Case 1:15-cr-00706-VSB Document 455 Filed 05/01/17 Page 1 of 34

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA,

No. 15 Cr. 00706 (VSB)

- v. -

NG LAP SENG,

Defendant.

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS

MOTION IN LIMINE TO EXCLUDE THE GOVERNMENTS
PURPORTED RULE 404(b) EVIDENCE

Alexandra A.E. Shapiro Hugh H. Mo

Daniel J. ONeill The Law Firm of Hugh H. Mo, P.C.
Fabien Thayamballi 225 Broadway, 27th Floor
Shapiro Arato LLP New York, NY 10007
500 Fifth Avenue, 40th Floor (212) 385-1500
New York, New York 10110
(212) 257-4880

Tai H. Park
Christopher Greer
Park Jensen Bennett, LLP
40 Wall Street
New York, NY 10005
(646) 200-6300

Attorneys for Defendant Ng Lap Seng

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES........................................................................................................ iii

PRELIMINARY STATEMENT ................................................................................................... 1

BACKGROUND ........................................................................................................................... 1

LEGAL STANDARD ................................................................................................................... 2

ARGUMENT ................................................................................................................................ 4

I. The Donorgate Evidence Is Inadmissible ........................................................................ 4

A. Background ............................................................................................................. 4

B. The Senate Report Is Inadmissible ......................................................................... 6

C. The Donorgate Evidence Is Irrelevant To Any Proper Rule 404(b) Purpose ......... 8

D. The Donorgate Evidence Should Be Excluded Under Rule 403 .......................... 11

II. The Evidence Pertaining To Jesse Jackson, Jr. Is Inadmissible ....................................... 15

A. Background ........................................................................................................... 15

B. The Jackson Evidence Is Irrelevant To Any Proper Rule 404(b) Purpose ........... 16

C. The Jackson Evidence Should Be Excluded Under Rule 403 .............................. 17

III. The Grand Jury Subpoena Evidence Is Inadmissible ....................................................... 18

A. Background ........................................................................................................... 18

B. The Subpoena Evidence Is Irrelevant, Prejudicial, And A Waste Of Time ......... 18

IV. The Evidence Of Payments For Business Opportunities In Antigua Is Inadmissible ...... 19

A. The Governments Notice Is Inadequate .............................................................. 19

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B. The Evidence Of Payments For Business Opportunities In Antigua Is Not

Direct Proof Of The Charged Crimes ................................................................... 21

C. The Evidence Of Payments For Business Opportunities In Antigua Should Be

Excluded Under Rules 404(b) and 403 ................................................................. 23

V. The Evidence Related To Imported Cash Is Inadmissible ................................................ 23

A. The Governments Notice Is Inadequate .............................................................. 23

B. The Evidence Related To Imported Cash Is Not Direct Proof Of The Charged
Crimes ................................................................................................................... 24

C. The Evidence Related to Imported Cash Should Be Excluded Under Rules

404(b) and 403 ...................................................................................................... 25

VI. The Evidence Of A Loan To A UNOSSC Official Is Inadmissible ................................. 25

A. The Governments Notice Is Inadequate .............................................................. 25

B. The Loan Evidence Is Not Direct Proof Of The Charged Crimes ........................ 26

C. The Loan Should Be Excluded Under Rules 404(b) and 403 ............................... 27

CONCLUSION ........................................................................................................................... 28

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TABLE OF AUTHORITIES

Page(s)

Cases

Anderson v. City of N.Y.,

657 F. Supp. 1571 (S.D.N.Y. 1987)............................................................................................ 7

Bullcoming v. New Mexico,

564 U.S. 647 (2011) .................................................................................................................... 7

Citizens United v. Fed. Election Commn,

558 U.S. 310 (2010) .................................................................................................................. 16

Crawford v. Washington,
541 U.S. 36 (2004) ...................................................................................................................... 7

Gucci Am., Inc. v. Exclusive Imports Intl,

No. 99-cv-11490 (RCC) (FM), 2002 WL 1870293 (S.D.N.Y. Aug. 13, 2002) ....................... 10

Huddleston v. United States,

485 U.S. 681 (1988) ........................................................................................................ 8, 11, 19

McDonnell v. United States,

136 S. Ct. 2355 (2016) .............................................................................................................. 16

United States v. Benedetto,

571 F.2d 1246 (2d Cir. 1978)...................................................................................................... 2

United States v. Cadet,

No. 08-cr-458 (NGG), 2009 WL 2959606 (E.D.N.Y. Sept. 11, 2009) .............................. 10, 13

United States v. Caldwell,

760 F.3d 267 (3d Cir. 2014)........................................................................................................ 3

United States v. Corey,

566 F.2d 429 (2d Cir. 1977).................................................................................................. 9, 11

United States v. Cushing,

No. S3 00-cr-1098 (WHP), 2002 WL 1339101 (S.D.N.Y. June 18, 2002) ....................... passim

United States v. Garcia,

291 F.3d 127 (2d Cir. 2002)........................................................................................................ 9

United States v. Gardell,

No. S4 00-cr-632 (WHP), 2001 WL 1135948 (S.D.N.Y. Sept. 25, 2001) ........................ passim

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United States v. Gilan,

967 F.2d 776 (2d Cir.1992)......................................................................................................... 3

United States v. Gordon,

987 F.2d 902 (2d Cir. 1993)........................................................................................................ 9

United States v. Hatfield,

685 F. Supp. 2d 320 (E.D.N.Y. 2010) ............................................................................... passim

United States v. Jones,

16 F.3d 487 (2d Cir. 1994)........................................................................................................ 13

United States v. Kahale,

789 F. Supp. 2d 359 (E.D.N.Y. 2009) ............................................................................... passim

United States v. Levy,

731 F.2d 997 (2d Cir. 1984)........................................................................................................ 3

United States v. Levy,

No. S5 11-cr-62 (PAC), 2013 WL 655251 (S.D.N.Y. Feb. 22, 2013) .............................. passim

United States v. Martoma,

No. 12-cr-973 (PGG), 2014 WL 31191 (S.D.N.Y. Jan. 6, 2014) ...................................... passim

United States v. Nachamie,

101 F. Supp. 2d 134 (S.D.N.Y. 2000)............................................................................. 3, 12, 13

United States v. Newton,

No. S1 01-cr-635 (CSH), 2002 WL 230964 (S.D.N.Y. Feb. 14, 2002) ............................. 22, 26

United States v. Polasek,

162 F.3d 878 (5th Cir. 1998) .................................................................................................... 17

United States v. Stein,

521 F. Supp. 2d 266 (S.D.N.Y. 2007)................................................................................ passim

United States v. Trie,

21 F. Supp. 2d 7 (D.D.C. 1998) ...................................................................................... 4, 10, 11

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Constitutional Provisions, Rules, and Other Authorities

U.S. Const. amend VI ..................................................................................................................... 7

Fed. R. Evid. 403 .............................................................................................................. 11, 14, 27

Fed. R. Evid. 404 ................................................................................................................ 2, 16, 27

Fed. R. Evid. 801 ............................................................................................................................ 6

Fed. R. Evid. 802 ............................................................................................................................ 6

Fed. R. Evid. 803 ............................................................................................................................ 6

Fed. R. Evid. 404 Advisory Committee Note, 1991 Amendments............................................... 20

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PRELIMINARY STATEMENT

On April 17, 2017, the government provided notice of its intention to introduce evidence

of several uncharged acts pursuant to Federal Rule of Evidence 404(b).1 Apparently, the

governments strategy at trial will be to paint Mr. Ng as a bad man who operates outside the

bounds of the law and associates with shady characters.

