UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

- - - - - - - - - - - - - - - - - - - - - - - - - - - - -X

UNITED STATES OF AMERICA :

– against – : 16-CR-377 (PAE)

JOHN AFRIYIE, :

Defendant. :

- - - - - - - - - - - - - - - - - - - - - - - - - - - - -X

DEFENDANT'S MOTIONS IN LIMINE

Law Offices of Ezra Spilke, PLLC

Ezra Spilke, Esq.
Attorney for John Afriyie
315 Flatbush Avenue, Suite 512
Brooklyn, New York 11217
Tel.: (646) 762-9713

Susan C. Wolfe, Esq., Of Counsel

Law Office of Susan C. Wolfe
360 Lexington Avenue, Suite 502
New York, New York 10018
Tel: (646) 493-7035

Dated: January 5, 2017

 Defendant John Afriyie respectfully submits the following motions in limine

in advance of trial, which is scheduled to begin on January 23, 2017. Mr. Afriyie is

charged with securities fraud in violation of federal securities laws and regulations

and wire fraud in violation of 18 U.S.C § 1343. In brief, the government alleges that

Mr. Afriyie traded in securities on the basis of material, non-public information that

he had access to because of his position of trust and confidence with his employer.

Mr. Afriyie asks the Court to preclude the government from offering:

(1) evidence of Mr. Afriyie's expenditures;

(2) cumulative, prejudicial identity evidence; and

(3) evidence obtained pursuant to post-indictment grand jury subpoenas.

1. The Court Should Preclude the Government from Offering Evidence

of Mr. Afriyie's Expenditures.

The government produced, as discovery, receipts and business records

reflecting several purchases—taking place from January 29 to August 2, 2016—

made by Mr. Afriyie. The purchases include shoes, a suit, air travel to Los Angeles

and Miami from New York, electronics and an evening out at an exclusive

Manhattan nightclub.

These expenditures are not relevant to any fact of consequence in

determining the action. Whereas in tipper/tippee cases the government must prove

that the tipper personally benefited from the disclosure of insider information,

Salman v. United States, ___ U.S. ___ (2016), personal benefit is not an element

that the government must or is entitled to prove in cases not involving tipping.

Moreover, the government cannot connect the spending to the presence of trading

1
gains in the brokerage account at issue in this case. Mr. Afriyie's post-conduct

spending is thus irrelevant and carries no probative value.

The only purpose for admitting such evidence is to inflame the passions of the

jury. All of the purchases reflected in the exhibits connote extravagance or, at least

in context, an indulgent lifestyle. The evidence invites the jury to improperly convict

Mr. Afriyie on the basis of a dislike of greed or of what they believe his habits to be.

With respect to the luxury goods, the Best Buy receipt suggests that Mr.

Afriyie had a one-day shopping spree in which he bought nearly $2,500 worth of

electronics, including a $1150 laptop, a $350 Xbox game console and a $275

Bluetooth speaker. The Apple receipt reflects the purchase of a $1,000 Apple watch.

Other expenditures suggest a licentious lifestyle. 1Oak is an expensive and

exclusive nightclub in the trendy Meatpacking District. It is infamous as a reliable

place to see celebrities and, thus, frequently appears in tabloid gossip pages. E.g.,

Search "1Oak," Page Six, http://pagesix.com/tag/1Oak/. In this context, Mr. Afriyie's

trips to Los Angeles and Miami within a short period of time could also be

interpreted as indulgent. Accordingly, if the government offered evidence of Mr.

Afriyie's post-offense purchases, the jury may become improperly focused on

conspicuous displays of greed rather than on the elements of the charged offenses.

The government also has not connected Mr. Afriyie's spending with the

proceeds of the alleged fraud. For instance, the seized iPhone 6 contains more than

100 messages in which Mr. Afriyie and his friends discuss plans to visit and

2
reminiscences of past visits to Manhattan nightclubs, including 1Oak. Indeed, 1Oak

is mentioned more than fifty times dating back to summer 2014.

According to Mr. Afriyie's personnel file produced by the government in

discovery, Mr. Afriyie earned approximately $300,000 per year. Bank records

supplied by the government in discovery show that on February 5 and 8, 2016—

approximately one month before the bulk of the purchases that the government

seeks to offer—Mr. Afriyie's employer had deposited a bonus of nearly $70,000 into

his bank account. In addition, Mr. Afriyie's purchases and lifestyle were not

unusual for a Wall Street professional in his mid-twenties. This is especially so for

Mr. Afriyie's purchase of a suit and shoes, which could be nothing more than work

apparel.

For the same reasons, the bank transactions that take place outside of the

dates of the indictment and the XPO trades—May 5 to June 1, 2015, and January

28 to February 17, 2016—should be redacted from any exhibits containing bank

records.

2. The Court Should Preclude the Government from Offering

Cumulative, Prejudicial Identity Evidence.

The government produced documents in discovery that, although they may

prove identity, would be cumulative and prejudicial if they were shown to a jury.

According to the government, a Yahoo! email address—

ixjunitxi03@yahoo.com—was used as a username for the relevant brokerage

account. In order to prove identity, the government intends to offer a Yahoo!

business record that contains "Messenger Friends" lists associated with the

3
"ixjunitxi03" account. The lists consist almost entirely of suggestive usernames that

include phrases like "erotic babe" and "kinky chick."

