 (d Cir. 2000); United States v. Besmajian, 910 F.2d 1153,

1154 Gd Cir. 1990) (“In considering a defense motion to dismiss an indictment, the district court

accepts as true the factual allegations set forth in the indictment.”’).

3 All references to “Rule” or “Rules” hereinafter refer to the Federal Rules of Criminal Procedure.

3
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2. Motion to Dismiss Count 1

First, Rabbitt argues that Count 1 of the Indictment, charging conspiracy to commit bank
fraud, must be dismissed because: “(1) it fails to state an offense by charging conspiracy to attempt
bank fraud, which is not a crime under a proper reading of the relevant statutes; (2) it omits the
materiality element of bank fraud; and (3) it omits the intent-to-defraud element of [§] 1344(1).”
(Def.’s Moving Br. 3.) The Court addresses each in turn.

a. Failure to State an Offense

Rabbitt asserts that Count 1 improperly charges her “not only with conspiring to commit
bank fraud, but also conspiring to affempt bank fraud” which is “not a cognizable offense.” (Id. at
4.) Specifically, Rabbitt states that § 1349 covers conspiracies and attempts, not conspiracies to
attempt offenses or attempts to conspire to commit such offenses. (/d. at 5.) Rabbitt concedes that
she is unaware of any caselaw on the particular question, but offers out-of-jurisdiction cases in
other statutory contexts for support. (/d. at 5-6.)

As an initial matter, the Court clarifies that Count 1 charges Defendants with conspiracy to
commit bank fraud. (Indictment ff 1-4.) In fact, plain reading of the Indictment reveals that
Defendants are charged with succeeding in their conspiracy to commit bank fraud, which led to
approval of approximately $3.3 million in PPP loans. (Indictment {J 2-4.) See United States v.
Menendez, 137 ¥. Supp. 3d 688, 692 (D.N.J. 2015), aff'd, 831 F.3d 155 (3d Cir. 2016) (“[C]riminal
indictments are to be read as a whole and interpreted in a common sense manner.” (quoting United
States v. Lee, 359 F.3d 194, 209 (3d Cir. 2004))).

Taking a closer read, the term “attempt” is included in the Indictment to track the statutory
language. Conspiracy to commit bank fraud is prohibited by 18 U.S.C. § 1349, which provides

that “[a]ny person who attempts or conspires to commit any offense under this chapter shall be
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subject to the same penalties as those prescribed for the offense... .” 18 U.S.C. § 1349. To prove
bank fraud, which is an offense under the relevant chapter,

the evidence must establish beyond a reasonable doubt that a

defendant “knowingly execut[ed], or attempt[ed] to execute, a

scheme or artifice—(1) to defraud a financial institution; or (2) to

obtain any of the moneys, funds, credits, assets, securities, or other

property owned by, or under the custody or control of, a financial

institution, by means of false or fraudulent pretenses,
representations, or promises.”

United States v. Vargas, 629 F. App’x 415, 418 (3d Cir. 2015) (emphasis added) (quoting 18 U.S.C.
§ 1344).

More importantly, the Third Circuit has affirmed convictions charging defendants with the
same charge that Defendants face under Count 1. See, e.g., United States v. King, No. 18-379, 2021
WL 3783157, at *1 (D.N.J. Aug. 24, 2021) Gury found defendant guilty on all counts, which
included conspiracy to commit bank fraud in violation 18 U.S.C. § 1349 and three counts of bank
fraud in violation of 18 U.S.C. § 1344), aff’d sub nom., United States v. Kusi, No. 20-1095, 2021
WL 5505399 (3d Cir. Nov. 24, 2021); United States v. Duncan, No. 21-187, 2022 WL 1213466, at
*2 (D.N.J. Apr. 22, 2022) (“Defendant pleaded guilty to a charge of conspiracy to commit bank
fraud in violation of 18 U.S.C. §§ 1344 and 1349.”).