The government hopes to trot out decades-old allegations of political scandal, to conduct

several mini-trials regarding unproved bribes, and to invite the jury to punish Mr. Ng for

perfectly legal conduct. It wants to portray uncharged, unproven, and unrelated conduct as

direct proof of the charged offenses, and if the evidence cannot get in that way, then pretend

that it goes to a more limited Rule 404(b) purpose.

None of the governments purported Rule 404(b) evidence is inadmissible. Its only

conceivable purpose is to tarnish Mr. Ngs image in the eyes of the jury and to insinuate that he

has criminal propensities. Accordingly, Mr. Ng seeks an order precluding the government from

introducing it at trial.

BACKGROUND

In its notice, the government identifies several instances of uncharged conduct that it

intends to introduce at trial pursuant to Rule 404(b):

1. Mr. Ng allegedly was involved in the 1996 Donorgate scandal in which Chinese

businessman Charlie Trie pled guilty to funneling campaign contributions from

foreign donors to the Democratic Party.

2. Mr. Ng allegedly gave money to former congressman Jesse Jackson, Jr. both before

and after Jacksons conviction for embezzling campaign contributions.

1
The notice is attached to the accompanying Declaration of Alexandra Shapiro as Exhibit A.
 Case 1:15-cr-00706-VSB Document 455 Filed 05/01/17 Page 8 of 34

3. Mr. Ng was subpoenaed to testify before a grand jury in the District of Nevada in an

unrelated matter but allegedly ignored the subpoena.

(Shapiro Decl. Ex. A at 1).

The government also seeks to introduce evidence of acts that it claims are direct proof of

the charged crimes, but which the government will introduce as Rule 404(b) evidence if

necessary. (Id. at 2). These are the following:

1. Mr. Ng allegedly made payments to Ashe, some of which were passed on to the

Prime Minister of Antigua, in order to advance his business opportunities in Antigua.

2. Mr. Ng allegedly concealed the purpose of cash he brought into the United States,

some of which he allegedly gave to Ashe and Lorenzo.

3. Mr. Ng made a loan to a UNOSSC employee who sought funding from Mr. Ng in

order to pursue graduate studies.

(Id.). Each of these uncharged acts is discussed in greater detail below, and none of them is

admissible under any rule of evidence.

LEGAL STANDARD

Evidence of a crime, wrong, or other act is not admissible to prove a defendants

propensity to commit the charged crime. Fed. R. Evid. 404(b)(1). Such evidence may be

admissible only if introduced for other purposes, such as proving motive, opportunity, intent,

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

404(b)(2).

The governments assertion that the evidence serves another purpose does not make it

automatically admissible. United States v. Benedetto, 571 F.2d 1246, 1248 (2d Cir. 1978).

The Court must satisfy itself that the evidence (1) is being introduced for a proper purpose

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other than to prove criminal propensity; (2) is relevant to an issue in the case pursuant to Rule

402, as enforced through Rule 104(b); and (3) satisf[ies] the probative-prejudice balancing test

of Rule 403. United States v. Nachamie, 101 F. Supp. 2d 134, 137 (S.D.N.Y. 2000) (quoting

United States v. Gilan, 967 F.2d 776, 780 (2d Cir.1992)). The government must explain in

detail the purposes for which the evidence is sought to be admitted, United States v. Levy, 731

F.2d 997, 1002 (2d Cir. 1984), and it bears the burden of proving admissibility, see Nachamie,

101 F. Supp. 2d at 137-38; United States v. Stein, 521 F. Supp. 2d 266, 268, 270 (S.D.N.Y.

2007); United States v. Cushing, No. S3 00-cr-1098 (WHP), 2002 WL 1339101, at *2 (S.D.N.Y.

June 18, 2002).

Critically, the Court must scrutinize the precise chain of inferences that the government is

attempting to draw from the purported Rule 404(b) evidence. Even if the government claims that

the evidence goes to one of the issues identified in Rule 404(b), its relevance may depend on the

impermissible inference that the defendant had a propensity to commit certain sorts of crimes.

See, e.g., United States v. Caldwell, 760 F.3d 267, 281 (3d Cir. 2014) ([T]he government must

explain how [the evidence] fits into a chain of inferencesa chain that connects the evidence to

a proper purpose, no link of which is a forbidden propensity inference. (quotation marks

omitted)); Cushing, 2002 WL 1339101, at *3 (Whether Cushing lied previously makes it no

more likely that he knew he made an untruthful statement to the SEC. Thus, the [Rule 404(b)]

evidence would only tend to demonstrate Cushings willingness to lie to an investigatory

authority. Such a result is exactly the type of consequence that Rule 404(b) seeks to preclude.).

If the evidence is admissible, the Court must give an appropriate limiting instruction. See

Nachamie, 101 F. Supp. 2d at 137.

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ARGUMENT

I. THE DONORGATE EVIDENCE IS INADMISSIBLE

A. Background

In its Rule 404(b) notice, the government states that it intends to introduce evidence that

[i]n or about the mid-1990s, the defendant agreed to and did illicitly funnel money to a United

States political party and/or certain United States politicians, as described in the Final Report,

Committee on Governmental Affairs, United States Senate, Investigation of Illegal or Improper

Activities in Connection with 1996 Federal Election Campaigns, dated March 10, 1998.

(Shapiro Decl. Ex. A at 1).

The Senate report cited by the government was drafted in response to the Clinton

administrations Donorgate scandal involving Chinese businessman Yah Lin Charlie Trie.

The Federal Election Campaign Act (FECA), which is primarily enforced by the FEC,

prohibits foreign nationals from making campaign contributions. See United States v. Trie, 21 F.

Supp. 2d 7, 12 (D.D.C. 1998). In 1998, Charlie Trie was indicted for funneling campaign

contributions from foreign sources to the Democratic National Committee (DNC) through his

own account and other straw donors in advance of the 1996 federal elections. See id. at 13-14.

The indictment charged Trie with (1) conspiring to impede the FEC by circumventing the FECA,

(2) defrauding the DNC by concealing the foreign source of his campaign contributions,

(3) willfully causing the DNC to submit false reports to the FEC, and (4) later conspiring to

obstruct the Senate investigation of his activities. See id. In 1999, Trie pled guilty to a two-

count information charging violations of the federal campaign finance laws. See

https://www.justice.gov/archive/opa/pr/1999/May/201crm.htm.

