United States v. Biaou

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v.

Case No. 24-cr-323 (CRC)

JOSE BIAOU,

Defendant.

MEMORANDUM OPINION AND ORDER

Defendant Jose Biaou stands charged with wire fraud and aggravated identity theft based

on allegations that he made a series of false statements on multiple Paycheck Protection Program

(“PPP”) loan and Economic Injury Disaster Loan (“EIDL”) applications. Trial is scheduled to

begin on February 9, 2026. Before the Court are eleven pending motions, including Biaou’s

motion to dismiss counts, motion to sever counts, motion to suppress evidence, and numerous

motions in limine.1 Briefing is now complete, and this omnibus Memorandum Opinion & Order

resolves the dispositive motions while reserving judgment on certain evidentiary matters until

trial is underway.

1

The Court notes that several of Biaou’s motions were unexpected. In June 2025, the Court specifically asked Biaou’s recently-engaged counsel whether he “anticipate[d] filing anything more complex or involved than the standard motions in limine,” as it would have been preferable to “deal with those things before the pretrial motions deadline.” Status Conference Tr. (ECF No. 23) at 3:23–4:1 (emphasis added). Counsel suggested only that he was “considering” a motion to suppress, so the Court recommended that he “consider filing that [motion] sooner rather than later.” Id. at 4:8, 4:15–16. Notwithstanding the Court’s suggestion, Biaou filed both a motion to dismiss and a motion to suppress less than six hours before the pretrial motions deadline, and two months after the government filed the Superseding Indictment. While the Court has had sufficient time to consider Biaou’s motions, it reminds the parties that dispositive motions are distinct from motions in limine, and should be treated accordingly. See Graves v. District of Columbia, 850 F. Supp. 2d 6, 10 (D.D.C. 2011) (“Consistent with the historical origins of the practice, motions in limine are ‘designed to narrow the evidentiary issues for trial and to eliminate unnecessary trial interruptions.’” (citation omitted)).

I. Background

The following background facts are based on allegations set forth in the Superseding

Indictment. See Superseding Indictment (ECF No. 24). In 2020, Congress established the PPP

program, which offered forgivable loans to small businesses for job retention and certain other

expenses incurred during the COVID-19 pandemic. Id. ¶ 6. PPP loan applications were

processed and funded by participating financial institutions, including JPMorgan Chase & Co.

(“JP Morgan”) and PNC Bank (“PNC”), and the loans were guaranteed by the Small Business

Administration (“SBA”). Id. ¶¶ 4, 8. The SBA also administered the EIDL program, which

predated the COVID-19 pandemic. Id. ¶ 12. EIDLs were intended to provide economic relief to

businesses experiencing a temporary loss in revenue due to a disaster. Id. Unlike PPP loans,

EIDLs were processed directly by the SBA and funded by the United States Treasury. Id.

Biaou was the Chief Executive Officer of FRB Capital Group LLC (“FRB”), a D.C.-based limited liability corporation formed in 2013. Id. ¶ 2. As a business, FRB brokered loans

between commercial developers and financial institutions or other investors. Id. Biaou was also

purportedly involved in a separate company named Millenium Global Finance (“MGF”). Id.

¶ 28. The government alleges that between April 2020 and December 2021, Biaou submitted

multiple fraudulent PPP loan and EIDL applications on behalf of FRB and MGF. See id. ¶¶ 18–

40.

In April 2020, Biaou submitted a PPP loan application on behalf of FRB to JP Morgan

for over $225,000. Id. ¶ 18. In the application, Biaou claimed that FRB had seven employees

and an average monthly payroll of $90,000. Id. ¶ 19. In reality, the government submits, FRB

had only one full-time employee, two independent contractors, and an average monthly payroll

of approximately $11,700. Id. In support of the loan application, Biaou allegedly submitted

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fraudulent documentation from FRB’s payroll service provider. Id. ¶ 20. Based on these

representations, JP Morgan approved the application and transferred $225,000 in loan proceeds

to an account controlled by Biaou. Id. ¶ 21.

In February 2021, Biaou submitted a second PPP loan application on behalf of FRB, this

time seeking $222,500 from PNC. Id. ¶ 24. The application stated that FRB had ten employees

and an average monthly payroll of $89,900, even though FRB’s tax returns indicated that the

company had two employees and an average monthly payroll of $8,500. Id. ¶ 25. Biaou again

submitted purportedly fraudulent documentation from FRB’s payroll service provider. Id. ¶ 26.

PNC approved the application and transferred $222,500 to an account under Biaou’s control. Id.

¶ 27.

In March 2021, Biaou submitted a PPP loan application for $1.25 million to PNC Bank

on behalf of MGF. Id. ¶ 28. The application stated that by February 2020, MGF had employees

and/or independent contractors on its payroll. Id. ¶ 29. In the government’s telling, however, the

company had neither employees, nor independent contractors, nor revenue. Id. The loan

application also claimed that in 2019, the company had 52 employees and an average monthly

payroll of over $523,000, even though the company was not in operation at that time. Id. ¶ 30.

The application listed Biaou’s father, R.B., as the company’s president, but he allegedly “held no

such role” at the company. Id. ¶ 31. The government further maintains that Biaou signed the

application using his father’s signature without his father’s knowledge or authorization. Id.

PNC again approved the application and transferred $1.25 million into an account controlled by

Biaou. Id. ¶ 33.

In August 2021, Biaou submitted an EIDL application to the SBA, seeking $1,877,600 on

behalf of FRB. Id. ¶ 34. He claimed that he was a United States citizen (he is not), FRB

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employed seven employees in January 2020 (it had one employee), and the company earned

$2.25 million in gross revenue in 2019 (it made $938,000). Id. ¶¶ 35–36. The SBA approved

the EIDL application and transferred $1,877,500 into an account controlled by Biaou. Id. ¶ 37.

In December 2021, Biaou attempted to obtain an EIDL for $2 million on behalf of MGF.

Id. ¶ 38. The loan application stated that the company had 22 employees in January 2020 and 12

employees in December 2021. Id. ¶ 39. But, as noted before, the government maintains that the

company only had one employee in January 2020. Id. ¶ 36. The SBA rejected the EIDL

application for MGF, and no funds were transferred to Biaou. Id. ¶ 40.

The following year, Biaou applied for forgiveness of the $225,000 PPP loan that JP

Morgan issued in April 2020. Id. ¶ 22. In the loan forgiveness application, according to the

government, Biaou submitted a lease agreement and checks suggesting that FRB’s monthly rent

was $13,827. Id. ¶ 23. But the government asserts that the documents were fraudulent, and

FRB’s actual monthly rent was $10,000 less than what Biaou represented. Id.

A grand jury initially charged Biaou with six counts of wire fraud and one count of theft

of government property. See Indictment (ECF No. 1). After plea negotiations proved

unsuccessful, the government sought and obtained a Superseding Indictment in October 2025.

The Superseding Indictment retains the six counts of wire fraud, but it replaces the count for

theft of government property with aggravated identity theft based on the allegation that Biaou

supplied his father’s signature on the March 2021 PPP loan application to PNC.2 See

Superseding Indictment (ECF No. 24) ¶¶ 42–43.

2

The six wire fraud counts relate to the PPP loan application to JP Morgan in April 2020 (Count One), the PPP loan application to PNC in February 2021 (Count Two), the PPP loan application to PNC in March 2021 (Count Three), the EIDL application to the SBA in August 2021 (Count Four), the unsuccessful EIDL application to the SBA in December 2021 (Count

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II. Pretrial Motions3

A. Biaou’s Motion to Dismiss Counts (ECF No. 39)

Biaou first moves to dismiss four counts from the superseding indictment. See Mot. to

Dismiss (ECF No. 39). A criminal defendant “may raise by pretrial motion any defense,

objection, or request that the court can determine without a trial on the merits.” Fed. R. Crim. P.

12(b)(1). Pretrial motions may challenge “a defect in the indictment,” including a “failure to

state an offense.” Fed. R. Crim. P. 12(b)(3)(B)(v). Because pretrial dismissal of an indictment

“directly encroaches upon the fundamental role of the grand jury,” a motion to dismiss “is

granted only in unusual circumstances.” United States v. Ballestas, 795 F.3d 138, 148 (D.C. Cir.

2015) (citation omitted).

An indictment requires only “a plain, concise, and definite written statement of the

essential facts constituting the offense charged,” Fed. R. Crim. P. 7(c)(1), in order “to inform the

defendant of the nature of the accusation against him,” Ballestas, 795 F.3d at 148–49 (quoting

United States v. Hitt, 249 F.3d 1010, 1016 (D.C. Cir. 2001)). When evaluating a motion to

dismiss, the Court “assumes the truth of those factual allegations.” Id. at 149. The Court is also

“limited to reviewing the face of the indictment and, more specifically, the language used to

charge the crimes.” United States v. Sunia, 643 F. Supp. 2d 51, 60 (D.D.C. 2009) (citation

omitted). At this stage, “[t]he operative question is whether the allegations, if proven, would be

Five), and the loan forgiveness application to JP Morgan in December 2022 (Count Six). See Superseding Indictment (ECF No. 24) at 10 (summary chart).

3

In addition to the motions enumerated below, the parties filed two motions in January 2026: The government moved for revocation of Biaou’s pretrial release (ECF No. 46), and Biaou cross-moved to dismiss certain counts due to a purported Brady violation (ECF No. 53). The Court denied both motions following a revocation hearing on January 15, 2026. See Jan. 15, 2026 Min. Entry.

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sufficient to permit a jury to find that the crimes charged were committed.” United States v.

Sanford, Ltd., 859 F. Supp. 2d 102, 107 (D.D.C. 2012).

In his motion to dismiss, Biaou claims that the Superseding Indictment (1) fails to state a

claim of aggravated identity theft in Count Seven; (2) charges him with conduct in Count One

that occurred beyond the five-year statute of limitations; and (3) does not establish that the

conduct underlying Counts Three, Four, and Five occurred within the United States’ jurisdiction.

All three arguments fall short.

1. Aggravated Identity Theft

Biaou first contends that Count Seven does not state a claim of aggravated identity theft

because his alleged conduct—the unauthorized use of his father’s name and signature on a PPP

loan application—was not the “crux” of the underlying wire fraud. Mot. to Dismiss (ECF No.

39) at 5.

