Government’s Notice of Intention to Offer Evidence Pursuant to Fed. R. Evid. 404(b) — United States v. Shambrica Washington and Jean Victor Dumas, No. 22-cr-00187-WJM (Dkt. 56, D. Colo.)

Summary

In this notice in United States v. Shambrica Washington and Jean Victor Dumas, Case No. 22-cr-00187-WJM in the District of Colorado, the government says it intends to offer evidence under Federal Rule of Evidence 404(b) at trial; AUSA Robert Brown certified service on February 3, 2023. Section A covers other SBA loan applications by Washington: besides the EIDL applications behind Counts 1 and 3 for Piccoli Group dba Tiny Toes and Tiaras and Trueloves Daughters, it lists applications made on April 15, 2020, June 19, 2020 and June 23, 2020, which the government calls intrinsic to the charged conduct. Section B lists IRS Forms 7200 for employee retention credits filed in Texas from 9/30/2021 to 10/21/2021 for entities including Jazzy Jewels, Kemett LLC and Damus Properties, which the notice says were not charged for lack of venue in Colorado. It cites Huddleston v. United States.

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Case No. 22-cr-00187-WJM

UNITED STATES OF AMERICA,

Plaintiff,

1. SHAMBRICA WASHINGTON, and
2. JEAN VICTOR DUMAS

Defendants.

GOVERNMENT=S NOTICE OF INTENTION TO OFFER
EVIDENCE PURSUANT TO FED.R.EVID. 404(b)
______________________________________________________________________

The United States of America, by and through its undersigned counsel, hereby

provides notice to the defendants and to the Court of its intention or to offer in its case-

in-chief at trial, pursuant to Federal Rule of Evidence 404(b), evidence of the “other

crimes, wrongs or acts” for purposes other than to show the character of the defendants

and their conformity therewith in the instant case.

The government submits that evidence described in section A, below, is

admissible not as evidence of bad acts under Fed.R.Evid. Rule 404(b) but because the

acts concern evidence that is intrinsic to the charged conduct in this case. 1 The

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The Tenth Circuit has long recognized the distinction between Aextrinsic act
evidence,@ the admission of which is subject to the analytical framework of Fed.R.Evid. Rule
404(b), and Aintrinsic act evidence,@ which is not. See, e.g., United States v. Dougherty, No.
08-8037, 2009 WL 990526, 321 Fed.Appx. 762, 765 (10th Cir. 2009); United States v. Parker,
553 F.3d 1309, 1314 (10th Cir.2009); United States v. James, No. 06-7072, 2007 WL 521247,
217 Fed.Appx. 776, 780-81 (10th Cir.2007); Elliot v. Turner Construction Co., 381 F.3d 995,

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government nonetheless hereby provides notice of its intention to offer in its case-in-

chief evidence of the those acts and conduct, in order to preserve the opportunity to

seek admission of the evidence pursuant to Fed.R.Evid. Rule 404(b), in the event that

the Court concludes that the admission of such evidence is governed under Rule

404(b). The offered evidence described under section B, below, is offered under Rule

404(b).

In accordance with Rule 404(b), the government provides the following

description of the general nature of evidence which it will or may seek to offer pursuant

to Fed.R.Evid. Rule 404(b), which evidence has previously been disclosed or made

available to the defendants as part of the government=s ongoing pretrial disclosures in

this case:

A. Other SBA loan applications by the defendant Shambrica Washington.

Part of the evidence of count 1 will be that on March 31, 2020, Shambrica

Washington submitted an online application to the SBA for an Economic Injury Disaster

Loan (EIDL) on behalf of a company Piccoli Group dba Tiny Toes and Tiaras (loan no.

1004 (10th Cir. 2004). AGenerally speaking, >[i]ntrinsic evidence is directly connected to the
factual circumstances of the crime and provides contextual or background information to the
jury. Extrinsic evidence, on the other hand, is extraneous and is not intimately connected or
blended with the factual circumstances of the charged offense.=@ United States v. Parker, 553
F.2d at 1314 (citations and alterations omitted).

Intrinsic evidence includes evidence that is res gestae of the offense conduct at
issue in the case, United States v. Kimball, 73 F.3d 269, 272 (10th Cir.1995) or that which is
Ainextricably intertwined@ with or intrinsically related to the charged offense Ato the extent that
testimony and evidence sought to be admitted would be confusing and incomplete without such
evidence,@ United States v. Oles, 994 F.2d 1519, 1522 (10th Cir.1993), or is Apart of a single
criminal episode.@ United States v. James, 217 Fed.Appx. at 781.

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xxx4468). Part of the evidence of Count 3 will be that on June 24, 2020, Shambrica

Washington submitted an online application to the SBA for an EIDL on behalf of

Trueloves Daughters (loan no. xxx8933). Regarding loan no. 4468 a rejection letter

was sent dated April 20, 2020, but the loan was later approved and funded. Regarding

loan no. 8933 it was declined initially and also later approved. In both instances,

Shambrica Washington was in contact with the SBA regarding correcting things in the

applications or submitting additional information. There are also references to

communications between the SBA and Washington about “duplicate” applications in the

SBA Notes to the application files.