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Tries conduct became the subject of national attention because of his connections to the

Clinton administration. The Senate report on the Donorgate scandal, drafted by the Republican

majority of the Committee on Governmental Affairs, excoriated the Democratic Party for

dismantl[ing] its own internal vetting procedures for campaign contributions and accused the

administration of reduc[ing] the White House, key Administration offices, and the Presidency

itself, to fundraising tools. Senate Report Vol. 1, at 33.2 Scrutinizing Tries close relationship

with the White House, the Report concluded that Trie raised and laundered contributions for

the benefit of the President and First Lady and received special favors in return. Senate

Report Vol. 2, at 2738-39.

The Senate report identified Mr. Ng as the source of the funds donated to the DNC

through Trie. See id. at 2519, 2525-26. It alleged that Trie establish[ed] political connections

through [his] contributions and fundraising and then sought to use them both for his own benefit

and to help secure financing for a real estate development project planned by Ng in Macau. Id.

at 2532-33. For example, DNC Deputy Finance Chairman David Mercer and Department of

Commerce employee Jude Kearney introduced Trie to Ernest Green of Lehman Brothers, and

Trie later discussed with Green Lehman Brothers interest in financing a development project

planned by Ng in Macau. Id. at 2535. The report also stated that Mr. Ng visited the White

2
The Senate report is available online in six volumes:
https://www.congress.gov/105/crpt/srpt167/CRPT-105srpt167-pt1.pdf (Vol. 1);
https://www.congress.gov/105/crpt/srpt167/CRPT-105srpt167-pt2.pdf (Vol. 2);
https://www.congress.gov/105/crpt/srpt167/CRPT-105srpt167-pt3.pdf (Vol. 3);
https://www.congress.gov/105/crpt/srpt167/CRPT-105srpt167-pt4.pdf (Vol. 4);
https://www.congress.gov/105/crpt/srpt167/CRPT-105srpt167-pt5.pdf (Vol. 5); and
https://www.congress.gov/105/crpt/srpt167/CRPT-105srpt167-pt6.pdf (Vol. 6).

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House ten times between 1994 and 1996, but it did not provide any further information on these

visits. Id. at 2532.

Despite the Senates accusations against Mr. Ng, he was never arrested or charged in

connection with the Donorgate scandal.

B. The Senate Report Is Inadmissible

The Senate report is not admissible as evidence of Mr. Ngs connection to the Donorgate

scandal for several reasons.

1. First, the Senate report is inadmissible hearsay. It was an out-of-court statement

by the Senate that is now being offered by the government to prove the truth of the matters

asserted in the report. See Fed. R. Evid. 801(c), 802. The report does not qualify for the public

records exception to hearsay, since although it set forth factual findings from a legally

authorized investigation, such findings may be offered only in a civil case or against the

government in a criminal case. Fed. R. Evid. 803(8)(A)(iii) (emphasis added). Nor did the

report merely describe the Senates activities or relate anything that the Senate was under a

legal duty to report. Fed. R. Evid. 803(8)(A)(i)-(ii).

In any event, the report is not sufficiently reliable to qualify for the public records

exception. See Fed. R. Evid. 803(8)(B). The report was a remarkable display of partisan

grandstanding,3 and the conclusions it reached should be discounted in light of the nakedly

3
See Senate Report Vol. 1 at 33 (Majority Report) (This increasingly mercenary approach [to
fundraising] also led the Democratic Party to view Americas ethnic communities as exploitable
renewable resources for political fundraising. The DNCs recklessness in raising money from
their community unfairly burdened Asian-Americans with the stigma of lawbreaking . . . .); id.
Vol. 4 at 4559 (Minority Views) (While the investigation produced some important
information, its high potential was not realized . . . as a result of the Committee Majoritys highly
partisan approach to the investigation.).

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political purposes they served. See Anderson v. City of N.Y., 657 F. Supp. 1571, 1579 (S.D.N.Y.

1987) (holding that congressional report was insufficiently reliable and noting that such reports

are frequently marred by political expediency and grandstanding).

2. In addition, admitting the Senate report into evidence would violate Mr. Ngs

rights under the Confrontation Clause, which confers upon a criminal defendant the right . . . to

be confronted with the witnesses against him. U.S. Const. amend VI. The Confrontation

Clause permits the admission of testimonial statements of witnesses absent from trial only

where the declarant is unavailable, and only where the defendant has had a prior opportunity to

cross-examine. Bullcoming v. New Mexico, 564 U.S. 647, 658 (2011) (quotation marks and

alterations omitted).

The Senate report summarized an investigation of illegal activities that involved, among

other things, interviews by FBI agents, depositions, and formal testimony before the Senate

Committee. See, e.g., Senate Report Vol. 1 at 17; id. Vol. 2 at 2522-23 nn.23-50, 2525 nn.72,

74. It undoubtedly qualifies as testimonial. See Crawford v. Washington, 541 U.S. 36, 50

(2004) ([T]he principal evil at which the Confrontation Clause was directed was the civil-law

mode of criminal procedure, and particularly its use of ex parte examinations as evidence against

the accused.); id. at 51 (defining [t]estimony as [a] solemn declaration or affirmation made

for the purpose of establishing or proving some fact (quotation marks omitted)); id. at 51-52

(formalized testimonial materials, such as affidavits, depositions, prior testimony, or

confessions fall within this core class of testimonial statements (quotation marks omitted)).

Mr. Ng never had the opportunity to cross-examine the individuals who drafted the Senate report

or the witnesses who provided the underlying testimony. Consequently, the Senate report cannot

be used against him and must be excluded.

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C. The Donorgate Evidence Is Irrelevant To Any Proper Rule 404(b) Purpose

The problems with the governments evidence are not limited to the Senate report. The

Donorgate matter as a whole is irrelevant to the charges against Mr. Ng, and the evidence

relating to it cannot possibly serve any legitimate purpose. Rather, the obvious motivation for

presenting this scandal to the jury is to portray Mr. Ng as a criminal who buys political influence.

That is precisely what Rule 404(b) forbids.

1. As a threshold matter, similar act evidence is relevant only if the jury can

reasonably conclude that the act occurred and that the defendant was the actor by a

preponderance of the evidence. Huddleston v. United States, 485 U.S. 681, 689 (1988)

(emphasis added). Here, the government will not be able to present sufficient evidence to the

jury that Mr. Ng was involved in Charlie Tries illegal conduct.

As explained above, the Senate report itself is inadmissible. It is also riddled with the

inadmissible hearsay testimony of several witnesses concerning what other individuals told them

about Mr. Ngs goals. See Senate Report Vol. 2 at 2528-29. Otherwise, the evidence in the

report purportedly showed that Charlie Trie founded trading companies with funds from Mr. Ng

and then used Mr. Ngs money to make illegal campaign contributions. See id. at 2523, 2525-26.

In return for the contributions, Trie gained access to the White House and was even appointed to

President Clintons Commission on the United States-Pacific Trade and Investment Policy. See

id. at 2532-33. Trie also used these connections to impress Mr. Ng, such as by inviting Mr. Ng

to attend DNC events and obtaining introductions to investment bankers with whom Trie

discussed Mr. Ngs real estate projects. See id. at 2532, 2535. None of this establishes that Trie

was acting at Mr. Ngs direction, that Mr. Ng was aware of the extent of Tries activities, or that

Mr. Ng knew that Trie was doing anything illegal.

