Opinion
16-cr-396 (ENV)
10-01-2018
UNITED STATES, v. WAFA ABBOUD, MARCELLE P. BAILEY, RAMI MISBAH TAHA, and ARKADIUSZ SWIECHOWICZ, Defendants.
SHORT-FORM MEMORANDUM OPINION
Jury selection in this case is currently scheduled to start on November 26, 2018. The government has filed a motion in limine. Dkt. No. 90. Having considered the submissions of the parties, Dkt. Nos. 98, 99, 100, 101, & 102, the motion in limine is resolved in the manner and for the reasons as set forth below.
| specifically, (a) the purchase priceof the Residence and (b) a secondmortgage she obtained to financethe purchase of the residence. | Merrick Avenue Residence, is necessary to complete thestory at trial. This evidence is probative, not unfairlyprejudicial and, of the kind ordinarily admissible underRules 401-403. It is, in short, direct evidence, and isadmissible at trial. United States v. Robinson, 702 F.3d 22,37 (2d Cir. 2012); United States v. Barrett, 153 F. Supp. 3d552, 566-67 (E.D.N.Y. 2015) (noting that evidence of taxfraud was "direct evidence" of participating in moneylaundering).Abboud also argues, citing to United States v. Helmsley,941 F.2d 71, 91 (2d Cir. 1991), that allowing this evidencewould be "akin to a constructive amendment of theindictment," and that a jury might "return a guilty verdictwithout being unanimous on what actus rea was proven."Dkt. No. 98 at 5. The Second Circuit, in that same case,recognized that a district court's careful charge regardingunanimity could avoid this problem. Helmsley, 941 F.2d at92-93. The same holds true here. The government'smotion to introduce this proof as direct evidence is granted. |
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| (B) Pursuant to Rules 401-403, or inthe alternative, 404(b), thegovernment seeks to admit evidenceof misrepresentations by Abboudand Bailey to Omega Financial, | (B) Abboud opposes the introduction of this evidence,arguing that, given the lack of connection to the indictmentand the unrelated transaction, it is not direct evidence, and,that it could only otherwise - impermissibly - be used to |
| another bank, in connection with therefinancing of the Rosebud AvenueResidence, through use of a "giftletter" in which Abboud and Baileyrepresented that they were cousins,using Human First funds. | demonstrate propensity for misrepresentation. Dkt. No. 98at 6.The government's response is telling; it contends thatthis is direct evidence because the funds in question wereimproperly diverted from Human First. Dkt. No. 101 at 6.That is the only possible link to the indictment, and it isinsufficient, given that this particular transaction and fraudon the bank in question are not charged in the otherwisedetailed indictment. Indeed, Omega Financial appearsnowhere in that charging instrument.However, notwithstanding Abboud's assertions, thisevidence is admissible under Rule 404(b) as evidence oflack of mistake; modus operandi; and knowledge. UnitedStates v. Cadet, 664 F.3d 27, 32 (2d Cir. 2011); UnitedStates v. Pizarro, 2018 WL 1737236, at *6 (E.D.N.Y. Apr.10, 2018). The proffer is not unduly prejudicial, and, to theextent that there is any prejudice at all, that prejudice wouldbe properly and effectively mitigated by an appropriatelimiting instruction if requested. See, e.g., United States v.Cummings, 858 F.3d 763, 776 (2d Cir. 2017) (discussinguse of limiting instructions to reduce 404(b) prejudice);United States v. Pipola, 83 F.3d 556, 566 (2d Cir. 1996).The government's motion is granted to the extent that theproffered evidence may be admitted under Rule 404(b). |
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| (C) Pursuant to Rules 401-403, or inthe alternative, 404(b), thegovernment seeks to admit evidenceof fraudulent contracts and invoicescreated by Abboud and Taha,relating to a Hurricane SandyDamage Claim and using PedrolConstruction Inc. letterhead. | (C) Abboud opposes the introduction of this evidence asirrelevant, unduly prejudicial, and as having low probativevalue. Dkt. No. 98 at 6-9. Taha tersely offers a "me, too."Dkt. No. 100 at 5.For essentially the same reasons set forth in part (B)above, this evidence is not admissible as direct evidence. Itdoes not complete the story of the various schemes on trial,and it is not intertwined with the charged crimes. UnitedStates v. Hsu, 669 F.3d 112, 118 (2d Cir. 2012).The proffered evidence could be offered as 404(b)evidence to show a common plan, intent, or lack ofmistake. But, its relevance here is of questionable value,given that neither Abboud nor Taha are charged withinsurance fraud, and, in any event, the offer could result ina mini-trial diverting the jury's attention from the chargedcrimes. Moreover, when considering the balancing ofprobativeness against prejudice under Rule 403, thisevidence appears more prejudicial than probative. SeeUnited States v. Lyle, 856 F.3d 191, certiorari granted andjudgment vacated on other grounds by Lyle v. UnitedStates, 138 S. Ct. 2024 (Mem.), 201 L. Ed. 2d 276 (May21, 2018).Given that there was no charge relating to HurricaneSandy in the indictment, this evidence has the potential to |
