United States v. Lepore, 1:15-cr-00367

Background

Defendants Lepore, Rife, and Domalik prosecuted; government seeks to introduce statements Lepore made to Andrea Kiehl (DMS former GC) during negotiations to sell Rite Way to DMS as evidence of consciousness of guilt.
Government initially filed motions to admit Lepore’s alleged misrepresentations; court denied earlier motion without prejudice for lack of specificity and directed proffer at trial.
Government proffered Kiehl would testify Lepore described a WSB‑TV news report about a GBI investigation as a mere contract dispute, said certain Rite Way employees had been interviewed, and represented that an apartment paid by Rite Way was for company managers.
Government also proffered Kiehl would say Rite Way’s outside counsel told her preservation efforts were underway after a grand jury subpoena; Lepore was on that call but did not make the statement.
Court evaluated whether (1) Lepore’s statements to Kiehl about the scope of the GBI investigation, (2) his statement about the apartment, and (3) the preservation‑effort statement/omission, were admissible as evidence of consciousness of guilt; separately addressed whether Kiehl could testify about the WSB‑TV news report itself.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Lepore’s fall 2013 statements downplaying the GBI investigation are admissible as false exculpatory statements showing consciousness of guilt	Statements show he mischaracterized a criminal probe and thus indicate guilty consciousness	Statements did not deny elements of crime or personally inculpate him; were explanations to a potential buyer and thus not probative of guilt	Excluded: statements about scope of investigation not probative of guilt and not admissible
Whether Lepore’s statement that the Rite Way‑paid apartment was for company managers is admissible as consciousness of guilt evidence	Statement is false and, shown to be contradicted by other evidence, can be considered circumstantial evidence of guilty consciousness	Was a business explanation to buyer; probative value disputed	Admitted: Kiehl may testify Lepore said the apartment was for Rite Way managers
Whether statements by Rite Way’s outside counsel about preservation efforts, and Lepore’s omission on the call, are admissible to show guilty consciousness	The preservation assurance and Lepore’s failure to disclose deletion efforts show consciousness of guilt	The statement was by counsel to a potential buyer, not an investigating official; Lepore was not asked about preservation and omissions don’t readily imply guilt	Excluded: counsel’s statement and alleged omission are not admissible to show Lepore’s consciousness of guilt
Whether Kiehl may testify about the content of the WSB‑TV news report or her reactions to it to help memory/timeline	Testimony about the report helps Kiehl recall chronology and explains when Lepore informed her	Admission of the report’s content is irrelevant and prejudicial; other means exist to establish chronology	Excluded: Kiehl may not testify about the WSB‑TV report or her reactions to its content

Key Cases Cited

United States v. Alejandro, 118 F.3d 1518 (11th Cir.) (false exculpatory statements to authorities may be substantive evidence of guilty intent)
United States v. Jernigan, 341 F.3d 1273 (11th Cir.) (false statements to arresting officers may support inference of consciousness of guilt)
United States v. Pringle, 576 F.2d 1114 (5th Cir.) (jury may infer consciousness of guilt from fabricated exculpatory statements)
United States v. Littlefield, 840 F.2d 143 (1st Cir.) (false exculpatory statements must be closely related to the crime or implausible to be probative)
United States v. Chaney, 446 F.2d 571 (3d Cir.) (omissions in response to direct investigative questioning can indicate guilty consciousness)
United States v. Barresi, 601 F.2d 193 (5th Cir.) (discussing use of false statements as circumstantial evidence of guilt)