As such, the Court finds Rabbitt’s out-of-jurisdiction caselaw on other statutory contexts
unconvincing to find that Count 1 must be dismissed.

b. Materiality Element

Next, Rabbitt asserts that the Government fails to charge the materiality element of bank
fraud because “the word ‘material’” is left out of Count 1. (Def.’s Moving Br. 7-8.) Rabbitt argues
that any references to “materially fraudulent applications” or “materially false statements” in the
Indictment are insufficient because “they appear in sections of the count that the [G]overnment is

not strictly required to prove.” (/d. at 8.)
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Indeed, the Supreme Court has held that although the term “material” is not explicitly
included in the statutory language, “materiality of falsehood is an element of the federal . . . wire
fraud[] and bank fraud statutes.” Neder v. United States, 527 U.S. 1, 25 (1999). This is because
“the word ‘fraudulent’ clearly encompasses the notion of materiality.” United States v. Stewart,
151 F. Supp. 2d 572, 584 (E.D. Pa. 2001), opinion corrected, No. 96-583, 2007 WL 2032930 (E.D.
Pa. July 12, 2007);* see also United States v. Klein, 476 F.3d 111, 113 (2d Cir. 2007), as corrected
(Mar. 8, 2007) (“It is true that a bank fraud conviction requires a showing that the fraudulent
conduct was material, Neder, 527 U.S. at 25, although the bank fraud statute does not contain that
actual word. 18 U.S.C. § 1344.” (cleaned up))).

Critically, however, Rabbitt’s argument is meritless because courts have held that an
indictment is not defective just because it does not use the exact word “material” in allegations of

fraud, as long as there are specific allegations of misrepresentation in the indictment.’ Here, the

* As aptly stated by a sister court,

[t]he word “fraud” is a “legal term of art.” United States v. Cefaratti,
221 F.3d 502, 507 (3d Cir. 2000). At common law, “the well-settled
meaning of ‘fraud’ required a misrepresentation or concealment of
material fact.” Neder, 527 U.S. at 22; see United States v. Coffman,
94 F.3d 330, 335 (7th Cir. 1996).

Stewart, 151 F. Supp. 2d at 584 (cleaned up).

> See, e.g., Stewart, 151 F. Supp. 2d at 583-84 (declining to find the superseding indictment to be
“fatally deficient” based on defendant’s argument that the word “material” is omitted because the
superseding indictment properly mirrored the statutory language and “identifie[d]
misrepresentations that can only be characterized as material even though the word “material” is
not used.”); United States vy. Solomon, 273 F.3d 1108, *2 (5th Cir. 2001) (“[I]n determining
sufficiency of an indictment, the law does not compel ‘a ritual of words.’ ... Though the indictment
did not contain the word ‘materiality,’ it did allege many specific material omissions and
misrepresentations made by [defendant].” (citations omitted)); c.f United States v. Wecht, No.
06-26, 2007 WL 3125096, at *5 (W.D. Pa. Oct. 24, 2007) (“Of course, materiality is an implicit
element of honest services fraud under 18 U.S.C. §§ 1341, 1343 and 1346, but the failure of an
indictment to allege materiality as an explicit element is not fatal to the indictment.”).

6
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Court finds that “by any reasonable construction, the [Indictment] identifies misrepresentations
that can only be characterized as material... .” Stewart, 151 F. Supp. 2d at 584. Specifically, the
Indictment alleges that Defendants submitted: (1) Payroll Protection Program (“PPP”) applications
that contained “numerous materially false statements” to financial institutions on behalf of several
corporate entities formed, owned, and controlled by Rabbitt (“Borrower Companies’), and
(2) “materially false documentation to support the fraudulent PPP applications.” (Indictment 9 1,
4(b), (c) (emphasis added).) The Indictment further provides that “/b/ased on the materially false
statements and documentation in the applications, [the financial institutions] approved several PPP
loans . . . lending the Borrower Companies over approximately $3,300,000.” Ud. §§ 4(d), (e)
(emphasis added).) In short, the Indictment alleges that the misrepresentations made by Defendants
in and for the PPP applications were objectively important, relevant, and material in influencing
the decision of the financial institutions to grant the loans. See United States v. Santos, No. 18-585,
2022 WL 1698171, at *3 (D.N.J. Mar. 22, 2022) (“A materially false statement has ‘a natural
tendency to influence, or [is] capable of influencing, the decision of the decisionmaking body to
which it was addressed.’ . . . [C]ourts assess materiality through an objective lens.” (citing Neder,
527 U.S. at 16)); see also Klein, 476 F.3d at 114 (“If materiality can be inferred to be an element
of criminal fraud because of the well-understood meaning of ‘fraud’ as a legal term, an allegation
of materiality can be inferred from use of the word fraud in the indictment.”). In turn, the Court
finds that the Indictment fully apprises Rabbitt of the charges against her and does not hinder her
from presenting a vigorous defense in this matter. See Rankin, 870 F.2d at 112; Stewart, 151 F.
Supp. 2d at 585 (finding the same because “[t]here can be no doubt that a reasonable person would

attach importance to the [relevant] misrepresentations”).
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The Court, therefore, declines to dismiss Count 1 based on Rabbitt’s argument that the
Government failed to plead a “materiality” element.

