`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`UNITED STATES OF AMERICA,
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`
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`Plaintiff,
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`v.
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`Case No. 19 CR 864
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`RISHI SHAH, et al.,
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`Judge Thomas M. Durkin
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`Defendants.
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`MEMORANDUM IN SUPPORT OF DEFENDANT RISHI SHAH’S
`MOTION TO EXCLUDE EVIDENCE AND FOR RELATED RELIEF
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`At the outset of this case, the Government falsely claimed that it had probable cause to
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`believe that “all right, title, and interest” in the assets held by Investment Company B
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`(“Company B”) was traceable to criminal proceeds. On that spurious basis, it restrained the
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`entirety of those assets for more than three years. In July 2023, the Government conceded, at long
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`last, that its prior analysis had in fact traced less than half of the $1.2 million sent to Company B
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`to any alleged criminal activity, and the Court ruled that the Government was therefore not entitled
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`to restrain the majority of the more than $22 million in assets held by that entity. See Resp. to Mot.
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`to Amend (Doc. #482); Order (Doc. #500). The Government subsequently agreed to two separate
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`orders that expressly recited the Government’s concessions and released a total of $9.6 million
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`from Company B to Mr. Shah.1 Mr. Shah has filed a Motion to Dismiss or for a New Trial (the
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`1 See Order (Doc. #523) (“[T]his Court issued an Order (Doc. #500) granting in part
`Defendant Rishi Shah’s Motion to Amend Protective Order (Doc. #474) to release certain property
`from the Protective Order that the Government concedes is not derived from criminal proceeds.
`Accordingly, the Court hereby issues this Amended Protective Order to release from this Court’s
`Protective Order certain previously restrained property that the Government no longer contends
`was derived from criminal proceeds . . . .”) (emphasis added); Order (Doc. #555) (“[T]his Court
`issued an Order (Doc. #500) granting in part Defendant Rishi Shah’s Motion to Amend Protective
`Order (Doc. #474) to release any property from the Protective Order that the Government
`conceded was not derived from criminal proceeds.”) (emphasis added).
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`1
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`“Motion”), taken legal and factual positions in his litigation of that Motion, and engaged in
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`significant preparations for the evidentiary hearing on the Motion—all based on the Government’s
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`repeated concessions and representations that more than half the distributions held by Company B
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`constituted untainted property.
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`Months later, in its opening statement at the evidentiary hearing on Mr. Shah’s Motion, the
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`Government suddenly claimed it had obtained “additional information” that linked $8.4 million of
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`funds released from Company B (the “Released Funds”) to criminal proceeds. But as it has
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`subsequently admitted, the Government has no new evidence; it merely has new analysis. As the
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`Government has acknowledged since the hearing was recessed, all of the information the
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`Government now claims establishes the traceability of portions of the Company B assets has been
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`in the Government’s possession since at least June 2023—but the Government chose not to
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`conduct an analysis of that information until days before the hearing. As such, the Government’s
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`new analysis is not only incorrect; it is not material to the issue before the Court on Mr. Shah’s
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`Motion—namely, whether the Government had probable cause to establish the traceability of any
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`such assets prior to obtaining the Protective Order in 2019. As the Government candidly
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`acknowledges, it did not. As a result, any arguably probative value of the Government’s new
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`analysis is substantially outweighed by the danger of unnecessary delay, waste of time, and, most
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`importantly, unfair prejudice to Mr. Shah. See infra § I.
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`Beyond the immateriality of the Government’s new analysis to the issues on the Motion, it
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`would violate a number of well-established doctrines—and be fundamentally unfair to Mr. Shah—
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`to permit the Government to retract its prior concessions and representations at this late stage, both
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`of litigation on the Motion and in the case overall. Whether characterized as waiver, forfeiture, law
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`of the case, or grounds for judicial or equitable estoppel, the Government’s prior concessions and
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`2
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`on-the-record averments should bind it in future litigation in this case in order to prevent the
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`Government from benefitting from its recent about-face, especially given Mr. Shah’s detrimental
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`reliance on—and the Court’s acceptance of—the Government’s prior concessions and
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`representations. See infra § II.
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`For all these reasons, the Government should be held to its prior concessions regarding the
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`nontraceability of the Released Funds and precluded from introducing its new analysis in further
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`proceedings in this case, including but not limited to litigation of Mr. Shah’s Motion.
