UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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UNITED STATES OF AMERICA, :

 - v. - : S2 07 Cr. 348 03(RPP)

RAVEENDRA PUTTARAMU, :

LOKESH BHAT,

SRINIVAS KASI, :

Defendants. :

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GOVERNMENT’S MEMORANDUM OF LAW IN OPPOSITION TO

THE DEFENDANT’S MOTION FOR A NEW TRIAL

MICHAEL J. GARCIA

United States Attorney for the

Southern District of New York

Attorney for the United States

of America.

SHARON E. FRASE

Assistant United States Attorney

- Of Counsel -

Case 1:07-cr-00348-RPP Document 38 Filed 02/20/2008 Page 1 of 30
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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UNITED STATES OF AMERICA, :

 - v. - : S2 07 Cr. 348 (RJP)

RAVEENDRA PUTTARAMU, :

LOKESH BHAT,

SRINIVAS KASI, :

Defendants. :

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GOVERNMENT'S MEMORANDUM OF LAW IN OPPOSITION TO

THE DEFENDANT'S MOTION FOR A NEW TRIAL

The Government respectfully submits this memorandum of law

in response to the motion by defendant Srinivas Kasi, pursuant to

Rule 33 of the Federal Rules of Criminal Procedure, for a new

trial. In support of his motion, the defendant argues that the

jury was impermissibly tainted and prejudiced by the Government's

reference in its closing rebuttal argument to a wire transfer the

defendant made one day after his co-conspirators were arrested.

For the reasons that follow, the defendant's motion should be

denied in its entirety.

BACKGROUND

On July 31, 2007, Raveendra Puttaramu, Lokesh Bhat and

Srinivas Kasi were charged in a three-count superseding Indictment,

S2 07 Cr. 348 (the "Indictment"). Count One charged the defendants

with conspiracy, in violation of 18 U.S.C. § 371. The objects of

the conspiracy were (a) to violate Title 7, United States Code,

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Section 2024, which prohibits food stamp fraud; and (b) to violate

Title 18, United States Codes, which prohibits stealing money or

things of value from the United States. Count Two charged the

defendants with the substantive crime of food stamp fraud, in

violation of 7 U.S.C. § 2024. Count Three charged the defendants

with the substantive offense of stealing money or a thing of value

from the United States, in violation of 18 U.S.C. § 641. 

Puttaramu and Bhat pleaded guilty to the Indictment prior

to the start of the trial. Kasi was convicted on all counts,

following a five-day jury trial, on January 9, 2008. 

A. The Evidence at Trial

The evidence at trial established beyond a reasonable doubt

that Kasi was the leader of a conspiracy to defraud the federal

government of hundreds of thousands of dollars from at least

January 2006 until April 12, 2007, by giving customers at the store

he owned, Akhila, cash in exchange for their food stamp benefits.

The evidence included (1) the testimony of Puttaramu, who pleaded

guilty pursuant to a cooperating agreement and described the inner

workings of the scheme; (2) several witnesses from the United

States Department of Agriculture ("USDA") Food and Nutrition

Service ("FNS") who, among other things, described the rapid

expansion of food stamp redemptions at Akhila, which were far

greater than comparably sized grocery stores; (3) video and audio

tapes of conversations involving confidential informants, who

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actually redeemed cash for food stamps at Akhila;(4) records from

the FNS demonstrating the huge number of food stamps redemptions at

Akhila;(5) various bank records for Akhila and Kasi accounts, which

established that Kasi has sole control over the monies received by

Akhila as food stamp reimbursements, and (6) other documentary

evidence, including a notebook used by Puttaramu to maintain

records of the food stamp redemptions, that he reviewed with Kasi

almost every evening.

At trial, Puttaramu testified that when he came to the

United States in 2004 to work at Akhila, Kasi trained him to run

the store, including the cash register, accounting, pricing, and

purchasing. (Tr. 147, 150, 167-68). Puttaramu was working at

Akhila when the store starting accepting food stamp benefits for

payment, and it was Kasi who trained Puttaramu on how to work the

Electronic Benefits Transfer ("EBT") card reader. (Tr. 152, 157,

160-61). As Puttaramu testified, Kasi initially instructed him to

turn down customers who asked for cash in exchange for food stamp

benefits. (Tr. 163-65). But in the fall of 2004, in order for

Kasi to make more money from his store, Kasi started trafficking

with food stamp recipients from the neighborhood. (Tr. 174-76).

Specifically, Kasi would redeem a quantity of food stamp benefits

for cash, and would charge a fee of typically 30 percent of the

value of the transaction. For example, for a food stamp redemption

valued at $100, the customer would receive $70, and Akhila (and

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therefore Kasi) would receive $30. When Akhila’s food stamp bank

account was reimbursed by the FNS for the entire value of the $100

transaction, therefore, the $30 transaction fee would be profit to

Kasi for the sale of the food stamp benefits. According to

Puttaramu, this practice began before Kasi started a new full time

job in 2005, and before Lokesh Bhat, Kasi's nephew, bought into the

business and took over responsibility for the store's daily

operation. (Tr. 170-71, 176, 198-201). When Bhat came by to look

at the store before buying in, Kasi explained the food stamp fraud

to Bhat. (Tr. 204). 