Cc. Intent-to-Defraud Element

Finally, Rabbitt argues that Count 1 must be dismissed because “‘it fails to properly allege
the specific intent to defraud required to prove a violation of [§] 1344(1).” (Def.’s Moving Br. 9.)
Specifically, Rabbitt asserts that the Indictment “fails to allege that [Defendants] acted with the
specific intent to defraud the financial institution.” (/d. at 10.)

“T]he first clause of § 1344... includes the requirement that a defendant intend to ‘defraud
a financial institution.’” Loughrin v. United States, 573 U.S. 351, 357 (2014). “To act with an
‘intent to defraud’ means to act knowingly and with the intention or the purpose to deceive or to
cheat.” United States v. Andrews, 811 F. Supp. 2d 1158, 1171 (E.D. Pa. 2011) (citing Mod. Crim.
Jury Instr. 6.18.1341-4)).

To the extent Rabbitt argues that the Indictment must be dismissed because it does not
include a separate intent-to-defraud element, the argument fails. Here, the Indictment reads in
relevant part, that Defendants “did knowingly and intentionally conspire . . . with each other . . .
to execute and attempt to execute a scheme and artifice to defraud a financial institution... .”
(Indictment {[ 2.) In essence, the Indictment sufficiently “parrot[s] the language of [the relevant]
federal criminal statute[s]”® and provides a general description of the offense charged.
Resendiz-Ponce, 549 U.S. at 109; compare (Indictment § 2), with 18 U.S.C. § 1349 (“Any person

who attempts or conspires to commit any offense under this chapter shall be subject to the same

° Rabbitt argues that the Indictment does not align with the Third Circuit Model Jury Instructions.
(Def.’s Moving Br. 10-11; Def.’s Reply 5-7.) Importantly, however, Rabbitt fails to provide case
law that requires an indictment to parallel model jury instructions, not just the language of the
federal criminal statute.
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penalties as those prescribed for the offense, the commission of which was the object of the attempt
or conspiracy.”), and 18 U.S.C. § 1344 (“Whoever knowingly executes, or attempts to execute, a
scheme or artifice—(1) to defraud a financial institution... .”),

Moreover, accepting the factual allegations in the Indictment as true, Besmajian, 910 F.2d
at 1154, the Court finds that the statements of facts and circumstances as to Defendants’ intent to
defraud sufficiently inform Rabbitt of the accused offense charged. Rankin, 870 F.2d at 112;
Russell, 369 U.S. at 765. In fact, there are multiple references to Defendants’ intent to defraud the
financial institutions to obtain approximately $3.3 million in PPP loans, including that:
(1) Defendants “agreed to obtain multiple PPP loans from [the financial institutions] based on
false and fraudulent pretenses, representations, and promises”; (2) Defendants “submitted
materially false documentation to support the fraudulent PPP loan applications”; and (3) “To
conceal the fraud... [Defendants] then transferred the [PPP] funds to [other] bank accounts that
[Aguilar] had opened . . . to make it appear as if the Borrower Companies were using the funds for
[] permissible purpose[s] . . . .” (Indictment J 4(a), (c), (g) (emphasis added).) See United States
v. Berdize, 415 F. App’x 320, 326 (2d Cir. 2011) (“Both the existence of a conspiracy and a
defendant’s participation in it with the requisite knowledge and criminal intent may be established
through circumstantial evidence, provided it is sufficient to prove these elements beyond a
reasonable doubt.”).

The Court, accordingly, denies Rabbitt’s motion to dismiss Count 1.7

7 Rabbitt argues—by adopting the same reasoning for the dismissal of Count 1—that Counts 2
through 8, charging bank fraud and attempted bank fraud, should be dismissed because the Counts
also fail to charge the intent-to-defraud element. (Def.’s Moving Br. 10-11.) For the same

aforementioned reasons, the Court denies Rabbitt’s “intent-to-defraud” argument as to Counts 2
through 8.
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3. Motion to Dismiss Counts 9 and 13

Next, Rabbitt argues that Count 9 (conspiracy to commit wire fraud) and Count 13
(conspiracy to engage in monetary transactions in criminally derived property) of the Indictment
should be dismissed because they fail to state a cognizable offense. (Def.’s Moving Br. 11-12.)

a. Count 9

As to Count 9, Rabbitt argues that “conspiracy to attempt wire fraud is not a federal
offense,” because “the wire fraud statute does not reference attempts at all.” (/d. at 11.) As such,
Rabbitt argues that the Indictment should have charged Defendants with “conspiracy to violate
[$] 1343 by committing completed wire fraud.” (/d.) For the same reasons the Court denied
Rabbitt’s motion to dismiss Count 1, the Court denies Rabbitt’s motion to dismiss Count 9.