The aggravated identity theft statute applies when the defendant, “during and in relation

to [wire fraud], knowingly transfers, possesses, or uses, without lawful authority, a means of

identification of another person.” 18 U.S.C. § 1028A(a)(1). The Supreme Court recently

clarified the statute’s scope in Dubin v. United States, 599 U.S. 110 (2023). In that case, a

defendant who overbilled Medicaid for psychological testing was convicted under § 1028A

because his fraudulent billing included patients’ Medicaid reimbursement numbers (i.e., a

“means of identification”). Id. at 113–15. The Court concluded that § 1028A did not apply to

his conduct, as his use of the patients’ identities “was not at the crux of what made the

underlying overbilling fraudulent.” Id. at 132. In other words, the identity theft was only an

“ancillary feature” of the underlying healthcare fraud. Id. Accordingly, to be convicted of

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aggravated identity theft in relation to wire fraud, “the means of identification specifically must

be used in a manner that is fraudulent or deceptive.” Id. (emphasis added).

Biaou argues that the same logic applies here: The fraud underlying the § 1028A charge

is his alleged “misrepresentations about the metrics” of MGF in the PPP loan application, not the

use of his father’s name and signature on the application. Mot. to Dismiss (ECF No. 39) at 6.

But R.B.’s identity is not “ancillary” to the alleged fraud; it is a core feature of it. Dubin, 599

U.S. at 132. The government alleges that the PPP loan application was fraudulent both because

it misstated key information about the company (e.g., whether it had any employees in February

2020) and because it falsely suggested that R.B., the company’s “president,” filed the loan

application on MGF’s behalf. Superseding Indictment (ECF No. 24) ¶¶ 29–31. In other words,

the alleged “fraud or deceit” in the loan application relates to “who” was seeking the loan.

Dubin, 599 U.S. at 132; see also United States v. Prather, 138 F.4th 963, 970 (6th Cir. 2025)

(concluding that a defendant violated § 1028A by using her disabled nephew’s identifying

information to submit fraudulent EIDL applications); United States v. Carter, No. 21-cr-681

(NSR), 2024 WL 4859155, at *5 (S.D.N.Y. Nov. 21, 2024) (recognizing that identity theft was

an “essential part” of the scheme to defraud the SBA because names and social security numbers

are “indispensable to EIDL applications”). Thus, the Superseding Indictment properly states a

claim of aggravated identity theft.

2. Statute of Limitations

Biaou next argues that Count One is barred by the statute of limitations. As both parties

acknowledge, the original Indictment was filed within the five-year limitations period for wire

fraud. See 18 U.S.C. § 3282(a) (setting a five-year statute of limitations for non-capital federal

offenses); United States v. Howard, 350 F.3d 125, 127 (D.C. Cir. 2003) (noting that wire fraud is

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“completed” when the wire is used). But the government filed the Superseding Indictment on

October 30, 2025, more than five years after Biaou submitted the PPP loan application to JP

Morgan in April 2020. Thus, Biaou says, Count One is now untimely.

“For limitations purposes, ‘a superseding indictment filed while the original indictment is

validly pending relates back to the time of filing of the original indictment if it does not

substantially broaden or amend the original charges.’” United States v. Yielding, 657 F.3d 688,

703 (8th Cir. 2011) (citation omitted)); see United States v. Grady, 544 F.2d 598, 602 (2d Cir.

1976) (noting that a superseding indictment “cannot be barred by the statute of limitations” if it

“does not broaden the charges made in the first indictment”). In other words, a superseding

indictment relates back to the original indictment’s filing date “so long as it neither materially

broadens nor substantially amends the charges initially brought against the defendant.” United

States v. Ross, 77 F.3d 1525, 1537 (7th Cir. 1996) (collecting cases).

Biaou submits that the Superseding Indictment does not relate back to the filing of the

Original Indictment because it (1) added a new charge of aggravated identity theft in Count

Seven; and (2) modified some of the details of the wire fraud alleged in Counts Three and Five.

See Mot. to Dismiss (ECF No. 39) at 7. But to determine whether the superseding indictment

should relate back to the original indictment, courts look at the specific charges at issue, not the

indictment in its entirety. See, e.g., United States v. Pacheco, 912 F.2d 297, 305 (9th Cir. 1990)

(“[W]here the counts of an original indictment are simply duplicated verbatim into a superseding

indictment, the statute of limitations on those counts is tolled, even if additional counts that are

subject to no limitations objection are added.” (emphasis added)); United States v. Jones, 816

F.2d 1483, 1487 (10th Cir. 1987) (noting that the date of the original indictment controlled

because the superseding indictment did not broaden the specific charge at issue); Ross, 77 F.3d

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at 1537–38 (examining only whether the superseding indictment broadened or substantially

amended the counts that were beyond the limitations period); United States v. Lowry, 409 F.

Supp. 2d 732, 739 (W.D. Va. 2006) (“[T]he relevant question is whether specific charges alleged

to be time-barred should relate back—not whether the [superseding] indictment should relate

back as a whole.”). Biaou does not argue that the Superseding Indictment substantially

broadened or amended Count One, as the facts underlying the charge are identical to those in the

original Indictment. Compare Indictment (ECF No. 1) ¶¶ 18–21 with Superseding Indictment

(ECF No. 24) ¶¶ 18–21. Thus, Count One relates back to the date the original Indictment was

filed, which is well within the five-year limitations period.4

3. Extraterritoriality

Finally, Biaou claims that Counts Three, Four, and Five should be dismissed because

they relate to conduct that “occurred abroad under the domestic wire fraud statute.”5 Mot. to

Dismiss (ECF No. 39) at 8. That is, he contends that those charges are impermissible

extraterritorial applications of the wire fraud statute.

“It is a basic premise of our legal system that, in general, ‘United States law governs

domestically but does not rule the world.’” RJR Nabisco v. Eur. Cmty., 579 U.S. 325, 335

(2016) (quoting Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 454 (2007)). This principle,

known as the presumption of extraterritoriality, provides that “[a]bsent clearly expressed

congressional intent to the contrary, federal laws will be construed to have only domestic

4

The Court need not address the government’s alternative argument that a ten-year limitations period applies to Count One because the underlying fraudulent PPP loan application “affects a financial institution.” 18 U.S.C. § 3293(2).

5

Biaou also asks the Court to dismiss Count Seven because it is “expressly premised on the alleged wire fraud at issue in Count Three.” Mot. to Dismiss (ECF No. 39) at 9.

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application.” Id. Courts review the extraterritorial application of a statute in two steps. Id. at

337. First, the Court must ask “whether the statute gives a clear, affirmative indication that it

applies extraterritorially.” Id. If it is not extraterritorial, then courts determine whether the

specific case “involves a domestic application of the statute.” Id. While it is “usually . . .

preferable for courts to proceed” in that order, id. at 338 n.5, courts may begin with the second

step “if addressing step one would require resolving ‘difficult questions’ that do not change ‘the

outcome of the case,’ but could have far-reaching effects in future cases,” WesternGeco LLC v.

ION Geophysical Corp., 585 U.S. 407, 413 (2018). The Court will exercise that discretion here.

To determine whether Counts Three, Four, and Five “involve[] a domestic application” of

the wire fraud statute, the Court must identify “the statute’s focus and ask[] whether the conduct

relevant to that focus occurred in United States territory.” Id. (citation and internal quotation

marks omitted). When examining the “focus” of a statute, the Court must look to “the objec[t] of

the statute’s solicitude,” which may turn on the “conduct, parties, or interests that it regulates or

protects.” Id. at 416 (alteration in original) (citation and internal quotation marks omitted). “If

the conduct relevant to the statute’s focus occurred in the United States, then the case involves a

permissible domestic application even if other conduct occurred abroad.” RJR Nabisco, 579

U.S. at 337.

To the Court’s knowledge, the D.C. Circuit has not opined on the “focus” of the wire

fraud statute. However, multiple courts of appeals have observed that the proper focus is “the

use of . . . wires in furtherance of a scheme to defraud.” Bascuñán v. Elsaca, 927 F.3d 108, 122

(2d Cir. 2019) (emphasis omitted); United States v. Napout, 963 F.3d 163, 179 (2d Cir. 2020);

United States v. McLellan, 959 F.3d 442, 469 (1st Cir. 2020); United States v. Hussain, 972 F.3d

1138, 1145 (9th Cir. 2020); United States v. Elbaz, 52 F.4th 593, 602–04 (4th Cir. 2022); cf.

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United States v. Alston, 609 F.2d 531, 536 (D.C. Cir. 1979) (concluding that wire fraud is

separately punishable from the D.C. false pretenses statute because the “focus” of the wire fraud

statute “is upon the misuse of the instrumentality of communication”). Accordingly, a claim of

wire fraud “involves sufficient domestic conduct when (1) the defendant used . . . wires in

furtherance of a scheme to defraud, and (2) the use of . . . wires was a core component of the

scheme to defraud.” Bascuñán, 927 F.3d at 122.6

The Superseding Indictment specifies that the wire signals at issue—that is, the PPP loan

and EIDL applications—were sent from the country Benin to PNC Bank (Count Three), from

Türkiye to the SBA (Count Four), and from Russia to the SBA (Count Five).7 See Superseding

Indictment (ECF No. 24) at 10 (summary chart). As the government correctly notes,

transmission of a message in furtherance of a scheme occurs both where it originated and where

it was received. Elbaz, 52 F.4th at 604; McLellan, 959 F.3d at 469–70 (indicating that an e-mail

sent “to, from, or within the United States” is a “domestic wire”); cf. United States v.

Fahnbulleh, 752 F.3d 470, 477 (D.C. Cir. 2014) (“[V]enue for wire fraud lies in any jurisdiction

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Biaou’s extraterritoriality claim relies on United States v. All Assets Held at Bank Julius Baer & Co., Ltd., which held that the focus of the wire fraud statute is “the scheme to defraud,” meaning that the defendant must have “commit[ed] a substantial amount of conduct in the United States.” 251 F. Supp. 3d 82, 102–03 (D.D.C. 2017). But that analysis relied on a test provided by Elsevier, Inc. v. Grossman, 199 F. Supp. 3d 768, 784 (S.D.N.Y. 2016), a case predating the Second Circuit’s contrary interpretation in Bascuñán, 927 F.3d at 123 (“[W]hile a defendant’s location is relevant to whether the regulated conduct was domestic, the mail and wire fraud statutes do not give way simply because the alleged fraudster was located outside the United States.”). Moreover, the rule articulated by All Assets “would effectively immunize offshore fraudsters from . . . wire fraud.” Id.; see also United States v. Jin, No. 23-cr-91 (CKK), 2025 WL 2409749, at *12 (D.D.C. Aug. 19, 2025) (describing the Second Circuit’s decision in Bascuñán as “instructive”).

