Case: 1:19-cr-00864 Document #: 705 Filed: 04/22/24 Page 1 of 8 PageID #:24920
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`UNITED STATES OF AMERICA
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`RISHI SHAH and
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`SHRADHA AGARWAL
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`No. 19 CR 864
`Judge Thomas M. Durkin
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`GOVERNMENT’S RESPONSE TO DEFENDANT RISHI SHAH’S
`PROFFER OF TOPICS OF INQUIRY COMMON TO
`PROPOSED GOVERNMENT WITNESSES
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`The UNITED STATES OF AMERICA, by its attorney, MORRIS PASQUAL, Acting
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`United States Attorney for the Northern District of Illinois, hereby responds to defendant Rishi
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`Shah’s proffer of topics of inquiry common to proposed government witnesses. The government
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`opposes any efforts to call current or former government prosecutors as witnesses in this case, as
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`well as any additional effort to recall FBI Forensic Accountant Megan Poelking. Over the
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`government’s objection, the Court recently ordered the production of declarations and affidavits
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`from prosecution team members that were submitted ex parte and under seal. Those materials,
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`which have been produced to the defense, make clear that no member of the prosecution team
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`acted knowingly, intentionally, or in bad faith with respect to the over-restraint of any assets in
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`this case.
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`Now that defendant has access to these materials, and not satisfied that those materials
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`clearly show that the government did not act inappropriately, he seeks testimony from all those
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`who provided declarations and affidavits, as well as testimony from another prosecutor who did
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`not even join the case until after it was charged. Enough is enough. The Court should reject
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`defendant’s efforts because the affidavits and declarations address all issues that need to be
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`resolved as part of the evidentiary hearing. Moreover, defendant has set forth no need for this live
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`Case: 1:19-cr-00864 Document #: 705 Filed: 04/22/24 Page 2 of 8 PageID #:24921
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`testimony, other than has apparent desire to attack the credibility of the former prosecutors or to
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`suggest that they should have known of the over-restraint of assets in this case. The second point
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`is particularly ironic given that if anyone should have known what funds were invested in various
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`assets, and what assets had been over-restrained as a result of the protective order, it was defendant.
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`Simply put, the goals of the evidentiary hearing are not furthered by testimony from the
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`prosecutors, and such an extraordinary request should be denied given the detailed nature of the
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`affidavits and declarations that defendant already has in his possession.
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`Below the government addresses each proposed topic and witness that defendant identifies
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`in his filing, but before doing so, raises three matters. First, the government adopts its arguments
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`raised in a prior filing related to this issue, Docket #639. As detailed in that filing, testimony from
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`the prosecutors who were formerly assigned to this matter would intrude upon various privileges
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`such as the attorney-client, work-product, and deliberative process privileges. Defendant has also
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`not made the requisite showing of substantial need to outweigh the government’s interest in its
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`privilege. The affidavits and declarations show that the government neither intended the overbroad
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`restraint nor knew it was in place, making the live testimony unnecessary.
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`Second, in his motion, defendant uses language seemingly implying that the government
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`is improperly asserting the work product privilege over various materials following the Court’s
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`ruling on the production of the affidavits and declarations. See Def. Mot. at 1, fn. 1 (“The
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`Government continues, despite the Court’s recent ruling, to claim the right to withhold more than
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`100 of its communications under the work product doctrine . . . .”). To the extent defendant is
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`arguing that he is entitled to more than he received, that simply is not the case. At the hearing, the
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`Court ordered the production of only the affidavits, declarations, and materials attached thereto.
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`Case: 1:19-cr-00864 Document #: 705 Filed: 04/22/24 Page 3 of 8 PageID #:24922
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`(See Docket #701, Transcript of hearing dated April 9, 2024, at 529) (“None of this is meant to be
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`any type of broader waiver than the disclosure of the affidavits and their attachments.”). The record
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`should be clear that the government has complied in all respects with the Court’s order.
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`Third, defendant’s motion relates to the claim that his Fifth Amendment rights under the
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`Due Process Clause have been violated. As the government argued in its response to defendant’s
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`initial motion, Docket #512, dismissal of an indictment on Due Process grounds requires much
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`more than anything resembling what has happened in this case. See, e.g., United States v. Fountain,
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`840 F.2d 509, 513 (7th Cir. 1988) (noting that the court has “reserved the possibility that knowing
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`use of perjured testimony, amounting to the creation of trumped-up charges, might justify the
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`dismissal of an indictment.”) (emphasis added); United States v. Stein, 495 F. Supp. 2d 390, 412-
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`413 (S.D.N.Y. 2007) (Due Process violation where government’s conduct “shocks the conscience”
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`or was “outrageous government conduct.”). The affidavits and declarations make clear that this
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`case involves nothing even close to what might justify dismissal.