“Conspiracy to commit wire fraud is prohibited by 18 U.S.C. § 1349.” United States v.
Vargas, 629 F. App’x 415, 417 (3d Cir. 2015). Wire fraud, 18 U.S.C. § 1343, requires the
Government to establish beyond a reasonable doubt: “(1) a scheme or artifice to defraud for the
purpose of obtaining money or property, (2) participation by the defendant with specific intent to
defraud, and (3) use of . . . wire transmissions in furtherance of the scheme.” Jd. (quoting Nat’
Sec. Sys., Inc. v. lola, 700 F.3d 65, 105 (3d Cir. 2012)).

The Court first notes that Count 9 sufficiently parrots the statutory language. Compare
(Indictment § 8 (charging Defendants with “knowingly and intentionally conspir[ing] with each
other and others to devise a scheme and artifice to defraud the [U.S. Small Business Administration
(“SBA”)] and others ... .”)), with 18 U.S.C. § 1343 and § 1349. Further, reading the Indictment
as a whole and in a common sense manner, Lee, 359 F.3d at 209, Defendants are charged with
succeeding in their conspiracy to commit wire fraud, not with attempt to conspire or attempt to

commit wire fraud. (Indictment {| 7-10.) Indeed, the Indictment alleges that “[b]ased on the

10
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materially false information that [Defendants] included in the [Economic Injury Disaster Loans
(“EIDL”)] applications, . . . the SBA provided over approximately $445,000 in EIDLs to the
Borrower Companies, which [Defendants] then diverted to their own use.” (Indictment §§ 10(d),
(h).) As to the last element of wire fraud, the Indictment alleges that “[a]t least one of the EIDL
applications that [Defendants] submitted to the SBA was sent by interstate wire... .” (Id. at
{ 10(b).)
The Court, therefore, denies Rabbitt’s motion to dismiss Count 9.
b. Count 13

As to Count 13, Rabbitt argues that the Indictment improperly charges “conspiracy to
attempt to engage in monetary transactions in criminal deprived property” because it is not a
cognizable offense. (Def.’s Moving Br. 11-12.)

For the same reasons stated regarding Counts 1 and 9, the Court reaches the same
conclusion for Count 13. First, the Court finds that Count 13 sufficiently parrots the statutory
language, which includes the word “attempt.” Compare (Indictment § 14), with 18 U.S.C.
§§ 1956(h) and 1957. Second, reading the Indictment as a whole and in a common sense manner,
Lee, 359 F.3d at 209, Defendants are charged with succeeding in their conspiracy to commit money
laundering. In short, the factual allegations state that Defendants deposited the $3.3 million
obtained through PPP loans into the respective Borrower Companies’ bank accounts, which were
then transferred generally by paper checks to several corporate entities,® that Aguilar opened and
controlled, to make it seem as though Borrower Companies were legitimately using their PPP loans

for business activities. (Indictment § 16(c).) Thereafter, the Indictment states that “Aguilar

® The Indictment refers to the corporate entities as “Sham Payroll Companies.” (Indictment 1(d).)
For the purposes of the instant omnibus motion, the Court will refer to them as “corporate entities.”

1]
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transferred at least approximately $2.3 million from bank accounts [of the corporate entities]. . .”
to other bank accounts; “[Defendants] [then] used the funds to pay their personal expenses.” (/d.at

The Court, accordingly, denies Rabbitt’s motion to dismiss Count 13.

B. Motion to Sever Trial

Rabbitt moves to sever trial from Aguilar’s on the ground that “‘a joint trial would result in
the presentation of mutually antagonistic defenses, creating confusion with the jury and requiring
[Rabbitt] and [Aguilar] to defend not only the [G]overnment’s allegations but also each other’s.”
(Def.’s Moving Br. 12-15.) Rabbitt also argues that a “joint trial could potentially violate [her] due
process rights” because she will be prevented from calling Aguilar as a witness. (/d. at 15-18.)

