Case: 1:19-cr-00864 Document #: 381 Filed: 02/15/23 Page 1 of 5 PageID #:4308
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`v.
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`UNITED STATES OF AMERICA
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`
`
`RISHI SHAH,
`SHRADHA AGARWAL, and
`BRAD PURDY
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`
`
`No. 19 CR 864
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`Hon. Thomas M. Durkin
`United States District Judge
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`GOVERNMENT’S MOTION TO ADMIT
`PRIOR CONSISTENT STATEMENT
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`David Ma testified at trial in the government’s case-in-chief on February 9 and
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`February 13, 2023. During direct examination, Ma implicated Shah, Agarwal, and
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`Purdy in the charged fraud scheme. During cross-examination, counsel for Purdy
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`repeatedly attacked Ma’s credibility, suggesting that he was looking to “cash in” by
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`filing a complaint with the SEC and that his immunity agreement with the
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`government amounted to a “free pass from getting prosecuted.” (2/13/23 Tr. 2461,
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`2554.) Purdy’s attorney further impeached Ma on other topics, including his
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`fabrication of tablet metrics with Desai and his creation of false images for proofs of
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`performance that were sent to clients. As detailed below, the remaining defendants’
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`counsel also impeached Ma on a number of topics.
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`During June 2019, Ma testified in the grand jury. His grand jury testimony
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`was consistent with his testimony during direct examination at trial. A copy of his
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`grand jury statement is attached as Exhibit A. As set forth below, and consistent with
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`the Court’s ruling on the Jason Ketchum grand-jury statement (ECF No. 373), Ma’s
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`Case: 1:19-cr-00864 Document #: 381 Filed: 02/15/23 Page 2 of 5 PageID #:4309
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`grand-jury statement is a non-hearsay prior consistent statement admissible
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`pursuant to Federal Rule of Evidence 801(d)(1)(B).
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`Under Rule 801(d)(1)(B), a declarant-witness’s prior statement is admissible
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`as non-hearsay testimony:
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`If the declarant testifies and is subject to cross-examination about a
`prior statement, and the statement . . . is consistent with the declarant’s
`testimony and is offered (i) to rebut an express or implied charge that
`the declarant recently fabricated it or acted from a recent improper
`influence or motive in so testifying; or (ii) to rehabilitate the declarant’s
`credibility as a witness when attacked on another ground.
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`See also United States v. Alviar, 573 F.3d 526, 541 (7th Cir. 2009) (finding that district
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`court did not commit plain error in allowing witnesses’ prior consistent statement,
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`which was consistent with trial testimony and rebutted defendant’s implied charge
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`that the witness had fabricated his testimony). Such testimony need not be
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`introduced through the declarant. See United States v. Davis, 896 F.3d 784, 788-89
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`(7th Cir. 2018) (finding no plain error where district court admitted prior consistent
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`statements from witnesses through a police officer); United States v. Green, 258 F.3d
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`683, 692 (7th Cir. 2001) (“[H]ol[ding] that Rule 801(d)(1)(B) does not bar the
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`introduction of a prior consistent statement through the testimony of someone other
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`than the declarant, so long as the declarant is available for cross-examination about
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`the statement at some time during the trial”).
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`This Rule was amended in 2014 to enlarge the category of prior consistent
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`statements that can be offered as substantive evidence. As the 2014 Advisory
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`Committee Notes explain:
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`Though the original Rule 801(d)(1)(B) provided for substantive use of
`certain prior consistent statements, the scope of that Rule was limited.
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`2
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`Case: 1:19-cr-00864 Document #: 381 Filed: 02/15/23 Page 3 of 5 PageID #:4310
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`The Rule covered only those consistent statements that were offered to
`rebut charges of recent fabrication or improper motive or influence. The
`Rule did not, for example, provide for substantive admissibility of
`consistent statements that are probative to explain what otherwise
`appears to be an inconsistency in the witness’s testimony. Nor did it
`cover consistent statements that would be probative to rebut a charge of
`faulty memory. Thus, the Rule left many prior consistent statements
`potentially admissible only for the limited purpose of rehabilitating a
`witness’s credibility. The original Rule also led to some conflict in the
`cases; some courts distinguished between substantive and rehabilitative
`use for prior consistent statements, while others appeared to hold that
`prior consistent statements must be admissible under Rule 801(d)(1)(B)
`or not at all.
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`Fed. R. Evid. 801 advisory committee notes to 2014 Amendments.
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`Here, counsel for Purdy, Shah, and Agarwal attacked Ma’s credibility on
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`numerous grounds. Purdy portrayed Ma as a money-hungry interlocutor with an axe
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`to grind against the defendants. He further attacked Ma on other grounds, including
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`his immunity agreement with the government, his regular participation in the
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`fabrication of data that was sent to clients, and his alleged participation in a scheme
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`of two, involving only him and Desai.
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`Agarwal’s attorney challenged Ma’s credibility, specifically questioning his
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`memory about the “smoke-bombs” conversation, noting that Ma had nothing to
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`refresh his recollection about what was said—or how it was phrased—such as
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`contemporaneous notes of the conversation. Agarwal further attempted to impeach
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`Ma with his deposition testimony, implying that Ma’s in-court testimony was at odds
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`with his deposition. Most notably, Agarwal’s counsel flashed Ma’s immunity
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`agreement with the government before the jury, after reviewing statements that Ma
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`had made in text-message communications with Joyce Chen about his desire to see
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`Shah “go to jail” and Agarwal “deported.” (GX 1025.)
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`3
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`Case: 1:19-cr-00864 Document #: 381 Filed: 02/15/23 Page 4 of 5 PageID #:4311
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`Within his opening questions of Ma, Shah’s counsel probed Ma’s “deep
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`relationship” with Desai, whom Shah—throughout the case—has blamed as the chief
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`architect of the fraud at Outcome. Shah’s counsel also asked whether Shah ever
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`“directed” Ma to commit fraud. Yet Ma testified about the difference between Shah
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`“directing” and “condoning” fraud, and in his grand-jury statement—as in his direct
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`testimony—Ma described a September 2015 meeting he attended with Desai, Shah,
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`Agarwal, and Matt Grams, in which deltas were discussed. Shah’s response, rather
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`than expressing surprising that there was a significant inventory gap, was to direct
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`Desai (in Ma’s presence) to raise the target for revenue the following year. Lastly,
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`Shah’s counsel characterized David Ma as within the “small bubble”—with Desai at
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`the top—of the people who were committing the fraud at Outcome.
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`The government seeks to admit Ma’s grand jury statement during his re-direct
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`examination. Such evidence is a prior consistent statement; Ma will be subject to
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`cross-examination about it, and the statement will be consistent with Ma’s testimony
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`during direct examination.
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`4
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`Case: 1:19-cr-00864 Document #: 381 Filed: 02/15/23 Page 5 of 5 PageID #:4312
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`Respectfully submitted,
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`MORRIS PASQUAL
`Attorney for the United States Acting
`under Authority Conferred by 28
`U.S.C. § 515
`
` s/ Matthew F. Madden
`Matthew F. Madden
`Saurish Appleby-Bhattacharjee
`Assistant United States Attorneys
`219 S. Dearborn Street
`Chicago, Illinois 60604
`(312) 886-2050
`
`GLENN S. LEON
`Chief, Fraud Section
`Criminal Division
`U.S. Department of Justice
`
` s/ William E. Johnston
`William E. Johnston
`Kyle C. Hankey
`Assistant Chiefs
`1400 New York Ave NW
`Washington, D.C. 20530
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`By:
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`By:
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`Dated: February 15, 2023
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`5
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