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`A.
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`Communications with Third Parties
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`Defendant first asserts that he should be entitled to communications prosecutors had with
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`third parties, including entities that restrained untainted assets pursuant to the Court’s protective
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`order. Based on the materials produced to the defense, including emails, the only prosecutor who
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`had such conversations was former Assistant U.S. Attorney Matthew Madden. There is no basis
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`to call any other prosecutors on this topic given that there is no indication they spoke to third
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`parties.
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`While the government agrees that conversations Madden had with third parties would not
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`be privileged, defendant has failed to set forth the relevance of such communications, particularly
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`Case: 1:19-cr-00864 Document #: 705 Filed: 04/22/24 Page 4 of 8 PageID #:24923
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`after the release of the affidavits and declarations. More specifically, Madden’s affidavit makes
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`clear that he was unaware of any over-restraint of assets as part of the protective order.
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`Accordingly, there is no relevance to his conversations with third parties about the nature of the
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`protective order. The theory that defendant has previously asserted was that Madden gave
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`instructions to third parties that were somehow inconsistent with the terms of the protective order
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`because he was aware of the over-restraint. That is pure speculation and not borne out by the
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`emails, but also makes no sense given Madden’s affidavit that he had no knowledge of the over-
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`restraint and did not intend for it to take place. Evidence of what Madden told third parties about
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`the protective order does not make defendant’s constitutional claims any more or less meritorious.
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`Accordingly, this request should be denied.
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`B.
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`Daniel Olinghouse
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`Defendant seeks testimony from former MLARs Attorney Daniel Olinghouse because he
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`finds Olinghouse’s sworn statement that he was unaware of any over-restraint of assets
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`inconsistent with two emails sent to Olinghouse. One such email, dated November 8, 2019, has a
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`subject line that does not even implicate defendant. Instead, the subject is “Sharda tracing.” The
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`other email is dated November 18, 2019. Defendant attempts to impute knowledge to Olinghouse
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`by referencing one cell of a 100 plus line spreadsheet attached to the email.
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`Olinghouse has made a sworn statement to the Court about his lack of knowledge regarding
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`the over-restraint, which is more than sufficient for purposes of the evidentiary hearing. To the
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`extent defendant believes that the documentary evidence shows something different, he is free to
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`point that out to the Court as part of the hearing. It is the government’s sincere hope that defendant
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`is not suggesting that government attorneys, who are of course officers of the Court, have
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`Case: 1:19-cr-00864 Document #: 705 Filed: 04/22/24 Page 5 of 8 PageID #:24924
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`knowingly provided false information in their affidavits/declarations. Short of that, defendant’s
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`proposed testimony from Olinghouse seeks to show only that Olinghouse and perhaps others
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`should have known about the over-restraint based on emails that were provided to them. That is
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`not a ground for a constitutional violation, and it has never been an issue for the evidentiary
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`hearing. Therefore, Olinghouse’s testimony will not make any material fact for the evidentiary
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`hearing more or less likely.
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`C. Matthew Madden
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`A similar analysis should apply to defendant’s request to call former AUSA Matthew
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`Madden. Defendant claims that Madden’s affidavit is “difficult to reconcile” with emails Madden
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`received and which have been produced in discovery. Defendant has all he needs to draw whatever
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`conclusion he would like from the emails and affidavit. However, any suggestion that Madden
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`should have known certain information does not make issues to be resolved at the evidentiary
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`hearing any more or less likely.
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`D. William Johnston
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`For former DOJ Trial Attorney William Johnston, defendant claims his testimony is needed
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`to probe certain communications with Olinghouse. Given that both Olinghouse and Johnston have
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`provided the Court with sworn statements indicating that they were unaware of the over-restraint
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`in this case, defendant fails to articulate why these conversations are at all relevant. Accordingly,
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`there has been no showing of any need for Johnston’s testimony, and it will not make any material
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`fact for the evidentiary hearing more or less likely.
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`Case: 1:19-cr-00864 Document #: 705 Filed: 04/22/24 Page 6 of 8 PageID #:24925
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`E.