Other Yahoo! business records are far more probative of Mr. Afriyie's use of

the ixjunitxi03@yahoo.com email address. For instance, a Yahoo! account page that

contains user information includes Mr. Afriyie's name in the "full name" field, his

date of birth, his telephone number, his gender and an alternative email address

that consists of his first initial and last name.

Other non-Yahoo! business record evidence that the government intends to

offer also connects Mr. Afriyie to the Yahoo! email address. Most notably, the

address "ixjunitxi03@yahoo.com" is tied to Mr. Afriyie in several places on the

seized iPhone including in the contacts list under the name "John Afriyie" and as

the email address associated with the "jafriyie" username for the Snapchat

application that also includes Mr. Afriyie's telephone number.

The "friends list" record that the government seeks to introduce, while having

far less probative value than its alternatives, is far more prejudicial. It portrays Mr.

Afriyie as a philanderer, especially if viewed in conjunction with the "expenditures"

evidence objected to above in section 1. And it invites the jury to speculate on what

they believe Mr. Afriyie's character to be.

Old Chief v. United States instructs that a court’s evidentiary rulings under

Rule 403 should be informed "not only by assessing an evidentiary item’s twin

tendencies [for probative value and prejudicial risk], but by placing the result of

that assessment alongside similar assessments of evidentiary alternatives." 519

4
U.S. 172, 184-85 (1997). The government will offer alternatives to the Yahoo!

business record that are far more probative and far less prejudicial than it.

Accordingly, the evidence is cumulative and carries with it a substantial and

unnecessary danger of unfair prejudice and misleading the jury.

For the same reasons, the government should be precluded from introducing

sensitive and personal information from the seized iPhone 6. To the extent that the

government intends to prove that Mr. Afriyie owned and controlled the telephone,

the best evidence is the testimony of the agent who literally seized the telephone

from Mr. Afriyie's hands.

With respect to the potential for unfair prejudice, the device contains some of

Mr. Afriyie's most personal information. As Mr. Afriyie stated in his memorandum

in support of his motion to suppress the iPhone, by seizing the device, the

government seized the equivalent of 15,000 pages data, including:

approximately 6000 pages of chats dating back to January 2009,

consisting almost exclusively of social conversations about, inter alia,
gossip, jokes, sports, lunch, dinner, weekend and travel plans,
nightclubs, parties, job prospects, dating; 2) searches and website
activity regarding dating, news clips, pictures of celebrities, restaurant
reviews, flight searches, real estate listings; 3) personal photos and
videos dating back to 2013; and 4) personal notes about life.

Afriyie's Mem. of Law. in Support of Mot. to Suppress 16-17, ECF No. 35.

3. The Court Should Preclude the Government from Offering Evidence

Obtained Pursuant to Post-Indictment Grand Jury Subpoenas.

The grand jury returned the indictment in this case on June 1, 2016. The

government has provided exhibits that it obtained from at least one post-indictment

grand jury subpoena—issued to Delta Air Lines, Inc., on November 29, 2016.

5
 "It is improper to utilize a Grand Jury for the sole or dominating purpose of

preparing an already pending indictment for trial." In re Grand Jury Subpoena

Duces Tecum Dated Jan. 2, 1985 ("Simels"), 767 F.2d 26, 29 (2d Cir. 1985); accord

United States v. Woods, 544 F.2d 242, 250 (6th Cir. 1976); United States v. Star, 470

F.2d 1214, 1217 (9th Cir. 1972).1 Although the grand jury may be used for post-

indictment investigation if that investigation is related to a superseding indictment

of additional defendants or additional crimes, e.g., Simels, 767 F.2d 29-30, there is

no indication that, as of November 29, 2016, the government believed that

additional defendants were involved in the instant offenses or that Mr. Affriyie had

been involved in additional crimes.

1In Simels, after the defendant had challenged the government's trial subpoena for
certain evidence, the government issued a grand jury subpoena for the same
evidence. Id. at 29-30. The Second Circuit reversed the district court's denial of the
motion to quash the grand jury subpoena, finding that there was a sufficient
showing that the government's purpose was pretrial preparation. The court also
noted:

In some circumstances, it may be appropriate to enforce the rule

against using a grand jury subpoena predominantly for trial
preparation simply by barring use at trial of evidence obtained
pursuant to the subpoena, thereby leaving the grand jury's access to
the evidence unimpaired.

Id. at 30.

6
 CONCLUSION

For the foregoing reasons, Mr. Afriyie's motions in limine should be granted

in their entirety.

Dated: Brooklyn, New York

January 6, 2017

Respectfully submitted,

/s
Law Offices of Ezra Spilke, PLLC
Ezra Spilke, Esq.
Attorney for John Afriyie
315 Flatbush Avenue, Suite 512
Brooklyn, New York 11217
Tel.: (646) 762-9713

Susan C. Wolfe, Esq., Of Counsel

Law Office of Susan C. Wolfe
360 Lexington Avenue, Suite 502
New York, New York 10018
Tel: (646) 493-7035

TO: PREET BHARARA, ESQ.

United States Attorney
Southern District of New York
Attn: Edward Imperatore, Esq.
Christine Magdo, Esq.
Assistant United States Attorneys