7

Curiously, the government’s brief quotes from the original Indictment, not the Superseding Indictment. Compare Indictment (ECF No. 1) at 10 (noting that the wire signal underlying Count Five originated in the District of Columbia) with Superseding Indictment (ECF No. 24) at 10 (noting that the wire signal underlying Count Five originated in Russia).

11

to or from which the communication was transmitted.”). Here, it is undisputed that the recipients

of the wire signals—PNC and the SBA—are based in the United States. And the wire signals

were clearly a core component of the fraud. Because Counts Three, Four, and Five are all

“permissible domestic applications” of the wire fraud statute, Elbaz, 52 F.4th at 604, the Court

denies Biaou’s motion to dismiss.

B. Biaou’s Motion to Sever Counts (ECF No. 27)

Biaou also moves to sever the counts related to FRB (i.e., Counts One, Two, Four, and

Six) from the counts related to MGF (i.e., Counts Three, Five, and Seven). In his view, a single

trial on all counts would unfairly prejudice him because (1) a jury would be more likely to

convict him “on the basis of an improper assumption of criminal propensity,” and (2) a single

trial would “hinder defense counsel’s practical ability to present different types of defenses to the

jury for different types of charges.” Motion to Sever (ECF No. 27) at 2.

The Federal Rules of Criminal Procedure permit the joinder of two or more offenses in a

single indictment when they “are of the same or similar character, or are based on the same act or

transaction, or are connected with or constitute parts of a common scheme or plan.” Fed. R.

Crim. P. 8(a). Offenses are of a “similar character” when they are “nearly corresponding,

resembling in many respects, somewhat alike, or having a general likeness to.” United States v.

Wilkins, 538 F. Supp. 3d 49, 87 (D.D.C. 2021) (quoting United States v. Treadwell, 566 F. Supp.

80, 86 (D.D.C. 1983)). They may also be “connected together” when there is “commonality of

proof.” Id. (citing United States v. Richardson, 161 F.3d 728, 734 (D.C. Cir. 1998)). Ultimately,

courts are to construe Rule 8 “liberally,” and joinder may be permitted “even if the claims are

entirely unrelated to each other.” Id. (quoting United States v. Gooch, 665 F.3d 1318, 1325

(D.C. Cir. 2012)).

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If counts are properly joined in a single indictment under Rule 8, Rule 14 governs the

subsequent severance of counts. See Schaffer v. United States, 362 U.S. 511, 515 (1960); United

States v. Mack, 53 F. Supp. 3d 179, 190 (D.D.C. 2014). Under Rule 14, the Court may order

separate trials of counts if joinder “appears to prejudice a defendant.” Fed. R. Crim. P. 14(a).

That is, severance is proper if there is a “serious risk” that the jury will be unable to make “a

reliable judgment about guilt or innocence.” Gooch, 665 F.3d at 1336 (quoting Zafiro v. United

States, 506 U.S. 534, 539 (1993)). The defendant carries the burden of establishing prejudice.

United States v. Carson, 455 F.3d 336, 374 (D.C. Cir. 2006). And even if a defendant

establishes prejudice, the Court still retains discretion on whether to sever counts. Id.; see also

Gooch, 665 F.3d at 1336. “Absent substantial prejudice to the accused, offenses properly joined

under Rule 8 should be jointly tried to ‘conserve judicial resources, [alleviate] the burdens on

citizens serving as jurors, and [to avoid] the necessity of having witnesses reiterate testimony in a

series of trials.’” Treadwell, 566 F. Supp. at 86 (alterations in original) (citation omitted).

Biaou does not meaningfully dispute that the seven counts in the Superseding Indictment

are properly joined under Rule 8(a). See Johnson v. Panetta, 953 F. Supp. 2d 244, 250 (D.D.C.

2013) (“[P]erfunctory and undeveloped arguments, and arguments that are unsupported by

pertinent authority, are deemed waived.”). Instead, he claims that he would be prejudiced under

Rule 14 if the counts related to FRB were tried alongside the counts related to MGF.

First, Biaou contends that there are “fundamental differences between the FRB Counts

and the MGF Counts,” so combining them in a single trial could “suggest[] a propensity for

fraud.” Mot. to Sever (ECF No. 27) at 6. To be sure, severance may be appropriate if there is a

risk that “the jury may cumulate evidence of the separate crimes.” Blunt v. United States, 404

F.2d 1283, 1288 (D.C. Cir. 1968). But in this case, the evidence related to the FRB loan

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applications is “separable and distinct” from the evidence related to the MGF loan applications.

United States v. Lewis, 626 F.2d 940, 945 (D.C. Cir. 1980). Each wire fraud count relates to a

discrete application with its own alleged misrepresentations and supporting documentation. See

generally Superseding Indictment ¶¶ 18–40. Indeed, the government anticipates presenting the

evidence “in chronological order, application by application.” Mem. in Opp’n to Def.’s Mot. to

Sever (ECF No. 47) at 8. Because there is little risk that the jury “would confuse or cumulate the

evidence against the defendant, draw improper inferences of criminal disposition, or confuse the

applicability of the government’s evidence or the defendant’s defenses” by trying the counts

together, Biaou has not established prejudice under Rule 14. Lewis, 626 F.2d at 945; see also

Hill v. United States, 418 F.2d 449, 450–51 (D.C. Cir. 1968) (holding that joinder “did not erupt

in prejudice to defendant over and above that inherent in all joinder of offenses of common

character” because the offenses “were responsibly separated from each other by counsel and by

the trial judge”).

Second, Biaou claims that joinder would “interfer[e] with his right to present a defense,”

as “it may very well make sense for [him] to testify in response to the government’s allegations

in some [c]ounts but not others (among other possible privileged strategic distinctions).” Mot. to

Sever (ECF No. 27) at 6–7. Biaou’s premise is sound: “In some circumstances prejudice may

develop when an accused wishes to testify on one but not the other of two joined offenses.”

Blunt, 404 F.2d at 1289 (citation and internal quotation marks omitted). But a defendant’s

“election to testify on some but not all of the charges on trial does not automatically require a

severance.” Bradley v. United States, 433 F.2d 1113, 1122 (D.C. Cir. 1969) (noting that “[s]uch

a rule . . . would divest the court of all control over the matter of severance and entrust it to the

defendant” (citation omitted)). Instead, Biaou must provide the Court with enough information

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“regarding the nature of the testimony he wishes to give on one count and his reason for not

wishing to testify on the other” so that the Court can (1) assess whether “the claim of prejudice is

genuine,” and (2) “intelligently . . . weigh the considerations of ‘economy and expedition in

judicial administration’ against the defendant's interest in having a free choice with respect to

testifying.” Blunt, 404 F.2d at 1289 (citation omitted). That is, “no need for a severance exists

until the defendant makes a convincing showing that he has both important testimony to give

concerning one count and strong need to refrain from testifying on the other.” Baker v. United

States, 401 F.2d 958, 977 (D.C. Cir. 1968) (footnote omitted).

Biaou fails to make that showing here. While he hints that it “may very well make sense”

for him to testify about the FRB counts and not the MGF counts (or vice versa), he fails to

explain why. See Motion to Sever (ECF No. 27) at 6–7. Thus, his reasoning for testifying on

some counts but not others “remain[s] a mystery.” United States v. Delgado, No. 22-cr-304

(JEB), 2023 WL 8354928, at *8 (D.D.C. Dec. 1, 2023); see also United States v. Lewis, No. 24-cr-144 (LLA), 2024 WL 4932043, at *3 (D.D.C. Dec. 2, 2024). Because Biaou “failed to carry

[his] burden of showing why the court should exercise its discretion under Rule 14,” United

States v. Singh, 973 F. Supp. 7, 19 (D.D.C. 1997), the Court denies his motion to sever.

C. Biaou’s Motion to Suppress (ECF No. 38)

Biaou next seeks to suppress any evidence obtained from searches of three Microsoft email accounts, two Google e-mail accounts, and his residence.8 He asserts that the searches were

unconstitutional because (1) the warrants lacked sufficient particularity and were overly broad;

8

Biaou’s moves for leave to file his motion to suppress under seal because it cited to materials covered by the Court’s protective order governing discovery. See Protective Order (ECF No. 10). The Court grants the motion for leave to file under seal, and the following discussion only cites to portions of the sealed filings that are necessary to explain its ruling.

15

(2) the warrants lacked probable cause; (3) law enforcement agents exceeded their authority by

seizing his cell phone; and (4) the agents exceeded their authority by seizing suspected

contraband that lacked a “plausible connection” to the alleged wire fraud.9 The government

retorts that the warrants were sufficiently particular, accounted for all evidence seized, and

established probable cause. The government adds that, in any event, the evidence would be

admissible because law enforcement relied on the warrants in good faith.

Law enforcement agents executed searches of the e-mail accounts and Biaou’s residence

pursuant to three separate warrants. The warrants for the Microsoft and Google accounts

authorized the government to seize information that “constitute[d] fruits, contraband, evidence,

and instrumentalities of violation of [wire fraud] as described in the affidavit submitted in

support of th[e] Warrant.” Mem. in Opp’n to Mot. to Suppress (ECF No. 54-2) at 2. The

warrant for Biaou’s residence in northwest D.C. authorized a search for “fruits, evidence,

information, contraband, or instrumentalities . . . relating to violations of [wire fraud and bank

fraud] that have been committed [by Biaou] as described in the search warrant affidavit.” Id.,

Ex. 3 at 5.

The Fourth Amendment requires that search warrants be supported by probable cause and

“particularly describe[e] the place to be searched, and the persons or things to be seized.” U.S.

Const. amend. IV. The particularity requirement ensures that every government search “will be

carefully tailored to its justifications, and will not take on the character of the wide-ranging

exploratory searches the Framers intended to prohibit.” Maryland v. Garrison, 480 U.S. 79, 84

(1987) (footnote omitted). “[A] warrant with ‘indiscriminate sweep’ is ‘constitutionally

9

Because the government does not intend to introduce evidence obtained from Biaou’s cell phone or the suspected contraband, the Court declines to address those claims here. See United States v. Kahre, 737 F.3d 554, 565 (9th Cir. 2013).

16

intolerable.’” United States v. Smith, 108 F.4th 872, 878 (D.C. Cir. 2024) (quoting Stanford v.

