United States District Court, E.D. New York
APPEARANCES: For the Government: Robert Capers United States
Attorney By: Charles Kelly, A.U.S.A. Burton T. Ryan, Jr.,
A.U.S.A. For Sophia Atias: LaRusso Conway & Bartling, LLP
By: Robert P. LaRusso, Esq. For Joseph Atias: Jeffrey T.
Schwartz, Esq. Law Offices of Jeffrey T. Schwartz
MEMORANDUM AND ORDER
R. HURLEY, U.S.D.J.
letter dated February 20, 2017 (“Defs.' Feb. 20,
2017 Letter”), defendants seek, via a motion in
limine, to preclude the government from introducing at
trial “recently produced tax records due to its [sic]
prejudicial impact on the defense of the charges in the
indictment . . . under FRE 403." (Defs.' Feb. 20,
2017 Letter at 1.)
OF THE PARTIES
rationale underlying the motion is synopized by the defense
We submit that the questionable tax documents that the
government seeks to introduce at trial are inadmissible for a
number of reasons, including (1) its [sic] irrelevancy to any
meaningful issue at trial; and (2) its [sic] impermissible
introduction of other criminal conduct, tax fraud,
establishing our client's [sic] propensity to commit the
charged crime prohibited by FRE 404(b), and the overriding
prejudicial effect of such damaging evidence preventing the
jury from fairly evaluating our defense that the defendants
did not “knowingly intent” [sic] to submit a
false loan application (Count 3) or intent [sic] to defraud
the Bank of America (Counts 1 and 2) or steal Medicaid money
from the Federal government.
Id. at 5.
government, by letter dated and filed on February 23, 2017,
addressed defendants' concerns seriatim.
relevancy, the government argues:
[T]he records defendants seek to preclude from admission into
evidence are divided chronologically into (i) the returns and
related records for the years 2004-2008 (“The Early Tax
Returns”)(Government Exhibits (“GEx.”)
46-50, 52), and (ii) such records for 2010-2013 (“The
Later Tax Returns and Related Records”), GEx. 54-59.
The Early Tax Returns are relevant on Count Three, the False
Loan Applications charge under Title 18, U.S.C. Section 1014
which relates to a loan application filed on June 1, 2007 and
states, in relevant part, that: “the defendants SOFIA
ATIAS and JOSEPH ATIAS stated and represented that defendant
SOFIA ATIAS had been employed by the New York Forex Fund for
the past three years and had a monthly income of $23, 255
when, in fact, as the defendants then and there well knew and
believed, she had not been so employed for the preceding
three years and had no such income.”
(Gov't's Feb. 23, 2017 Letter at 1-2, quoting from
Count Three of the Indictment.)
“[e]arly [t]ax [r]eturns, ” and/or related
employment information furnished by defendants to their
accountant, will demonstrate, the government proffers, that
the representations as to her employment and income were
wholly fabricated. Moreover, reference to the temporally
pertinent corporate tax returns of New York Forex Fund, which
supposedly paid her the claimed $23, 255 per month, fails to
reflect any such payments, or so the government contends.
Id. at 2.
respect to the “[t]he [l]ater [t]ax
[r]eturns and [r]elated [r]ecords, ” these
documents represent part of the prosecution's proof as to