The government’s theory of the case is that in both of these applications, the

defendant made false representations about the gross revenues, costs of goods sold,

and her criminal record. In the SBA records relating to both of both of these loans are

references to other loans applied for by the same, or related applicant. For example, in

the Trueloves Daughters’ application there are notations that the Tiny Toes and Tiaras

application was made. Also referenced are the applications the government gives this

notice of offering as evidence. Those are: (1) an application in the name of Tiny Toes

and Tiaras was made (loan appl. no. xx7109) on April 15, 2020; (2) an application in the

name of Shambrica Washington was made (loan appl. no. xx0776) on June 19, 2020;

and (3) an application in the name of Piccoli Group dba Tiny Toes and Tiaras was made

(loan appl. no. xx5025) on June 23, 2020.

B. Other IRS Form 7200s were submitted by the defendants in Texas.

Defendant Washington is charged in counts 28-30 with making false claims on

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IRS Forms 7200 which a business was authorized to use to make a claim for employee

retention credits under the CARES Act. Before moving to Texas, it is alleged, she

submitted false Forms 7200 on three occasions on behalf of Tiny Toes and Tiaras and

Truelove’s Daughters.

After establishing a residence in Texas, Additional Forms 7200 were filed on

behalf of entities tied to the defendants. Those filings are:

Date Filed Quarter Entity
9/30/2021 2020 - Q3 Truelove Daughter's
9/30/2021 2021 - Q2 Truelove Daughter's
9/30/2021 2020 - Q2 Truelove Daughter's
10/5/2021 2021 - Q2 Jazzy Jewels
10/5/2021 2021 - Q3 Jazzy Jewels
10/5/2021 2020-Q2 Jazzy Jewels
10/5/2021 2020 - Q3 Jazzy Jewels
10/5/2021 2020 - Q4 Jazzy Jewels
10/7/2021 2021 - Q1 Ty's Organizer & Design
10/7/2021 2021 - Q2 Ty's Organizer & Design
10/7/2021 2021 - Q3 Ty's Organizer & Design
10/8/2021 2021 - Q2 Kemett LLC
10/8/2021 2021 - Q2 Kemett LLC
10/8/2021 2020 - Q2 Kemett LLC
10/8/2021 2020 - Q4 Kemett LLC
10/9/2021 2020-Q3 Damus Properties
10/9/2021 2020 - Q2 Damus Properties
10/9/2021 2020-Q4 Damus Properties
10/9/2021 2021-Q2 Damus Properties
10/9/2021 2021-Q3 Damus Properties
10/13/2021 2021 - Q2 SL Washington
10/13/2021 2020 - Q4 SL Washington
10/13/2021 2020 - Q3 SL Washington
10/13/2021 2020 - Q2 SL Washington
10/13/2021 2021 - Q3 SL Washington
10/21/2021 2021 - Q4 Truelove's Daughters

These counts were not charged as there was no venue in Colorado for them.

4
Some were purportedly by defendant Washington and others were purportedly signed

by defendant Damus. Some had other references to the defendants such as being

signed by or prepared by Shay Damus which is name defendant Washington uses on

some occasions.

LEGAL ARGUMENT

Federal Rule of Evidence 404(b) provides:

"Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes,
such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident..."

If evidence of the acts described herein by the government could be considered

a “bad act” triggering Rule 404(b) analysis, the relative innocence of the act has a

bearing on the issue of degree of prejudice under Rule 402, relevance. See United

States v. Henry, 23 F. Supp.3d 131, 138 (E.D.N.Y. 2014) (prejudicial effect of evidence

minimal where prior act is significantly less inflammatory, sensational or inflammatory

than the acts charged).

The proper application of Rule 404(b) is evaluated in light of the standards set

forth by the Supreme Court in Huddleston v. United States, 485 U.S. 681 (1988). After

examining the legislative history of this particular rule, the Court found that the rule was

meant to be inclusive rather than exclusive; "Congress was not nearly so concerned

with the potential prejudicial effect of Rule 404(b) evidence as it was with ensuring that

restrictions would not be placed on the admission of such evidence." Id. at 688-689.

The Tenth Circuit originally proposed this view in United States v. Nolan, 551 F.2d 266,

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271 (10th Cir.), cert. denied, 434 U.S. 904 (1977), and reaffirmed it subsequent to

Huddleston. See, United States v. Watson, supra; United States v. Record, 873 F.2d

1363 (10th Cir. 1989). “Rule 404(b) is considered to be an inclusive rule, admitting all

evidence of other crimes or acts except that which tends to prove only criminal

disposition.” Watson at 1235 (emphasis in original) (quoting United States v. Burgess,

576 F.3d 1078, 1098 (10th Cir. 2009).

The admissibility of evidence pursuant to Rule 404(b) is governed by the four-

prong test set forth in Huddleston, which has been adopted by the Tenth Circuit. See,

United States v. Watson, supra, United States v. Wilson, 107 F.3d 774, 782 (10th Cir.