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2. Even if the government could prove that Mr. Ng orchestrated Tries campaign

contributions, that fact would not be probative of any disputed issue. Mr. Ngs mental state is

likely to be the focus of trial, and presumably the government will argue that Donorgate is

relevant to Mr. Ngs intent or knowledge. But that is simply untrue.

Donorgate would bear on Mr. Ngs mental state in this case only if the jury were to infer

that Mr. Ng has a propensity to give money to public officials in violation of the law: he did it in

the past, so thats what he was trying to do here. Rule 404(b) flatly prohibits this sort of

reasoning. See United States v. Hatfield, 685 F. Supp. 2d 320, 324 (E.D.N.Y. 2010) (using

defendants prior false statements to prove his intent to make false statements is exactly the type

of consequence that Rule 404(b) seeks to preclude (quotation marks omitted)); Cushing, 2002

WL 1339101, at *3 (same).

Moreover, [t]he government may not invoke Rule 404(b) and proceed to offer, carte

blanche, any prior act of the defendant in the same category of crime. United States v. Garcia,

291 F.3d 127, 137 (2d Cir. 2002). Instead, [t]he government must identify a similarity or

connection between the two acts that makes the prior act relevant to establishing knowledge of

the current act. Id.; accord United States v. Gordon, 987 F.2d 902, 908 (2d Cir. 1993)

(uncharged acts must be sufficiently similar to the conduct at issue to permit the jury reasonably

to draw from that act the knowledge inference advocated by the proponent of the evidence

(quotation marks omitted)); United States v. Corey, 566 F.2d 429, 431 (2d Cir. 1977) (requiring

a close parallel between the crime charged and the acts shown); Stein, 521 F. Supp. 2d at 270

([T]he government must explain the uncharged transactions, identify similarities between the

charged and uncharged transactions, and articulate how the similarities identified support an

inference of knowledge or intent.).

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Here, the government may argue that Donorgate is somehow relevant to whether Mr. Ng

knew that he was engaged in quid pro quo bribery. Donorgate was not, however, a bribery

scheme; it was a scheme to make campaign contributions that were prohibited solely because of

their foreign source. See Trie, 21 F. Supp. 2d at 12-13. As a result, it does not have any bearing

on Mr. Ngs alleged intent to trade payments for official action in this case. See United States v.

Levy, No. S5 11-cr-62 (PAC), 2013 WL 655251, at *1-2 (S.D.N.Y. Feb. 22, 2013) (excluding

evidence of FTC civil fraud judgment against defendants because it was not sufficiently

similar to the charged pump and dump scheme); United States v. Gardell, No. S4 00-cr-632

(WHP), 2001 WL 1135948, at *7 (S.D.N.Y. Sept. 25, 2001) (proof of uncharged fraudulent

scheme was not sufficiently similar to charged fraudulent scheme to be relevant).

The government may also argue that Donorgate is relevant to whether Mr. Ng acted

corruptly and willfully, since he has interacted with our legal system in the past. But at most,

Donorgate would suggest that Mr. Ng now knows that our election laws prohibit campaign

contributions from foreign nationals to federal officials. His encounter with the election laws

would not put him on notice that making payments to UN or foreign officials is somehow

wrongful or illegal. See United States v. Cadet, No. 08-cr-458 (NGG), 2009 WL 2959606, at *2

(E.D.N.Y. Sept. 11, 2009) (defendants failure to file personal tax forms was insufficiently

similar to charges of preparing fraudulent returns for others to be relevant to the question of

whether he had acted willfully in preparing those returns), affd, 664 F.3d 27 (2d Cir. 2011); cf.

Gucci Am., Inc. v. Exclusive Imports Intl, No. 99-cv-11490 (RCC) (FM), 2002 WL 1870293, at

*3 (S.D.N.Y. Aug. 13, 2002) (in trademark infringement action, evidence of defendants

Canadian sales was not admissible under Rule 404(b) to show that defendants acted willfully in

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connection with their U.S. sales because the Canadian sales were not a violation of the U.S.

trademark laws).

The Donorgate evidence is therefore irrelevant to any proper purpose and can be

excluded on this ground alone. See, e.g., Cushing, 2002 WL 1339101, at *3.

D. The Donorgate Evidence Should Be Excluded Under Rule 403

Even if the Donorgate evidence were relevant, it should be excluded because its

probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the

issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative

evidence. Fed. R. Evid. 403.

1. If Donorgate had any probative value, it would be miniscule. First, as explained

above, the evidence tying Mr. Ng to Tries illegal conduct is weak and largely inadmissible. See

Huddleston, 485 U.S. at 689 n.6 (observing that the strength of the evidence establishing the

similar act is a factor in the Rule 403 balancing). Second, the campaign finance violations

occurred in connection with the 1996 federal election. See Trie, 21 F. Supp. 2d. at 13-14. This

was over 20 years ago, and 15 years before the beginning of the charged conspiracy. (Dkt. 322

9). The remoteness in time of Donorgate suggests that it has minimal relevancy. Corey,

566 F.2d at 432 (finding that conduct that occurred sixteen years before trial and between five

and seven years before [the charged] conduct was of low probative value). That is

particularly so here, where the jury must pile one weak inference (the relevance of crimes

committed 20 years ago) on top of another (Mr. Ngs alleged involvement in those crimes).

2. In addition to being unilluminating, the Donorgate evidence is unfairly prejudicial

to Mr. Ng. Evidence that the defendant in a criminal case has committed other crimes is highly

prejudicial, not only because it may inflame the jury into punishing the defendant for those

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uncharged crimes, but also because it presents a strong temptation for the jury to infer the

defendants guilt from his supposed propensity to commit crimes. Nachamie, 101 F. Supp. 2d at

142. Those dangers are magnified here for several reasons.

Evidence pertaining to Donorgate is particularly likely to elicit an emotional reaction

from the jury because of its parallels to the divisive 2016 presidential race. Donorgate allegedly

involved corruption on the part of the Clinton administration, including then-First Lady Hillary

Clinton. See, e.g., Senate Report Vol. 2 at 2532-35, 2713, 2738-39. Given the intense antipathy

that many Americans have for Hillary Clinton,4 some jurors may be inclined to punish Mr. Ng

simply because of his association with her. Indeed, news coverage of Mr. Ngs prosecution

routinely links him to the Clintons and makes references to Hillary Clintons bid for president.5

Furthermore, Donorgate involved allegations that the Chinese government attempted to

meddle in United States elections. The jury is likely to analogize this alleged attempt at foreign

influence to the current investigation of Russian interference in favor of President Donald

Trump. Again, the media has already drawn this connection. One news article observes: The

issue of foreign meddling in US elections has been in the spotlight in recent days, with the

4
Lock her up was a common refrain among supporters of President Trump, who pledged
during his campaign to further investigate Clinton. See, e.g., Alan Rappeport, From Links to
Lucifer to Calls for Execution, Republicans Seethe at Hillary Clinton, N.Y. Times (July 20,
2016), https://www.nytimes.com/2016/07/21/us/politics/hillary-clinton-rnc-attacks.html; Julie
Hirshfeld Davis & Michael D. Shear, Donald Trump Drops Threat of New Hillary Clinton
Investigation, N.Y. Times (Nov. 22, 2016), https://www.nytimes.com/2016/11/22/
us/politics/donald-trump-hillary-clinton-investigation.html.
5
See, e.g., Alana Goodman, ANOTHER 90s scandal returns to haunt the Clintons billionaire
accused of being front for Chinese Communist bid to influence Bills 1996 election finally faces
being questioned after years on the run, Daily Mail (July 28, 2016), http://www.dailymail.co.uk/
news/article-3713478/ANOTHER-90s-scandal-returns-haunt-Clintons-Chinese-billionaire-
illegal-donations-Bill-s-election-campaign-faces-Congress-quiz-arrested-FBI-bribery.html.

