Case 1:15-cr PGG Document 64 Filed 04/11/16 Page 1 of 20. S1 15 Cr. 692 (PGG)

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1 Case 1:15-cr PGG Document 64 Filed 04/11/16 Page 1 of 20 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA, v. DAVID POLOS and GLEN GLOVER, Plaintiff, Defendants. S1 15 Cr. 692 (PGG) MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS JOINT OMNIBUS MOTIONS IN LIMINE Marc L. Mukasey GREENBERG TRAURIG, LLP 200 Park Avenue New York, New York (212) mukaseym@gtlaw.com Counsel for Defendant David Polos Cathy Fleming Megan R. Calme FLEMING RUVOLDT PLLC 1700 Broadway, 28th Floor New York, New York (212) cfleming@flemingruvoldt.com Counsel for Defendant Glen Glover

2 Case 1:15-cr PGG Document 64 Filed 04/11/16 Page 2 of 20 TABLE OF CONTENTS Page TABLE OF AUTHORITIES... ii BACKGROUND...1 ARGUMENT...3 I. THE COURT SHOULD EXCLUDE VIDEO SURVEILLANCE OF THIRD PARTIES ENGAGED IN GRAPHIC SEXUAL CONDUCT BECAUSE ITS PREJUDICIAL EFFECT FAR OUTWEIGHS ITS PROBATIVE VALUE...3 A. Rule 403 Prohibits The Introduction Of The Video Recordings Because Their Prejudicial Value Substantially Outweighs Their Probative Value...3 B. Rule 404(b) Prohibits Evidence Of Other Bad Acts Where Those Acts Are Not Relevant To The Charged Conduct And Are More Prejudicial Than Probative...5 C. The Evidence Of Sexual Contact Is Not Material To The Charged Crimes...8 II. III. IV. THE COURT SHOULD EXCLUDE ALL REFERENCES TO LEWD OR SALACIOUS CONDUCT AT THE CLUB...9 THE COURT SHOULD EXCLUDE EVIDENCE REGARDING DEFENDANTS ALLEGED OUTSIDE EMPLOYMENT THAT POST- DATES THE TIME FRAME OF THE CHARGED CONSPIRACY...10 THE COURT SHOULD EXCLUDE ANY EVIDENCE OF POLOS RELATIONSHIP WITH A FOREIGN NATIONAL AFTER SEPTEMBER 7, V. THE COURT SHOULD STRIKE SURPLUSAGE IN THE INDICTMENT...14 VI. THE COURT SHOULD EXCLUDE OTHER GROSSLY PREJUDICIAL EVIDENCE...15 CONCLUSION...16 i

3 Case 1:15-cr PGG Document 64 Filed 04/11/16 Page 3 of 20 TABLE OF AUTHORITIES Page(s) Cases Hart v. RCI Hospitality Holdings, Inc., 90 F. Supp. 3d 250 (S.D.N.Y. 2015)...4 Park W. Radiology v. CareCore Nat l LLC, 675 F. Supp. 2d 314 (S.D.N.Y. 2009)...4, 5 Perez v. Progenics Pharm., Inc., No. 10-CV (LAP), 2015 WL (S.D.N.Y. June 24, 2015)...6, 7 United States v. Curley, 639 F.3d 50 (2d Cir. 2011)...4, 5, 6 United States v. Gaudin, 515 U.S. 506 (1995)...8 United States v. Holmes, 44 F.3d 1150 (2d Cir. 1995)...12 United States v. Jimenez, 613 F.2d 1373 (5th Cir. 1980)...6 United States v. Manafzadeh, 592 F.2d 81 (2d Cir. 1979)...7 United States v. McCallum, 584 F.3d 471 (2d Cir. 2009)...6 United States v. Miller, S1 12 Cr. 368 (PAC), 2012 WL (S.D.N.Y. Dec. 10, 2012)...3 United States v. Mostafa, 16 F. Supp. 3d 236 (S.D.N.Y. 2014)...12 United States v. Paulino, 445 F.3d 211 (2d Cir. 2006)...6 United States v. Rivera, No. 13-CR-149 (KAM), 2015 WL (E.D.N.Y. Apr. 22, 2015)...3, 5 United States v. Sampson, No. 13-CR-269 (S-5) (DLI), 2015 WL (E.D.N.Y. May 4, 2015)...3, 4 Statutes 18 U.S.C , 4 18 U.S.C , 2, 4, 8 ii