. Legal Standard

Federal Rule of Criminal Procedure 8(b) provides that “[t]}wo or more defendants may be
charged in the same indictment or information if they are alleged to have participated in the same
act or transaction or in the same series of acts or transactions constituting an offense or offenses.”
Fed. R. Crim. P. 8(b). Relatedly, the Supreme Court maintains “[t]here is a preference in the federal
system for joint trials of defendants who are indicted together.” Zafiro v. United States, 506 U.S.
534, 537 (1993) (finding that joint trials “promote efficiency and serve the interests of justice by
avoiding the scandal and inequity of inconsistent verdicts.” (internal quotations and citations

omitted)).

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At the same time, however, “Rule 14° recognizes that joinder, even when proper under
Rule 8(b), may prejudice either a defendant or the Government,” such as if “mutually antagonistic”
or “irreconcilable” defenses are so prejudicial as to mandate severance. Jd. at 538. As such, the
Supreme Court has held that “a district court should grant a severance . . . only if there is a serious
risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent
the jury from making a reliable judgment about guilt or innocence.” /d. at 539 (“[A] defendant
might suffer prejudice if essential exculpatory evidence that would be available to a defendant
tried alone were unavailable in a joint trial.” (citation omitted)).

“Rule [14] places the burden of showing prejudice from the joinder on the defendant
seeking severance.” United States v. Eufrasio, 935 F.2d 553, 568 (3d Cir. 1991) (citing United
States v. De Peri, 778 F.2d 963, 983 (3d Cir.1985), cert. denied, 475 U.S. 1110 (1986)). Notably,
“[ml]otions for severance rest in the sound discretion of the trial judge.” United States v. Reicherter,
647 F.2d 397, 400 (3d Cir. 1981) (citing United States v. Boyd, 595 F.2d 120, 125 (3d Cir. 1978));
see Zafiro, 506 U.S. at 539 (“The risk of prejudice will vary with the facts in each case, and district
courts may find prejudice in [various] situations’).

2 Mutually Antagonistic Defenses

Courts generally agree that “[mJutually exclusive defenses . . . exist when acquittal of one
co[-]defendant would necessarily call for the conviction of the other,” such as “when one person’s
claim of innocence is predicated solely on the guilt of a co-defendant.” United States v. Voigt, 89

F.3d 1050, 1094 (3d Cir. 1996) (citations omitted). “In determining whether mutually antagonistic

” Rule 14 provides: “If it appears that a defendant or the [G]overnment is prejudiced by a joinder
of... defendants .. . for trial together, the court may order an election or separate trials of counts,
grant a severance of defendants or provide whatever other relief justice requires.” Fed. R. Crim. P.
14(a).

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defenses exist such that severance may be required, the court must ascertain whether ‘the jury
could reasonably construct a sequence of events that accommodates the essence of all
[defendant’s] defenses.’” Jd. “Courts have consistently held that finger-pointing and
blame-shifting among co[-|conspirators do not support a finding of mutually antagonistic
defenses.” /d. at 1095; Reicherter, 647 F.2d at 400 (citations omitted) (“Mere allegations of
prejudice are not enough; and it is not sufficient simply to establish that severance would improve
the defendant’s chance of acquittal.”).

Here, Rabbitt asserts that “a joint trial would /ikely lead to the presentation of defenses that
are truly antagonistic and cannot be mutually accommodated.” (Def.’s Moving Br. 14 (emphasis
added).) Rabbitt does not present any potential defenses and instead states that “discovery includes
multiple recordings of [Aguilar] impersonating [Rabbitt].” (/d.) In turn, Rabbitt argues that a
finding that she did not participate in the alleged conduct will “necessarily require a finding of
guilt as to [Aguilar].” Ud.) Rabbitt, however, fails to provide any specific factual allegations to
support that such an outcome is inevitable. To the contrary, it is possible that a jury could accept
Rabbitt’s defense without concluding that Aguilar is guilty. See Voigt, 89 F.3d at 1095 (“Far more
frequently, courts have concluded that the asserted defenses, while in conflict with one another,
are not so irreconcilable that ‘[t]he jury could not have been able to assess the guilt or innocence

299

of the defendants on an individual and independent basis.’” (citation omitted)); see also United
States v. Flanagan, 34 F.3d 949, 952 (10th Cir. 1994) (affirming denial of motion to sever because
a jury “could logically” accept one defendant’s defense without concluding that the co-defendant
was guilty, and vice versa). Without more, Rabbitt falls short of demonstrating “clear and

substantial prejudice [that will result] in a manifestly unfair trial” should her severance motion be

denied. Reicherter, 647 F.2d at 400 (citations omitted) (affirming the trial judge’s decision to deny

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defendant’s motion for severance because the “[d]efendant pinpoints no specific instances of
prejudice.”); see Zafiro, 506 U.S. at 539-40 (finding that denial of defendants’ severance motions
was proper because defendants “dfid] not articulate any specific instances of prejudice. Instead
they contend|ed] that the very nature of their defenses, without more, prejudiced them.”).