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| confuse and even inflame the jury by suggesting Abboudand Taha sought criminal gain by fraud from a naturaldisaster which still evokes raw emotion throughout thisjudicial district. Lives were lost; no county was unaffected.See, e.g., United States v. Allums, 2018 WL 2128372, at *6(S.D.N.Y. May 9, 2018) ("Other act evidence is typicallynot unfairly prejudicial where it is not "any moresensational or disturbing than the crimes" with which thedefendant has been charged.)The government's reply does nothing to salvage thisother acts proffer. Pointing out that Abboud is chargedwith embezzling from an organization for developmentallydisabled youth does nothing to diminish prejudice fromstoking remembrances of a deadly and painful naturaldisaster.Finally, given that the government proffers noinvolvement by Swiechowicz in the creation of theseinvoices, there is the real chance of especially magnifyingthe prejudice as to him by tying him to the non-obstructioncounts through the use of the Pedrol letterhead. Thegovernment's motion is denied. | |
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| (D) Pursuant to Rules 401-403, or inthe alternative, 404(b), thegovernment seeks to admit, through | (D) Abboud opposes the introduction of this evidence,arguing that it is speculative, and moreover, is "aroundabout way to violate the terms of the proffer |
| FBI agent testimony, that thefollowing topics were discussed atproffer sessions with Abboud: (1)why she used funds held in the bankaccounts at issue to pay for herpersonal expenses; (2) why she had,at the time of arrest, a debit cardassociated with one of the bankaccounts; (3) why she hadpersonally deposited companychecks into these bank accounts; (4)why she received $170,000 fromBAS Renovation; and (5) whether,and how, she paid for renovationwork at the Merrick AvenueResidence. | agreement." Dkt. No. 98 at 12-13. Swiechowicz opposesthe introduction of these statements in the government'scase-in-chief, noting that it is hearsay, and also presents apotential Confrontation Clause problem for him - namely,testimonial statements made by a co-defendant, at a proffersession, and without an opportunity to cross-examine. Dkt.No. 99 at 2-3. As with part (C), Taha offers another terse"me, too." Dkt. No. 100 at 1-2.The government's motion cannot be fully resolved inadvance of trial, except that not even the statements, muchless the topics that led to those statements, may be used attrial unless Abboud violates the terms of her profferagreement or takes the witness stand and the antidote ofcross-examination and re-direct-examination that goes withit. If, however, Abboud breaks her proffer agreement in heropening or in her cross-examination of governmentwitnesses, the government may seek to offer suchstatements through an FBI agent to the extent permitted byUnited States v. Barrow, 400 F.3d 109, 119 (2005). Anystatement, in order to protect the Confrontation Clauserights of co-defendants, must be sanitized to shield theiridentity, in line with Bruton v. United States, 391 U.S. 123,88 S. Ct. 1620, 20 L.Ed.2d 476 (1968), and its progeny. |
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| The government's motion is denied to the extent indicated,and a ruling on the balance of the motion is reserved. | |
| (E) Pursuant to Rules 401-403, thegovernment seeks to bar thedefendants from "attempting tointroduce [certain] statements made[by Abboud] during the proffersessions." Dkt. No. 90 at 20 n.3. | (E) At this point, the request is denied as moot. In theevent that a breach by Abboud of her proffer agreementpermits the government to offer through FBI testimonyproffer statements she made, defendants will thenspecifically identify other statements made at her profferthat would complete any statement made at the proffersession that is received in evidence through the FBI agent'stestimony. See Rule 105. |
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Unless otherwise indicated, all rule references will be to the Federal Rules of Evidence and further citation will be omitted. --------
So Ordered.
Dated: Brooklyn, New York
October 1, 2018
/s/ Hon. Eric N. Vitaliano
ERIC N. VITALIANO
United States District Judge