4 Case 1:15-cr PGG Document 64 Filed 04/11/16 Page 4 of 20 Rules Fed. R. Crim. P Fed. R. Evid , 4, 5, 7, 9, 14, 15 Fed. R. Evid. 404(b)...5, 6, 7 Fed. R. Evid Fed. R. Evid Fed. R. Evid iii

5 Case 1:15-cr PGG Document 64 Filed 04/11/16 Page 5 of 20 Defendants David Polos and Glen Glover, by and through undersigned counsel, respectfully submit this Memorandum of Law in support of their Joint Omnibus Motions In Limine to exclude certain evidence that they expect the Government will offer at trial, either in its case-in-chief or to rebut certain defense arguments. Under either scenario, as set forth below, the evidence should be excluded. BACKGROUND The Superseding Indictment in this case alleges that between May 2010 and December 2011, defendants Dave Polos and Glen Glover, as employees of the Drug Enforcement Administration ( DEA ), knowingly and willfully conspired to and did make false statements on their SF-86 national security forms. The false statements concerned their alleged outside employment at a New Jersey bar (the Club ). Polos is also alleged to have knowingly and willfully made a false statement on his SF-86 about contact with a foreign national during the seven years prior to his submission of the SF-86. Superseding Indictment (Dkt. No. 30) ( S.I. ) 6-9, 14, 16, 18. In specific: Count One charges both defendants with violating 18 U.S.C. 371 by conspiring to make false statements between May 2010 and December S.I. 6. Count Two charges Glover with violating 18 U.S.C by making a false statement on August 1, 2011, affirming that, in the prior seven years, he did not have outside employment beyond his work with DEA when, allegedly, he had outside employment in the form of regular work at the Club. S.I. 14. Count Three charges Polos with violating 18 U.S.C by making a false statement on September 7, 2011, affirming that, in the prior seven years, he did not have outside employment beyond his work with DEA when he too allegedly had outside employment in the form of regular work at the Club. S.I

6 Case 1:15-cr PGG Document 64 Filed 04/11/16 Page 6 of 20 Count Four charges Polos with violating 18 U.S.C by making a false statement on September 7, 2011, affirming that within the prior seven years he did not have close and/or continuing contact with foreign nationals when, allegedly, he had an intimate relationship with a foreign national for several months at the time of that affirmation. S.I. 18. Notwithstanding the straightforward questions in this case, the Government has informed defense counsel that it intends to introduce at trial various types of scandalous, lewd and unseemly evidence that is wholly irrelevant and highly prejudicial to the crimes charged. As one example, the Government has produced video clips of four lap dances, recorded apparently in November Putting aside the complete lack of relevance that lap dance videos have to a false statements case, videos filmed in 2014 are not proof of defendants state of mind in As a second example, the Government also seeks to introduce testimony regarding condoms found at the Club, testimony about the use of illegal narcotics at the Club and text message and communication about management of the Club after the events charged in the Superseding Indictment. All of this salacious and inflammatory material should be excluded. Defendants therefore move (1) to exclude video surveillance of third parties engaged in graphic sexual conduct, (2) to exclude all references to lewd or salacious conduct at the club, (3) to exclude all references to outside employment or work beyond the time period alleged for the conspiracy, (4) to exclude any evidence of Polos relationship with a foreign national after September 7, 2011, (5) to strike surplusage in the Superseding Indictment, and (6) to strike extraneous and prejudicial comments by others. 2

