United States’ Motion in Limine — No. 2:23-cr-00405 (Dkt. 43, D. Utah)

Summary

United States' Motion in Limine No. 1, Document 43 in Case No. 2:23-cr-00405 DBB in the District of Utah before Judge David Barlow, filed 10/09/24 by the United States Attorney's office. In a COVID fraud case set for trial on December 2, 2024, in which the defendant is charged with three counts of wire fraud over a Paycheck Protection Program loan application, an Economic Injury Disaster Loan application and a later request to increase the EIDL loan, the government moves under Federal Rules of Evidence 401-403 to preclude evidence or argument about changes the Small Business Administration later made to the disqualifying criminal history questions on those applications, which the defendant allegedly answered falsely on or about April 3, 2020. The government says SBA witnesses will testify that the questions in effect at the time set the boundaries of eligibility.

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“United States’ Motion in Limine — No. 2:23-cr-00405 (Dkt. 43, D. Utah).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/united-states-motion-in-limine-no-2-23-cr-00405-dkt-43-d-utah-50b70d315d/, SHA-256 9c1ce4d3f707c6076f66f364dc320da3843a5706081b51a44182c8273c891ff7.

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Case 2:23-cr-00405-DBB Document 43 Filed 10/09/24 PageID.167 Page 1 of 4

TRINA A. HIGGINS, United States Attorney (#7349)
TODD C. BOUTON, Assistant United States Attorney (#17800)
SACHIKO JEPSON, Special Assistant United States Attorney (#17077)
Attorneys for the United States of America
111 South Main Street, Suite 1800
Salt Lake City, Utah 84111-2176
Telephone: (801) 524-5682
todd.bouton@usdoj.gov; sachiko.jepson@usdoj.gov

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH

UNITED STATES OF AMERICA, Case No. 2:23-cr-00405 DBB

Plaintiff,
UNITED STATES’ MOTION IN LIMINE
v. NO. 1: TO PRECLUDE DEFENDANT
FROM RAISING SUBSEQUENT
CARTER LANE LUCAS, CHANGES TO CRIMINAL HISTORY
QUESTIONS ON LOAN APPLICATIONS
Defendant.

Judge David Barlow

UNITED STATES’ MOTION IN LMINE NO. 1

Pursuant to Fed. R. Evid. 401-403, the United States files this Motion in Limine No. 1 to

preclude Mr. Lucas and his counsel from raising or referencing any evidence or argument

regarding changes that were made to disqualifying criminal history questions on Paycheck

Protection Loan (“PPP Loan”) and Economic Injury Disaster Loan (“EIDL Loan”) applications

after Mr. Lucas submitted his PPP Loan and EIDL Loan applications on or about April 3, 2020.

*In accordance with the Court’s Stock Criminal Pretrial Order, the United States has limited

its Memorandum of law in Support of this motion in limine to 3 pages.*
Case 2:23-cr-00405-DBB Document 43 Filed 10/09/24 PageID.168 Page 2 of 4

MEMORANDUM OF LAW IN SUPPORT OF USA’S MOTION IN LIMINE NO. 1

1. INTRODUCTION
This is a COVID-fraud case set for trial on December 2, 2024. The defendant, Carter Lane

Lucas, is charged with three counts of wire fraud committed during the COVID-19 pandemic. The

charges relate to Mr. Lucas’s fraudulent submission of a Paycheck Protection Program Loan (“PPP

Loan”) application, an Economic Injury Disaster Loan (“EIDL Loan”) application, and a later

request for an increase of his EIDL Loan amount. (ECF 38 ⁋⁋ 1-39). In both of the initial loan

applications, the United States alleges that Mr. Lucas fraudulently misrepresented his criminal

history to qualify for the loans. The United States further alleges that Mr. Lucas then later

fraudulently recertified his original EIDL Loan certifications to obtain an EIDL Loan modification.

Defense counsel has indicated that they may seek to raise at trial the fact that, after Mr.

Lucas submitted PPP- and EIDL Loan applications (in which he falsely misrepresented his

criminal history), the Small Business Administration (“SBA”) made changes to the disqualifying

criminal history questions, that Mr. Lucas had answered (falsely), which eventually would not

have disqualified him from obtaining the loans (had he waited until later to apply for the loans).

(See Exhibits 1-2) (showing changes to criminal history questions over time).