From the beginning, Kasi was intimately involved in the

fraud. Kasi himself devised the ground rules for the scheme,

instructing Puttaramu to give customers seventy cents on the

dollar. (Tr. 177, 236). Kasi also instructed Bhat and Puttaramu

to engage in certain subterfuges to hide these transactions from

authorities. Kasi directed Bhat and Puttaramu to require

customers to buy a small amount of food to help hide the

transaction, and that larger transactions for amounts like $150

should be processed as two smaller transactions, with a delay in

between. (Tr. 236-240). According to a witness from the FNS,

Preston Mears, these patterns, which are some of the indicators of

fraud, appear in the electronic food stamp redemption data for

Akhila maintained by the FNS. (Tr. 394-95). 

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Although Kasi stopped working at the store full time after

2004, the evidence showed that he stayed involved in the food stamp

fraud right to the end. First, Puttaramu testified that Kasi

continued to work at the store occasionally, and that when Kasi was

behind the counter he redeemed food stamps for cash. (Tr. 240-41).

Moreover, after Kasi stopped working regularly at the store,

Puttaramu fully briefed Kasi about the store's operations on a

daily basis. Puttaramu testified that every night when he returned

to Kasi's apartment from the store, he had to account for the day's

cash flow, including the food-stamps-for-cash redemptions. (Tr.

170-72, 238). He did this in notebooks that he transported to and

from the store, along with the opening and closing balances from

the register. (Tr. 169, 173). Puttaramu demonstrated this to the

jury during trial, and explained, using his own contemporaneously

written notebook, how he had to account to Kasi for every dollar

from the opening balance to the last purchase of the day, using

April 6 and 11, 2007 as examples. (Tr. 255-272). In addition to

all of the store’s cash expenses for the day, each individual food

stamp trafficking transaction was written down in a series of

columns. (Tr. 255-56). The total food stamp redemptions and the

total register receipts were also recorded, as was the intake from

Lotto and Western Union. (Tr. 257-58). 

Kasi was equally well-versed in Akhila's larger financial

picture, as confirmed from a number of sources. First, Paul

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Covington, Kasi's accountant, testified that Kasi provided

Covington with monthly and quarterly sales figures well after Bhat

had taken over the store. Kasi also had a rough idea of the costs

and expenses for the store. He provided a detailed list of daily

receipts (although not the underlying documentation) to Covington

for Akhila's 2004 tax returns. (Tr. 475, 477). In 2006, Kasi also

provided a cost of goods sold figure (albeit an unsupported one) to

Covington for the store’s 2005 tax returns. (Tr. 480-81, 485-87).

Kasi wrote the monthly checks for rent and utilities. (Tr. 558-

61). He purchased food from P. East Trading and Goya by check.

(Tr. 561–62). He saw the total cash expenses every day from

Puttaramu’s accounts. (Tr. 269-71). 

Covington's testimony regarding the sales figures included

in the store's tax filings corroborated Puttaramu, who testified

that total monthly sales were $22,000 in 2004, between $24,000 and

$27,000 in 2005, between $28,000 and $32,000 in 2006, and between

$32,000 and $34,000 in the first quarter of 2007. (Tr. 243). 

Puttaramu also confirmed the cost of goods sold per month --

$16,000 in 2005, and $19,000 to $20,000 in 2006 (Tr. 244) -- and

the monthly expenses, which remained constant at $9,500 to $10,000

until 2007, when they increased to $12,000. (Tr. 245-46). 

Of course, despite the fact that Kasi was well aware of the

actual monthly sales and costs of good sold, Kasi himself well knew

that Akhila was receiving much larger monthly amounts in food stamp

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redemptions than either actual monthly sales or costs of goods

sold. In particular, therefore, in addition to the evidence that

Kasi knew roughly how much the store took in and what it cost to

run Akhila every month, the Government established that Kasi

retained full control over the account at Valley National Bank set

up to receive food stamp money (the "Valley National Account").

Kasi was the only signatory on the checks from Valley National, and

the account statements went to Kasi's apartment on East 95th

Street. (Tr. 558; see also Valley National Bank statements at GX

15 and 16). He therefore was well aware of how much money was

coming into and out of the Valley National Account every month. 

Kasi’s access to the Valley National Account, into which

all of the food stamp redemptions were deposited, made clear that

it was Kasi who stood to benefit from this illegal food-stamp-forcash scheme. Moreover, because Kasi was the only person who had

access to these funds, Kasi played an ongoing, critical role in the

conspiracy (besides simply reaping the benefits of the fraud he

organized). In the second half of 2005, as the number of illegal

food-stamp-for-cash redemptions at the store grew, there was not

enough cash from the store to hand out to customers, particularly

in the first two-thirds of the month. Puttaramu explained how he

would have to go downtown to meet Kasi at his job, and how he and

Kasi would go to Valley National Bank to withdraw cash which

Puttaramu would bring back to the store. (Tr. 212-218). This

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Indeed, the fact that Puttaramu had such regular contact

with Kasi, including almost every night after work, supports the

Government’s argument that it was a fair inference for the jury

to draw that Kasi learned almost immediately that Puttaramu had

been arrested, and certainly before he sent the $46,000 wire

transfer to India that is the subject of Kasi’s new trial motion.