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`DISCUSSION
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`I. The Government’s New Analysis Is Not Material to the Issues on the Motion to Dismiss
`and Should Not Be Admitted in That Context
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`
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`The Government’s shocking reversal of its position occurred at the outset of this Court’s
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`January 3, 2024 hearing, when the Government first asserted it had performed a new analysis
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`demonstrating that the Released Funds were—contrary to its prior concessions, representations,
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`and agreements—traceable to criminal proceeds. As the Government has since acknowledged,
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`however, it had the evidence it needed to perform the steps in its new analysis no later than June
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`2023. Shortly in advance of the forfeiture hearing in this case, Mr. Shah and the Government both
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`received a chart from Company B indicating the month and year in which each investment had
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`been made by Company B, as well as indicating how each investment had grown over time—the
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`relevant portion of which was admitted as an exhibit by Mr. Shah at the hearing. See Shah
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`Forfeiture Hearing Ex. 9025. By the Government’s own admission, “[t]he only new information
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`[it] received in preparation for the hearing was the specific dates of the wires, though, candidly,
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`similar information appears to have been provided earlier by [Company B] in response to a grand
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`jury subpoena in 2019.” See Ex. 1 (January 8, 2024 email from W. Johnston) (emphasis added).
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`3
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`What’s more, Mr. Shah had argued at length in prior briefing that the Government’s tracing
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`to Company B was insufficient because it did not connect any alleged criminal proceeds to
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`particular investments, instead halting the analysis at the moment the funds in question had reached
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`Company B. See, e.g., Mem. in Supp. of Mot. to Dismiss (Doc. #491) at 4–5; Reply in Supp. (Doc.
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`#495) at 5–6; Mem. in Opp. to POF Mot. (Doc. #511) at 15; Supp’l Mot to Amend (Doc. #524) at
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`5, 8. Despite all of this, the Government evidently did not conduct the sort of analysis it now seeks
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`to introduce until days before the hearing on Mr. Shah’s Motion. See Ex. 1 (January 8, 2024 email
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`from W. Johnston) (“The government also received the same information that [Company B] sent
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`you back in June, and only made the connection that 100% of the Ruggable distributions were
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`traceable to the fraud in preparation for the hearing last week.”).
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`Mr. Shah does not concede that the Government’s new analysis is correct, and he should not
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`be forced to litigate that issue after relying upon the Government’s prior concession to the contrary.
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`See infra § II. But even without relying upon any doctrine arising from Mr. Shah’s reliance on the
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`Government’s concessions, the Government’s new analysis should be excluded because of its
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`immateriality to the issues being considered on Mr. Shah’s Motion.
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`Mr. Shah’s Motion is based on the premise that the Government falsely represented to the
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`Court and the Grand Jury that it had probable cause to believe that “all right, title, and interest” in
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`numerous items of property were subject to forfeiture, when the Government had not performed
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`any analysis to support such a sweeping claim. The fact that the Government has developed a new
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`analysis to salvage a portion of that overbroad restraint—two days before the hearing, three months
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`after the Motion was fully briefed, six months after receiving the required records, and four years
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`after obtaining the Protective Order—is immaterial. The Government still concedes that no such
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`4
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`analysis existed in November 2019, when the Government obtained the illegal restraint in the first
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`place.
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`Even assuming that the Government were correct that the Released Funds could be properly
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`linked to criminal proceeds under some new tracing theory, the Government concedes that no such
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`analysis had been performed until mere days before the January hearing. During the time frame
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`relevant to Mr. Shah’s Motion (i.e., the date of the Protective Order through the date of his
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`conviction), the Government admits it had not conducted a tracing analysis sufficient to restrain
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`the Released Funds. As Mr. Shah has contended for months now, without having performed such
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`an analysis, the Government cannot have had probable cause to support the restraint of the
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`Released Funds prior to Mr. Shah’s trial. See Mot. to Amend (Doc. #474) ¶¶ 13–14, 19–20; Mem.
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`in Supp. (Doc. #475) at 3–7; Mot. to Dismiss (Doc. #490) ¶¶ 17–18; Mem. in Supp. (Doc. #491)
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`at 2.
