UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

Criminal No. 15-cr-20382

v.

HON. VICTORIA A. ROBERTS

D-1 PAUL NICOLETTI,

MJ MONA K. MAJZOUB

Defendant.

 /

GOVERNMENT’S RESPONSE TO

DEFENDANT’S MOTION FOR DISCOVERY (Doc. #25)

The United States of America, through its undersigned counsel, 

responds to Defendant’s Motion for Discovery (Doc. #25) as follows: 

(1-4) The government admits the allegations in Paragraphs One 

through Four of the motion;

(5) The government admits that Fifth Third Bank has been 

investigated by government agencies, but has insufficient information 

upon which to form an opinion as to the other allegations contained in 

Paragraph Five of the motion;

(6-7) The government admits that the defendant has made the 

requests described in Paragraphs Six and Seven of the motion;

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(8) The government admits that there have been public 

announcements concerning certain conduct of Fifth Third Bank which 

led to certain payments by Fifth Third Bank in the form of penalties 

and compensation, but affirmatively states that those matters were 

entirely unrelated to the activities underlying the present case. 

The government admits that the defendant is seeking “consent 

orders or stipulations or admissions, as well as underlying investigative 

documents” pertaining to these other matters but affirmatively states 

that such orders, stipulations, admissions and underlying investigative 

documents are not in the possession of the government, are wholly 

irrelevant to the present case, would be inadmissible in the present case 

for that and other reasons, would not lead to any evidence helpful to the 

defense, and cannot be construed as “exculpatory information,” 

“impeachment information,” or items “material to preparing the 

defense.” For all of these reasons, as more fully developed in the 

attached Memorandum in Opposition to Defendant’s Motion for 

Discovery, the requested items are not discoverable;

(9-11) The government denies as untrue and erroneous the 

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3

allegations and legal conclusions contained in Paragraphs Nine through 

Eleven of the motion;

(12) The government admits that it opposes the relief sought in 

the defendant’s Motion for Discovery;

WHEREFORE, the United States respectfully requests that the 

Court deny the defendant’s Motion for Discovery.

Respectfully submitted,

BARBARA L. McQUADE

United States Attorney

s/CRAIG A. WEIER (P33261)

Assistant United States Attorney

211 W. Fort Street, Suite 2001

Detroit, MI 48226

Phone: (313) 226-9678

E-Mail: craig.weier@usdoj.gov 

Date: September 2, 2016

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

Criminal No. 15-cr-20382

v.

HON. VICTORIA A. ROBERTS

D-1 PAUL NICOLETTI,

MJ MONA K. MAJZOUB

Defendant.

 /

GOVENRMENT’S MEMORANDUM IN OPPOSITION

TO DEFENDANT’S MOTION FOR DISCOVERY (Doc. #28)

I. INTRODUCTION.

D-1 PAUL NICOLETTI [NICOLETTI], fourteen months after his 

four-count indictment for mortgage fraud and mortgage fraud 

conspiracy, eleven months after his arraignment, and after having 

received discovery of thousands of pages of documents and records in 

September 2015, and hundreds of pages of witness statements in 

February 2016, as well as digital recordings of consensually monitored 

conversations and transcripts thereafter, now asks this Court to order 

the government to produce what may well amount to hundreds of 

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2

thousands of additional records and investigative materials underlying 

three civil cases and enforcement actions and settlements involving 

Fifth Third Bank [FTB] in entirely unrelated matters in different 

jurisdictions. NICOLETTI asserts that these documents are 

discoverable under Fed.R.Crim.P.16(a)(1)(E)(i) as being “material to 

preparing a defense” (i.e., to rebut evidence on the element of 

materiality) and as exculpatory/impeachment information under Brady 

v. Maryland, 373 U.S. 83 (1963) and its progeny. NICOLLETTI is 

wrong. 