8

practiced continued until the day Puttaramu was arrested. (Tr.

219).1 

From evidence that Kasi had complete control over the food

stamp funds, the Government also established that Kasi received

fraud proceeds. For the period January 1, 2006 to April 12, 2007,

the FNS deposited approximately $833,860 into the Valley National

Account by the FNS. (Tr. 555). From Puttaramu's testimony the

Government established that only a small portion of that figure,

about 5%, represented food stamp benefits that were actually

redeemed for food. (See Tr. 271-72). Of the approximately

$800,000 in remaining food stamp funds, the Government established

through Puttaramu that Akhila disbursed 70%, or approximately

$560,000, to food stamp customers in the form of cash, leaving

approximately $240,000 in fraud proceeds that Kasi alone

controlled. (Tr. 177). 

As forensic accounting expert Gerald Levy testified, some

of the fraud proceeds in the Valley National Account were used for

business expenses such as rent, utilities, and purchases of dry

goods. (Tr. 559-62). But Mr. Levy also identified deposits Kasi

made into his Commerce Bank accounts, checks Kasi wrote to pay off

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the balances on his credit cards, and ATM cash withdrawals, all

from the Valley National Account. (Tr. 561-62). In the 15-months

before Puttaramu and Bhat's arrests, these categories totaled at

least $43,000. (See GX 3505-N). During the entire time that Akhila

was redeeming food stamp benefits, such payments and withdrawals

totaled more than $92,000. (GX 3503-E). Finally, Mr. Levy

identified a $46,000 wire transfer that Kasi made to his wife’s

account in India from his Commerce savings account on April 13,

2007, the day after Puttaramu and Bhat were arrested. (Tr. 578-

79).

B. The Government’s Summation

The Government argued in summation that food stamp fraud

clearly was happening at Akhila from January 2006 to April 12,

2007, and that the only real question the jury had to resolve was

Kasi's knowing participation in the fraud. Kasi's knowledge was

the central issue throughout the jury address, from the opening

lines describing Kasi's role not only "behind the counter" but also

"behind the scenes" (Tr. 679), to the final moments of the

summation:

He is the president and owner of a company. Its

his financial future, his money, he is the person

writing these checks out to cash, and just ask

yourselves, is there any way he couldn't know what

was going on, between that and the size of the

redemptions that were coming into his bank account

that only he . . . control[led].

(Tr. 705-06; see also Tr. 692 ("The only thing at issue with the

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food stamp fraud charge is the defendant's involvement"); 693

("[T]he key question here is: Did Kasi take part in the theft?

Did Kasi take part in the fraud?"); 695 (defendant's role "really

the only issue in this trial"); 701 ("What about when he

transferred this operational responsibility to Mr. Bhat in 2005?

What other evidence do we have that Kasi continued to stay involved

in the conspiracy?").) 

The Government turned first to the evidence that the fraud

started when Kasi was still at Akhila every day, pointing to the

presence of large (over $50 and over $100) transactions "right off

the bat" in October and December of 2004. (Tr. 700-701.) The

Government then discussed Kasi’s role after Bhat arrived on the

scene, highlighting much of the evidence discussed above, including

the fact that Kasi did not give up control of Akhila's bank

accounts (Tr. 702), that he was the sole signatory on the Valley

National Account (id.), that the bank statements were mailed to his

home (Tr. 703), that Kasi fed financial information to the

accountant, Paul Covington (Tr. 701), and that Kasi was pulling

cash out of the Valley National Account in amounts much larger than

necessary for the operation of the store (Tr. 703-04).

C. The Defense Summation

The defense summation focused almost entirely on Kasi's

claim that he had washed his hands of the business in 2005 and

since then had not been involved in the store's day-to-day

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operations. (See Tr. 708 ("my client gets a job, a full-time job,

with a construction company in New York City"); 708-09 (“He also

brings in Mr. Bhat," who is "a part owner"); 716 ("What did he do?

He relied upon his nephew. He relied upon this gentleman from

India to operate the business."); 717 ("I am not going to say they

didn't show that there was a fraud, but did they prove beyond a

reasonable doubt that my client aided and abetted that? Or is the

reasonable question, did he not know? And was he not told? And was

he left in the dark about this?")). In support of this argument,

the defense pointed to the lack of proof that Kasi was at the store

and doing food stamp transactions after 2004: 

Now, in 2004, 2005, which is not part of the

indictment and not part of the crimes charged, Bhat

and Puttaramu are running the show. Then in 2006,

as you saw, these redemptions skyrocketed. They

went up exponentially. My client, once again, the

evidence indicates that he was not there. There

was not a single customer that identified my client

that they could find, not a single independent

verification by videotape or audiotape or security

camera that my client was present at the store

during any of the redemptions.