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` Thus, even assuming that the Government might be able to establish the traceability of some
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`portion of the Released Funds today, that does not cure the Government’s failure to conduct such
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`an analysis during
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`the relevant
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`time period, nor does
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`it excuse
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`the Government’s
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`misrepresentations to the Grand Jury as to the existence of such an analysis at the time that
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`testimony was given. Regardless of what analysis the Government might seek to present now, Mr.
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`Shah’s constitutional rights were violated when the Government restrained untainted assets at
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`Company B (and elsewhere) without having probable cause to do so at the time. Given the
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`immateriality of the Government’s new analysis to the issues on Mr. Shah’s Motion, its
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`introduction would only serve to waste time, unduly delay the proceedings, and, as explained
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`below, cause further unfair prejudice to Mr. Shah. See Fed. R. Evid. 403 (permitting a court to
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`exclude evidence whose probative value is substantially outweighed by unfair prejudice, confusion
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`5
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`of the issues, unduly delay, or wasting time). For those reasons, evidence of the Government’s new
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`analysis should be excluded from the Court’s consideration on Mr. Shah’s Motion.
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`II. Regardless of the Immateriality of the New Analysis to the Issues on the Motion to
`Dismiss, the Government Should Not Be Permitted to Retract Its Prior Concessions
`and Representations with Respect to the Traceability of the Released Funds
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`As explained above, the Government’s new analysis is immaterial to the issues under the
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`Court’s consideration on Mr. Shah’s Motion and should therefore be excluded. But even if the new
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`analysis were admissible, it should not be admitted. That is because the Government has previously
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`represented both to Mr. Shah and to this Court that the Released Funds were not traceable to any
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`criminal activity, and Mr. Shah has detrimentally relied upon those representations in the course
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`of litigation on his Motion (Doc. #490), as well as his two motions to amend (Doc. #474, 524) and
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`the Government’s Motion for Preliminary Order of Forfeiture (Doc. #465) (the “POF Motion”).
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`The Court has also issued numerous rulings on the basis of the Government’s prior representations.
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`See Orders (Doc. ##500, 506, 551, 555, 580). Numerous doctrines designed to promote the fairness
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`and predictability of judicial proceedings, as well as the Due Process Clause itself, bar the
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`Government from reversing its position at this point in the case. Whether viewed as waiver,
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`forfeiture, law of the case, or judicial or equitable estoppel, it would be fundamentally unfair to
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`Mr. Shah to permit the Government to pull the rug out from under him at this late stage, where he
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`has structured both his litigation strategy and the funding of his continued defense on the basis of
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`the Government’s prior concessions and representations.
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`A. The Government Has Affirmatively Waived the Argument That the Released Funds
`Are Traceable to Criminal Activity
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`The Government has not merely forfeited its right to claim that the Released Funds are
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`traceable to criminal proceeds; it has affirmatively waived it. “Whereas forfeiture is the failure to
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`make the timely assertion of a right, waiver is the ‘intentional relinquishment or abandonment of
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`6
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`a known right.’” United States v. Olano, 507 U.S. 725, 733 (1993). And unlike forfeiture, which
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`subjects a defaulted issue to plain error review, waiver precludes judicial review altogether. Id.;
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`United States v. Hunt, 930 F.3d 921, 924 (7th Cir. 2019) (“In criminal cases, we ordinarily construe
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`waiver principles liberally in favor of the defendant.”).
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`Here, the Government repeatedly and unequivocally abandoned any argument that the
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`Released Funds were criminally derived, both in representations to the Court and in negotiations
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`with Mr. Shah. Indeed, Mr. Shah has identified numerous instances where the Government
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`conceded that the Released Funds were not traceable to criminal activity, both in on-the-record
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`statements and correspondence with Mr. Shah’s counsel. See Ex. 3 (timeline summarizing
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`litigation and correspondence relating to traceability of restrained assets). And it did so in the face
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`of Mr. Shah’s express protestations that the Government’s tracing analysis was insufficient to
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`establish the forfeitability of even those portions of the Company B assets that the Government
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`had not agreed to release. See, e.g., Mem. in Supp. of Mot. to Dismiss (Doc. #491) at 4–5; Reply
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`in Supp. (Doc. #495) at 5–6; Mem. in Opp. to POF Mot. (Doc. #511) at 15; Supp’l Mot to Amend
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`(Doc. #524) at 5, 8.