7 Case 1:15-cr PGG Document 64 Filed 04/11/16 Page 7 of 20 ARGUMENT I. THE COURT SHOULD EXCLUDE VIDEO SURVEILLANCE OF THIRD PARTIES ENGAGED IN GRAPHIC SEXUAL CONDUCT BECAUSE ITS PREJUDICIAL EFFECT FAR OUTWEIGHS ITS PROBATIVE VALUE Defendants David Polos and Glen Glover respectfully move, pursuant to Rules 403 and 404(b) of the Federal Rules of Evidence to exclude graphic video surveillance evidence of sexual conduct by third parties at the Club. This case about whether Polos and Glover knowingly and willfully made false statements on government forms concerning whether they had employment, outside the DEA, at the Club. The Government, however, seeks unreasonably to introduce provocative, salacious and incendiary testimony that would tarnish defendants character, inflame and distract the jury and result in unfair prejudice to defendants. A. Rule 403 Prohibits The Introduction Of The Video Recordings Because Their Prejudicial Value Substantially Outweighs Their Probative Value Rule 403 of the Federal Rules of Evidence provides that [t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of... unfair prejudice. Courts consider challenged evidence in the context of the crime alleged, which calls for the exclusion of evidence that is more inflammatory than the charged crime. United States v. Rivera, No. 13-CR-149 (KAM), 2015 WL , at *3 (E.D.N.Y. Apr. 22, 2015) (quoting United States v. Livoti, 196 F.3d 322, 326 (2d Cir. 1999)). In deciding whether evidence is probative, courts will consider whether the evidence is essential to demonstrating a particular element of the case or whether its introduction would be unnecessarily cumulative. See United States v. Sampson, No. 13-CR-269 (S-5) (DLI), 2015 WL , at *4 (E.D.N.Y. May 4, 2015). For example, in United States v. Miller, S1 12 Cr. 368 (PAC), 2012 WL (S.D.N.Y. Dec. 10, 2012), a case charging conspiracy to distribute and possession with intent to 3

8 Case 1:15-cr PGG Document 64 Filed 04/11/16 Page 8 of 20 distribute marijuana, Judge Crotty denied the Government s motion to introduce evidence regarding an uncharged conspiracy to traffic cocaine because (1) allegations regarding cocaine trafficking are far more sensational and inflammatory than those involving marijuana, and (2) the Government has not explained why testimony related solely to the Defendants activities involving marijuana are inadequate [to show how the conspiracy developed or the defendants mutual trust], nor how testimony related to cocaine is better suited to that task. Id. at *2. Courts will consider evidence prejudicial if it has an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one. Fed. R. Evid. 403 advisory committee note; see, e.g., Hart v. RCI Hospitality Holdings, Inc., 90 F. Supp. 3d 250, 260 (S.D.N.Y. 2015). Evidence is also viewed as unfairly prejudicial when it tends to have some adverse effect upon a defendant beyond tending to prove the fact or issue that justified its admission into evidence. United States v. Curley, 639 F.3d 50, 57 (2d Cir. 2011) (internal quotation marks omitted); e.g., Park W. Radiology v. CareCore Nat l LLC, 675 F. Supp. 2d 314, 323 (S.D.N.Y. 2009) (excluding from trial a message stating I was hoping that her friends would want to have sex with [sic] me after they saw the ring due to the likelihood that the statement would elicit a strong negative reaction from the jury for reasons not at all relevant to this litigation ). The sexually graphic videos that the Government seeks to introduce in this case have no probative value. Indeed, they bear little relation to the case. They depict unknown individuals in lap dances. Following the dances depicted in the videos, which last for a few minutes, a customer exchanges money with the dancer. The videos do not involve either defendant and speak to no element of a false statement under 18 U.S.C or a conspiracy under 18 U.S.C Moreover, the videos were recorded in 2014, three years after the charged conduct, making 4