(Tr. 713). 

Not only was Kasi supposedly not there, but according to

the defense, he wasn't being briefed every day as Puttaramu

claimed. Referring to Government Exhibit 8, the notebook in which

Puttaramu had been noting down the daily cash flows for March and

April 2007, defense counsel stated: 

[T]here is nothing in that book, zero, that

indicates my client ever saw it, that he ever signed

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anything on it, that he ever initialed, that he ever

reviewed it, other than Puttaramu saying, Yeah,

every night I brought it home and showed it to him

and gave it to him and he said, OK, and we discussed

it all. Well, of course he is going to say that,

right? Because that shows knowledge. That shows

that he is part of the whole agreement. That shows

he aided and abetted it.

(Tr. 714). 

The defense also submitted that the sheer size of the food

stamp redemptions – as evidenced by the deposits in the Valley

National Account – was not enough reason why Kasi should have known

of the fraud at the store:

Much will be said that when the food stamp account

keeps going up, I guess Kasi should have known,

right? But what we don't have here is any proof

whatsoever by any form really of what the operating

expenses were at the store. If you're making

$90,000, it would be nice, if there is a fraud going

on and someone came to you and said, Here is the

balance sheet and it shows that we only sold $5,000

worth of goods, but there is no balance sheet for

any of this time. There is no information provided

at all. 

(Tr. 716).

The defense also downplayed the significance of Kasi's

control over the bank accounts, and Puttaramu's twice-weekly visits

to Kasi for cash in the middle of the workday. (See Tr. 709 ("Yes,

the accounts are in Kasi's name. But from 2005 to 2007, where is

Kasi? Where is he? He is at his job in midtown. He is not up at

Akhila in Harlem swiping the cards"); 714 ("[Puttaramu] says to

Kasi I need X, and Kasi just gives him a check and he goes to

Valley National."). Instead, the defense claimed that it was

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Puttaramu and Bhat who "controll[ed] the finances" and "took the

money." (Tr. 716). 

Finally, defense counsel asked the jury to scrutinize the

Government's evidence that Kasi deposited funds from the Valley

National Account into his personal accounts at Commerce Bank,

thereby placing directly at issue the transfer of fraud proceeds

into and out of the Commerce accounts. (Tr. 717). 

D. The Government’s Rebuttal

 The Government began its final address by returning to the

true nature of the business arrangement between Kasi and Bhat:

Bhat may have worked in the store but he didn't run

the business like he was supposed to under the terms

of the agreement. Kasi did. Kasi maintained

control of all the bank accounts; most importantly,

the Valley National Bank account. That's where all

the EBT transfers went in, all the way up through

2007. Look at those records, which are in evidence.

You'll see, like I said, that they went to Kasi's

apartment, that he was the only signatory. But also

look at the agreement and what it says about Mr.

Bhat's responsibilities for doing things like paying

rent and utilities. Look at the checks that are

drawn on the Valley National Bank account in 2006

and I think even in 2007. Kasi is the one paying

rent on these store, paying Con Ed, paying the

utility bills, making payments to vendors like P.

East Trading and Goya Food. 

(Tr. 722). The Government also pointed to a July 2007 letter that

Kasi's attorney, at Kasi's direction, sent to Bhat months after

Bhat's arrest, to make it appear as though Kasi was really trying

to make Bhat live up to his part in the agreement. Referring to the

letter’s insistence that Bhat comply with the promise set forth in

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the agreement to pay Kasi $3,000 a month, the Government asked,

“[H]e can't be serious, right, because Kasi controlled the bank

accounts into which all the money for the business went? So how

could Bhat pay Kasi $3,000 a month?" (Tr. 723). Later the

Government argued that "this letter is designed to make sure that

someone thinks that Kasi didn't know what was going on. But you

can see through this letter and you can see through the agreement."

(Tr. 723). 

The Government emphasized how unlikely it was that

Puttaramu or Bhat were taking the proceeds of the fraud, noting

that Kasi "kept a tight rein on the finances" and "would have

noticed if something was missing." (Tr. 724). Indeed, "if

Puttaramu had drawn a check on cash from Valley National Bank or

some money was missing at the end of the day, he was answerable for

it." (Tr. 724). Furthermore, "Kasi would have stopped Puttaramu

from going to the bank or taking responsibility for carrying cash

to and from the apartment and, as Puttaramu told you, that never

happened." (Tr. 724). The Government then returned to Kasi's real

understanding about the reason for all the cash withdrawals from

the Valley National Bank Account, pointing out:

Kasi was writing checks every day, or, I'm sorry,

twice a week in the first early part of the month

when the food stamp business was really cooking,

when they ran out of money in the middle of the day,

Kasi was writing checks and walking Puttaramu to the

bank and handing over cash. Don't you think if he

didn't know what was going on, he would be asking

some questions like what's this money for, or, boy,

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you guys really should slow down, I don't even know

what you're spending this money on? I mean, after

all, it's his money. But he doesn't do that, and he

doesn't do that because he knows exactly what the

money is for. And Kasi and Puttaramu don't need to

discuss over the phone, and Lokesh and Kasi don't

need to discuss over the phone why Puttaramu was

coming downtown to midtown to pick Kasi and check up

and go get cash. They don't need to discuss it

because the fraud started, like we showed, back in

2004, and Kasi knew what it was for. So of course

they are not going to have discussions over the

phone. They're going to give him a number, tell him

what they need for that day, and go and get it. 