First and foremost, the discovery he seeks, even if establishing 

what he claims it might, can have no bearing whatsoever on the issue of 

materiality of the misrepresentations alleged in this case. The 

materiality of a misrepresentation in federal fraud cases is judged by 

application of an objective standard, that is, whether the 

misrepresentation was one capable of influencing a reasonably prudent 

lender. Materiality has nothing to do with whether FTB itself was 

influenced or whether the misrepresentation was capable of influencing 

it subjectively. Thus, the records NICOLETTI seeks, even if they 

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3

established the absurd proposition that FTB routinely made mortgage 

loans without regard to the information contained in the loan 

applications or other lending documents submitted, would have no 

bearing whatsoever on the element of materiality, defined as what 

would influence a reasonably prudent lender. They can therefore not be 

material to the defense under either Rule 16 or Brady.

Second, the government does not possess the records 

NICOLETTI seeks within the meaning of Rule 16 or Brady, because 

they are not in the possession, custody or control of the prosecution 

team in this case. 

II. THE INDICTMENT: THE NATURE AND

ELEMENTS OF THE BANK FRAUD CHARGES.

NICOLETTI is charged with conspiring to commit bank fraud and 

with aiding and abetting three substantive counts of bank fraud. 

(Doc. 1: Indictment). The indictment alleges a rather generic form of 

origination-type mortgage fraud, the conspirators being charged with 

recruiting unqualified straw buyers to purchase high-end residential 

property in Oakland County using the proceeds of multi-million-dollar 

mortgage loans from FTB both for the purchases and renovations. (Id.). 

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4

It is alleged that various false statements were used in the mortgage 

application process to obtain the loans from FTB, including false 

information about the buyers’ income, assets, intent to reside in the 

homes, the source of down payments and the costs of renovations. (Id.) 

The indictment alleges NICOLETTI’s role in the conspiracy and 

substantive bank fraud counts follows:

It was part of the scheme and conspiracy that 

D-1 PAUL NICOLETTI would knowingly facilitate 

the fraudulent real estate transactions by acting as 

the title agent, coordinating and conducting the real 

estate closings, preparing the HUD-1 Settlement 

Statements, and disbursing the proceeds of the 

mortgage loans. 

(Id. at 5-6, Ct.1, ¶11). He did so in his role as the owner of Continental 

Title Insurance Agency, Inc. (Id. at 1, ¶).

The elements of bank fraud are (1) knowingly executing or 

attempting to execute a scheme to defraud a financial institution or to 

obtain money in the control of the financial institution by means of false 

or fraudulent pretenses, representations or promises; (2) the scheme 

related to a material fact or included a material misrepresentation or 

concealment of a material fact; (3) done with the intent to defraud; and 

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5

(4) the financial institution was federally insured. (Sixth Circuit 

Pattern Criminal Jury Instructions, §10.03 (2013)). 

III. THE DISCOVERY SOUGHT IS NOT MATERIAL

TO ANY DEFENSE AND IS NOT SUBJECT TO 

DISCLOSURE UNDER RULE 16 OR BRADY.

Rule 16 requires disclosure, upon request, of “documents. . .

within the government’s possession, custody, or control. . .material to 

preparing the defense.” Fed. R. Crim. P. 16(a)(1)(E)(i). A mere 

assertion that certain documents are or might be material to preparing 

the defense, however, is not sufficient to compel disclosure. “It is a 

defendant's burden to make a prima facie showing of materiality in 

order to obtain disclosure of a document under Rule 16.” United States 

v. Dobbins, 482 F. App'x. 35, 41 (6th Cir.2012) (quoting United States v. 

Phillip, 948 F.2d 241, 250 (6th Cir.1991)). In United States v. Lykins, 

428 F.App’x. 621, 623-24 (6th Cir. 2011) the Sixth Circuit explained:

Materiality under Rule 16 has not been 

authoritatively defined in this Circuit. However, 

the Supreme Court has determined that “defense” 

within the meaning of Rule 16 means the 

“defendant's response to the Government's case in 

chief.” United States v. Armstrong, 517 U.S. 456, 

462, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996). 