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` The Government had every opportunity to perform the sort of tracing analysis it now seeks to
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`admit prior to the hearing on Mr. Shah’s Motion. But it chose not to conduct that analysis and
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`instead conceded the nontraceability of the Released Funds. That is waiver, pure and simple, and
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`it precludes the Government from recanting its concessions now, even without an express showing
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`of prejudice to Mr. Shah. See Hunt, 930 F.3d at 924; United States v. Wilson, 131 F.3d 1250, 1253–
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`54 (7th Cir. 1997) (finding waiver based on Government’s failure, despite the opportunity to do
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`so, to present evidence of relevant conduct at sentencing).
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`7
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`B. Even If the Government Had Merely Forfeited Its Argument as to the Traceability of
`the Released Funds, It Would Cause Manifest Prejudice to Mr. Shah to Excuse That
`Forfeiture at This Late Stage
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`Even if the Government’s prior abandonment of any claim to the traceability of the Released
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`Funds were deemed a forfeiture of that claim rather than a waiver, that would not relieve the
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`Government of the consequences of its concessions. That is because forfeiture likewise precludes
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`a party from raising a new issue where doing so would affect the substantial rights of another party.
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`Olano, 507 U.S. at 733. In responding to Mr. Shah’s Motion, the Government did not assert, as it
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`does now, that the Released Funds were in fact traceable to criminal proceeds; to the contrary, it
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`relied upon this Court’s order requiring the return of the Released Funds (which the Government
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`had vigorously opposed) to assert that Mr. Shah was not entitled to any further relief. See Resp.
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`(Doc. #512) at 16 (arguing that the Court had already “provided at least in part the relief the
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`defendant seeks in the current motion by ordering the release of untainted funds” (emphasis
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`added)). Allowing the Government to reverse course now will cause significant prejudice to Mr.
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`Shah, who relied on the Government’s concessions and representations not only in crafting his
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`litigation strategy on his motions to amend, his Motion to Dismiss, and his opposition to the POF
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`Motion, but in prioritizing his efforts to retrieve previously restrained assets and allocating the
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`Released Funds to his ongoing legal defense.
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`The Court is already aware of that fact that Mr. Shah has repeatedly relied upon the
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`Government’s prior representations that the funds were not traceable in litigating this case,
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`including on numerous prior motions that the Court has already considered and ruled upon. See,
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`e.g., Reply in Supp. of Mot. to Amend (Doc. #495) at 1–2; Supp’l Mot. to Amend (Doc. #524)
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`¶¶ 11–12, 17; Reply in Supp. of Supp’l Mot. (Doc. #544) at 1, 4–7 9–10; Mem. in Opp. to POF
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`Mot. (Doc. #511) at 33. And the Government’s concessions have likewise formed one of the
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`principal bases for Mr. Shah’s Motion, which was fully briefed months before the Government’s
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`8
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`flip-flop. See, e.g., Mot. to Dismiss (Doc. #490) ¶¶ 21–22, 25; Mem. in Supp. (Doc. #491) at 1–2,
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`6, 10, 11–13, 15, 19; Reply (Doc. #537) at 1–4, 7, 32.
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`Had the Government not made those concessions and representations, Mr. Shah’s litigation
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`strategy would have been markedly different, as he would have sought to develop additional
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`evidence relating to the value of other restrained assets beyond the Released Funds in the course
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`of briefing and litigating his Motion. He may have also adopted different factual or legal positions
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`relating to questions still under the Court’s consideration, such as what standard must be met in
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`order for him to succeed under the Sixth Amendment and the Due Process Clause. Likewise, with
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`respect to his motions to amend and his opposition to the Government’s preliminary order of
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`forfeiture, Mr. Shah likely would have concentrated far less of his attention on the funds at
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`Company B if the Government had asserted that only a few hundred thousand dollars—as opposed
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`to $12 million—in untainted assets had been wrongly restrained at Company B.
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`But Mr. Shah has also detrimentally relied on the Government’s concessions in his negotiations
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`and agreements with the Government. As the Court knows, Company B represented the largest
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`source of immediate liquidity available to Mr. Shah after the Court’s ruling on his original Motion
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`to Amend (Doc. #500). After that ruling, Mr. Shah engaged in good faith with the Government in
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`order to develop a series of implementing orders to carry out the Court’s directive that any
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`nontraceable funds be released to Mr. Shah. See Supp’l Mot. to Amend (Doc. #524) ¶¶ 4–7; Gov’t
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`Resp. (Doc. #543) at 3–5. In the course of those discussions, Mr. Shah originally proposed that the
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`Government be required to release any funds it had not traced to specific assets held by any of the
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`affected entities, but the Government instead proposed a “pro rata” (percentage-based) approach
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`for each of the affected entities. See Supp’l Mot. to Amend (Doc. #524) ¶¶ 4–5.