(Tr. 725). 

The Government directly answered the defense's question

regarding who stood to benefit from the fraud -- Kasi. "He

controlled the purse strings so he stood to make the money." (Tr.

725) Even though Kasi had "stepped back from the business . . . at

the time where it really began to take off," he "kept his hand in

the profits." (Tr. 725-26). Furthermore, the Government argued,

Bhat and Puttaramu could not have been stealing from Kasi.

Everything that is coming into the store during the day is leaving

in the form of cash payments to food stamp customers. (Tr. 726).

The 30% commission was being deposited directly into the Valley

National Account, from which only Kasi can withdraw money. 

The Government also addressed the defense's argument that

Kasi did not have a point of reference from which he could tell

that food stamp redemptions were outpacing sales. (Tr. 727). The

Government argued that, in reality, Kasi had a very good

understanding of this information and was providing it to Paul

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Covington well into 2006. (Tr. 727-28). 

After reviewing more of the evidence that corroborated

Puttaramu's testimony, the Government returned to the issue of

Kasi's knowledge one last time, and drew the jury’s attention to

yet another piece of evidence "in considering whether or not Mr.

Kasi was acting throughout this whole time with knowledge of

exactly what was going on and that he was directing it." (Tr.

729). The Government referred back to the end of Gerald Levy's

direct, (Tr. 578-79), in which he identified a $46,000 wire

transfer from Kasi's Commerce Bank savings account: 

April 13th, the day after Puttaramu and Bhat are

arrested, what does Mr. Kasi do? He wires $46,000

to his wife's account in India, having at least,

according to the records that you have from Commerce

Bank, Valley National and all the other bank

accounts he controls, having never done anything

like that before, although he did send money

overseas. He sent $46,000 to India the day after

his employees were arrested. What does that tell

you about how nervous Kasi is about whether he's

next?

(Tr. 729-30.)

E. The Defense’s Objection

At the conclusion of the Government's rebuttal, the

defendant objected at sidebar to the Government's statements "about

the consciousness of guilt related to that wire transfer." (Tr.

732.) The colloquy with the Court, in relevant part, was as

follows:

MR. CONDON: There was no evidence that my client

was aware that Mr. Puttaramu or Mr. Bhat was

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arrested at the time of the making of that transfer.

There was zero testimony in this regard to prove

that. So there is no motive -- the government is

arguing that he knew that he had been arrested and

therefore he made the transfer. There is no

evidence to support that whatsoever.

THE COURT: I think that's true.

MS. FRASE: It is a fair inference the jury can draw

based on the actions he took, and then, as I pointed

out to the jury, that that was the only instance of

that size and nature of transfer. The proximity in

time to the arrest of his two primary -- the people

running his store after there had been a search

warrant at the premises, and if there is no

evidence, it is certainly something that the jury

could fairly look at to say whether or not he in

fact did know they had been arrested and what

actions he took to conceal his own involvement after

they were.

THE COURT: What do you want me to do about it, Mr.

Condon?

MR. CONDON: I don't know, your Honor. I mean, I

think that it is prejudicial to my client to have it

hanging out there when we know that there was no

testimony that he was made aware of it, that there

was a search warrant, that he was made aware that

there was an arrest of either individual, and now

the government has closed with that giant screen

with the wire transfer alleging that there is some

malfeasance related to the wire transfer.

MS. FRASE: We are not alleging it as a malfeasance

in and of itself. We are showing what is in the

defendant's --

THE COURT: I will instruct the jury that there is

no evidence in this record showing that Mr. Kasi was

aware of the arrests of the two codefendants.

(Tr. 732-33.)

The Court then proceeded to give the following

instruction to the jury:

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THE COURT: Ladies and gentlemen, I don't believe

there is any evidence in this record that Mr. Kasi

was aware of the arrests of the codefendants, Mr.

Bhat and Mr. Puttaramu, on April 12th.

(Tr. 734.)

ARGUMENT

Kasi's sole argument is that the Government's reference in

rebuttal to the $46,000 wire transfer to India on April 13, 2007

warrants a new trial. Specifically, Kasi argues that there was no

evidence in the record that the defendant knew of the arrests or

the search. (Br. 3). In the absence of any such evidence, the

defendant argues that it was improper for the Government to draw

the jury's attention to the wire transfer as evidence of Kasi's

"culpable mental state", on the theory that he was attempting to

move fraud proceeds out of the country. (Br. 4).