However, at trial, SBA witnesses will testify that the criminal history questions in effect at

the time each version of the PPP- and EIDL-Loan applications was in effect were deliberately

calculated, drafted, and approved to set the boundaries of who qualified for a loan. The borrowers

who answered “Yes” to disqualifying criminal history questions would not receive a loan. 1

Therefore, Mr. Lucas and his counsel should be precluded from introducing evidence or

argument regarding the later changes made to the disqualifying criminal history questions on PPP-

1
After the first change to EIDL loan criminal history question “c”, the SBA reached out to applicants who answered
“yes” to the question to see if they would qualify under the new standard. Lucas still would not have qualified.

2
Case 2:23-cr-00405-DBB Document 43 Filed 10/09/24 PageID.169 Page 3 of 4

and EIDL loan applications that were made after Mr. Lucas submitted his loan applications. Fed.

R. Evid. 401-403. Allowing them to do so could unfairly prejudice and confuse or mislead the jury

into improperly thinking that the disqualifying criminal history questions were not material when

Mr. Lucas submitted his fraudulent applications. Once rung, this bell could not be unrung.

2. AT TRIAL, MR. LUCAS SHOULD BE PRECLUDED FROM RAISING THE
CHANGES TO THE DISQUALIFYING CRIMINAL HISTORY QUESTIONS.
Defendants should be precluded from raising improper legal defenses so as not to confuse

or prejudice the jury or to invite jury nullification. Fed. R. Evid. 402, 403. Wire fraud charges

require a showing that “the scheme [at issue] employed false or fraudulent pretenses,

representations, or promises that were material.” 10th Cir. Crim. Pattern Jury Instr’n No. 2.57. A

false statement is “material” if it has a natural tendency to influence, or is capable of influencing,

the decision of the person or entity to which it is addressed. Id.; U.S. v. Lawerence, 405 F.3d 888,

899 (10th Cir. 2005) (defining materiality for purposes of wire fraud in similar fashion).

Here, the evidence will show that, as of April 3, 2020, Mr. Lucas had been convicted of at

least 10 non-traffic misdemeanors and 8 felonies. His most recent felony conviction was on March

10, 2016. But on April 3, 2020, Mr. Lucas answered “no” to the following criminal history

questions on a PPP Loan application (for $17,000) and an EIDL Loan application (for $35,000):

6. Within the last five years, for any felony, has . . . the owner of the Applicant
been 1) convicted, [or] 2) plead guilty . . . ? (Exs. 1, 1-1) (emphasis added).

c. For any criminal offense - other than a minor vehicle violation - have you ever
been convicted, plead guilty . . . or been placed on any form or parole or
probation? (Ex. 2 [3/27/20 version]) (emphasis added).

Then on or about July 31, 2021, Mr. Lucas signed an Amended Loan Authorization and

Agreement to obtain a $129,900 increase for his EIDL Loan wherein, he falsely certified that:

All representations in the Borrower’s [original] loan application (including all
supplementary submissions) are true, correct and complete and are offered to
induce SBA to make this loan. (Ex. 3 at 5) (emphasis added).
3
Case 2:23-cr-00405-DBB Document 43 Filed 10/09/24 PageID.170 Page 4 of 4

When Mr. Lucas submitted his loan applications, had he (honestly) answered “Yes” to

either of the identified criminal history questions, neither loan would have been approved. In fact,

the PPP Loan application specifically stated above the relevant criminal history question (No. 6)

that “If Questions (5) or (6) are answered “yes,” the loan will not be approved.” (Ex. 1). Even if

Mr. Lucas had answered “yes” to criminal history question “c.” on his EIDL loan application on

April 3, 2020, he still would not have qualified under the more lenient standard implemented on

April 27, 2020, which still barred applicants convicted of any felony within the last five years.

The SBA historically screened loan applicants for character and crafted criminal history

questions that disqualified certain applicants. In fact, the relevant COVID-19 EIDL Loan criminal

history question (effective April 3, 2020) had even been used before the pandemic to screen

applicants for other EIDL Loans. It was not a new question. Over time, the criminal history

questions changed in response to pressures from lobbyists and politicians who sought to expand

the programs to include more persons with different levels of criminal history. But, at each stage,

the then-current criminal history question(s) determined who did or did not qualify for a loan. And

at every stage, it was a requirement to answer application questions honestly.

3. CONCLUSION
Because the only versions of the criminal history questions that matter are the ones Mr.

Lucas answered, the Court should preclude the defense from raising any changes to the questions.

RESPECTFULLY SUBMITTED October 9, 2024

TRINA A. HIGGINS
United States Attorney

/s/ Todd C. Bouton___________
TODD C. BOUTON
Assistant United States Attorney

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