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`9
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`Although Mr. Shah’s counsel initially challenged the propriety of the Government’s approach,
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`Mr. Shah ultimately agreed to the Government’s suggestion in recognition of the fact that it would
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`result in the release of substantial funds from Company B that Mr. Shah wished to use to fund his
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`continued defense. See id. ¶¶ 6–7. Had Mr. Shah known that the Government would seek to retract
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`that agreement months later and demand he return the very funds the Government had agreed
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`should be released, Mr. Shah would have prioritized his efforts to obtain nontraceable funds from
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`other sources.2
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`Mr. Shah also relied upon the Government’s representations in making decisions as to how to
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`use the Released Funds once they were received. In particular, Mr. Shah has allocated portions of
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`the Released Funds among three different law firms and multiple experts whom he has retained to
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`assist with the hearing, any subsequent sentencing, and his potential appeal. Had Mr. Shah believed
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`the Government would later seek to require him to return any of the funds it had agreed to release,
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`then he would have made entirely different decisions about how to allot his limited resources going
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`forward.
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`C. This Court’s Prior Rulings on the Traceability of the Released Funds Are the Law of
`the Case, and the Government Cannot Establish the Existence of “New Evidence”
`Required to Escape That Doctrine’s Application
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`Even if the Government had not previously conceded that the Released Funds were not
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`traceable to criminal proceeds, this Court has issued several rulings (at the Government’s
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`invitation, no less) to that effect, making those rulings the law of the case. “The doctrine of law of
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`2 Indeed, the Government’s own analysis suggested that, as of October 2023, the restrained
`entities other than Company B held nearly $6 million in untainted assets. See Joint Statement
`(Doc. #550) at 4 (reflecting $17.9 million in untainted assets held by the restrained entities, of
`which Company B accounted for approximately $12 million). If Mr. Shah had known that the
`Government would later claim the vast majority of the funds released to him by Company B were
`traceable, he would have focused his attention on gaining access to other untainted assets rather
`than compromising with the Government on an order commanding the release of $4.6 million from
`Company B. See Order (Doc. #555).
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`10
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`the case establishes a presumption that a ruling made at one stage of a lawsuit will be adhered to
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`throughout the suit.” Cannon v. Armstrong Containers Inc., 92 F.4th 688, 701 (7th Cir. 2024)
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`(quoting Avitia v. Metropolitan Club of Chicago, Inc., 49 F.3d 1219, 1227 (7th Cir. 1995)).
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`Although the law of the case doctrine is “not an inflexible dictate,” “a party must point to a ‘good
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`reason’ to abandon the court’s earlier ruling” in order for the doctrine not to apply. Id. (citing
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`Chicago Joe’s Tea Room, LLC v. Village of Broadview, 894 F.3d 807, 818 (7th Cir. 2018); Tice v.
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`Am. Airlines, Inc., 373 F.3d 851, 853 (7th Cir. 2004)).
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`No such “good reason” exists here. While the law of the case doctrine does permit a court to
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`modify a prior ruling on the basis of new evidence, “that exception applies only when the proposed
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`new evidence was ‘previously undiscoverable.’” Id. at 704 (citing United States v. Sumner, 325
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`F.3d 884, 891 (7th Cir. 2003)). Here, the Government acknowledges that it had all the information
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`it needed to conduct that analysis no later than June 2023. See Ex. 1 (acknowledging that the
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`information upon which the Government based its analysis was received no later than the time of
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`the forfeiture hearing in June 2023). Thus, as in Cannon, the Government “readily concede[s] that
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`[its] new evidence has been available from the get-go, so it cannot provide grounds for relief” from
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`the law of the case doctrine. Cannon, 92 F.4th at 704. Instead, this Court must adhere to its prior
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`rulings in order to prevent the Government from gaining an unfair advantage by being permitted
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`to take a position that is flatly inconsistent with this Court’s prior rulings.