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Clinton campaign trying to link Donald Trump to the Russian governments suspected role in the

recent hack of internal DNC emails. But the Ng case shows that allegations of foreign influence

in presidential campaigns is not new, and that outside governments have long been suspected of

working to sway outcomes and purchase political influence.6

Donorgates resemblance to present controversies is likely to color the jurys evaluation

of this evidence, exposing Mr. Ng to a serious risk of unfair prejudice. That Mr. Ng was never

arrested or charged in connection with Donorgate may in fact work against him, as the jury could

view him as having escaped justice. At the very least, the fact that many jurors will view

Donorgate as exceptional misconduct will make it difficult for them to avoid the unfair inference

that Mr. Ng has criminal propensities. The mental acrobatics required to use the Donorgate

evidence for any permissible purposewhatever that might beare simply infeasible.

Nachamie, 101 F. Supp. 2d at 146 (quoting United States v. Jones, 16 F.3d 487, 493 (2d Cir.

1994)); see also United States v. Kahale, 789 F. Supp. 2d 359, 385-86 (E.D.N.Y. 2009)

(excluding evidence that may mislead the jury to make a determination of guilt based on

propensity), affd sub nom. United States v. Graham, 477 F. Appx 818 (2d Cir. 2012); Levy,

2013 WL 655251, at *1 (same); Cadet, 2009 WL 2959606, at *2 (excluding Rule 404(b)

evidence because of the unacceptable risk that the jury will infer . . . that Defendant is

generally a cheater).

3. To make matters worse, the Donorgate matter will likely assume

disproportionate significance at trial and lead to a mini-trial on uncharged conduct. Gardell,

2001 WL 1135948, at *6. Mr. Ng contests the Donorgate allegations and will make substantial

efforts to defend himself, which will necessarily result in delay. Kahale, 789 F. Supp. 2d at

6
See Goodman, supra note 5.

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386; see also United States v. Martoma, No. 12-cr-973 (PGG), 2014 WL 31191, at *5 (S.D.N.Y.

Jan. 6, 2014) (excluding Rule 404(b) evidence in part because defendants rebuttal would

exacerbate the delay); Stein, 521 F. Supp. 2d at 271 (factoring in the defendants inevitable

responses to Rule 404(b) evidence). Moreover, since the government is unable to introduce the

Senate report itself, it will have to offer the underlying evidence piece by piece (to the extent it is

available and admissible). If for no other reason, the Court should exclude the Donorgate

evidence in order to avoid a tedious mini-trial on an irrelevant issue. See, e.g., Levy, 2013 WL

655251, at *1; Kahale, 789 F. Supp. 2d at 385-86; Gardell, 2001 WL 1135948, at *6.

4. Finally, allowing the government to present evidence on Donorgate will

inevitably confus[e] the issues and mislead[] the jury. Fed. R. Evid. 403. The charges

against Mr. Ng are intricate and have a number of important elements that did not have to be

proved in the prosecution of Charlie Trie. For Mr. Ng to be guilty of bribery, the government

must prove, inter alia, that he intended to engage in a quid pro quo exchange of payment for

official action, as defined in McDonnell. Tries crimes simply involved laundering campaign

contributions from foreign nationals; he was guilty regardless of whether he hoped to receive

anything in return. Even with careful jury instructions, the governments references to these

campaign finance violations will cloud the jurys understanding of what, precisely, renders

payments to public officials corrupt or illegal. This is all the more likely given that a mini-trial

on the Donorgate issue is certain to result and consume the jurys attention.

Under similar circumstances, courts routinely preclude the government from introducing

Rule 404(b) evidence. See Martoma, 2014 WL 31191, at *5-6 (in insider trading case, excluding

evidence that defendant obtained information that had been publicly released but was

nevertheless considered confidential because it present[ed] some risk of juror confusion as to

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the type of information that can be relied on for purposes of a conviction); Levy, 2013 WL

655251, at *1 (even if probative of pending fraud charges, evidence of prior fraud was excluded

because it would confus[e] the issues actually alleged in the Indictment, and mislead[] a jury

that will already be tasked with evaluating a complex . . . scheme of charged conduct); Stein,

521 F. Supp. 2d at 270-71 (excluding evidence of uncharged tax shelters because the evidence

risks confusion of the issues and undue delay in a trial that promises to be complex and lengthy

even in the absence of any Rule 404(b) evidence); see also Kahale, 789 F. Supp. 2d at 385-86;

Gardell, 2001 WL 1135948, at *6.

In short, there is no good reason to allow the government to try the Donorgate case in

addition to the charges actually pending against Mr. Ng. The evidence should be excluded.

II. THE EVIDENCE PERTAINING TO JESSE JACKSON, JR. IS INADMISSIBLE

A. Background

In its Rule 404(b) notice, the government declares its intent to introduce evidence that

[s]tarting in or about 2009, the defendant agreed to and did provide gifts and
payments, including cash, a watch, theater tickets, hotel rooms, and meals, to a
certain United States Representative (the Representative), in return for the
Representative agreeing to introduce the defendant to other United States officials
and businesspeople in the United States. After the Representative left Congress,
the defendant agreed to and did continue to make payments to the Representative,
including by providing cash and directing payments to the Representatives wife,
purportedly as part of a consultancy agreement.
(Shapiro Decl. Ex. A at 1). The Representative to whom the government refers is former

congressman Jesse Jackson, Jr.

Jackson left Congress largely because of a federal investigation into the misuse of

campaign funds to fund his extravagant lifestyle. He eventually pled guilty to fraud charges

arising from his embezzlement of campaign contributions and submission of false statements to

the FEC, House of Representatives, and IRS. See https://www.justice.gov/usao-dc/pr/former-

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congressman-jesse-l-jackson-jr-pleads-guilty-conspiring-defraud-campaign-more. Jacksons

illegal conduct had nothing to do with Mr. Ng. However, Jackson found himself in dire financial

straits after his conviction and repeatedly solicited money from Mr. Ng.