In short, Rabbitt fails to carry her burden to demonstrate that mutually antagonistic or
irreconcilable defenses are so prejudicial to warrant severance in this case.

3. Calling Co-Defendant as a Witness

The Third Circuit provides that four factors are to be considered “in determining whether
the Court should grant a severance on the ground that a joint trial would deprive the movant of the
ability to call a co[-]defendant as a defense witness:” United States v. Kozell, 468 F. Supp. 746,
748 (E.D. Pa. 1979) (United States v. Boscia, 573 F.2d 827, 832 (3d Cir. 1978)). The factors are:
“(1) the likelihood of co-defendant’s testifying; (2) the degree to which such testimony would be
exculpatory; (3) the degree to which the testifying co-defendants could be impeached; [and]
(4) judicial economy.” Boscia, 573 F.2d at 832. “More than the showing of a possibility that a
co-defendant will testify is required.” United States v. Vastola, 670 F. Supp. 1244, 1264 (D.N.J.
1987) (citing United States v. Provenzano, 688 F.2d 194, 198 (d Cir. 1982)).

As to the first factor, Rabbitt fails to demonstrate (or even address) that there is “more than
the showing of possibility,” Vastola, 670 F. Supp. at 1264, or likelihood that Aguilar would testify,
even if their cases were severed. Instead, Rabbitt focuses on an alternative, speculative scenario in
which “[she] may find it necessary to call [Aguilar] as a witness” and “compel his testimony if
necessary” because such “testimony could be critical to [Rabbitt]’s defense . . . .” (Def.’s Moving
Br. 15-16 (emphasis added).) She then asserts that she “could move the Court to compel the

[G]overnment to grant [Aguilar] testimonial immunity if necessary to protect [Rabbitt’s] due

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process rights.” Ud. at 16 (emphasis added).) In essence, Rabbit has “not made a strong showing
of the likelihood that [her] co-defendant[] [will] testify.” Boscia, 573 F.2d at 832.'° Without more,
the Court finds it inappropriate to sever based on such speculative and hypothetical events. See
Vastola, 670 F. Supp. at 1264 (“The motion is not supported by [co-defendant] affidavits and the
court finds that it would be highly speculative to sever on the basis of such limited information.”).

Critically, Rabbitt also overlooks the fact that “[she] would be unable to compel testimony
from a co[-|defendant even if their cases were severed [because] [t]he constitutional right of a
defendant not to testify at the behest of a co[-]defendant remains his right despite the severance of
their trials.” United States v. Somers, 496 F.2d 723, 731 (3d Cir. 1974) (quoting United States v.
Barber, 442 F.2d 517, 529 n.22 (3d Cir. 1971)) (finding denial of defendant’s severance motion
was proper because defendant “made no showing that [co-defendant] would have testified
voluntarily in [defendant’s] case had the defendants been severed.”); see Barber, 442 F.2d at 529
(“[A] defendant may not compel another defendant to take the stand” (citing United States v. Hous.
Found. of Am., 176 F.2d 665 (3d Cir. 1949))).

Regarding the second and third factor, Rabbitt’s moving brief lacks any support to
demonstrate the degree to which Aguilar’s testimony would be exculpatory or to which Aguilar

could be impeached. See Barber, 442 F.2d at 530 (“[T]he mere presence of hostility among

'° See, e.g., Kozell, 468 F. Supp. at 748 (denying defendant’s motion for severance because
“Tw]hile it is not necessary that [defendant] show that [co-defendant] is ‘certain’ to testify at a later
trial, United States v. Echeles, 352 F.2d 892 (7th Cir. 1965), we find that [defendant] has not shown
that [co-defendant] is ‘likely’ to testify due to the various conditions he has placed on his
willingness to testify.”); United States v. Finkelstein, 526 F.2d 517, 524 (2d Cir. 1975) cert. denied,
425 U.S. 960 (1976) (denying severance even though a co-defendant signed an affidavit stating
that he would testify for appellant because it was “unrealistic” to believe that the co-defendant
would not invoke his Fifth Amendment privilege).

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defendants or the desire of one to exculpate h[er]self by inculpating another have both been held
to be insufficient grounds to require separate trials.”).