2:15-cr-20382-VAR-MKM Doc # 33 Filed 09/02/16 Pg 8 of 24 Pg ID 231
6

Therefore, the rule applies only to ‘shield’ claims 

that ‘refute the Government's arguments that the 

defendant committed the crime charged.’ 

 * * *

[T]here must be an indication that pre-trial 

disclosure would have enabled the defendant to 

“alter the quantum of proof in his favor,” not 

merely that a defendant would have been 

dissuaded from proffering easily impeachable 

evidence. Id. In assessing materiality, we consider 

the logical relationship between the information 

withheld and the issues in the case, as well as the 

importance of the information in light of the 

evidence as a whole. See id.

Lykins at 624.

Brady v. Maryland, 373 U.S. 83, 87 (1963) requires the disclosure 

of information that is favorable to the defendant and “material” to the 

defendant’s guilt. Applying this rule, the Supreme Court has stressed 

that “[t]he mere possibility that an item of undisclosed information 

might . . . help[] the defense, or might . . . affect[] the outcome of the 

trial, does not establish ‘materiality’ in the constitutional sense.”

United States v. Agurs, 427 U.S. 97, 109-110 (1976). To the contrary, 

evidence or information is “material” “only if there is a reasonable 

probability that,” if disclosed, “the result of the proceeding [will be] 

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7

different.” United States v. Bagley, 105 S. Ct. 3375, 3383 (1985). Stated 

differently, the evidence or information must “put the whole case in 

such a different light as to undermine confidence in the verdict.” Kyles

v. Whitley, 514 U.S. 419, 435 (1995). To support a Brady claim, the 

burden is on the defendant to show that the desired evidence is 

favorable and material to his claim of innocence. United States v. 

Taylor, 802 F.2d 1108, 1118 n. 5 (9th Cir. 1986).1

Here, NICOLETTI speculates that there exist investigative 

reports, records and other undescribed documents which are “material 

to preparing the defense,” resulting from civil settlements, one between 

FTB and the SEC, and two with the United States Attorney’s Office for 

the Southern District of New York, that, he claims, suggest “systemic

misconduct. . .relevant to the defense” showing that “. . .Fifth Third as 

an institution, did not care about the accuracy of information in loan 

 

1 Although the Supreme Court has stated that “[t]here is no general 

constitutional right to discovery in a criminal case, and Brady did not 

create one,” (Weatherford v. Bursey, 429 U.S. 545, 559 (1977)), the 

government is mindful that a “district court has general authority to 

order pretrial disclosure of Brady material to ensure the effective 

administration of the criminal justice system.” United States v. 

Starusko, 729 F.2d 256, 261 (3rd Cir.1984). 

2:15-cr-20382-VAR-MKM Doc # 33 Filed 09/02/16 Pg 10 of 24 Pg ID 233
8

applications.” (Doc.#28: Defendant’s Brief at 6, 10). These 

investigative reports, records and documents, he asserts, are “material 

to preparing the defense” under Rule 16 and “material” within the 

meaning of Brady, because they tend to rebut an element of bank fraud, 

namely, that “the scheme related to a material fact or included a 

material misrepresentation.” (Sixth Circuit Pattern Criminal Jury 

Instructions, 10.03 (2013)). But NICOLETTI is simply wrong about this 

element, and has confused or conflated two separate and distinct 

concepts: materiality and reliance. Although the discovery he seeks 

may be relevant to whether FTB relied on the misrepresentations,2 it is 

certainly not relevant to whether the misrepresentations were material.