9 Case 1:15-cr PGG Document 64 Filed 04/11/16 Page 9 of 20 them even less germane to this case than they would be if recorded during the conspiracy period. There is no point to introducing the lap dance videos except to inflame the jury. Moreover, however unseemly, lap dances are legal in New Jersey. If the Government intends to argue that these four 2014 lap dances some 20 minutes out of many hours of videoed lap dances went farther than the law of New Jersey allowed, the trial becomes a referendum on lap dance protocol under New Jersey law. That is irrelevant at a trial of false statements, particularly where the activity does not involve either defendant. The prejudicial effect of the videos would be colossal if they are introduced as evidence at trial either in the Government s direct case or on rebuttal. The sexual activity depicted in the videos could no doubt suggest decision on an improper basis for the jury and have some adverse effect upon a defendant beyond tending to prove the fact or issue. Fed. R. Evid. 403 advisory committee note; Curley, 639 F.3d at 57. Members of the jury would undoubtedly take offense at the behavior depicted in the videos and likely cast judgment on defendants for any association they may have had with the Club. Park W. Radiology, 675 F. Supp. 2d at 323. When the video recordings are placed in the context of the crime[s] alleged making a false statement regarding outside employment and conspiring to do the same the evidence is undoubtedly more inflammatory than the charged crime. Rivera, 2015 WL , at *3. Because the probative value of the videos is substantially outweighed by the prejudicial value, the videos should be excluded under Rule 403 of the Federal Rules of Evidence. B. Rule 404(b) Prohibits Evidence Of Other Bad Acts Where Those Acts Are Not Relevant To The Charged Conduct And Are More Prejudicial Than Probative The sexually charged videos should also be excluded under Rule 404(b) of the Federal Rules of Evidence. Rule 404(b) dictates that [e]vidence of a crime, wrong, or other act is not admissible to prove a person s character, but that [t]his evidence may be admissible for 5

10 Case 1:15-cr PGG Document 64 Filed 04/11/16 Page 10 of 20 another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. Fed. R. Evid. 404(b)(1)-(2). When the Government seeks to introduce evidence of subsequent bad acts under Rule 404(b), the government must identify a similarity or connection between the two acts. United States v. Paulino, 445 F.3d 211, 223 (2d Cir. 2006) (internal quotation marks omitted). Once the relevancy requirement is satisfied, the court must next ask whether the evidence is more probative than prejudicial. United States v. McCallum, 584 F.3d 471, 476 (2d Cir. 2009). Subsequent acts are admissible under Rule 404(b), but the temporal difference between the charged conduct and the subsequent acts may impact whether the evidence is probative. Curley, 639 F.3d at 61 (citation omitted); Perez v. Progenics Pharm., Inc., No. 10-cv (LAP), 2015 WL , at *4 (S.D.N.Y. June 24, 2015) ( Although Defendant correctly points out that this Circuit applies an inclusionary approach to Rule 404(b), merely saying the magic words state of mind does not satisfy this standard. Instead, Defendant must demonstrate that Plaintiff's conflict with his former attorney in fact bears some connection to his state of mind at the time of his allegedly protected activity several years beforehand. ) (citation omitted); see also United States v. Jimenez, 613 F.2d 1373, 1376 (5th Cir. 1980) ( Although we do not suggest that subsequent extrinsic offense evidence could never be admitted under rule 404(b), it certainly bears substantially less on predisposition than would a prior extrinsic offense. We find that the expiration of the considerable length of time [one year] in this case depleted the extrinsic offense of any relevance which could have outweighed the peril of jury prejudice. ) (citation omitted). In short, improperly introducing evidence of subsequent bad acts runs the risk of giving the jury the opportunity to draw the impermissible inference that because the defendant apparently acted unlawfully on a much later occasion and in a different way, he must have committed the earlier 6