As to the fourth factor, Rabbitt’s arguments are weak at best. “[C]onsiderations of judicial
economy weigh heavily against separate trials.” Boscia, 573 F.2d at 833 (“[W]here there is a
reasonable assurance that defendants will be given a fair trial regardless of whether a severance is
granted, judicial economy becomes a relevant factor.”). With the exception of Counts 14, 15 and
17, Defendants are charged on all counts together (see Indictment) and thus a separate trial will
unnecessarily require a substantial amount of evidence (including testifying witnesses) to be
presented twice. See Eufrasio, 935 F.2d at 569 (affirming the trial court’s decision to deny
severance of trial “[b]ecause there would have been substantial overlap in the evidence presented
in separate trials”). Further, Rabbitt fails to demonstrate why jury instructions cannot remedy any
potential prejudice against Rabbitt and Aguilar being tried together. See Zafiro, 506 U.S. at 539
(“When the risk of prejudice is high, a district court is more likely to determine that separate trials
are necessary, but .. . less drastic measures, such as limiting instructions, often will suffice.”
(citations omitted)). At this juncture, the Court finds no reason to doubt that a jury will be able to
“compartmentalize the evidence as it relates to separate defendants.” See Somers, 496 F.2d at 730
(quoting United States v. De Larosa, 450 F.2d 1057, 1065 (3d Cir. 1971), cert. denied, Bashen v.
United States, 405 U.S. 927 (1972)).

In sum, the Court finds that Rabbitt fails to satisfy her burden in demonstrating that
severance of her trial from the trial of Aguilar’s is warranted. Rabbitt’s motion to sever trial is

denied.

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C. Motion to Compel Unredacted Copies of Already Produced Discovery or a
Privilege Log of the Same

Next, Rabbitt moves to compel the Government to provide an unredacted version of a
recorded statement made by an individual who is “allegedly the victim of identity theft under 18
U.S.C. 1028A.” (Def.’s Moving Br. 18.) Rabbitt states that in the recorded statement, the individual
states her personal identifying information—including “her name, social security number, date of
birth,” “bank account numbers, and other financial information’”—which are integral to the
allegations of identity theft. Ud.) Further, Rabbitt flags that additional redactions have been
identified in at least 67 documents produced as part of discovery in this matter, but for which no
redaction log has been provided. (/d.) Rabbitt, accordingly, requests that the Court compel the
Government to provide either: (1) “unredacted copies of all documents which contain redactions
including the 67 documents” and “identify if exact copies of the listed documents have been
produced elsewhere in the discovery and if so where”; or (2) “a privilege log for those documents
so that their production may be litigated, if necessary.” (/d. at 19.)

The Government argues that Rabbitt’s motion to compel is misguided and premature. First,
the Government asserts that the recorded statement only redacted “the victim’s date of birth, social
security number, home address, and driver’s license number,” which is not integral to Rabbitt’s
defense. (Gov’t’s Opp’n Br. 27-28.) Second, the Government asserts that redactions were made to
Jencks material—such as those pertaining to a witnesses’ personal identifying information, an
agency’s case file number, or an agent’s phone number—which are “limited, self-explanatory, and
irrelevant to any charges or defenses in this action.” (/d. at 28.) Additionally, the Government
asserts that redactions were made to select irrelevant material in Rule 16 documents because they

are not: (1) “material to preparing the defense”; (2) “not intended to be used in the [G]overnment’s

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‘case in chief’”; and (3) were not “obtained from or belonging] to the defendant.” (Ud. at 29
(quoting Fed. R. Crim. P. 16(a)(1)(E)).)

Here, the Court will compel the Government to make the necessary productions or
alternatively produce a privilege log. While the Court acknowledges that a defendant is not entitled
to “all the minutia of [the prosecution’s] evidence,” the Third Circuit has recognized that “certain
demands for evidentiary material may be within bounds of permissible discovery.” United States
v. Fioravanti, 412 F.2d 407, 411 & n.10 (3d Cir. 1969) (the government must “not frustrate the
defense in the preparation of its case.”). In the instant matter, the Court finds that there is
“persuasive basis” for compelling the disclosure of personal identifying information pertaining to
the alleged victim of identity theft—namely, Rabbitt avers that personal identifying information is
integral to the identity theft charge. See United States v. Hull, No. 21-39, 2023 WL 8005251, at *9
(W.D. Pa. Nov. 17, 2023) (denying defendant’s request for the identity and addresses of all persons
interviewed by the government on the basis that they “could possibly possess” helpful information
because there was a lack of compelling circumstances and such information was already covered
by the government’s Brady disclosures); see also Gregory v. United States, 369 F.2d 185, 188
(D.C. Cir. 1966) (“A criminal trial, like its civil counterpart, is a quest for truth. That quest will
more often be successful if both sides have an equal opportunity to interview the persons who have
the information from which the truth may be determined”). Further, any privacy concerns
regarding personal identifying information in the recorded statement (of the alleged victim) or
Jencks material (of one or more witnesses) are adequately addressed by the Stipulated Protective
Order that is in place. See, e.g., Jane G.A. v. Rodriguez, No. 20-5922, 2021 WL 2530849, at *2