It is well settled that the element of the materiality of a 

 

2 Nicoletti has not even really shown that the requested items would 

tend to show that FTB did not rely on the misrepresentations in this 

case. First, none of the settlements are shown to involve the mortgages 

in this case. Second, none of the settlements concern any allegation that 

FTB itself practiced or accepted fraud in the origination of mortgages; 

rather, they involve failing to report to the SEC at the proper time its 

intent to sell bad mortgages (Doc. 28-2, 28-3), its sale of mortgages as 

“insurable” by the FHA when it allegedly knew they were not (Doc. 28-

4, 28-5), and its buyback of $25m of defective mortgages from Freddie 

Mac (Doc. 28-6).

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misrepresentation in a fraud case is to be determined using an objective 

standard, and that reliance on a false statement is not an element of 

the offense of bank fraud. Indeed, these concepts are so well ingrained 

that they have been incorporated into the Pattern Criminal Jury 

Instructions for this Circuit:

A misrepresentation or concealment is ‘material’

if it has a natural tendency to influence or is 

capable of influencing the decision of a person of 

ordinary prudence and comprehension.

* * *

Moreover, it is not necessary that the government 

prove that the alleged scheme actually succeeded 

in defrauding anyone, that someone relied on the 

misrepresentation or false statement, or even that 

the financial institution suffered a loss.

(emphasis added)(Sixth Circuit Pattern Criminal Jury Instructions, 

§10.03, ¶¶2(D), 3 (2013)). As noted in the committee commentary:

As to whether the fraud must be capable of 

deceiving persons based on a subjective (“however 

gullible”) standard or an objective (“person of 

ordinary prudence”) standard, in most cases the 

objective standard provided in paragraph (2)(D) 

of the instruction is appropriate. The Sixth 

Circuit has stated that the standard to be used is 

an objective one. See, e.g., United States v. 

Jamieson, 427 F.3d 394, 415-16 (6th Cir. 2005); 

Berendt v. Kemper Corp., 973 F.2d 1291, 1294 

(6th Cir. 1992); Blount Fin. Servs., Inc. v. Walter

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E. Heller and Co., 819 F.2d 151, 153 (6th Cir. 

1987); United States v. Van Dyke, 605 F.2d 220, 

225 (6th Cir. 1979); and United States v. Bohn, 

2008 WL 2332226 at 9, 2008 U.S. App. LEXIS 

12474 at 26 (6th Cir. 2008) (unpublished).

(Committee Commentary Instruction 10.03, Sixth Circuit Pattern 

Criminal Jury Instructions). The Committee went on to observe that,

in a case where a vulnerable victim is targeted because of their 

vulnerability, a subjective determination of materiality should be 

considered. (Id.). 

Other circuits agree. The Ninth Circuit explained that the 

objective standard is appropriate because the inquiry turns on the 

defendant’s state of mind, not the lender’s. “The Supreme Court has 

confirmed that the government need not prove reliance to establish 

materiality.” United States v. Blixt, 548 F.3d 882, 889 (9th Cir. 2008). 

“[A] misrepresentation may be material without inducing any actual 

reliance. What is important is the intent of the person making the 

statement that it be in furtherance of some fraudulent purpose.” Id.

(citation omitted). Accordingly, “[t]here is no requirement that the 

statements actually influence those to whom they are addressed.” 

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United States v. Jenkins, 633 F.3d 788, 802 n.3 (9th Cir. 2011). 

The objective, defendant-focused test for materiality means that a 

lie is material without regard to whether the person to whom the lie is 

directed actually knows the truth and cannot possibly act in reliance on 

the lie. A false statement to a person who knows of the statement’s 

falsity and would not rely on it is still material. United States v. 

Goldfine, 538 F.2d 815, 820 (9th Cir. 1976). See also, United States v. 

Lupton, 620 F.3d 790 806-807 (7th Cir. 2010) (“When statements are 

aimed at misdirecting agents and their investigation, even if they miss 

spectacularly or stand absolutely no chance of succeeding, they satisfy 

the materiality requirement.”); United States v. Mehanna, 735 F.3d 32, 

54-55 (1st Cir. 2013) cert. denied, No. 13-1125, 2014 WL 1052438 (U.S. 