The defendant's characterization of the "wire transfer"

comment as prejudicial is not warranted, and his reliance on the

reference as a basis for a new trial should be rejected. Both the

fact of the transfer and the suggested inference were supported by

the evidence in the trial. The Government was entitled to explain

its view of the evidence to the jury in summation, and to argue the

permissible and reasonable inferences that could fairly be drawn

from the factual evidence presented at trial. Specifically, the

Government was entitled to rebut the defense's claims that Kasi did

not know about the fraudulent food stamp redemptions happening at

Akhila with this consciousness of guilt evidence. Indeed, while

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19

there was no direct evidence that Kasi was aware of the arrests,

there was powerful circumstantial evidence of that fact, including

that one of the arrestees, Bhat, was Kasi’s nephew, and the other

arrestee, Puttaramu, lived with Kasi and met with Kasi almost every

night about the operation of the store. Moreover, even if the

statements were improper, Kasi could not have suffered substantial

prejudice so as to warrant a new trial, because there is no

possibility that the verdict would have been different without the

alleged error.

A. Applicable Law

Rule 33, Fed. R. Crim. P., provides in relevant part

that "[u]pon the defendant's motion, the court may vacate any

judgment and grant a new trial if the interest of justice so

requires." While the authority granted to a district court by Rule

33 is broad, appellate courts -- recognizing that a judge's grant

of a new trial is fundamentally inconsistent with the deference

ordinarily shown jury verdicts -- have consistently imposed

restrictions on a district court's discretion to order a new trial.

As the Second Circuit has stated: "The ultimate test on a Rule 33

motion is whether letting a guilty verdict stand would be a

manifest injustice." United States v. Ferguson, 246 F.3d 129, 134

(2d Cir. 2001) (citing United States v. Sanchez, 969 F.2d 1409,

1414 (2d Cir. 1992)); see also United States v. Autuori, 212 F.3d

105, 120 (2d Cir. 2000) ("[A] new trial is proper when a district

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20

court 'is convinced that the jury has reached a seriously erroneous

result or that the verdict is a miscarriage of justice.'") (quoting

United States v. Landau, 155 F.3d 93, 104 (2d Cir. 1998)). A

motion for a new trial should not be granted unless, after

evaluating all of the evidence, the district court is left with a

"real concern that an innocent person may have been convicted."

Ferguson, 246 F.3d at 134 (citing Sanchez, 969 F.2d at 1414).

Thus, in order to justify the grant of a new trial -- and ensure

that the district court has struck the right "balance between

weighing the evidence and credibility of witnesses and not 'wholly

usurp[ing]'" the role of the jury -- the district court "must

exercise the Rule 33 authority 'sparingly' and in 'the most

extraordinary circumstances.'" Ferguson, 246 F.3d at 133-134.

Rule 33 requires that the court examine the entire record of the

trial in determining whether the verdict was a manifest injustice.

See id. at 134 ("The district court must examine the entire case,

take into account all facts and circumstances, and make an

objective evaluation.").

A defendant asserting that a prosecutor's remarks

warrant reversal "face[s] a heavy burden, because the misconduct

alleged must be so severe and significant as to result in the

denial of [his] right[ ] to a fair trial." United States v.

Locascio, 6 F.3d 924, 945 (2d Cir. 1993). As the Second Circuit

has repeatedly stated, "[t]he government [and the defendant, for

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21

that matter] has broad latitude in the inferences it may reasonably

suggest to the jury during summation." United States v. Casamento,

887 F.2d 1141, 1189 (2d Cir. 1989); United States v. Rahman, 189

F.3d 88, 140 (2d Cir. 1999); United States v. Nersesian, 824 F.2d

1294, 1327 (2d Cir. 1987); United States v. Suarez, 588 F.2d 352,

354 (2d Cir. 1978). Thus, "[i]t is a 'rare case' in which [even]

improper comments in a prosecutor's summation are so prejudicial

that a new trial is required." United States v. Rodriguez, 968 F.2d

130, 142 (2d Cir. 1992) (quoting Floyd v. Meacham, 907 F.2d 347,

348 (2d Cir. 1990)); see also United States v. Young, 470 U.S. 1,

11 (1985) ("A criminal conviction is not to be lightly overturned

on the basis of a prosecutor's inappropriate comments standing

alone.").

Even where a prosecutor's statements are found to be

improper, that misconduct is grounds for reversal "only if it

causes the defendant substantial prejudice so infecting the trial

with unfairness as to make the resulting conviction a denial of due

process." United States v. Shareef, 190 F.3d 71, 78 (2d Cir. 1999)

(internal quotation marks, citations, and brackets omitted). In

evaluating whether a defendant has suffered "substantial

prejudice," the Second Circuit has stated that the district court

must look to three factors: "'the severity of the misconduct, the

measures adopted to cure it, and the certainty of conviction in the

absence of the misconduct.'" United States v. Parkes, 497 F.3d

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22

220, 233-34 (2d Cir. 2007) (quoting United States v. Melendez, 57

F.3d 238, 241 (2d Cir. 1995)); United States v. Rosa, 17 F.3d

1531, 1549 (2d Cir. 1994) ("Determination of whether there should

be a reversal requires an evaluation of the severity of the

misconduct, the curative measures taken, and the certainty of

conviction absent the misconduct."). 

