None of the arguments has merit.

None of these descriptions fits Mr. Shah’s Motion, which alleges (1) the unlawful restraint of property by the Government; (2) the resulting denial of his Sixth Amendment rights; and (3) the presentation of false testimony to the grand jury ...

Yet despite the fact that Mr. Shah’s prior counsel were kept in the dark regarding the illegality of the Government’s restraint, the Government nonetheless contends that they should have brought a pretrial motion asserting the grounds ...

Even if Mr. Shah’s original counsel did not specifically raise an issue with the veracity of the grand jury’s forfeiture allegations, they nonetheless raised a pretrial challenge to the Government’s pretrial restraint.

2 Case: 1:19-cr-00864 Document #: 705 Filed: 04/22/24 Page 3 of 8 PageID #:24922 (See Docket #701, Transcript of hearing dated April 9, 2024, at 529) (“None of this is meant to be any type of broader waiver than the disclosure of the ...

“Motion”), taken legal and factual positions in his litigation of that Motion, and engaged in significant preparations for the evidentiary hearing on the Motion—all based on the Government’s repeated concessions and representations that more than half the distributions held by Company B constituted untainted property.

Whether viewed as waiver, forfeiture, law of the case, or judicial or equitable estoppel, it would be fundamentally unfair to Mr. Shah to permit the Government to pull the rug out from under him at this late stage, where he has structured both his litigation strategy and the funding of his continued defense on the basis of the Government’s prior concessions and representations.

Mr. Shah’s counsel initially opposed that approach, but Mr. Shah ultimately acceded to the Government’s suggestion in the interest of avoiding further litigation to determine what specific portions of the assets held by any of the restrained entities were traceable to criminal proceeds prior to their release.

Mr. Shah further relied on those concessions, which the Government repeated almost too many times to count, in crafting his litigation strategy with respect to the Motion, including the specific documents he requested from third parties and the arguments that his counsel made in opening statement, all prior to the Government’s announcement of its change in position.

Instead, this Court should apply the principles of waiver, forfeiture, law of the case, and estoppel described above in order to ensure the “fairness, integrity, and honor in the operation of the criminal justice system” that the Due Process Clause requires.

As a result of the Court's order, Ms. Agarwal was denied the use of more than $3.8 million she had provided to McGuire Woods as fees for representation at trial.

Exhibit A at 1 ¶ 2; see Doc. 468 at 12 ¶ 4 (preliminary order of forfeiture refers to "funds in the amount of $3,816,824.52 turned over to the FBI from [McGuire Woods] on July 13, 2020").

Given the denial of the motion to amend the protective order, Ms. Agarwal does not have the funds to continue to retain her current counsel, McGuire Woods, which has represented her for almost two year.”) (emphasis added).

The evidence at the hearing established that substantial assets the government persuaded the Court to freeze pretrial were not traceable to the alleged fraud offenses with which Mr. Shah and Ms. Agarwal were charged.

2d 390, 409-15 (S.D.N.Y. 2007) (defendants' right to due process violated by same conduct), aff'd on other grounds, 541 F.3d 130 (2d Cir. 2008).The Indictment should be dismissed and her convictions vacated, or in the alternative, Ms. Agarwal should receive a new trial, at which she can use the substitute assets to fund her defense.

None of these communications can rationally be viewed as having been made "for the purpose of executing" the scheme to defraud charged in Count 1.

Nothing in this Order shall be construed to limit the SEC’s or Defendants’ use of documents the SEC obtained from sources other than the Department of Justice.

Defendants, defendants counsel, and authorized persons shall not disclose any notes or records of any kind that they make in relation to the contents of the materials, other than to authorized persons, and all such notes or records are to be treated in the same manner as the original materials.

The materials may be (1) destroyed; (2) returned to the United States; or (3) retained in defense counsel's case file.

The restrictions set forth in this Order do not apply to documents that are or become part of the public court record, including documents that have been received in evidence at other trials, nor do the restrictions in this Order limit defense counsel in the use of discovery materials in judicial proceedings in this case.