Oct. 6, 2014) (“[W]here a defendant’s statements are intended to 

misdirect government investigators, they may satisfy the materiality 

requirement of section 1001 even if they stand no chance of 

accomplishing their objective.”).

In fact, “a misrepresentation may be material even if evidence 

demonstrates that the misrepresentation would not have actually 

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12

influenced or actually deceived the lender.” United States v. Haischer, 

2:11-CR-00267 MMD CWH, 2012 WL 5288006, *3 (D. Nev. Oct. 24, 

2012); see, United States v. Litos, No. 2:12-cr-00175-PPS, 2014 WL 

2216096, at *4 (N.D. Ind. May 28, 2014) (“[T]he fact that the fraud was 

a lot easier to commit than the defendants expected doesn’t mean that 

the defendants didn’t intend to commit fraud, or that the information 

wasn’t objectively material with respect to a loan application.”); United 

States v. Lankford, No. 2:10-CR-00398 AWI BAM, 2013 WL 2295988, 

*2-3 (E.D. Cal. May 24, 2013); United States v. Maximov, 2:10-CR-822 

PHX DGC, 2011 WL 4915162, *1-*2 (D. Ariz. Oct. 17, 2011); see also 

United States v. Reynolds, 189 F.3d 521, 525 (7th Cir. 1999) (“Reliance 

is not an element of proving a § 1344 violation. . . Evidence that the 

bank would not have relied on [defendant’s] representations, and 

instead would have made an exception for him, does not establish that 

the representations were immaterial; that is, the representations would 

not have a tendency to influence the bank’s decision-making.”); United 

States v. Menichino, 989 F.2d 438, 440 (11th Cir. 1993) (quotations 

omitted) (“So long as a defendant, in order to cause a bank to take some 

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13

action, makes a misrepresentation that a reasonable bank would 

consider important in deciding whether to act as the defendant wishes, 

and intends by this representation to deceive the bank, in the 

furtherance of fraud, the misrepresentation is material, even if the 

bank does not act as the defendant desires or does not actually rely on 

the misrepresentations”). 

Because reliance is not an element of any of the counts of 

conviction in this case, even if NICOLETTI’s arguments are credited, 

the lies submitted to FTB are still material because they had a natural 

tendency to influence or were capable of influencing a reasonably 

prudent lender. The relevant question is the objective tendency or 

capability of a false statement to influence a decision, and not the 

subjective or actual reliance on that statement by the victim. That is 

“[b]ecause the focus of the mail fraud statute, like any criminal statute, 

is on the violator, [and] the purpose of the element of materiality is to 

ensure that a defendant actually intended to create a scheme to 

defraud.” United States v. Svete, 556 F.3d 1157, 1165 (11th Cir. 2009); 

see, Blixt, 548 F.3d at 889 (“‘A misrepresentation may be material 

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without inducing any actual reliance. What is important is the intent of 

the person making the statement that it be in furtherance of some 

fraudulent purpose.’”), quoting United States v. Halbert, 640 F.2d 1000, 

1009 (9th Cir. 1981).

Because this concept is so well established, the First and Ninth 

Circuits have adopted a bright-line test for the materiality of a 

misrepresentation in a bank fraud case. In United States v. Appolon,

715 F.3d 362, 368 (1st Cir. 2013), the court explained that “[t]he fact 

that the loan application explicitly sought this information [income, 

assets, intent to reside at the property] from the applicant indicates 

that the responses were capable of influencing its decision.” Likewise, 

in United States v. Prieto, 812 F.3d 6, 14 (1st Cir. 2016), the Court 

observed:

Even in the face of anecdotal evidence that, at the 

time, residential lenders were devoting scant 

resources to the verification of applicants’ income 

levels, it is nevertheless fair to presume that a 

loan applicant’s stated income level and plan for 

using the property in question would have a 

“natural tendency” to influence a lender’s decision. 