Texas, 379 U.S. 476, 486 (1965)). For example, mere reference to a “broad federal statute” does

not place any practical limit on the scope of a warrant or the officers’ actions in executing the

warrant. United States v. Maxwell, 920 F.2d 1028, 1033 (D.C. Cir. 1990) (holding that a search

warrant with no affidavit incorporated and limited only by mere reference to the wire fraud

statute in its description of the items to be seized is “fatally overbroad”). However, a warrant’s

incorporation of a corresponding affidavit may satisfy the particularity requirement if “(1) the

affidavit accompanies the warrant, and in addition (2) the warrant uses suitable words of

reference which incorporate the affidavit by reference.” Id. (internal quotation marks omitted)

(quoting United States v. Vaughn, 830 F.2d 1185, 1186 (D.C. Cir. 1987)).

Biaou claims the search warrants were not sufficiently particularized because the

warrants’ language was “too generalized” and “cabined only by reference to broad federal

statutes.” Mot. to Suppress (ECF No. 38-2) at 3–4. But, unlike the deficient warrant in

Maxwell, the warrants in this case are not cabined solely by reference to the federal wire fraud

statute. In Maxwell, the warrant lacked “explicit words . . . indicating that the magistrate

intended to incorporate the contents of the affidavit into the warrant and thereby limit its scope

by reference to the affidavit.” 920 F.2d at 1032. By contrast, the warrants here incorporate the

affidavits as attachments and expressly reference them as limitations on the government’s scope

of search. See, e.g., Mem. in Opp’n to Mot. to Suppress (ECF No. 54-2), Ex. 2. at 10

(authorizing the seizure of “fruits, contraband, evidence, and instrumentalities of violations of

[the wire fraud statute] as described in the affidavit submitted in support of th[e] Warrant”

(emphasis added)). These “suitable words of reference,” demonstrating explicit intent to

incorporate the affidavit into the warrant, sufficiently limit the scope of the warrant and satisfy

17

the particularity requirement of the Fourth Amendment. Maxwell, 920 F.2d at 1032; see also

United States v. Thorne, 548 F. Supp. 3d 70, 97 (D.D.C. 2021).

Biaou next claims that the search warrant for his residence was not supported by probable

cause.10 See U.S. Const. amend. IV. To find probable cause, a magistrate judge must determine

that, based on an objective assessment of the evidence presented in the warrant application, there

is a “fair probability” the government will find evidence of wrongdoing in the location to be

searched. Illinois v. Gates, 462 U.S. 213, 238 (1983). The government must also establish a

“nexus . . . between the item to be seized and criminal behavior.” United States v. Griffith, 867

F.3d 1265, 1271 (D.C. Cir. 2017) (alteration in original) (citation omitted). While a judge may

draw “reasonable inferences” from the material supplied by the government to find probable

cause, an affidavit comprised of “wholly conclusory statement[s]” is insufficient. Gates, 462

U.S. at 239–40. When reviewing a magistrate’s finding of probable cause, courts assess whether

there was a “substantial basis” for concluding that (1) the government was likely to find evidence

of a crime at the search location, and (2) a nexus existed between the evidence sought and the

criminal act. Thorne, 548 F. Supp. 3d at 93–94.

According to Biaou, the affidavit supporting the search warrant for his residence

provided “zero justification” for why any evidence of wire fraud was likely to be found there.

Mot. to Suppress (ECF No. 38-2) at 6. The Court disagrees. First, the affidavit established that

Biaou lived at the targeted address through several different methods of identification, including

his B-2 visa re-entry paperwork, records from prior civil litigation brought against him, internet

service subscriber records, and the affiant’s own observations. Second, the affidavit explained

10

Biaou does not meaningfully dispute that the search warrants for the Microsoft and Google e-mail accounts were supported by probable cause. See Johnson, 953 F. Supp. 2d at 250 (noting that “perfunctory and undeveloped arguments” are waived).

18

that the PPP loan and EIDL applications were completed using electronic devices “such as laptop

computers,” and the devices used to complete the applications “would be in the control of the

individual completing and benefiting from the applications.” The affiant further explained that

these devices were necessary to fabricate supporting documentation for the loan applications,

and there was reason to believe that the documents would be saved to any new or updated

computers in Biaou’s residence. Thus, the affidavit not only provided rationale for why the

items to be seized might reasonably be found at the residence, but also established the necessary

“nexus” between the place to be searched and the alleged wire fraud.

Finally, Biaou contends that the affidavits relied too heavily on the affiant’s “conclusory”

beliefs. In doing so, however, he takes the so-called conclusory statements from the affidavits

out of context. For example, Biaou cites the affiant’s “belief” that a lease agreement included in

the loan forgiveness application underlying Count Six was fraudulent. But the affiant followed

this statement with multiple factual justifications as to why he believed the documentation was

fraudulent. See, e.g., Mem. in Opp’n to Mot. to Suppress (ECF No. 54-2), Ex. 2. at 15–16

(explaining that the lease agreement included in the loan forgiveness application “differ[ed]

significantly” from documentation provided by the real estate company). Biaou’s argument

about the conclusory nature of the affidavits is unfounded. Accordingly, the Court denies

Biaou’s motion to suppress.

D. Biaou’s Motion to Compel Production of the “PNC Report” (ECF No. 26)

Biaou next moves to compel the production of a report prepared by PNC that “allegedly

initiated the investigation that led to this case.” Mot. to Compel (ECF No. 26) at 2. He asserts

that any such report is Brady material and otherwise discoverable under Rule 16 because it “is

material to preparing the defense.” Fed. R. Crim. P. 16(a)(1)(E)(i). The government objects to

19

Biaou’s request, but it has provided the defense a detailed “summary letter” containing

information pertinent to the request. The Court will address this issue at the upcoming pre-trial

conference.

E. Biaou’s Motion to Define the Scope of the Prosecution Team (ECF No. 34)

Biaou also requests an order declaring that both the SBA and the Internal Revenue

Service’s Criminal Investigations Division (“IRS-CI”) are part of the “prosecution team” for

purposes of the government’s discovery obligations, including its duty to search for Brady

information. Mot. to Define Scope of Prosecution Team (ECF No. 34) at 1. The government

concedes that the IRS-CI is part of the prosecution team, but it says there is “no basis to extend

the same treatment to [the] SBA.” Resp. to Def. Mot. (ECF No. 59) at 1.

In criminal prosecutions, the government “must comply with two related discovery

obligations.” United States v. Trump, 753 F. Supp. 3d 17, 25 (D.D.C. 2024) (footnote omitted).

First, the government has a “duty to search” possible sources of Brady information, including

evidence from other agencies. United States v. Brooks, 966 F.2d 1500, 1502 (D.C. Cir. 1992).

This duty to search, however, is limited to “files maintained by branches of government ‘closely

aligned with the prosecution.’” Id. at 1503 (citation omitted). The scope of the duty “depends

on the ‘working relationship’ between the prosecution and other agencies, along with ‘the nature

of the files’ at issue, the difficulty of searching for them, and the prospect of finding favorable

evidence therein.” Trump, 753 F. Supp. 3d at 25–26 (citing Brooks, 966 F.2d at 1503).

Second, the government is obligated to produce certain documents upon request under

Rule 16, including items “within the government’s possession, custody, or control” that are

“material to preparing the defense.” Fed. R. Crim. P. 16(a)(1)(E)(i); see United States v.

Marshall, 132 F.3d 63, 68 (D.C. Cir. 1998) (“[T]he government cannot be required to disclose

20

evidence that it neither possesses nor controls.”). To determine what materials are within the

government’s possession, courts are “more concerned with fairness to the defendant, on the one

hand, and the government’s ease of access to the documents sought, on the other, than with the

issue whether the documents are actually within the physical possession of the prosecutor.”

United States v. Libby, 429 F. Supp. 2d 1, 5–6 (D.D.C. 2006) (alteration in original) (quoting

United States v. Poindexter, 727 F. Supp. 1470, 1477 (D.D.C. 1989)).

Accordingly, courts in this district apply the same “duty to search” standard under both

Brady and Rule 16: “A prosecutor must search for and produce information maintained by other

components of the government which are closely aligned with the prosecution.” Trump, 753 F.

Supp. 3d at 27 (internal quotation marks omitted) (quoting Libby, 429 F. Supp. 2d at 6); see also

Poindexter, 727 F. Supp. at 1477; United States v. Safavian, 233 F.R.D. 12, 14 (D.D.C. 2005).

This inquiry is “fact-intensive” and resolved “on a case-by-case basis.” Libby, 429 F. Supp. 2d

at 9.

Biaou argues that the SBA is part of the prosecution team because it provided “key

evidence” for use at trial. Mot. to Define Scope of Prosecution Team (ECF No. 34) at 4. After

all, the SBA guaranteed PPP loans and administered the EIDL program. See Superseding

Indictment ¶¶ 8, 12. The government responds that the test cannot be whether the entity

provided “key evidence,” as by that logic all third-party lenders—including JP Morgan and PNC

here—would be part of the prosecution team. Resp. to Def. Mot. (ECF No. 59) at 3. In any

event, the government adds, SBA did not provide “key evidence”; while it may have processed

the EIDL applications, “the bulk of evidence related to disbursed funds would be in the

possession of third-party financial institutions.” Id.

21

The Court agrees that the SBA is not part of the prosecution team for purposes of the

government’s Brady or Rule 16 discovery obligations. When considering whether an agency is

“closely aligned” with the government, “there is appreciable distance between an agency that

merely complies with a prosecutor’s request for a limited, specific set of documents, and an

agency that . . . substantially deploys its own personnel and resources to conduct a broad or

open-ended search for evidence.” Trump, 753 F. Supp. 3d at 49 (concluding that the Department

of Defense’s production of documents to the government did not make it part of the prosecution

team). While the SBA may have provided documentation of the EIDL applications to the

government, there is no evidence before the Court that it engaged in “extensive cooperation with

the [government] in gathering evidence for this case.” United States v. Sturgeon, No. 21-cr-91

(RCL), 2023 WL 3203092, at *4 (D.D.C. May 2, 2023). Nor is there evidence that the SBA

“contributed to the investigation in other ways.” United States v. Sheppard, No. 21-cr-203

(JDB), 2022 WL 17978837, at *11 (D.D.C. Dec. 28, 2022). In short, an agency that provides a

limited number of requested documents cannot be said to be in a “close working relationship” or

in “extensive cooperation” with the government. Trump, 753 F. Supp. 3d at 49 (citations

omitted). Because the IRS-CI is part of the prosecution team and the SBA is not, the Court

grants Biaou’s motion in part and denies it in part.11

F. Evidentiary Motions

The parties have also filed several motions in limine seeking evidentiary rulings in

advance of trial. The Court has sufficient information to at least address each motion, but as

11

The government represents that “all the discoverable materials pertaining to IRS-CI have already been provided to the defense in compliance with Rule 16 and Brady obligations,” and it “acknowledges its ongoing discovery obligations.” Resp. to Mot. to Define Scope of Prosecution Team (ECF No. 59) at 2.