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`D. Principles of Judicial and Equitable Estoppel Likewise Preclude the Government’s
`Reneging on Its Prior Concessions
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`Under the doctrine of judicial estoppel, “[w]here a party assumes a certain position in a legal
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`proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his
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`interests have changed, assume a contrary position, especially if it be to the prejudice of the party
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`who has acquiesced in the position formerly taken by him.” New Hampshire v. Maine, 532 U.S.
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`11
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`742, 749 (2001) (quoting Davis v. Wakelee, 156 U.S. 680, 689 (1895)). Similarly, “[e]quitable
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`estoppel is a doctrine which precludes one party from asserting a claim or defense against another
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`party who has detrimentally altered her position in reliance on the former’s misrepresentation or
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`failure to disclose a material fact,” even outside the context of the litigation itself. See Kennedy v.
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`United States, 965 F.2d 413, 417 (7th Cir. 1992). The purpose of estoppel is to “protect the integrity
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`of the judicial process” by “prohibiting parties from deliberately changing positions according to
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`the exigencies of the moment.” See New Hampshire, 532 U.S. at 749–50.
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`While the elements of judicial estoppel are not “reducible to any general formulation of
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`principle,” id. at 750, the factors traditionally applied by courts all favor the application of that
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`doctrine here. The Government’s new analysis is “‘clearly inconsistent’ with its earlier
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`position.” Id. The Government also “succeeded in persuading a court to accept that party’s earlier
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`position,” raising the specter of “judicial acceptance of an inconsistent position.” Id.; see Orders
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`(Doc. ##500, 506, 551, 555, 580). And, if the Government were permitted to repudiate its prior
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`concessions, “it would derive an unfair advantage or impose an unfair detriment on the opposing
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`party if not estopped.” New Hampshire, 532. U.S. at 750.
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`Likewise, the traditional elements of equitable estoppel are satisfied, as Mr. Shah has (1)
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`reasonably relied (2) to his detriment (3) on multiple misrepresentations by the Government.3
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`Kennedy, 965 F.3d at 417. Not only did the Government repeatedly assert the untainted nature of
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`the Released Funds in its submissions to the Court, but it induced Mr. Shah’s counsel to agree to
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`its proposed “pro rata” approach for obtaining distributions from Company B and other restrained
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`entities on the basis of the Government’s agreement that the majority of the funds at Company B
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`3 Assuming, that is, that the Government were correct in its submission that portions of the
`Released Funds are traceable to criminal activity, which Mr. Shah disputes.
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`12
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`were not traceable to criminal proceeds. Mr. Shah’s counsel initially opposed that approach, but
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`Mr. Shah ultimately acceded to the Government’s suggestion in the interest of avoiding further
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`litigation to determine what specific portions of the assets held by any of the restrained entities
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`were traceable to criminal proceeds prior to their release. See Supp’l Mot. to Amend (Doc. #524)
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`¶ 7 (“In the interest of reaching a practical solution that would accelerate Mr. Shah’s ability to gain
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`access to at least some of the illegally restrained assets without the need for further Court
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`intervention, Mr. Shah agreed to the Government’s proposal . . . .”). Mr. Shah further relied on
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`those concessions, which the Government repeated almost too many times to count, in crafting his
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`litigation strategy with respect to the Motion, including the specific documents he requested from
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`third parties and the arguments that his counsel made in opening statement, all prior to the
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`Government’s announcement of its change in position. See Ex. 2 (excerpts of transcript of January
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`3, 2024 hearing) at 28:6–32:8. Thus, whether based on waiver, forfeiture, law of the case, or
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`judicial or equitable estoppel, the Government should be precluded from reversing its previously
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`agreed-to position.
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`E. Failing to Hold the Government to Its Prior Concessions Would Violate Mr. Shah’s
`Due Process Rights
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`To comply with the Due Process Clause, “criminal prosecutions must comport with prevailing
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`notions of fundamental fairness.” California v. Trombetta, 467 U.S. 479, 485 (1984). Allowing the
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`Government to engage in the sort of gamesmanship observed in this case—persuading the Court
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`and Mr. Shah to accept one position when it served the Government’s interests, and then asking
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`the Court to abandon that position when the Government’s desire to preserve Mr. Shah’s conviction
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`has been put in jeopardy—would be the sort of “failure to observe that fundamental fairness
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`essential to the very concept of justice” that constitutes a “denial of due process.” Lisenba v.