1997); Orjias v. Stevenson, 31 F.3d 995, 999 (10th Cir.), cert. denied, 513 U.S. 1000

(1994). This test consists of the following factors: (1) that the evidence be offered for a

proper purpose under 404(b); (2) that the proffered evidence is considered relevant

under Rule 402; (3) the probative value of the evidence must not be substantially

outweighed by the potential for unfair prejudice under Rule 403; (4) the trial court shall,

upon request, instruct the jury that the evidence is to be considered only for the proper

purpose for which it was admitted. Huddleston, 485 U.S. at 691-692. See also,

United States v. Segien, 114 F.3d 1014, 1022 (10th Cir. 1997); United States v.

Wacker, 72 F.3d 1453, 1468 (10th Cir. 1995); United States v. Brown, 34 F.3d 569, 572

(7th Cir. 1994), cert. denied, 513 U.S. 1167 (1995); and United States v. Bridwell, 583

F.2d 1135, 1140 (10th Cir. 1978).

In determining whether the proffered evidence is offered for a proper purpose,

the purposes specifically enumerated in Rule 404(b) are intended to be illustrative only

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and not a listing of all allowable purposes. See, United States v. Fitzherbert, 13 F.3d

340 (10th Cir. 1993), cert. denied, 511 U.S. 1059 (1994); United States v. Record, 873

F.2d 1363 (10th Cir. 1989). In addition, 404(b) evidence is sometimes mistakenly

regarded simply as "similar acts" or "similar transactions". While "similar transactions"

can be a form of 404(b) evidence, admissibility is not limited to them. Here, the

government offers the evidence for a number of purposes including motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

In analyzing the question of relevance, it is axiomatic that evidence is relevant "if

it makes the existence of any fact at issue more or less probable than it would be

without the evidence". United States v. Buchanan, 70 F.3d 818, 831 (5th Cir. 1995)

(citing United States v. Williams, 900 F.2d 823 (5th Cir. 1990)); United States v. Turner,

799 F.2d 627, 630 (10th Cir. 1986). The final analysis to be performed by the Court is

what is referred to as the Rule 403 balancing. The Court must answer the question of

whether the proffered evidence focuses simply on the character of the defendant and

whether its probative value is substantially outweighed by its prejudicial effect. In

making this decision, Courts look primarily to the nature of the proffered evidence, its

relationship to the crime charged, the remoteness of the evidence and the presence or

absence of evidence other than the prior or subsequent acts. United States v. Aguilar-

Aranceta, 58 F.3d 796 (1st Cir. 1995); United States v. Ramirez, 894 F.2d 565 (2nd Cir.

1990). Simply complaining that evidence is “prejudicial” is a nonsequitur. It is not

enough simply to show that the evidence is prejudicial as virtually all evidence is

prejudicial or it is not material.@ United States v. Clark, 577 F.3d 273, 288 (5th Cir.

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2009).

The decision in Watson is a textbook on how the Huddleston factors should be

applied. There the defendant was convicted of cultivation and distribution of marijuana

and conspiracy. The “other crimes” evidence offered by the government was Watson’s

cultivation and distribution of marijuana with a codefendant nearly ten years prior to the

offense charged. Such evidence was offered in the government’s case in chief and in

rebuttal after the defendant testified. Although the trial court admitted the evidence as

intrinsic to the conspiracy, the Circuit affirmed on Rule 404(b) grounds. The court

detailed its Huddleston findings. First, it concluded the evidence was admissible for a

proper purpose – at a minimum to prove knowledge of the drugs’ presence and intent to

distribute. The second Huddleston factor was also found – relevance. The court

noted, “[P]rior narcotics involvement is relevant when that conduct is close in time,

highly probative and similar to the activity with which the defendant is charged.” Id. at

1239 (citation omitted). The court found the time differential to not be too remote as it

was outweighed by the similarity of the offenses. The third Huddleston factor was also

met – admissibility under Rule 403, balancing the obvious relevance with unfair

prejudice. The court noted Rule 403 favors admission of all relevant evidence and

exclusion would be extraordinary to be used sparingly. Id. at 1241. The court noted

the 404(b) evidence was certainly prejudicial as is all evidence suggesting guilt.

However, the court found the evidence not to be unfairly prejudicial. Id. (emphasis in

original). The court found the prior drug involvement clearly probative, and the

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admission was not substantially outweighed by any unfair prejudice as any prejudice

was not unfair.

The government provides this notice to the defendant and the Court under Rule

404(b)(2)(A).

COLE FINEGAN
United States Attorney

By:s/ Robert Brown
ROBERT BROWN
Assistant United States Attorney
1801 California St, Suite 1600
Denver, Colorado 80202
Telephone: 303-454 0100
Email: Robert.brown5@usdoj.gov
Attorney for the government

CERTIFICATE OF SERVICE

I hereby certify that on this 3rd day of February 2023, I electronically filed the foregoing
GOVERNMENT’S NOTICE OF 404(b) with the Clerk of Court using the CM/ECF
system which will transmit the document to opposing counsel and by emailing a copy to
defendant Washington at her email addresses of shaydamus@icloud.com and
shayferrell@me.com.

s/ Robert Brown
AUSA Robert Brown
United States Attorney’s Office

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