22

noted below, it will reserve judgment on certain issues until trial is underway. See Daniels v.

District of Columbia, 15 F. Supp. 3d 62, 67 (D.D.C. 2014) (recognizing that courts may defer

ruling on motions on limine “until trial [when] decisions can be better informed by the context,

foundation, and relevance of the contested evidence within the framework of the trial as a whole”

(alteration in original) (citation and internal quotation marks omitted)).

1. Biaou’s Motion to Exclude Loan Application Records (ECF No. 32)

Biaou moves to exclude records of the loan applications that he purportedly filed,

claiming that they violate the best evidence rule, constitute hearsay, and unfairly prejudice him.

a. Best Evidence

Biaou first claims that the government does not possess the “actual” EIDL applications,

and admitting “derivative” records of the applications would violate the best evidence rule.12

Mot. to Exclude Loan Application Records (ECF No. 32-2) at 1, 5. The best evidence rule

provides that “[a]n original writing, recording, or photograph is required in order to prove its

content unless these rules or a federal statute provides otherwise.” Fed. R. Evid. 1002. An

“original” of electronically-stored information refers to “any printout—or other output readable

by sight—if it accurately reflects the information.” Fed. R. Evid. 1001(d). “The elementary

wisdom of the best evidence rule rests on the fact that the document is a more reliable, complete

and accurate source of information as to its contents and meaning than anyone’s description [of

the document].” Gordon v. United States, 344 U.S. 414, 421 (1953). The rule is thus intended to

12

Biaou’s best evidence argument focuses on the EIDL applications submitted to the SBA, not the PPP loan applications submitted to JP Morgan or PNC. Accordingly, the Court does not address whether “screenshots” of JP Morgan’s system of records are admissible “duplicates” under Fed. R. Evid. 1001(e). See Resp. to Mot. (ECF No. 49) at 6.

23

both “prevent fraud” and “ensure accuracy.” United States v. Holton, 116 F.3d 1536, 1545 (D.C.

Cir. 1997).

During discovery, Biaou asked the government to produce “all documentation submitted

or maintained in connection with the loan and forgiveness applications at issue in this case . . . in

the form in which they were received and kept by the relevant agency or institution.” Mot. to

Exclude Loan Application Records (ECF No. 32-2), Ex. A at 2. The government provided the

following response:

With respect to the point regarding the format of the applications, because the loan

and forgiveness applications were submitted electronically, each copy of an

application, regardless of the source, was generated by the respective lender’s

system of record. . . . For its part, the Economic Injury and Disaster Loan records

appear to look more like an Excel spreadsheet or a transcript – that is the format in

which the government receives them in every COVID fraud case because that is

how the agency’s system of record generates the information into a reader-friendly

version.

Id., Ex. B at 4.

The government’s briefing provides additional context about the records in question.

When the SBA began accepting EIDL applications in March 2020, its system “was so flooded

and overwhelmed that it crashed, necessitating a system upgrade.” Resp. to Mot. (ECF No. 49)

at 2. So later that month, the Office of Management and Budget approved the use of an “EIDL

RAPID Intake Form,” a streamlined application that could be completed online. Id. at 3. This

new application form was “a combination of the previously approved SBA application forms

3501, 3502, 3053, and 3504.” Id. (footnote omitted). The government alleges that Biaou used

the RAPID Intake Form to submit the two EIDL applications at issue in Counts Four and Five.

Id. at 6. So during discovery, the government produced records that it says “accurately reflect

the SBA’s electronically stored information” of his responses, and it intends to introduce this

evidence through the testimony of an SBA employee. Id. at 2, 4. In the government’s view, the

24

EIDL application records constitute “originals” under Rule 1001—and thus satisfy the best

evidence rule—because they are “printout[s]” or “other output[s]” which accurately reflect the

information submitted on the RAPID Intake Forms. Id. at 5 (quoting Fed. R. Evid. 1001(d)).

In rebuttal, Biaou questions whether the records “accurately reflect” the EIDL

applications. See Reply in Supp. of Mot. (ECF No. 58) at 1–2. From his perspective, the records

are “inaccurate representations” of the “the SBA loan forms (Forms 3501, 3502, and 3503)” that

he allegedly filled out. Id. at 2; see also Mot. to Exclude Loan Application Records (ECF No.

32-2) at 6 (asserting that SBA regulations “required applicants to fill out SBA Forms 3501, 3502,

and 3503” (footnote omitted)).

Ultimately, Biaou’s best evidence claim hinges on a question of fact: whether Biaou

submitted the relevant EIDL applications using the RAPID Intake Form, or whether he used

SBA Forms 3501, 3502, and 3503. See Fed. R. Evid. 104(a) (providing that the Court decides

preliminary questions about whether evidence is admissible). If the government establishes

through witness testimony (or the parties ultimately stipulate) that the former is true, then the

records likely constitute “originals” under Rule 1001. If not, then Biaou’s best evidence

argument becomes more persuasive.13 Accordingly, the Court denies Biaou’s motion to exclude

the loan application records under the best evidence rule, but he is free to renew his objection if

the government fails to lay a proper foundation.

13

Notwithstanding Biaou’s skepticism, the evidence currently before the Court indicates that the SBA did use the RAPID Intake Form to receive EIDL Applications. After all, the header for the records at issue is “Rapid Intake Form Data Lookup.” See Mot. to Exclude Loan Application Records (ECF No. 32-2), Ex. C; id., Ex. D.

25

b. Hearsay

Biaou also claims that the loan application records contain two layers of hearsay: The

first is the information provided by the applicant to the lender, and the second is the lender’s

assertion that the applicant did in fact provide that information. See Mot. to Exclude Loan

Application Records (ECF No. 32-2) at 10. (“[T]hese records effectively contain statements that

‘the government asked Mr. Biaou for his number of employees’ and in response ‘Mr. Biaou said’

a particular number. Those statements would be offered for their truth—that those exact

statements of the lender or government, and Mr. Biaou, were in fact made.”). This argument

falls short. As both parties agree, the first layer—the assertions made in the applications—

consists of statements by an opposing party, which is “not hearsay.” See Fed. R. Evid.

801(d)(2)(A). And the second layer—the assertion that Biaou in fact provided this

information—would not be an out-of-court statement. See Fed. R. Evid. 801(c). Instead, the

government intends to call witnesses who can (1) establish the accuracy of the SBA’s records,

and (2) show using IP addresses and other evidence that Biaou submitted the loan applications at

issue. See Resp. to Mot. (ECF No. 49) at 2–4. Because these witnesses are subject to cross

examination, Biaou will have ample opportunity to “challenge the assertion that particular words

or numbers were communicated between the [lenders] and the defendant.” Mot. to Exclude

Loan Application Records (ECF No. 32-2) at 11.

c. Unfair Prejudice

Finally, Biaou submits that the loan records should be excluded because their probative

value is substantially outweighed by a danger of unfair prejudice to him. See Fed. R. Evid. 403.

He notes that the answers contained in the spreadsheets do not align with the questions provided

on the SBA Forms. Mot. to Exclude Loan Application Records (ECF No. 32-2) at 7–9

26

(comparing the spreadsheets to SBA Form 3501). Thus, he says, the government should not be

allowed to introduce spreadsheets that “do not accurately reflect what he was asked and how he

responded.” Reply in Supp. of Mot. (ECF No. 58) at 3.

Here too, Biaou’s argument depends on whether he used the RAPID Intake Form or SBA

Forms 3501, 3502, and 3503 to complete the EIDL applications. If he used the RAPID Intake

Form, then it would make sense why his answers did not align with the outdated SBA Forms.

See Mot. to Exclude Loan Application Records (ECF No. 32-2) at 8 (noting that the spreadsheets

“suggest that Mr. Biaou answered an entirely different question” than what was asked on SBA

Form 3501). Accordingly, the Court denies Biaou’s motion under Rule 403, but as explained

above, he is free to renew his objection if the government fails to lay a proper foundation as to

which application form was in use during the relevant time period.14

2. Government’s Motion to Admit IP Address Information (ECF No. 33)

Next, the government moves the Court to take judicial notice of publicly-available

Internet Protocol (“IP”) address information contained on the Internet Corporation for Assigned

Names and Numbers (“ICANN”) database. Among other things, the government intends to use

the IP address records as circumstantial evidence that Biaou—not his father—submitted the PPP

loan application at issue in Counts Three and Seven. See Mot. to Admit Printout of ICANN’s IP

Address Information (ECF No. 33) at 2–3.

14

The Court appreciates Biaou’s concern that, regardless of which application forms were in effect, the spreadsheets that the government intends to use at trial “do not reflect what Mr. Biaou actually saw—including form application guidance, instructions, or the information actually solicited.” Reply in Supp. of Mot. (ECF No. 58) at 3. For that reason, on cross examination Biaou may wish to show the jury a version of the RAPID Intake Form as it would appear to an applicant completing the form online, should the government elect not to do so in the first instance.

27

“Any device connected to the Internet is identified by a unique Internet Protocol (‘IP’)

address, consisting of a series of numbers separated by periods.” Stern v. Islamic Republic of

Iran, 73 F. Supp. 3d 46, 48 (D.D.C. 2014). An IP address “identifies the location, ‘i.e., a

particular computer-to-network connection’ of an end-user’s computer and also ‘serves as the

routing address for . . . requests to view a web page.’” Weinstein v. Islamic Republic of Iran,

831 F.3d 470, 473 (D.C. Cir. 2016) (alteration in original) (citation omitted), abrogated on other

grounds by Rubin v. Islamic Republic of Iran, 583 U.S. 202 (2018). As a result, an IP address

“is critical to the Internet’s functioning in the same way a telephone number is essential to the

functioning of the telecommunications system.” Id.