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`California, 314 U.S. 219, 236 (1941). Instead, this Court should apply the principles of waiver,
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`forfeiture, law of the case, and estoppel described above in order to ensure the “fairness, integrity,
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`and honor in the operation of the criminal justice system” that the Due Process Clause requires.
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`People v. Stapinksi, 40 N.E.3d 15, 25 (Ill. 2015) (quoting People v. McCauley, 645 N.E.2d 923,
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`937 (Ill. 1994)).
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`The ability of criminal defendants, their attorneys, and the Court to rely on the
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`Government’s representations and agreements is critical to the fair and just adjudication of criminal
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`cases like this one. That is why the Due Process Clause prevents the Government from recanting
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`its prior representations and promises made to a criminal defendant, especially when the defendant
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`has relied upon them to his detriment. Id. (“Where the government has entered into an agreement
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`with a . . . defendant and the defendant has acted to his detriment or prejudice in reliance upon the
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`agreement, as a matter of fair conduct, the government ought to be required to honor such an
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`agreement.” (quoting State v. Wacker, 688 N.E.2d 357, 362 (Neb. 2004)); United States ex rel.
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`Baker v. Finkbeiner, 551 F.2d 180, 184 (7th Cir. 1977) (“Since [the defendant] has already
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`performed his side of the bargain, fundamental fairness demands that the state be compelled to
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`adhere to the agreement as well.”); see also United States v. Sandles, 80 F.3d 1145, 1148 (7th Cir.
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`1996) (“[S]tipulations do bind the parties themselves. To hold anything else would be to reduce
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`stipulations to mere inconsequential gestures.”). Applying those principles here, the Court should
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`hold the Government to its prior concessions in order to ensure that the Court’s determination of
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`Mr. Shah’s Motion comports with the requirements of Due Process.
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`CONCLUSION
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`In seeking to retract its earlier concessions and representations to the Court and Mr. Shah,
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`the Government makes essentially the same request it made in its opposition to the Motion itself:
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`it asks to be released from the consequences of its own choices. Even if this Court were to grant
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`its wish with respect to the Released Funds, the Government still admits it restrained millions of
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`dollars in other untainted assets based upon a “drafting error” in its indictment. See Opp. to Mot.
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`(Doc. #512) at 10 n.6. In opposing the Motion, the Government acknowledges the excessive nature
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`of that restraint, but it claims Mr. Shah has no remedy for that wrong. Likewise here, the
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`Government admits that it had all the facts it needed to dispute the traceability of the Company B
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`assets when Mr. Shah opposed their forfeiture and obtained their release, but at that time, the
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`Government made the choice to concede their nontraceability. And yet it now seeks to present a
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`new analysis in an attempt to establish the probable cause it was lacking when it unlawfully
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`restrained those assets in the first instance.
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`This dizzying sequence of reversals flies in the face of one of the oldest principles known
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`to the law: “[w]here a person tacitly encourages an act to be done, he cannot afterwards exercise
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`his legal right in opposition to such consent, if his conduct or acts of encouragement induced the
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`other party to change his position.” Swain v. Seamans, 76 U.S. 254, 274 (1869). That principle,
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`which is grounded in the most basic considerations of fairness, precludes the Government from
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`disavowing its prior agreements and representations with regard to the Released Funds. To permit
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`the Government to take an inconsistent position now would not only inject serious questions as to
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`the propriety of this Court’s prior rulings made in reliance upon the Government’s concessions and
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`representations—it would cause profound prejudice to Shah, who has likewise relied upon the
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`Government’s concessions, representations, and agreements in this case.
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`The Government, of all the litigants who appear before this Court, should not be permitted
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`to take one position when it suits its purpose and then take a diametrically opposed position when
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`the usefulness of its first position has been exhausted—especially in a criminal case, where the
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`defendant’s individual liberty is at stake. For all those reasons, Mr. Shah respectfully requests that
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`the Court grant his Motion to Exclude Evidence and for Related Relief.
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`Dated: April 2, 2024
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`Respectfully submitted,
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`BRYAN CAVE LEIGHTON PAISNER LLP
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`/s/ Richard E. Finneran
`RICHARD E. FINNERAN
`211