B. The Jackson Evidence Is Irrelevant To Any Proper Rule 404(b) Purpose

1. The payments Mr. Ng allegedly made to Jackson while he was in Congress are

irrelevant. Plainly, the government is not permitted to argue that because Mr. Ng made

payments to Jackson because of his office and political connections, Mr. Ng must have done the

same thing in this case. See Fed. R. Evid. 404(b)(1). Nor do these payments shed any light on

Mr. Ngs mental state at the time of the charged offenses. It is not a crime to pay a politician for

access or introductions to others. See McDonnell v. United States, 136 S. Ct. 2355, 2372 (2016)

([s]etting up a meeting, talking to another official, or organizing an event falls outside the

definition of official action); Citizens United v. Fed. Election Commn, 558 U.S. 310, 360

(2010) (Ingratiation and access, in any event, are not corruption.). Since there is no

evidence that Mr. Ngs alleged payments to Jackson were fraudulent or illegal, they cannot

logically show [his] knowledge or intent in this case. Martoma, 2014 WL 31191, at *4 (internal

quotation marks and alterations omitted); accord Kahale, 789 F. Supp. 2d at 385.

2. The payments after Jackson left Congress are even less relevant, if that is

possible. Mr. Ng had nothing to gain from someone who was tainted with scandal and no longer

held public office. Indeed, the fact that Mr. Ng made these payments to Jacksons family at a

time when Jackson was wholly disgraced and powerless demonstrates a different character trait:

Mr. Ngs propensity to use his wealth to help people who ask for it.

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C. The Jackson Evidence Should Be Excluded Under Rule 403

Even if the evidence related to Jackson were somehow relevant, the risk of unfair

prejudice and juror confusion would substantially outweigh any probative value.

1. First, excluding the evidence is appropriate in order to prevent a finding of guilt

by association. United States v. Polasek, 162 F.3d 878, 884-85 (5th Cir. 1998). Jackson pled

guilty to serious crimes that involved embezzlement and fraud. The government does not claim

that Mr. Ng had anything to do with those crimes, but it will necessarily introduce evidence of

the close relationship between Mr. Ng and Jackson. The jury may well infer that because Mr. Ng

associated with a corrupt politician, he is likely to be corrupt as well.

2. In addition, the evidence is likely to confuse the jury regarding the charges against

Mr. Ng. See, e.g., Martoma, 2014 WL 31191, at *5-6; Levy, 2013 WL 655251, at *1. As

explained above, the governments evidence purportedly shows that Mr. Ng paid Jackson for

introductions and access. That is not a crime. Nevertheless, the government intends to tell the

jury that the payments to Jackson are evidence of the crimes alleged in this case. This inevitably

suggests that there is something nefarious about those payments, even though they were not

given in exchange for official action as defined by McDonnell. The Courts instructions on

official action will therefore lose some of their force, and the jury may be misled into

convicting even if that element is not satisfied.

3. Finally, McDonnell notwithstanding, many people believe that paying politicians

for access is distasteful, corrupt, or even criminal. If the government is permitted to present

evidence of payments from Mr. Ng to Jackson in return for access, the jury may be led to believe

that such conduct is wrongful and decide to punish Mr. Ng for that uncharged conduct, or it may

conclude that Mr. Ng has a propensity to act corruptly. In a case with complex charges and fine

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lines between legal and illegal conduct, this temptation becomes all the more powerful. Rather

than running that risk, the Court should exclude the evidence.

III. THE GRAND JURY SUBPOENA EVIDENCE IS INADMISSIBLE

A. Background

In its Rule 404(b) notice, the government states that [o]n or about July 30, 2014, in New

York, New York, the defendant was served with a federal grand jury subpoena requiring his

appearance in the United States District Court for the District of Nevada. The defendant failed to

appear as required by the subpoena. (Shapiro Decl. Ex. A at 1).

This is the narrative the government presented at Mr. Ngs detention hearing before

Magistrate Judge Fox (Shapiro Decl. Ex. B at Tr. 9-10), but it is not the whole story. The

subpoena concerned an unrelated matter. (Id. Tr. 9, 18). A week before Mr. Ng was due to

appear before the grand jury, a letter was sent on Mr. Ngs behalf to the United States Attorney

for the District of Nevada, politely informing him of a scheduling conflict and Mr. Ngs likely

inability to appear. (Shapiro Decl. Ex. C at 1 (letter); id. at 5 (DHL proof of delivery)). The

government did not respond to this letter as far as Mr. Ng is aware, and notwithstanding Mr.

Ngs repeated returns to Las Vegas on subsequent visits, he never heard anything further on the

matter. (Shapiro Decl. Ex. B at Tr. 18-19, 30-33; see also Complaint, S.D.N.Y. No. 15-mj-3369,

ECF No. 1 27(a)).

B. The Subpoena Evidence Is Irrelevant, Prejudicial, And A Waste Of Time

Like the governments other purported Rule 404(b) evidence, the subpoena should be

excluded on grounds of irrelevance, unfair prejudice, and unnecessary delay.

The government plainly intends to argue that Mr. Ng flouted the subpoena. (Shapiro

Decl. Ex. A at 1; id. Ex. B at Tr. 9-10 (Daniel Richenthal: [H]e understood what it was and he

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didnt appear and he didnt ask to be excused from appearing. He just didnt show because Mr.

Ng has no interest in complying with the laws of this country . . . .)). All of the evidence,

however, is to the contrary. If Mr. Ng had such contempt for federal law, he would not have sent

a letter to the United States Attorney in advance of his appearance date. If Mr. Ng had wanted to

avoid the authorities, he would not later have returned to the very district where he had been

asked to appear. The evidence therefore does not permit the inference the government is

attempting to draw. See Huddleston, 485 U.S. at 689-90.

In any event, the only purpose of telling the jury that Mr. Ng ignored a subpoena is to

suggest that he has a propensity to ignore the laws of the United States. Without this

impermissible inference, Mr. Ngs supposed disregard for the subpoena does not shed light on

his mental state or any other fact of relevance. See Hatfield, 685 F. Supp. 2d at 324 (excluding

evidence purporting to show the defendants willingness to lie to an investigatory authority

(quotation marks omitted)); Cushing, 2002 WL 1339101, at *3 (same).

At a minimum, the presentation of evidence on this issue by both Mr. Ng and the

government will subject the jury to a mini-trial over what actually happened and what Mr. Ng

must have been thinking at the time. See, e.g., Martoma, 2014 WL 31191, at *5 (avoiding delay

by excluding Rule 404(b) evidence that the defendant intended to contest); Kahale, 789 F. Supp.

2d at 385-86 (same). The jurys attention should be focused on the charges actually pending

against Mr. Ng, rather than the governments contention that he is a habitual lawbreaker.

IV. THE EVIDENCE OF PAYMENTS FOR BUSINESS OPPORTUNITIES IN

ANTIGUA IS INADMISSIBLE

A. The Governments Notice Is Inadequate

The government has advised that it will seek to introduce evidence of other uncharged

acts as direct proof of the charged crimes or, in the alternative, pursuant to Rule 404(b).