ICANN is a non-profit public benefit corporation that “performs several functions

essential to the functioning of the internet,” including the distribution of IP addresses. Id. at 476;

see also Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 395 (2d Cir. 2004). After generating IP

addresses, ICANN distributes them downstream to regional Internet registries and ultimately to

end-users. Weinstein, 831 F.3d at 476–77. ICANN also maintains the “Whois” database, a

“public resource that allows a user to retrieve information about IP number resources,

organizations, [points of contact], customers, and other entities.” United States v. Bychak, 441

F. Supp. 3d 1003, 1008 (S.D. Cal. 2020) (alteration in original) (citation omitted). In this case,

law enforcement agents utilized the Whois database to obtain the location of IP addresses used to

access Biaou and R.B.’s e-mail accounts. Mot. to Admit Printout of ICANN’s IP Address

Information (ECF No. 33) at 3. For example, records from the database appear to reveal that an

IP address located in Benin logged in to the e-mail account associated with R.B. Id. at 4.

The government seeks to admit the ICANN records as evidence of where various IP

addresses were located. Id. at 5–6. It submits that the Court may take judicial notice of the

28

ICANN records, or in the alternative, admit the records under Fed. R. Evid. 803(17). Biaou

objects to the admission of the records, claiming that they are irrelevant and not “sufficiently

reliable” to warrant judicial notice. Mem. in Opp’n to Gov’t Mot. (ECF No. 57) at 3–5.

The Court declines the government’s invitation to “take judicial notice of various search

queries regarding IP addresses within the ICANN database” at this time. Mot. to Admit Printout

of ICANN’s IP Address Information (ECF No. 33) at 8. To be sure, the Court may judicially

notice a fact that “is not subject to reasonable dispute because it . . . can be accurately and readily

determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid.

201(a)(2). But in this case, it is unclear what “fact” warrants judicial notice. Is it the fact that

the records were obtained from the Whois database? The fact that the records are accurate? Or

the fact that the IP addresses in question are associated with a particular geographic location?

The government simply asks the Court to “take judicial notice of various search queries,” but

without further clarification, the Court is in no position to do so. See Fed. R. Evid. 201(c)(2)

(noting that the Court must take judicial notice only if it is “supplied with the necessary

information”).15

That said, the Court also concludes that the records are likely admissible. The Federal

Rules of Evidence provide an exception to the rule against hearsay for “[m]arket quotations, lists,

directories, or other compilations that are generally relied on by the public or by persons in

particular occupations.” Fed. R. Evid. 803(17). These records are considered trustworthy

because of the “general reliance by the public or by a particular segment of it,” as well as the

15

The Court also notes that even if the Court took judicial notice of the ICANN records, the jury would be free to accept or reject the Court’s conclusion. See Fed. R. Evid. 201(f); United States v. Perez, 150 F.4th 237, 248 (4th Cir. 2025) (“An adjudicative fact is . . . the kind of factual issue ordinarily decided by a jury.”)

29

“motivation of the compiler to foster reliance by being accurate.” Fed. R. Evid. 803, advisory

comm. note (1972). As the government correctly notes, multiple courts have found that records

from the Whois database fall within Rule 803(17)’s ambit. See, e.g., Dish Network LLC v.

Fraifer, No. 16-cv-2549 (CPT), 2023 WL 8622142, at *9 (M.D. Fla. Aug. 31, 2023) (noting that

Whois records are “of the kind regularly relied upon to establish the identity of registrants”),

report and recommendation adopted, 2024 WL 51035 (M.D. Fla. Jan. 4, 2024); EarthLink, Inc.

v. Ahdoot, No. 03-cv-2559 (JOF), 2005 WL 8154298, at *8 (N.D. Ga. Feb. 1, 2005) (holding

that Whois search results fall under Rule 803(17)). Based on the government’s representations

about ICANN’s history and purpose, the Court will likely conclude that the Whois database

records are “generally relied on by the public.” Fed. R. Evid. 803(17). However, the Court will

reserve judgment on this issue until the government lays the proper foundation at trial.

Biaou’s objection to the IP address evidence on relevance and Rule 403 grounds is

unlikely to succeed. In short, Biaou points out that the IP address records in question are from

2023, even though the alleged wire fraud occurred between 2020 and 2022.16 See Mem. in

Opp’n to Gov’t Mot. (ECF No. 57) at 3–4. Because the records are from “a period entirely

disconnected from the charged conduct,” he claims that their probative value (if any) is “far

outweighed” by the risk of unfair prejudice. Id. (citing Fed. R. Evid. 403). However, evidence is

relevant if “it has any tendency to make a fact more or less probable than it would be without the

evidence” and “the fact is of consequence in determining the action.” Fed. R. Evid. 401

(emphasis added); see United States v. Foster, 986 F.2d 541, 545 (D.C. Cir. 1993) (“The general

16

To be clear, Biaou’s objection appears to be directed at IP address records obtained from Microsoft and Google, not ICANN. Compare Mot. to Admit Printout of ICANN’s IP Address Information (ECF No. 33) at 2–3 (describing records subpoenaed from Microsoft and Google) with id. at 4–6 (describing search results from the Whois database).

30

rule is that relevant evidence is admissible.”). If evidence is relevant, it may only be excluded

under Rule 403 “if its probative value is substantially outweighed by a danger of . . . unfair

prejudice.” Fed. R. Evid. 403. In this context, “unfair prejudice” refers to an “undue tendency to

suggest decision on an improper basis, commonly, though not necessarily, an emotional one.”

United States v. Ring, 706 F.3d 460, 472 (D.C. Cir. 2013) (citation omitted). The IP address

records present no such risk. The government intends to use the 2023 records as evidence that

Biaou had access to the e-mail account used to submit the PPP loan application underlying

Counts Three and Seven. This evidence, while circumstantial, easily clears the low bar for

relevance, and Biaou is free to attack the government’s chain of inferences at trial.

In sum, the Court denies the government’s motion to take judicial notice of the ICANN

records, but the government may still attempt to enter the evidence after laying the proper

foundation.

3. Biaou’s Motion to Exclude Reference to Misdemeanor Offenses (ECF No. 36)

Biaou also moves to exclude any evidence or argument regarding his prior misdemeanor

and traffic offenses. In his view, evidence of these offenses—including the “nolle diversion”

disposition of a simple assault charge—has “no bearing on any issue in this case” and carries a

risk of unfair prejudice. See Mot. to Exclude (ECF No. 36) at 1–2. The government does not

intend to introduce evidence of Biaou’s prior traffic offenses, but it argues that evidence of his

assault charge is relevant because Biaou addressed the offense in the PPP loan application

underlying Count Two.

The Superseding Indictment alleges that in February 2021, Biaou submitted a fraudulent

PPP loan application to PNC on behalf of FRB. See Superseding Indictment ¶ 24. The

following day, PNC sent a message to the e-mail address provided on the application, requesting

31

proof “that the borrower . . . doe[es] not have a criminal record and/or provide information and

documentation explaining the criminal record.” Resp. to Def.’s Mot. (ECF No. 50) at 2

(alterations in original). In response, Biaou submitted a signed letter explaining that he was

charged with simple assault in March 2019, but a “nolle diversion” was entered in October 2019.

Id. at 3. He expressed his belief that the disposition “does not affect eligibility for a PPP loan,”

and he attached the relevant paperwork from the D.C. Superior Court. Id.

The government submits that Biaou’s signed letter and corresponding paperwork is

“highly relevant” because it shows that Biaou—rather than a third party—submitted the PPP

loan application to PNC. Id. In other words, the government does not intend to use Biaou’s

response as “propensity” evidence under Rule 404, see United States v. Lawson, 410 F.3d 735,

741 (D.C. Cir. 2005) (noting that “prior bad acts” are admissible so long as they are not offered

only to show conformity), or as “impeachment” evidence under Rule 609, see United States v.

Benton, 98 F.4th 1119, 1128 (D.C. Cir. 2024) (explaining that Rule 609 “covers admission of a

criminal conviction to impeach a witness”). Instead, the evidence advances the government’s

theory that Biaou personally submitted the allegedly fraudulent PPP loan application.

Accordingly, the prejudicial effect of that evidence (if any) does not substantially outweigh its

probative value. Cf. United States v. Mosquera-Murillo, 153 F. Supp. 3d 130, 185 (D.D.C.

2015) (concluding that the risk of prejudice is lessened when the conduct at issue “did not result

in prosecution or conviction” and “generally involve[d] criminal activity that is no more serious

than that charged in the indictment”), aff’d, 902 F.3d 285 (D.C. Cir. 2018). At Biaou’s request,

the Court will consider redacting the reference to the specific charge in the letter and/or issuing a

limiting instruction to ensure that the jury considers the evidence for its proper purpose. See

United States v. Moore, 75 F. Supp. 3d 444, 453 (D.D.C. 2014).

32

The Court therefore grants Biaou’s motion to exclude any reference to any traffic

offenses, but denies his motion to exclude evidence of the aforementioned correspondence with

PNC.17

4. Biaou’s Motion to Exclude Evidence of Personal Property (ECF No. 37)

Biaou moves to exclude evidence that he owned certain vehicles—including a Porsche—

along with other “lifestyle” evidence. Mot. to Exclude Unfairly Prejudicial Evidence (ECF No.

37) at 1. He contends that this evidence is not relevant carries an “acute risk” of unfair prejudice.

Id. at 4.

As alleged in the Superseding Indictment, Biaou received over $2 million in PPP loan

and EIDL funds between April 2020 and August 2021. See Superseding Indictment at 10

(summary chart). PPP loans were to be used “for certain permissible expenses, including payroll

costs, interest on mortgages, rent, and utilities,” id. ¶ 9, and later for worker protection costs,

uninsured property damage costs, and certain operation expenses, id. ¶ 10. Similarly, EIDL

funds were dispersed “solely as working capital to alleviate economic injury caused by disaster.”

Id. ¶¶ 13–14 (defining working capital to include “payroll expenses, sick leave, production costs,

and ordinary business obligations”). The government submits that Biaou did not use the PPP

loan and EIDL funds for “the inflated or nonexistent payroll figures” provided in the loan

applications, but rather “funneled the funds” to accounts under his control, which he later used to

buy other things, including a Porsche. Resp. to Mot. (ECF No. 55) at 4.

17

The Court may reconsider its ruling on Biaou’s traffic offenses if he “opens the door” to cross examination about his criminal history. See, e.g., United States v. McGill, 815 F.3d 846, 906 (D.C. Cir. 2016) (noting that a defendant may open the door to impeachment about the details of his convictions “by attempting to minimize his misconduct in his testimony” (citation and internal quotation marks omitted)).