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`Kyle Hankey
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`Defendant seeks DOJ Trial Attorney Kyle Hankey’s testimony because he claims Hankey’s
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`declaration does not detail whether Hankey knew of the over-restraint. Hankey’s declaration,
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`however, shows exactly what defendant claims is missing. More specifically, in his declaration,
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`Hankey noted that “[b]ecause I was very busy on another matter at the time, I had minimal
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`involvement in the preparation and review of the materials leading to the restraint of assets that I
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`understand are at issue in the hearing referenced in the Court’s December 1, 2023, Order (Doc.
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`624).” Hankey also noted that “I do not recall reviewing the details of the asset tracing that led to
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`the pre-trial restraint of the defendants’ assets. I was not aware until this issue was raised by
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`defense counsel post-trial in 2023 that the government had over-restrained certain assets.” This is
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`more than enough for the Court to conclude that, contrary to what defendant claims in his motion,
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`Hankey had no knowledge of the over-restraint. His testimony, therefore, is not needed.
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`F.
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`Saurish Appleby-Bhattacharjee
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`When the government declarations were filed in this case, Saurish Appleby-Bhattacharjee
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`was no longer employed by the Department of Justice. Hence, no declaration or affidavit was
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`included from him. Though defendant claims that one is needed, he provides no basis as to why.
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`Appleby-Bhattacharjee was not one of the original government attorneys of record when this case
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`was initially charged. Instead, he filed a notice of appearance on February 13, 2020, several months
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`after the indictment was returned. (Docket #92.)
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`Defendant references emails that included Appleby-Bhattacharjee contained on the
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`government’s privilege log. However, Appleby-Bhattacharjee did not receive an email as reflected
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`Case: 1:19-cr-00864 Document #: 705 Filed: 04/22/24 Page 7 of 8 PageID #:24926
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`on the privilege log until December 2020, and did not send an email appearing on the privilege log
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`until May 2023, well after any time-period relevant to the issues raised in the evidentiary hearing.
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`Thus, defendant has not set forth even a prima facie case for Appleby-Bhattacharjee’s
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`testimony. This is particularly true since the other prosecutors assigned to the matter before
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`Appleby-Bhattacharjee have already established that they did not have knowledge or intent of the
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`over-restraint.
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`G. Megan Poelking
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`Even though FBI Forensic Accountant Megan Poelking has testified four times as part of
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`this case, and two times as part of the currently pending evidentiary hearing, defendant seeks her
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`testimony yet again. According to defendant, he needs to question Poelking as to the substance of
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`communications she had with government attorneys, particularly Olinghouse.
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`Though defendant seeks Poelking’s testimony once more, he has not complied with the
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`Court’s ruling about when Poelking can be recalled. On April 9, 2024, the Court set very specific
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`ground rules for further testimony from Poelking:
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`As to Ms. Poelking, she has now testified four different times: at trial, at the
`forfeiture hearing, at the January hearing, and yesterday. Any effort to recall
`Poelking will have to be with specific references to the transcript where there was
`an assertion of privilege that I sustained and the question is clearly relevant. I’ll
`then judge whether or not additional questions of her are necessary.
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`(Docket #701, Transcript of hearing on April 9, 2024, at 528-29.)
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`Defendant has not set forth in his motion specific references to the transcript where the
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`Court sustained a question related to an assertion of privilege. On this ground alone, defendant’s
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`request should be denied.
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`Case: 1:19-cr-00864 Document #: 705 Filed: 04/22/24 Page 8 of 8 PageID #:24927
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`Even if the Court excuses defendant’s failure to comply with the requirements set out on
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`April 9, his efforts to recall Poelking should still be denied. Poelking has already testified that she
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`did not believe any untainted assets had been restrained. Defendant wishes to probe Poelking’s
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`testimony versus Olinghouse’s statement in his declaration that he believed there were no untainted
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`assets. Defendant fails, however, to explain how such testimony is needed or relevant in light of
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`Poelking’s testimony and Olinghouse’s declaration. Further inquiry into how or why there was a
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`miscommunication on the issue of restraining assets is irrelevant because the materials that have
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`already been submitted to the Court and provided to the defense show that the over-restraint was
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`not knowing, intentional, or in bad faith. As such, there is no reason to call Poelking again.
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`Accordingly, based on the above, the Court should deny defendant’s request for testimony
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`from the current and former government employees described above.
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`Dated: April 22, 2024
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`Respectfully submitted,
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` MORRIS PASQUAL
` Acting United States Attorney
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`By: /s/ Jason A. Yonan
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` JASON A. YONAN
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` Assistant United States Attorneys
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` 219 S. Dearborn Street, Suite 500
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` Chicago, Illinois 60604
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` (312) 353-0708
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