(D.N.J. Mar. 11, 2021); Strike 3 Holdings, LLC v. Doe, No. 18-12585, 2020 WL 3567282, at *11

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(D.N.J. June 30, 2020) (“[A]ny concerns about . . . privacy exposure are easily assuaged through
implementation of an appropriate protective order.”).

As to the Government’s assertions that certain material is not relevant or material to
preparing the defense,'! the Court finds the argument unpersuasive at this juncture. Without a
privilege log, it is unclear as to what material was redacted and thus the Court has no means to
evaluate the relevancy or materiality of the redactions. Notably, Rule 16(a)(1)(E) does not allow
the Government to make ad hoc redactions as it sees best fit, nor has the Government demonstrated
that the relevant materials are exempt from discovery and inspection, especially when the
Government has already turned over Jencks materials. See Fed. R. Crim. P. 16(a)(1)(E);'* Coles,
511 F. Supp. 3d at 574 (stating only that “the rule exempts government work product. .. . [and]
the statements of prospective government witnesses, except as provided in the Jencks Act” from
discovery and inspection).

The Court, accordingly, grants Rabbitt’s motion to compel.

D. Request for Brady Material in Advance of Trial

Next, Rabbitt requests that the Government be compelled to produce exculpatory evidence
as well as evidence that could be used for impeachment purposes. (Def.’s Moving Br. 19-22.) The

Government states that it is “well aware of its obligations under Brady, which requires the

'l To be clear, the Court does not compel the Government to produce materials: (1) not intended
to be used in its case in chief at trial, or (2) not obtained from Defendants.

” Rule 16(a)(1)(E)(i) provides that “/u/pon a defendant's request, the government must permit
the defendant to inspect [relevant materials] if the item is within the government’s possession,
custody, or control and the item is material to preparing the defense.” Fed. R. Crim. P. 16(a)(1)(E)
(emphasis added); see also United States v. Hertel & Brown Physical & Aquatic Therapy, No.
21-39, 2024 WL 2819301, at *2 (W.D. Pa. June 3, 2024) (Rule 16 “establishes six categories of
information that the [G]overnment must produce to an individual defendant ‘[u]pon . . . request.’
... “Rule 16(a)(1)(E) is the broadest provision” (citing United States y. Coles, 511 F. Supp. 3d
566, 574 (M.D. Pa. 2021))).

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Government to turn over [relevant evidence] at the earliest possible time.!? (Gov’t’s Opp’n Br. 30.)
As such, the Government contends that it will promptly disclose any exculpatory material and will
also disclose Giglio material at the appropriate time. (/d. at 30.)

The Court, accordingly, finds Rabbitt’s request to be moot.

E. Request to File Additional Motions or Join Co-Defendant’s Motions as
Necessary

Lastly, the Court turns to Rabbitt’s request that she be granted the right to file additional
motions and be permitted to join in any and all motions filed by Aguilar. (Def.’s Moving Br. 22.)
The Government argues that Rabbitt’s request is premature and that she should be required to seek
leave of Court before filing such additional pretrial motions. (Gov’t’s Opp’n Br. 30.)

Should Defendants or the Government seek to file any additional motions, the respective
party is directed to immediately seek leave of Court and provide good cause as to why filing of the
respective motion should be granted. The Court will consider the request at that time. As such, the
Court reserves on Rabbitt’s request and will further consider Rabbitt’s request to join motions of
Aguilar at the appropriate time.

I. CONCLUSION

For the reasons set forth above, Rabbitt’s omnibus motion is granted in part and denied in

part. The Court will enter an Order consistent with this Memorandum Opinion.

MICHAEL A. SHIPP
UNITED STATES DISTRICT JUDGE

'3 Moreover, the Court’s scheduling order requires the Government to provide all materials to be
disclosed under Giglio and the Jencks Act on or before September 24, 2024. (Scheduling Order
q 8, ECF No. 56.)

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