11 Case 1:15-cr PGG Document 64 Filed 04/11/16 Page 11 of 20 unlawful acts alleged in the present case. United States v. Manafzadeh, 592 F.2d 81, 89 (2d Cir. 1979). The introduction of barely relevant but highly prejudicial evidence as proof of motive is precisely the type of character-smearing evidence meant to be prevented by Rule 404(b). As an initial matter, the videos are not relevant under 404(b) for the same reason they are not relevant under Rule 403 analysis. However, for three reasons, the videos also fail to pass the probativeprejudice balancing test under Rule 404(b). First, the video recordings were made in 2014, three years after the conclusion of the charged conspiracy. Therefore, they have no probative value in showing anything about the motive, intent or knowledge of Polos and Glover during the pendency of the alleged conspiracy in While the passage of three years does not automatically eliminate the probative value of the video recordings, it does require that the Government articulate some basis for overcoming the presumption that the state of mind of defendants in 2011 cannot be proven with evidence from See Perez, 2015 WL , at *4. The Government provides no such basis. Second, there is absolutely no indication that Polos or Glover were present for, witnesses to or aware of, the conduct depicted in the videos. The Government therefore cannot meet its burden of demonstrating how these after-the-fact, third-party lap dance recordings are in any way more probative than prejudicial in a case regarding alleged misrepresentations on a government form. Accordingly, the evidence must be excluded. Finally, as the Government is seeking to introduce evidence of alleged subsequent bad acts, as opposed to prior bad acts, it bears an even greater burden of justifying the probative value of the video records against the grave risk of prejudice to Polos and Glover. It has not satisfied this rigorous test. Therefore, the video recordings should be excluded. 7

12 Case 1:15-cr PGG Document 64 Filed 04/11/16 Page 12 of 20 C. The Evidence Of Sexual Contact Is Not Material To The Charged Crimes The Government also intends to elicit evidence concerning alleged prostitution that took place at the Club, pointing to clips of four lap dances taken in November 2014 as proof. 1 Defendants do not have sufficient detail to address adequately these issues. If the Government does not proffer the evidence in its motion in limine, defendants request that the Court require detailed evidentiary proffers to enable adequate response by defendants. To the extent possible, defendants can address the issues generally. The Government s justification for raising these issues is that it must prove materiality as an essential element of Title 18, U.S.C As the U.S. Supreme Court commented in United States v. Gaudin, 515 U.S. 506 (1995), [d]eciding whether a statement is material requires the determination of at least two subsidiary questions of purely historical fact: (1) what statement was made? and (b) what decision was the agency trying to make? Id. at 512. The ultimate decision is whether the statement was material to the decision. Id. Apparently, in order to prove materiality, the Government will attempt to offer speculation as evidence. In a March 25, 2016, phone call, AUSA Andrew Goldstein advised defense counsel that the Government intended to call a Government witness to say that the Government would not have granted security clearance to persons with outside employment at an adult establishment because, among other things, there could be prostitution at that establishment and there could be illegal drugs at that establishment. In other words, the Government seeks to call a witness to speculate that, as a general matter, no security clearance 1 In addition, as addressed in Part II, infra, the Government has indicated that it will introduce evidence regarding cash payments and a resultant failure to pay payroll or employment taxes, use of illegal narcotics, and that Defendants worked at the Club while they were on DEA time. 8

13 Case 1:15-cr PGG Document 64 Filed 04/11/16 Page 13 of 20 would be granted for persons with outside employment at an adult establishment testimony that is not focused on this particular bar. 2 Such testimony is not only speculative, it is highly prejudicial. There is no evidence whatsoever, from August or September 2011 or earlier, that there was any prostitution or sexual activity at the Club. 3 Nor is there evidence of illicit drug use. The case should be simple: When defendants did not identify on two SF-86 Forms outside employment in August and September 2011, was that a false statement? If it was, did they know it to be a false statement? If they did, was it material? II. THE COURT SHOULD EXCLUDE ALL REFERENCES TO LEWD OR SALACIOUS CONDUCT AT THE CLUB Defendants Polos and Glover further move, pursuant to Rules 403 and 404(b) of the Federal Rules of Evidence, to exclude any evidence of lewd, salacious or unlawful conduct at Twins Go-Go Lounge, whether in the Government s case-in-chief, any defense case or in rebuttal. Based on conversations with counsel for the Government, the undersigned counsel understands that, in addition to the 2014 video surveillance of lap dances depicting what the Government deems to be prostitution, the Government is likely to introduce other evidence of lewd or salacious conduct. Examples of such evidence to be excluded include: 1. Testimony about unlawful nudity at the Club; 2. Allegations of condoms found at the Club; 3. Allegations of prostitution; 2 The Government has not identified any such witness. It would appear that such testimony calls for expert opinion. The Government has not provided any written summaries of testimony that it intends to use under Rules 702, 703 or 705 of the Federal Rules of Evidence, as required by Rule 16 of the Federal Rules of Criminal Procedure. 3 As noted, Defendants dispute any later illicit sexual activity either, the FBI s four lap dance clips notwithstanding. 9