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(Shapiro Decl. Ex. A at 2). According to the government, one of these hybrid pieces of evidence

is that [t]he defendant agreed to and did provide payments to the Antiguan Ambassador, some

of which were passed on to the then-Prime Minister of Antigua and Barbuda (Antigua), in

return for the Antiguan Ambassador facilitating the defendant meeting the then-Prime Minister

of Antigua and promoting the defendants interest in business opportunities in Antigua, as

described in Complaint 15 Mag. 3562. (Id.).

In fact, the complaint does not describe any payments from Mr. Ng that found their way

to the Antiguan Prime Minister. Although the complaint does allege that Ashe shared bribes

with the Antiguan Prime Minister, these bribes came from Shiwei Yan and Heidi Hong Piao,

who were charged with an unrelated scheme. (Dkt. 1 10; see also, e.g., 46(a), 48(o)). The

complaint contains no information about any such bribes that originated from Mr. Ng.

Instead, the complaint simply alleges that Ashe arranged for the then-Antiguan Prime

Minister to meet with Ng and others about concrete investment opportunities, including the

immediate acquisition of hotel properties. (id. 25). The Prime Minister and other Antiguan

officials met with Mr. Ng in New York, and although Mr. Ngs NGO allegedly paid for their

airfare and hotel rooms (id. 29), there is no indication in the complaint that the Prime Minister

received any money from Mr. Ng. In a footnote, the complaint does suggest that Ashe asked

Lorenzo for cash to give to the Prime Minister, but it does not indicate whether Ashe received

this money or whether it had anything to do with Mr. Ng. (Id. 41(i) n.6).

The pretrial notice requirement in criminal cases . . . is intended to reduce surprise and

promote early resolution on the issue of admissibility. Fed. R. Evid. 404 Advisory Committee

Note, 1991 Amendments; see also Gardell, 2001 WL 1135948, at *4 (requiring the government

to provide a detailed explanation of the purpose for which [its Rule 404(b)] evidence is sought

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to be admitted). Here, the governments Rule 404(b) notice does not provide enough detail for

Mr. Ng to formulate a comprehensive motion regarding the admissibility of the payments at

issue; instead, it refers to a criminal complaint that does not even support the governments

description of the evidence. The problem is exacerbated by the fact that the government

apparently is unsure whether the payments are evidence of the charged offenses or evidence of a

separate scheme. If the government does not know which inferences the evidence could support,

it is hard to see how Mr. Ng could be expected to take a guess.

This belated and confusing notice is particularly prejudicial when the Court considers

that the government has repeatedly rebuffed Mr. Ngs requests for a bill of particulars so that he

can mount an adequate defense. One of Mr. Ngs core requests was that the government identify

the payments it alleges are bribes and the official acts Mr. Ng allegedly sought in return. Having

refused to provide that notice, the government now threatens to inject into the trial uncharged

claims of payments while cryptically suggesting that they were charged all along. The

governments hide-the-ball tactics are apparent not just with respect to these payments, but also

the cash and loan evidence discussed further below.

Even if the notice is somehow deemed sufficient under Rule 404(b), the evidence of these

payments is inadmissible, as explained below.

B. The Evidence Of Payments For Business Opportunities In Antigua Is Not

Direct Proof Of The Charged Crimes

The governments suggestion that the payments constitute direct evidence of the charged

crimes is meritless. These are new, uncharged allegations of bribery, and it is far too late for the

government to require Mr. Ng to defend against them.

Uncharged activity is considered direct evidence of the charged crimes, rather than other-

acts evidence subject to Rule 404(b), if it arose out of the same transaction or series of

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transactions as the charged offense, is inextricably intertwined with the evidence regarding the

charged offense, or is necessary to complete the story of the crime on trial. Martoma, 2014

WL 31191, at *2 (quotation marks omitted). [W]here it is not manifestly clear that the evidence

in question is intrinsic proof of the charged crime, the proper course is to proceed under Rule

404(b). Id. (quotation marks omitted).

The government alleges that Mr. Ng made payments through Ashe to the Antiguan Prime

Minister in order to promote his interest in business opportunities in Antigua. (Shapiro Decl.

Ex. A at 2). This is not the scheme charged in the Second Superseding Indictment, which

concerns payments to Ashe and Lorenzo in support of a proposed UN conference center in

Macau, China. (Dkt. 322 9-15; see also Dkt. 362 at 7 (The defendant is not charged with

seeking official action that was entirely unrelated to the Macau Conference Center.). Thus, the

Indictment itself refutes the idea that the Antigua-related payments are intertwined with the

charged offenses, as it tells a compelling, complete and detailed story without mentioning

them. Hatfield, 685 F. Supp. 2d at 323; see also Martoma, 2014 WL 31191, at *3.

Even if the payments for business opportunities in Antigua occurred in close temporal

proximity to the charged crimes, they are certainly not crucial information without which the

jury will be confused or the governments theory of the case unfairly curtailed. United States v.

Newton, No. S1 01-cr-635 (CSH), 2002 WL 230964, at *3 (S.D.N.Y. Feb. 14, 2002); see also

Stein, 521 F. Supp. 2d at 271 (the fact that uncharged tax shelters were marketed to a witness at

the same time as the charged tax shelters does not show why details of the uncharged

transaction are necessary to understand the charged transaction). The government therefore

cannot characterize these payments as direct evidence of the charged crimes.

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To the extent the government is suggesting that Mr. Ng should expect to defend against

new charges that he paid bribes to further his business opportunities in Antigua, it is sorely

mistaken. Mr. Ng was never charged with any such scheme. He has not had sufficient time to

prepare a defense, and it would be a violation of due process to force him to do so now.

C. The Evidence Of Payments For Business Opportunities In Antigua Should

Be Excluded Under Rules 404(b) and 403

Nor can the government introduce these payments as Rule 404(b) evidence. The only

argument that the government could possibly make based on these payments is that because Mr.

Ng supposedly bribed people in connection with one set of business opportunities, he did the

same in connection with the Macau Conference Center. This is propensity reasoning, which is

clearly prohibited by Rules 404(b)(1) and 403. See Hatfield, 685 F. Supp. 2d at 323-24;

Cushing, 2002 WL 1339101, at *3.

V. THE EVIDENCE RELATED TO IMPORTED CASH IS INADMISSIBLE

A. The Governments Notice Is Inadequate

The government further alleges that [t]he defendant agreed to and did misrepresent and

conceal the purpose of cash he brought to the United States, as described in Complaint 15 Mag.

3369, some of which the defendant thereafter provided to the officials defined in the Superseding

Indictment as the Antiguan Ambassador and/or the Dominican Ambassador. (Shapiro Decl.

Ex. A at 2). The government advises that it will seek to introduce this evidence either as direct

proof of the charged crimes or pursuant to Rule 404(b). (Id.).