Why else, after all, did the lender demand the 

information and Prieto take the risk of providing 

false information?”

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Recently, the Ninth Circuit, relying on these decisions, held “as a 

matter of law, that when a lender requests specific information in its 

loan applications, false responses to those specific requests are 

objectively material for purposes of proving fraud.” United States v. 

Lindsey, --Fed.Appx.--, 2016 WL 3552955 (9th Cir. June 28, 2016). 

There is no doubt in this case that NICOLETTI has 

misapprehended the meaning of the element of materiality. He claims 

first that the government “must prove beyond a reasonable doubt that 

the decision-makers at Fifth Third would have refused to make the 

loans...had they known that facts that [sic] were being misrepresented,” 

(Doc.28: Defendant’s Brief at 6). This is wrong on two levels. First, it 

employs a subjective test: what the decision-makers at Fifth Third

would have done rather than what a reasonably prudent lender would 

have done. But, second, it suggests that the false statement must be the 

sole basis for the decision rather than “capable of influencing” it. 

NICOLETTI also asserts that “[i]f the decision-makers at Fifth Third 

did not care whether representations in loan applications were accurate

so long as the representations qualified the applicants for the loans they 

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were seeking, Fifth Third cannot have been defrauded.” (Id.).

This characterization clearly shows that NICOLETTI believes that the 

test for materiality is subjective rather than objective. But the law is 

clear. It really does not matter what the decision-makers at FTB 

thought, what they may or may not have done, whether they were 

negligent or reckless or even complicit in the fraud. The test for 

materiality is whether the misrepresentation “has a natural tendency to 

influence or is capable of influencing the decision of a person of ordinary 

prudence and comprehension.” (Sixth Circuit Pattern Instruction, 

§10.03(2)(D))3.

Because the test to be employed to determine materiality is an 

objective standard, what FTB knew or did not know, or believed or did 

 

3 Taking Nicoletti’s argument to its logical conclusion also exposes its 

fallacy. Assuming that his assertions are correct and that FTB as an 

institution was simply giving away money knowing that the mortgages 

would be securititized and sold upstream, thus becoming implicit in

fraud against the purchasers of the mortgages, it would still be 

important, subjectively, that the loan applications and related 

documents contain the misrepresentations, and FTB would not have

made loans without them, so as to insure the mortgages would be 

marketable upstream. Either way, applying the correct objective 

standard, or applying the subjective standard as Nicoletti erroneously 

espouses, in this scenario, the misrepresentations are material.

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17

not believe, is entirely immaterial to the determination, and, thus, not 

material to the defense. Because it is NICOLETTI’s burden to show 

the discovery he seeks is material, either under Rule 16 or Brady, his 

motion should be denied. 

IV. EVEN IF NICOLETTI COULD SHOW THE REQUESTED 

INFORMATION IS MATERIAL TO THE DEFENSE, IT IS 

NOT WITHIN THE POSSESSION, CUSTODY, OR 

CONTROL OF THE PROSECUTION IN THIS CASE. 

NICOLETTI’s request should also be denied because the records 

he seeks are not within this EDMI prosecution’s possession, custody or 

control. U.S. Attorneys exercise plenary authority in their respective 

districts. 28 U.S.C. § 547 (2006); U.S.A.M. § 9-2.001. The U.S. Attorney 

for the EDMI cannot direct an out-of-district U.S. Attorney, or his 

assistants. 28 U.S.C. § 542. Only the Attorney General can resolve a 

dispute between offices. 28 U.S.C. § 541; 28 C.F.R. § 0.195 (2013). 

Rule 16 does not contemplate the USAO-EDMI producing, as material 

to the defense, items not within its “possession, custody, or control.” 