14 Case 1:15-cr PGG Document 64 Filed 04/11/16 Page 14 of Allegations of cash-payments at the Club and corresponding failure to pay payroll or employment taxes 4 ; and 5. Use of illegal narcotics at the Club. That type of proof, the purpose of which is to smear the Club and by association, defendants, has no place at this trial. Again, this lewd and salacious evidence has no application to the charged conduct in this case. Condoms, drugs and adult behavior in a nightclub are not relevant to proving the elements of the charged offenses. That testimony serves only to provide seedy and sordid details about the behavior of unknown patrons or personnel at the Club. Lewd details do not add relevant evidence of defendants alleged false statements or of any alleged common plan to make a false statement on an SF-86. Instead, such details will inflame and offend the jury and distract its focus from the facts relevant to the charged conduct. Accordingly, evidence of found condoms, alleged prostitution, use of drugs and similarly lewd, salacious or unlawful conduct at Twins Go-Go Lounge and any suggestion that such conduct was sanctioned by defendants especially since the Government knows it was not should be excluded. III. THE COURT SHOULD EXCLUDE EVIDENCE REGARDING DEFENDANTS ALLEGED OUTSIDE EMPLOYMENT THAT POST-DATES THE TIME FRAME OF THE CHARGED CONSPIRACY Defendants Polos and Glover move to exclude any evidence regarding the management or operation of the Twins Go-Go Lounge outside of the conspiracy period, May 2010 to December The failure to pay payroll taxes is a corporate failure, not an individual failure. The amounts are small and unverifiable. The introduction of evidence regarding unfiled payroll taxes will result in a trial within a trial. 5 The timeframe of the conspiracy charged in Count One covers and vastly exceeds the range of the dates on which the Government alleges false statements were made in SF-86 forms, charged in Counts Two, Three, and Four. S.I. 6, 14, 16,

15 Case 1:15-cr PGG Document 64 Filed 04/11/16 Page 15 of 20 Any evidence after December 2011 should be excluded from the government s case-inchief. First, evidence after that date falls outside the conspiracy period charged in Count One of the Superseding Indictment. Such evidence is of little probative value because it does not establish facts that occurred during conspiracy period and only in certain instances does it speak at all to state of mind during the conspiracy period. Rather, evidence outside the time period of the conspiracy is unnecessarily cumulative and would confuse the jury as to the conduct at issue. Second, evidence after December 2011 is wholly irrelevant to the conduct charged against the Polos and Glover in Counts Two, Three and Four of the Superseding Indictment. As further discussed below, the alleged false statements were made on August 1, 2011 (Count Two) and September 7, 2011 (Counts Three and Four), the dates that Glover and Polos submitted their SF- 86 forms, respectively. Examples of evidence to be excluded include: 1. Text messages between defendants and a certain manager at the Club in January 2012, 2013 and 2014; 2. Telephone records demonstrating calls between defendants and between defendants and the same manager at the Club in 2012 and 2013; and 3. messages between defendants and between defendants and the same manager at the Club in 2012 and It appears that the government may plan to introduce text messages between defendants and a certain manager at the Club, the dates of which might range anywhere from May 2011 to January The government will likely introduce these communications to demonstrate defendants involvement in the Club. But evidence of any involvement after defendants submitted their national security forms in August 2011 and September 2011 is wholly irrelevant to Counts Two, Three and Four charged against them, namely, that they willfully and knowingly 11