33

Biaou first objects that evidence related to his purchase of the Porsche is not relevant

because (1) he was not charged with making false statements about his use of the PPP loan and

EIDL funds at issue, and (2) the government has not traced the loan proceeds to the purchase of

the Porsche. Mot. to Exclude Unfairly Prejudicial Evidence (ECF No. 37) at 2–4. Recall that

the bar for relevance is low: The evidence in question need only have “any tendency” to make a

fact of consequence more or less probable. Fed. R. Evid. 401. And here, evidence that Biaou

used PPP loan and EIDL funds to purchase a luxury vehicle makes it more likely that he

intended to defraud the COVID-19 relief programs. See, e.g., United States v. Booth, 309 F.3d

566, 575 (9th Cir. 2002) (recognizing that the improper use of funds is circumstantial evidence

of an intent to defraud); United States v. Cole, 631 F.3d 146, 155–56 (4th Cir. 2011) (admitting

evidence of “lavish spending” as probative of the defendant’s motive to accumulate and maintain

wealth). The Court’s conclusion, however, is premised on the assumption that the funds used to

purchase the Porsche can be traced to the PPP loan or EIDL proceeds. See Fed. R. Evid. 104(b).

So assuming for now that the government can lay the proper foundation, the Court will deny

Biaou’s motion under Rule 402 and defer ruling on the admissibility of the evidence until trial.

See Barnes v. District of Columbia, 924 F. Supp. 2d 74, 79 (D.D.C. 2013) (acknowledging the

Court’s discretion to “await developments at trial” before issuing an evidentiary ruling (citation

omitted)).

Biaou also objects to the evidence under Rule 403 because it “invites potential class

prejudice” and leads to the improper inference that “because Mr. Biaou owned nice things, he

must have obtained them dishonestly.” Mot. to Exclude Unfairly Prejudicial Evidence (ECF No.

37) at 4–5. The Court is unconvinced. Rule 403 does not bar prejudicial evidence; it bars

evidence for which the risk of “unfair prejudice” substantially outweighs its probative value.

34

Fed. R. Evid. 403; United States v. Gartmon, 146 F.3d 1015, 1021 (D.C. Cir. 1998). The

evidence that Biaou used the loan proceeds for his personal benefit would not “lure the factfinder

into declaring guilt on a ground different from proof specific to the offense charged.” Old Chief

v. United States, 519 U.S. 172, 180 (1997). Nor would it be “offered on an ancillary issue or to

inflame the jury.” Gartmon, 146 F.3d at 1021. Instead, the government intends to offer the

purchase “as evidence of [the] defendant’s intent and controlling role in the fraud.” Id.

Accordingly, the Court denies Biaou’s motion under Rule 403 too.

5. Government’s Amended Motion to Admit 404(b) Evidence (ECF No. 40)

The government next moves for admission of “intrinsic evidence” and “other acts

evidence” under Federal Rule of Evidence 404(b).

The government’s motion cites seven categories of evidence that it may offer at trial,

which the Court briefly summarizes here. First, the government has obtained evidence that in

January 2021, Biaou unsuccessfully applied for two additional PPP loans from JP Morgan on

behalf of FRB. Am. Mot. to Admit Intrinsic and Rule 404(b) Evid. (ECF No. 40) at 14–17.

Those applications—which are not charged in the Superseding Indictment—were rejected

because Biaou did not provide sufficient evidence of his payroll expenses. Id. at 16. Second, the

government seeks to admit evidence that in April 2020, Biaou used his ex-wife’s name without

authorization to apply for a loan repayment program. Id. at 17. Third, the government may elect

to present evidence that Biaou forged his father’s signature on an unsuccessful loan application

(unrelated to the PPP or EIDL programs) in April 2023. Id. at 18–19. Fourth, the government

has evidence that Biaou attempted to obtain a $50,000 bank loan using false and/or altered

supporting documentation. Id. at 19–21. Fifth, the government submits that Biaou altered the

expiration date on his driver’s license to substantiate a wire transfer request. Id. at 21–22. Sixth,

35

the government has learned that Biaou submitted false bank statements to Catholic University in

his attempt to renew his F-1 student visa. Id. at 23–25. And seventh, the government seeks to

admit evidence that Biaou falsified bank statements and a “reference letter” from Bank-Fund

Staff Federal Credit Union. Id. at 26–34.

Before considering whether this evidence is admissible under Rule 404(b), the Court

must first determine whether the conduct is “intrinsic” to the charged offenses. See United

States v. McGill, 815 F.3d 846, 879 (D.C. Cir. 2016). That’s because acts “extrinsic” to the

charged crimes are subject to Rule 404(b), while acts “intrinsic” to the offenses are not. Id.

(citing United States v. Bowie, 232 F.3d 923, 927 (D.C. Cir. 2000)). An act is intrinsic if it is

“part of the charged offense” or an “uncharged act[] performed contemporaneously with the

charged crime [that] facilitate[s] the commission of the charged crime.” Bowie, 232 F.3d at 929;

see also United States v. Alexander, 331 F.3d 116, 126 (D.C. Cir. 2003) (recognizing that

conduct is “intrinsic” if it is “direct evidence of a fact in issue”). By contrast, acts are not

intrinsic simply because they “explain the circumstances,” “complete the story,” or are

“tangentially related to the charged crime.” Bowie, 232 F.3d at 928–29; see United States v.

Roberson, 581 F. Supp. 3d 65, 71 (D.D.C. 2022). Put another way, evidence is intrinsic—and

thus not subject to Rule 404(b)—if it is “charged in [the] superseding indictment” or “occurred

contemporaneously and to further the charged offenses.” United States v. Wilkins, 538 F. Supp.

3d 49, 70 (D.D.C. 2021) (emphasis added).

If the government seeks to admit “extrinsic” evidence, the Court turns to Rule 404(b).

Under that rule, evidence of any crime, wrong, or other act “is not admissible to prove a person’s

character in order to show that on a particular occasion the person acted in accordance with the

character,” but it “may be admissible for another purpose, such as proving motive, opportunity,

36

intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed. R.

Evid. 404(b). While the former phrase is “framed restrictively, the rule itself is quite

permissive.” Bowie, 232 F.3d at 929 (citation and internal quotation marks omitted) (describing

Rule 404(b) as “a rule of inclusion rather than exclusion”). That is, “other acts” evidence may be

introduced for “any purpose” as long as “the evidence is not offered solely to prove character.”

United States v. Miller, 895 F.2d 1431, 1436 (D.C. Cir. 1990).

The application of Rule 404(b) follows a “two-step mode of analysis.” United States v.

Anderson, 174 F. Supp. 3d 494, 496 (D.D.C. 2016) (quoting United States v. Burch, 156 F.3d

1315, 1323 (D.C. Cir. 1998)). The first step requires “a determination of whether the evidence is

probative of some issue other than character.” United States v. Cassell, 292 F.3d 788, 792 (D.C.

Cir. 2002). That is, the evidence must be relevant, relate to something other than the defendant’s

character or propensity, and support a finding that the defendant committed the other act. Id. In

the second step, the Court asks “whether the probative value [of the evidence] is substantially

outweighed by the prejudice.” Burch, 156 F.3d at 1323 (citation omitted); see Huddleston v.

United States, 485 U.S. 681, 688 (1988) (“If offered for . . . a proper purpose [under Rule

404(b)], the evidence is subject only to general strictures limiting admissibility such as Rules 402

and 403.”).

Evidence of the defendant’s knowledge, motive, and the absence of mistake may be

“relevant to show his specific intent to defraud.” United States v. Brown, 597 F.3d 399, 404

(D.C. Cir. 2010). If the government intends to use extrinsic evidence to prove intent or the

absence of mistake, then the acts must be “closely related to the offense[s] and tend to rebut the

defense of mistake.” United States v. DeLoach, 654 F.2d 763, 769 (D.C. Cir. 1980); see also

United States v. Long, 328 F.3d 655, 661 (D.C. Cir. 2003) (“What matters is that the evidence be

37

relevant ‘to show a pattern of operation that would suggest intent’ and that tends to undermine

the defendant’s innocent explanation.” (citation omitted)). The government may admit extrinsic

evidence in its case-in-chief “in anticipation that a defendant will deny intent or knowledge.”

United States v. Williams, 507 F. Supp. 3d 181, 190 (D.D.C. 2020).

a. Unsuccessful PPP Loan Applications to JP Morgan

The government first contends that evidence of Biaou’s uncharged, unsuccessful PPP

loan applications is intrinsic—and thus not subject to Rule 404(b)—because it is “part and parcel

of the charged fraud scheme.” Am. Mot. to Admit Intrinsic and Rule 404(b) Evid. (ECF No. 40)

at 38. It supports this claim by citing to several out-of-circuit cases in which courts admitted

evidence of uncharged PPP loan and EIDL applications. See id. But the D.C. Circuit has

expressed its “dissatisfaction” with the “extrinsic-intrinsic distinction” commonly used by other

circuits. Alexander, 331 F.3d at 125 (citing Bowie, 232 F.3d at 927–29). Instead, our circuit has

adopted a “very narrow understanding of what counts as an ‘intrinsic’ act.” Roberson, 581 F.

Supp. 3d at 71; see also United States v. Edwards, 889 F. Supp. 2d 47, 49 (D.D.C. 2012)

(recognizing that the D.C. Circuit “reject[ed] the approach adopted by other Circuits defining

‘inextricably intertwined’ evidence as that which ‘completes the story’ of the charged offense”).

For that reason, the government’s citations to out-of-circuit precedent are largely inapposite.

However, the Court concludes that even if Biaou’s unsuccessful PPP loan applications to

JP Morgan are “extrinsic” to the charged conduct, they are still admissible under Rule 404(b).

The government notes that in the first application, Biaou sought $250,000 and stated that FRB’s

average monthly payroll was $90,000. Am. Mot. to Admit Intrinsic and Rule 404(b) Evid. (ECF

No. 40) at 14–15. JP Morgan denied the application because it “implausibly showed that the

‘average monthly payroll included compensation per employee in excess of $100K.’” Id. at 14.