Fed. R. Crim. P. 16(a)(1)(E)(i). NICOLETTI bears the burden of 

establishing that the information sought in his discovery request is 

“within the possession, custody or control” of the government in this 

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18

case. United States v. Santiago, 46 F.3d 885, 893 (9th Cir. 1995). He has 

failed to do so, as the settlement information and documents underlying 

it are in the possession of the S.E.C., the SDNY United States Attorney, 

and their investigators, and have never been in the possession, custody 

or control of the prosecution team in this case.

Similarly, while Brady places an affirmative obligation on the 

prosecution “to learn of any favorable evidence known to the others 

acting on the government’s behalf in this case,” Kyles v. Whitley, 514 

U.S. 419, 437 (1995), courts have held that “Kyles cannot be read as 

imposing a duty on the prosecutor’s office to learn of information 

possessed by other government agencies that have no involvement in 

this investigation or prosecution at issue.” United States v. Merlino, 

349 F.3d 144, 154 (3d Cir. 2003) (citing United States v. Morris, 80 F.3d 

1151, 1169 (7th Cir. 1996)) (prosecutor didn’t have obligation to turn 

over BOP tapes); see also Morris, 80 F.3d at 1169-70 (in prosecution for 

mail and wire fraud, prosecutor had no duty to search for, and was not 

charged with knowledge of, allegedly exculpatory information held by 

the Office of Thrift Supervision, the Securities and Exchange 

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19

Commission, or the Internal Revenue Service, where the prosecutor was 

unaware of the existence of the information and those agencies were not 

part of the investigation or prosecution team). 

Here, NICOLETTI seeks reports, documents and records created 

or obtained during the investigations leading to a settlement between 

the SEC and FTB. The SEC has never been part of the prosecution 

team in this case. Next, he seeks the same information stemming from 

an $85 million settlement in a civil case investigated by SIGTARP. 

SIGTARP has never been part of the prosecution team in this case. 

Lastly, NICOLETTI seeks information about a $25m civil settlement 

between Freddie Mac and FTB, apparently also out of the SDNY, 

referenced in a Wall Street Journal article he cites. There is no 

indication who investigated this matter, but no federal agent involved 

in this case took part. As NICOLETTI points out, the Ninth Circuit 

has held that information “is ‘in the possession of the government’ if the 

prosecutor ‘has knowledge of and access to the documents sought by the 

defendant.’” Santiago, 46 F.3d at 893. The prosecution team in this case 

does not have knowledge and access to the documents NICOLETTI 

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20

seeks. Consequently, there is no obligation to produce them under 

either Rule 16 or Brady. 

V. CONCLUSION.

Because the discovery NICOLETTI seeks, even if establishing 

what he claims it might, can have no bearing on the issue of materiality 

of the misrepresentations at issue here, and because the government 

does not possess those records within the meaning of Rule 16 or Brady, 

NICOLETTI’s Motion for Discovery should be denied.

Respectfully submitted,

BARBARA L. McQUADE

United States Attorney

s/CRAIG A. WEIER (P33261)

Assistant United States Attorney

211 W. Fort Street, Suite 2001

Detroit, MI 48226

Phone: (313) 226-9678

E-Mail: craig.weier@usdoj.gov 

Date: September 2, 2016

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21

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

Criminal No. 15-cr-20382

v.

HON. VICTORIA A. ROBERTS

D-1 PAUL NICOLETTI,

MJ MONA K. MAJZOUB

Defendant.

 /

CERTIFICATE OF SERVICE

I hereby certify that on September 2, 2016, I filed the foregoing 

document with the Court via CM/ECF, which will serve notice on counsel of 

record, John Minock, Esq. of 339 E. Liberty Street, Suite 200, Ann Arbor, 

Michigan 48104

/s Craig A. Weier 

Craig A. Weier (P33261)

Assistant United States Attorney

211 West Fort Street, Suite 2001

Detroit, Michigan 48226-3211

(313) 226-9678

2:15-cr-20382-VAR-MKM Doc # 33 Filed 09/02/16 Pg 24 of 24 Pg ID 247