16 Case 1:15-cr PGG Document 64 Filed 04/11/16 Page 16 of 20 falsely affirmed statements relating to outside employment and also, in the case of Polos, contact with foreign nationals. These alleged false affirmations occurred on August 1, 2011 and September 7, 2011, and no later. Any communications between Polos and Glover and managers at the Club after August 1, 2011 and September 7, 2011, are cumulative and provide little to no probative value as to the false statement offenses charged in Counts Two, Three and Four. See United States v. Holmes, 44 F.3d 1150, 1157 (2d Cir. 1995) ( Absent a clear abuse of discretion, a trial judge retains a wide latitude to exclude irrelevant, repetitive, or cumulative evidence. ); United States v. Mostafa, 16 F. Supp. 3d 236, 266 (S.D.N.Y. 2014). Communications after December 2011 similarly lack probative value in establishing a conspiracy between Polos and Glover, as alleged in Count One. The communications at issue are not between or among defendants and would only serve to confuse the issues. Similarly, in the Superseding Indictment, the government refers to telephone communications between Polos and Glover that purportedly demonstrate that they spoke regularly on the telephone to concoct the conspiracy charged. For these reasons discussed above, telephone records evidence after December 2011, the end of the conspiracy period, should be excluded because it is cumulative, confusing and of little probative value. There is no doubt that they are friends and colleagues and had many legitimate reasons to speak frequently. The s between Polos and Glover and the manager at the Club dating from 2012 and later clearly fall outside the conspiracy period alleged in the Superseding Indictment. Although minor variances between dates alleged in an indictment and the dates proved at trial are permitted, these are not minor variances. In many cases, these s were sent and received nearly a year after the alleged ending date of the conspiracy and bear no relation to the elements that the government must prove at trial. 12

17 Case 1:15-cr PGG Document 64 Filed 04/11/16 Page 17 of 20 For the foregoing reasons, text messages, telephone records and messages occurring outside the conspiracy period should be excluded. 6 IV. THE COURT SHOULD EXCLUDE ANY EVIDENCE OF POLOS RELATIONSHIP WITH A FOREIGN NATIONAL AFTER SEPTEMBER 7, Defendant Polos also moves to exclude any evidence regarding a relationship between Polos and a foreign national after September 7, 2011, the date of his alleged false statement. For similar reasons as those stated in Part III, supra, all evidence after September 7, 2011, of a relationship with a foreign national the subject of the false statement charged in Count Four should be excluded. Examples of evidence to be excluded include: 1. Sign-in sheets for dancers at the Club, which include the foreign national with whom he is accused of having a relationship, in January Records of phone calls between Polos and the foreign national with whom he is accused of having a relationship in October 2011, November 2011, December 2011, October 2012 and June Evidence of meetings between Polos and the foreign national with whom he is accused of having a relationship in December 2012, February 2013 and February 2014; and 4. Communications between Polos and a third party regarding the foreign national with whom he is accused of having a relationship in September This evidence simply is not relevant to the charged conduct, which alleges that Polos made a false statement about engag[ing] in an intimate relationship with [a foreign national] for several months at the time of that affirmation. S.I. 18 (emphasis added). There are no 6 To the extent the Government seeks to introduce evidence of statements outside the time period to prove the elements of the conspiracy, the evidence allowed at trial should be limited to that which either (1) demonstrates a cover-up or concealment, or (2) that which addresses Defendants state of mind at the time the conspiracy was ongoing. However, as discussed above, evidence from after December 31, 2011, should not be introduced if it speaks only to events or Defendants state of mind after the conspiracy period. 7 While this motion does not directly affect Glover, the same principles should apply. 13