B. The Government's Statements on Rebuttal Were Not Improper

and Did Not Cause Substantial Prejudice to the Defendant

There was nothing improper about the Government's

reference on rebuttal to the wire transfer. A prosecutor is

"entitled to respond to the evidence, issues, and hypotheses

propounded by the defense." United States v. Marrale, 695 F.2d

658, 667 (2d Cir. 1982). The Government was permitted to suggest

the inference, as characterized by the defense, "that defendant

acted in an effort to conceal profits and with a consciousness of

guilt immediately after the arrest of Puttaramu and Bhat." (Br.

4). Such an inference does indeed go "directly toward defendant's

knowledge," and as the defense concedes, "the defendant's knowledge

of and participation in the criminal activity was the central issue

raised" in the trial. (Br. 4). 

Kasi’s entire defense was that Puttaramu and Bhat alone

were responsible for the food stamp trafficking at the store, about

which he knew nothing. It is certainly relevant that the day after

the arrest of the two people whom Kasi blames for the fraud, Kasi

sends $46,000 to India, out of the reach of U.S. authorities. The

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23

Government argued throughout its closing remarks that Kasi's

knowledge could be inferred from, among other evidence, the control

he exercised over those funds, and the extent to which he

personally benefitted from the fraud by transferring those funds to

his personal accounts.

Of course, neither the prosecution nor the defense may

refer to facts that are not in the record or misstate the evidence.

See Suarez, 588 F.2d at 354. It is certainly reasonable, however,

for the government to suggest to the jury inferences that can be

fairly drawn from the record. See Casamento, 887 F.2d at 1189; see

also United States v. Myerson, 18 F.3d 153, 163 (2d Cir. 1994)

(“The ‘prosecution and defense are entitled to broad latitude in

the inferences they may suggest to the jury during closing

argument,’ provided they do not misstate the evidence”) (citations

omitted); United States v. Rodriguez, 968 F.2d 130, 143 (2d Cir.

1992) ("The government is entitled, in summation, to argue all

inferences that may permissibly be drawn from the evidence

admitted."); United States v. Roldan-Zapata, 916 F.2d 795, 807 (2d

Cir. 1990); United States v. Wilner, 523 F.2d 68, 74 (2d Cir. 1975)

("A prosecuting attorney is not an automaton whole role on

summation is limited to parroting facts already before the jury.");

United States v. White, 486 F.2d 204, 207 (2d Cir. 1973)

("Certainly, advocates may marshal all inferences that the evidence

supports and indulge in nonprejudicial flourishes of rhetoric.");

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24

United States v. Dibrizzi, 393 F.2d 642, 646 (2d Cir. 1968)

("Within broad limits, counsel for both sides are entitled to argue

the inferences which they wish the jury to draw from the

evidence."); United States v. Wexler, 79 F.2d 526, 530 (2d Cir.

1935)(the government's summations need not and ought not consist of

"such detached exposition as would be appropriate in a lecture").

The evidence presented at trial more than adequately

supported an inference that Kasi wired money out of the country

after learning that his business partner and store manager had been

arrested, the premises searched, and evidence seized from the

store. The inference was a reasonable one for the jury to draw

from the evidence that Bhat was Kasi’s nephew, and that Puttaramu

lived with Kasi and returned to the apartment from the store each

night, where they would review the accounts for the day. (Tr. 169-

72). The jury also heard evidence that Puttaramu did not return to

Kasi’s apartment on the night of April 12, because, as he

testified, he was detained in the MDC from that day onward (Tr.

137). 

Nor did the Government act improperly in drawing the jury's

attention to the $46,000 wire over any others in the bank records.

As the Government noted in its rebuttal, the April 13 wire transfer

was distinguishable from the others that Kasi made during the

period of the conspiracy. (Tr. 730). It was the only wire out of

Kasi's savings account at Commerce. It was the largest wire by far

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25

that Kasi sent from either of his Commerce accounts. (See GX 18 at

control nos. 436, 529, and 772). Of the three other transfers Kasi

sent out of the United States between 2005 and 2007, none exceeded

$5,000. These smaller wires, while not sent with exact regularity,

are all spaced out by a minimum of thirty-one weeks. In contrast,

Kasi sent the $46,000 wire only two days after sending a $5,000

wire to his wife on April 11. (See GX 17 at control no. 375; See

also GX 18 at control no. 436). Indeed, the fact of this large,

one-of-a-kind wire transfer alone was enough for the jury to draw

the inference that Kasi was trying to conceal fraud proceeds by

sending money to India. Accordingly, given all of this evidence,

and the permissible inference the jury could draw that Kasi knew

about his employee’s arrests, it required no great leap for the

jury to conclude that Kasi sent the money out of the country before

the Government could freeze the accounts or arrest him, and which

thereby demonstrated his guilty knowledge.