Nothing contained in this Order shall preclude any party from applying to this Court for further relief or for modification of any provision hereof.

Please take notice that Fraud Section Assistant Chief William Johnston is no longer

assigned to this case.

By: Respectfully submitted,

Acting United States Attorney s/ Corey Rubenstein Corey Rubenstein Assistant United States Attorney 219 S. Dearborn Street Chicago, Illinois 60604 (312) 469–6045

Chief, Fraud Section Criminal Division U.S. Department of Justice s/ William Johnston William Johnston Assistant Chief 1400 New York Ave NW Washington, D.C. 20530

The following property is to be applied toward satisfaction of the personal money judgment: a. All right, title, and interest in Investment Fund A, held in the name of Jumpstart Ventures II, LLC, including, but not limited to, approximately $60,000.00 in capital contributions submitted on or around May 31, 2018; b.

Specifically, the following accounts shall be liquidated and distributed as follows: a. All right, title, and interest in Investment Fund A, held in the name of Jumpstart Ventures II, LLC, including, but not limited to, approximately $60,000.00 in capital contributions submitted on or around May 31, 2018; b.

Funds in the amount of $194,616.25 seized on July 8, 2021, and all remaining right, title, and interest in Investment Company C, held in the name of Jumpstart Ventures II, LLC, including, but not limited to, $50,000 in capital contributions submitted on or about January 5, 2017; y.

Following the Court’s disposition of all third party interests, the Court shall, upon the government=s motion, if appropriate, enter a final order of forfeiture as to the subject property which shall vest clear title in the United States of America.

cannot be located upon the exercise of due diligence; have been transferred or sold to, or deposited with, a third-party; have been placed beyond the jurisdiction of the Court; have been substantially diminished in value, or have been commingled with other property which cannot be divided without difficulty;

In reply, defendants admitted that the underpinning of their claim was inaccurate; in fact, they received the grand jury testimony and the supporting exhibits (to include

By failing to challenge the pretrial restraint of commingled assets, defendants would be unable to satisfy even the first prong of plain error review.

From the indictment and GX 1029, and considering that they made the investments, defendants had ample opportunity to analyze the scope of the protective order and assess the grand jury testimony before trial.

In light of this reality and these sworn statements, Shah can hardly claim that if he had access to restrained, non-traceable portions of those same kinds of investments in 2020, then he would have continued to retain Quinn Emanuel.

If the Court decides to explore this issue at a hearing, with appropriate permissions, the government will seek documents and/or testimony from the investment funds, financial institutions, Rishi Shah, Shradha Agarwal, Baroda Trust, Quinn Emanuel, McGuireWoods, Hueston Hennigan, Vadim Glozman, Blegan & Garvey, and Larson O’Brien.

Pursuant to this Court’s December 1, 2023 Order (Doc. #624) (the “Order”), Mr. Shah submits this memorandum identifying the issues he requests the Court consider at an evidentiary hearing on Mr. Shah’s Motion to Dismiss or Alternatively for a New Trial (Doc. #490) (the “Motion”).

Likewise, Mr. Shah’s prior briefing explains why it is unnecessary for the Court to determine whether the fees quoted to Mr. Shah by his original counsel of choice were “reasonable.” See Mem.

Moreover, Mr. Shah has already presented evidence that is sufficient for the Court to find that the Government had knowledge that it had restrained untainted assets as early as February 2020 and failed to take any steps to correct that unlawful restraint in the three years that followed.

Mr. Shah therefore requests that the Government be required to produce, sufficiently in advance of the hearing, all documents that bear upon the Government’s knowledge of the restraint of untainted assets, including, without limitation: (1) all communications involving any agent or attorney of the Government relating to the traceability of or source of funding for any of the assets retained by the Protective Order; (2) all communications and documents, including drafts thereof, relating to FBI Forensic Accountant Megan Poelking’s testimony before the Grand Jury and the forfeiture allegation in the Superseding Indictment; (3) all communications with any of the entities affected by the Protective Order relating to the assets covered by the Protective Order, including the value, liquidity, or traceability thereof; and (4) any communications by the Government to any entity directing or discussing the distribution or treatment of funds and/or proceeds of the sale of any assets, whether or not subject to the Protective Order.