18 Case 1:15-cr PGG Document 64 Filed 04/11/16 Page 18 of 20 allegations contained in this Count that could justify the introduction of evidence for any period after the date of the alleged false statement. Evidence in this case about communications after the false statement do not speak to the falsity of the statement at the time it was made or the state of mind of the defendant making the statement. In fact, such evidence would no doubt be confusing to the jury and could lead the jury to reach a conclusion on whether an intimate relationship existed at any point, rather than the narrower question actually charged. For the foregoing reasons, any evidence regarding a relationship between Polos and a foreign national after September 7, 2011 should be excluded. 8 V. THE COURT SHOULD STRIKE SURPLUSAGE IN THE INDICTMENT Defendants Polos and Glover further move to strike surplus language and allegations from the text of the Superseding Indictment. The Superseding Indictment contains inflammatory as well as erroneous information which should be stricken and sanitized before being presented to the jury. Defendants are not charged with the offenses parenthetically stated in the Superseding Indictment and should not have to defend against uncharged conduct. Further, the prejudicial weight of the statements far outweighs any probative value and, therefore, the statements must be excluded under Rule 403 of the Federal Rules of Evidence. Paragraph 3 of the Superseding Indictment charges: As known to DAVID POLOS and GLEN GLOVER, the defendants, the Club employed numerous workers, including dancers, who were not lawfully in the United States, and other illegal activity also took place at the Club. This passage is factually incorrect and should be excluded for several reasons. 8 See note 6. To the extent the Government seeks to introduce after September 7, 2011, that speaks to the falsity of the statement made on that date or Polos state of mind when he made that statement, that evidence may be admissible, subject to other provisions of the Federal Rules of Evidence. However, mere statements made after September 7, 2011, about a relationship between Polos and a foreign national are not relevant to the charged conduct, are likely to confuse the jury and are not admissible for the reasons stated above. 14

19 Case 1:15-cr PGG Document 64 Filed 04/11/16 Page 19 of 20 First: The Club does not employ dancers. There are dancers who come to the Club and dance, but they are not employees or even independent contractors of the Club. The Government knows this. It is hard to explain why the Superseding Indictment contains this false statement. Second: Neither defendant has been (nor could they be) charged with employing unlawful workers and there is no proof that they knew of unlawful status of any employee of the Club. Third: The statement, other unlawful activity also took place at the Club is gratuitous, undefined and grossly prejudicial. Defendants cannot and should not be required to defend against other unlawful activity. Whatever probative value can be argued exists from 3 and we submit that there is none is far outweighed by the passage s prejudicial value and the passage should therefore be excluded. Fed. R. Evid VI. THE COURT SHOULD EXCLUDE OTHER GROSSLY PREJUDICIAL EVIDENCE Defendants Polos and Glover further move to exclude other grossly prejudicial evidence, including a reference to eliminate[ing] some of the colored girls made by someone other than defendants. The Government in its Complaint references an sent by a manager to a group, including Glover and Polos, containing the offensive comment, Maybe he can eliminate some of the colored girls? Complaint (Dkt. No. 1) 31(b). There are other offensive s provided in discovery with similar offensive slurs. Neither Polos nor Glover authored any of the offensive s. These s should not be permitted as the prejudice would outweigh any probative value. If any of the s truly have any legitimate probative value and we submit that they do not such offensive s should be sanitized to be used for their legitimate evidentiary value and not their salacious effect. 15

20 Case 1:15-cr PGG Document 64 Filed 04/11/16 Page 20 of 20 Because the prejudicial value of the comment Maybe he can eliminate some of the colored girls? substantially outweighs its probative value, this comment and similar grossly prejudicial evidence containing offensive statements should be excluded from trial. CONCLUSION For the foregoing reasons, this Court should grant defendants Motions in Limine (1) to exclude video surveillance of third parties engaged in graphic sexual conduct, (2) to exclude all references to lewd or salacious conduct at the club, as well as other uncharged crimes such as failure to pay payroll taxes, (3) to exclude all references to outside employment beyond the time period alleged for the conspiracy, (4) to exclude any evidence of Polos relationship with a foreign national after September 7, 2011, (5) to strike surplusage in the Superseding Indictment, and (6) to exclude or, in the alternative, sanitize, offensive s. Dated: New York, New York April 11, 2016 Respectfully submitted, FLEMING RUVOLDT PLLC GREENBERG TRAURIG, LLP By: /s/ Cathy Fleming (with consent) Cathy Fleming Megan R. Calme 1700 Broadway, 28th Floor New York, New York (212) cfleming@flemingruvoldt.com Counsel for Defendant Glen Glover By: /s/ Marc L. Mukasey Marc L. Mukasey 200 Park Avenue New York, New York (212) mukaseym@gtlaw.com Counsel for Defendant David Polos 16