To the extent the comments could be viewed as improper --

and the Government asserts that they were not -- any harm was cured

by the Court's limiting instruction only moments after the alleged

misstatement, which was made near the end of the Government's

rebuttal. As soon as the Government finished, defense counsel

objected. (Tr. 730). Immediately after the sidebar, the Court

instructed the jury that there was no evidence in the record that

Case 1:07-cr-00348-RPP Document 38 Filed 02/20/2008 Page 26 of 30
2 It is worth noting that, while the record does not

contain direct evidence of Kasi’s knowledge of the arrests --

although strong circumstantial evidence supports the inference

that he knew -- such an inference is accurate. Kasi was actually

present in Magistrate's Court on April 12, 2007, while Puttaramu

and Bhat were being arraigned.

26

Kasi knew about the arrests of Puttaramu and Bhat. (Tr. 733-4)2.

The Second Circuit has recognized that even in a case where there

is "serious misconduct," "proper instructions by the trial court

may suffice to prevent undue prejudice and make the misconduct

harmless." United States v. Walker, 835 F.2d 983, 988 (2d Cir.

1987). Furthermore, "it is axiomatic that jurors are presumed to

follow these instructions." United States v. Beverly, 5 F.3d 633,

641 (2d Cir. 1993); accord United States v. Downing, 297 F.3d 52,

60 (2d Cir. 2002). Therefore, since the Court instructed the jury

that there was no evidence that Kasi knew of the arrests, the jury

is presumed to have followed this instruction and to have viewed

the Government’s rebuttal in light of that directive.

Moreover, "[i]nappropriate prosecutorial comments, standing

alone, would not justify a reviewing court to reverse a criminal

conviction obtained in an otherwise fair proceeding." United

States v. Young, 470 U.S. at 11-12; United States v. Melendez, 57

F.3d 238, 241 (2d Cir. 1995). Kasi’s allegation concerning

misconduct in this case are directed solely at one argument by the

Government in rebuttal. The defendant has not suggested that the

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27

Government conducted itself improperly throughout the trial, nor

has he pointed to any other defect in the conduct of the trial.

Finally, Kasi cannot come close to demonstrating that

letting the guilty verdict in this case stand "would be a manifest

injustice," nor that upon evaluating all of the evidence in this

case, there is a "real concern that an innocent person may have

been convicted." Ferguson, 246 F.3d at 134. To the contrary, a

conviction in this case was a near certainty, even absent the

misconduct. There was plentiful evidence to support the jury's

conclusion that Kasi was deeply involved in the food stamp fraud at

Akhila. As described in detail above, that evidence included

Puttaramu’s testimony regarding Kasi’s role in the scheme, his

familiarity with Akhila’s finances, and his tight control over the

funds generated from the fraud; the detailed bank records

establishing the huge amounts of money going into Akhila’s accounts

from food stamp redemptions, which were controlled only by Kasi and

which far exceeded monthly non-food stamp revenues and costs of

goods sold; the excessive numbers of food stamp redemptions for a

store of Akhila’s size, which was indicative of fraud; and other

proof demonstrating Kasi’s day-to-day involvement in the operations

of the store, such as that from Paul Covington. From these facts,

the jury easily would have come to the conclusion that Kasi had

committed the charged offenses, notwithstanding his comparatively

infrequent presence at the store. Accordingly, there was no

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possibility that any misconduct here had any impact on the jury’s

verdict.

CONCLUSION

For the above reasons, the Court should deny the

defendant's motion for a new trial in its entirety.

Dated: New York, New York

 February 20, 2008

 Respectfully submitted,

 MICHAEL J. GARCIA

 United States Attorney

 _________/s/__________________

 By: SHARON E. FRASE

 Assistant United States Attorney

 Tel: (212) 637-2329

Case 1:07-cr-00348-RPP Document 38 Filed 02/20/2008 Page 29 of 30
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AFFIRMATION OF SERVICE

SHARON E. FRASE, pursuant to Title 28, United States Code,

Section 1746, hereby affirms under penalty of perjury: 

That I am an Assistant United States Attorney in the office

of Michael J. Garcia, United States Attorney for the Southern

District of New York.

That on February 20, 2008, I electronically filed and

caused a true and correct copy of the foregoing Government’s

Memorandum of Law in Opposition to the Defendant’s Motion For a New

Trial to be served by Federal Express on:

Paul Condon, Esq.

33-41 Newark Street, Suite 4A

Hoboken, New Jersey 07030

I declare under penalty of perjury under the laws of the

United States of America that the foregoing is true and correct.

28 U.S.C. § 1746.

Dated: New York, New York

February 20, 2008

 /s/ 

SHARON E. FRASE

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