However, such witnesses may include, without limitation, Megan Poelking, Matthew Madden, Kyle Hankey, William Johnston, Saurish Appleby-Bhattacharjee, and any other agent or attorney for the Government who has been involved in Mr. Shah’s case.3 III.

Rishi Shah hereby movesto exclude evidence from Goldman Sachs (“GS”) representative Kenneth Eberts regarding GS’s attempts to obtain the original IMSreports after the publication of the Wall Street Journal article.

The Government apparently intends to suggest that Mr. Shah knew or should have knownearlier of Ashik Desai’s rogue alterations of the IMSreports, and “stonewalled” GS from accessing the original reports in order to conceal the fraud.

When, addedon top ofthat, there is complicated and nuanced contextthat will need to be introduced to place the Government’s evidence in context, the post-WSJ interactions between Mr. Shah and GS should be excluded on the groundsofprejudice, confusion, and waste of time.

Any conclusions Mr. Eberts drew as a result of viewing a collection of materials assembled afterthe fact and with knowledgeofactual fraud should further be excluded as improper opinion lacking foundation.

As set forth above in the background section above, Mr. Shah will have to introduce a series of documents and multiple Voxers to correct the false and prejudicial misimpression that will invariably result from Mr. Eberts’ testimony on these topics.

During cross-examination, counsel for Purdy repeatedly attacked Ma’s credibility, suggesting that he was looking to “cash in” by filing a complaint with the SEC and that his immunity agreement with the government amounted to a “free pass from getting prosecuted.” (2/13/23 Tr. 2461, 2554.)

Purdy’s attorney further impeached Ma on other topics, including his fabrication of tablet metrics with Desai and his creation of false images for proofs of performance that were sent to clients.

The Rule covered only those consistent statements that were offered to rebut charges of recent fabrication or improper motive or influence.

Most notably, Agarwal’s counsel flashed Ma’s immunity agreement with the government before the jury, after reviewing statements that Ma had made in text-message communications with Joyce Chen about his desire to see Shah “go to jail” and Agarwal “deported.” (GX 1025.)

Shah’s response, rather than expressing surprising that there was a significant inventory gap, was to direct Desai (in Ma’s presence) to raise the target for revenue the following year.

As set forth in other filings, after Quinn Emanuel withdrew, Shah retained no fewer than 11 attorneys from four prestigious law firms to represent him.

How did Shah, if he had insufficient funds to hire Quinn Emanuel, not only hire these great lawyers, but have sufficient funds to (1) live in a multi-million- dollar luxury home in Puerto Rico while owning a home in Chicago worth about $10 million and owning a condo in Chicago worth more than $1 million, R. 483 at 3-5; (2) invest $2 million in LEAF VIP, LLC—what appears to be a cannabis investment entity associated with Shah’s long- time employee David Cho—in April 2023 at the end of trial, R. 483 at 8; (3) invest $500,000 in LEAF VIP in October 2022, Id.; (4) spend copious amounts of money on private jets, private yacht charters and fine dining after he was indicted, R. 512 at 24, R. 482 at 51; and (5) attempt to set up multiple six-figure sports gambling accounts after conviction?

Agarwal, for her part, retained lawyers from Larson O’Brien LLP, an elite trial firm in Los Angeles, and Blegen & Garvey, a highly-regarded criminal defense boutique in Chicago.

Though Agarwal could have sold the residences in Austin and/or India or taken out asset-backed loans in order to raise legal fees, she chose not to; she held onto her properties and benefitted from their use and appreciation in value.

Luis v. United States, 578 U.S. 5, 10 (2016) (plurality) (holding that “the pretrial restraint of legitimate, untainted assets needed to retain counsel violates the Sixth Amendment”) (emphasis added).

None of his arguments have merit.