38

The bank then denied the second application for a $225,000 PPP loan because it could not verify

FRB’s average monthly payroll. Id. at 16. But less than a month later, Biaou successfully

obtained a $222,500 PPP loan from PNC Bank after claiming that FRB had an average monthly

payroll of $89,900 instead of $90,000. Id.; Superseding Indictment ¶¶ 24–27. The changes to

each subsequent application—including the decreases to the loan request and average monthly

payroll—provide at least circumstantial evidence that the figures provided in the loan application

underlying Count Two are fraudulent. Because these unsuccessful PPP loan applications are

evidence of Biaou’s intent and absence of mistake, and their probative value outweighs any

prejudicial effect, they are admissible under Rule 404(b).

b. Other Extrinsic Evidence

The admissibility of the remaining “other acts” evidence is a closer call. In short, the

government intends to introduce evidence of other occasions—unrelated to the PPP loan or

EIDL programs—in which Biaou allegedly falsified identification documents and bank

statements. These categories of evidence are quite similar to the “other acts” evidence presented

in Brown. In that case, the defendant was charged with bank fraud and passing fictitious

financial instruments after he attempted to deposit a fraudulent “bill of exchange” into his

account at a credit union. Brown, 597 F.3d at 400. In addition to testimony about the bills of

exchange, the district court allowed testimony about “other occasions when [the defendant] used

fictitious financial documents in attempts to obtain something of value.” Id. at 402. For

example, the jury heard testimony that shortly before the charged conduct took place, the

defendant attempted to purchase three cars using “registered” drafts, which later proved nonnegotiable and subsequently bounced. Id. at 402–03. On appeal, the defendant argued that the

evidence about his other fraudulent activity should have been excluded under Rule 404(b). The

39

D.C. Circuit rejected this argument, concluding that “[e]vidence of [his] intent, as demonstrated

by extrinsic evidence of his knowledge, motive, and the absence of mistake or accident, was

relevant to show his specific intent to defraud.” Id. at 404; see also id. at 407 (“Extrinsic

evidence to show [the defendant’s] intent was key to the government's ability to meet its burden

of proof that [the defendant] acted with specific intent to defraud.”). The court cited (1) the

temporal proximity between the charged offenses and the “other acts” evidence, and (2) the fact

that, like the bills of exchange, the fictitious “registered” drafts were “sufficiently authentic in

appearance to fool a lay person.” Id. at 404–05. Because the extrinsic evidence was used for a

permissible purpose under Rule 404(b) and not otherwise barred by Rule 403, the court affirmed

the defendant’s conviction. Id. at 408.

Like in Brown, the extrinsic evidence that the government seeks to introduce at trial is

temporally and substantively related to the charged conduct. But unlike in Brown, the Court has

received no clear indication that Biaou will pursue a “good faith” defense to the wire fraud

charges against him. See id. at 402 (noting that the defendant “indicated during the course of the

charged offenses that he was acting in good faith”). Indeed, Brown rejected the defendant’s

argument that extensive testimony about extrinsic evidence was needlessly cumulative because

he brought a “good faith” defense at trial. See id. at 408. Moreover, at least two cases cited by

the government suggest that this form of extrinsic evidence is admissible when it becomes clear

that the defense will raise a “lack of intent” or “good faith” defense. See, e.g., United States v.

Estabrook, 774 F.2d 284, 289 (8th Cir. 1985) (“[W]here it is made clear at the outset of the trial

that the defendant’s principal defense is a lack of knowledge or intent, and thus the issue is

unarguably in dispute, the government may take the defendant at his word and introduce [Rule

404(b)] evidence in its case-in-chief.”); United States v. Hooton, 662 F.2d 628, 635 (9th Cir.

40

1981) (allowing Rule 404(b) evidence because “it was obvious that [the defendant] would raise

lack of intent as a defense”); but see United States v. Lewis, 759 F.2d 1316, 1349 n.14 (8th Cir.

1985) (noting that the government “may anticipate” a lack-of-intent defense and introduce Rule

404(b) evidence in its case-in-chief). At this point, the Court is unaware of Biaou’s defense. But

should he indicate that he intends to raise a “good faith” defense to at least some of the wire

fraud charges, the Court will likely conclude that at least some of the proffered extrinsic

evidence is admissible under Rule 404(b) and Rule 403. But for now, it is premature to do so.

Accordingly, the Court grants the government’s motion to admit evidence of the

unsuccessful PPP loan applications to JP Morgan in January 2022, and it will reserve judgment

on whether the remaining extrinsic evidence is admissible under Rule 404(b) and Rule 403.

6. Government’s Motion to Allow Cross Examination of Biaou (ECF No. 31)

Finally, the government asks the Court to permit cross examination of Biaou—if he

chooses to testify—regarding specific instances of conduct that occurred in December 2025.

Specifically, the government intends to cross examine Biaou about his violation of his pretrial

release conditions. Mot. Regarding Certain Evidence (ECF No. 31) at 1.

The Court previously addressed the events underlying the government’s motion during

the January 2026 revocation hearing. In short, Biaou’s release conditions required him to “stay

away / have no contact with any potential witnesses, including his father.” Order Setting

Conditions of Release (ECF No. 7) at 2. But in December 2025, without the knowledge of his

counsel, Biaou appears to have arranged for a notary public to notarize a set of affidavits signed

by R.B. Mot. Regarding Certain Evidence (ECF No. 31) at 3–4. The affidavits directly

contradicted R.B.’s prior statements to the government and “retracted large swathes of his prior

grand jury testimony.” Id. at 2–3. Biaou asked the notary to send copies of the affidavits

41

directly to his counsel, and he paid her over $300 for her services. Id. at 5–6. Insisting that

Biaou violated his conditions of release and likely engaged in witness tampering, the government

moved for revocation of his release. The Court agreed that Biaou clearly violated the no-contact

order, but it elected to modify his conditions of release rather than order pretrial detention. See

Jan. 15, 2026 Min. Entry; Jan. 15, 2026 Min. Order.

The government now seeks permission to cross examine Biaou about his conduct, should

he choose to testify, because it is “directly probative of [his] character for untruthfulness.” Mot.

Regarding Certain Evidence (ECF No. 31) at 8. The Federal Rules of Evidence provide that a

party may inquire about “specific instances of a witness’s conduct” on cross examination if they

are “probative of the character for truthfulness or untruthfulness of . . . the witness.” Fed. R.

Evid. 608(b); see United States v. Whitmore, 359 F.3d 609, 618 (D.C. Cir. 2004). To determine

whether conduct is probative of untruthfulness, the Court “is guided by several factors, including

whether the instances of prior untruthfulness bore some similarity to the conduct at issue,

whether or not they were remote in time, whether they were cumulative of other evidence, and

whether there was some likelihood they happened.” United States v. Miller, 738 F.3d 361, 376

(D.C. Cir. 2013) (citation omitted).

These factors indicate that Biaou’s apparent attempt to secure exculpatory affidavits from

his father falls within the scope of Rule 608(b). To be sure, violations of pretrial release

conditions are not always probative of a witness’s character for truthfulness. See United States

v. Morrow, No. 04-cr-355 (CKK), 2005 WL 3163801, at *4 (D.D.C. June 2, 2005). A witness

who once missed curfew by a few minutes, for instance, is not necessarily untruthful. But see

United States v. Elwell, 515 F. App’x 155, 162 (3d Cir. 2013) (concluding that a witness’s

“willingness to disregard a signed [bail order] arguably demonstrates his character for

42

untruthfulness, which provides a basis for admissibility under Rule 608”). But in this case, it is

the manner in which Biaou violated his pretrial release conditions that is probative of his

character for untruthfulness. For example, Biaou told the notary that his sister was “helping

[R.B.] coordinate” the affidavits, even though Biaou himself was shown to be making the

necessary arrangements. Mot. Regarding Certain Evidence (ECF No. 31) at 4. He also asked the

notary to send the affidavits directly to his counsel (rather than delivering them himself), as if to

disguise his involvement in their procurement. Id. at 6. The Court already found by clear and

convincing evidence that Biaou violated the conditions of his release, and his conduct is neither

remote in time nor cumulative of other evidence. See Miller, 738 F.3d at 376 (noting that the

“probativeness” of the Rule 608(b) inquiry may be “diluted both by its remoteness in time and by

the fact that that cross-examination would have been based on accusations, not a prior judicial

finding” (citation omitted)). Accordingly, the Court grants the government’s motion to allow

cross examination into Biaou’s violation of his release conditions, should he choose to testify.18

18

While Rule 608(b) allows for inquiry on cross examination, the government may not “resort to extrinsic evidence of specific instances of misconduct in order to attack [Biaou’s] character for truthfulness.” McGill, 815 F.3d at 907.

43

III. Conclusion

For the foregoing reasons, it is hereby

ORDERED that [27] Defendant’s Motion to Sever Counts is DENIED. It is further

ORDERED that [31] Government’s Motion in Limine Regarding Federal Rule of

Evidence 608 is GRANTED. It is further

ORDERED that [32] Defendant’s Motion for Leave to File Document Under Seal is

GRANTED. It is further

ORDERED that [32-2] Defendant’s Motion to Exclude Loan Application Records is

DENIED. It is further

ORDERED that [33] Government’s Motion in Limine Regarding Admission of IP

Address-Information is DENIED. It is further

ORDERED that [34] Defendant’s Motion for Order that IRS-CI and SBA are Part of the

Prosecution Team is GRANTED in part and DENIED in part. It is further

ORDERED that [36] Defendant’s Motion to Exclude Any Reference to Misdemeanor

and Traffic Offenses is GRANTED in part and DENIED in part. It is further

ORDERED that [37] Defendant’s Motion in Limine to Exclude Unfairly Prejudicial

Evidence is DENIED. It is further

ORDERED that [38] Defendant’s Motion for Leave to File Document Under Seal is

GRANTED. It is further

ORDERED that [38-2] Defendant’s Motion to Suppress is DENIED. It is further

ORDERED that [39] Defendant’s Motion to Dismiss Counts from Superseding

Indictment is DENIED. It is further

44

ORDERED that [40] Government’s Motion in Limine to Admit Intrinsic and 404(b)

Evidence is GRANTED in part and DENIED in part. It is further

ORDERED that [54] Government’s Motion for Leave to File Document Under Seal is

GRANTED. It is further

ORDERED that [60] Government’s Motion for Leave to File Document Under Seal is

GRANTED. It is further

ORDERED that [68] Government’s Motion for Leave to File Document Under Seal is

GRANTED.

SO ORDERED.

CHRISTOPHER R. COOPER

United States District Judge

Date: January 28, 2026

45