As with the Antigua-related payments, the governments notice is cryptic and does not

provide sufficient information for Mr. Ng to present a comprehensive response. Although the

notice refers to a separate complaint against Mr. Ng (that has since been dismissed), that

complaint does not appear to allege that Mr. Ng gave any cash to Ashe or Lorenzo. Instead, it

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alleges that Mr. Ng traveled to the United States on several occasions with large quantities of

cash, which he disclosed to customs officials and claimed would be used for gambling or large

purchases, but which he allegedly did not use for those purposes. The complaint does not allege

that the cash was used for bribery. See Complaint, S.D.N.Y. No. 15-mj-3369, ECF No. 1.

Again, the government gave no prior indication that it would attempt to tie the allegations

in the dismissed complaint to the pending charges. Even now, it fails to clearly explain whether

there is a connection. Regardless, based on the information provided by the government, the

purported evidence related to Mr. Ngs importation of cash and his statements to customs

officials is inadmissible.

B. The Evidence Related To Imported Cash Is Not Direct Proof Of The

Charged Crimes

The government cannot introduce the evidence as direct proof. Although the Indictment

does contain a passing, conclusory allegation that the bribes to Ashe and Lorenzo included cash

(Dkt. 322 12), neither the Indictment nor the complaints identify any specific cash payments or

allege that any cash was imported in furtherance of the charged scheme. The cash that Mr. Ng

brought into the United States in September 2015 plainly was not used for that purpose, since he

was arrested soon after his arrival in New York. Most significantly, it is evident that the

government does not know whether the imported cash had anything to do with the charged

offenses, since it is hedging its bets by providing notice of this evidence pursuant to Rule 404(b).

Because it is not manifestly clear that cash has anything to do with the charged offenses, the

government must proceed under Rule 404(b). Martoma, 2014 WL 31191, at *3 (quotation

marks omitted).

Mr. Ng should not be forced to defend against a dismissed complaint merely because the

government makes the opaque suggestion that it has some relationship to the charged bribery

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scheme. There is no evidence of any connection, and the complaint does not suggest otherwise.

Moreover, to mount an adequate defense, Mr. Ng would have to prove a negativethat he

brought the cash into the country for some purpose other than paying bribes. It is far too late to

require Mr. Ng to confront these allegations now.

C. The Evidence Related to Imported Cash Should Be Excluded Under Rules

404(b) and 403

The evidence is also not admissible under Rule 404(b). Since Mr. Ngs cash and

allegedly false statements to customs officials are not part of the charged scheme, the only

purpose of introducing them would be to portray Mr. Ng as dishonest and willing to violate the

laws of the United States. This is exactly the type of consequence that Rule 404(b) seeks to

preclude. Hatfield, 685 F. Supp. 2d at 323-24 (quotation marks omitted); Cushing, 2002 WL

1339101, at *3.

Even if the evidence were relevant, Rule 403 would require its exclusion. As noted

above, the government appears to be speculating about the ultimate purpose of the cash.

Introducing it would incite a mini-trial over how the cash was used, mislead the jury into

believing that the cash is one of the main issues in the case, and encourage the jury to surmise

that Mr. Ng is involved in some unspecified illegal activity. It is not illegal to bring large

quantities of cash into the United States (particularly when that cash is disclosed to customs), but

the government clearly intends to suggest to the jury that Mr. Ng must have been up to no good.

The Court should not permit this prejudicial line of argument.

VI. THE EVIDENCE OF A LOAN TO A UNOSSC OFFICIAL IS INADMISSIBLE

A. The Governments Notice Is Inadequate

The government further alleges that [i]n or about August 2015, the defendant offered

cash, and subsequently provided an approximately $25,000 interest-free loan, to the individual

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described in the Superseding Indictment as a UNOSSC official. (Shapiro Decl. Ex. A at 2).

The government appears to be referring to the fact that a UNOSSC employee needed money to

pursue graduate studies and sought funding from Mr. Ng.

The government advises that it will seek to introduce this loan either as direct evidence or

pursuant to Rule 404(b). (Id.). Astonishingly, although the government has represented that it

will not ask the jury to convict based on this payment, it refuses to commit itself to a position

regarding whether this payment was a bribe in furtherance of the conspiracy. Whether the

government is hiding the ball or simply keeping its options open, its ambiguous disclosures only

exacerbate Mr. Ngs burden in preparing to meet the governments shifting theories at trial.

B. The Loan Evidence Is Not Direct Proof Of The Charged Crimes

The Second Superseding Indictment mentions in passing that Mr. Ng provided a

UNOSSC official . . . with an interest-free loan. (Dkt. 322 15). This brief reference could,

however, be deleted from the Indictment without changing the story it presents. The Indictment

does not allege that Mr. Ng used this loan to bribe the UNOSSC official; instead, it alleges that

Ashe and Lorenzo were the UN agents bribed by Mr. Ng. (Id. 12-13, 18-20, 23, 25, 27, 30,

32). Nor does the Indictment charge the loan as an overt act in furtherance of the conspiracy.

(Id. 21(a)-(g)). Thus, despite the governments ambiguous statements on the subject, there is

no indication that the loan has anything to do with the charged offenses. Cf. Martoma, 2014 WL

31191, at *3; Hatfield, 685 F. Supp. 2d at 323; Stein, 521 F. Supp. 2d at 271; Newton, 2002 WL

230964, at *3. At a minimum, since it is not manifestly clear that the loan is direct proof of

those offenses, the government must establish its admissibility under Rule 404(b). Martoma,

2014 WL 31191, at *3 (quotation marks omitted).

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C. The Loan Should Be Excluded Under Rules 404(b) and 403

There is no basis for admitting the loan evidence. As indicated above, there is no

allegation or proof that the UNOSSC official sought the loan in exchange for any action on his

part, or that Mr. Ng gave the loan with corrupt intent. The only point of this evidence appears to

be that because Mr. Ng made a personal loan to a UN employee, he must have authorized other

personal payments to individuals associated with the UN, such as Ashe and Lorenzo. The

evidence plainly cannot be offered for that purpose. See Fed. R. Evid. 404(b)(1).

The loan evidence also creates a danger of unfair prejudice and jury confusion. See Fed.

R. Evid. 403. While it is not a crime to loan money to a UN employee (whether out of

generosity or in an attempt to cultivate goodwill), the governments discussion of the loan could

lead the jury to read more into it than is warranted by the evidence. In a trial ostensibly about the

bribery of UN officials, the introduction of an innocuous payment to a UN official will inevitably

invite speculation and distract from the payments that the government actually alleges are bribes.

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CONCLUSION

For the foregoing reasons, the government should be precluded from offering the several

categories of purported evidence discussed above.

Dated: May 1, 2017

New York, New York

Respectfully submitted,

/s/ Alexandra A.E. Shapiro

Alexandra A.E. Shapiro
Daniel J. ONeill
Fabien Thayamballi
Shapiro Arato LLP
500 Fifth Avenue, 40th Floor
New York, New York 10110
(212) 257-4880

Hugh H. Mo
The Law Firm of Hugh H. Mo, P.C.
225 Broadway, 27th Floor
New York, NY 10007
(212) 385-1500

Tai H. Park
Christopher Greer
Park Jensen Bennett, LLP
40 Wall Street
New York, NY 10005
(646) 200-6300

Attorneys for Defendant Ng Lap Seng

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