[00:00:00] Speaker 02:
Good morning, Your Honor.

[00:00:01] Speaker 02:
My name is Cassandra Stam and I'm here on behalf of the appellant today.

[00:00:04] Speaker 02:
I'd like to reserve two minutes of my time for rebuttal if that's possible.

[00:00:08] Speaker 02:
Sure.

[00:00:10] Speaker 02:
May it please the court, counsel?

[00:00:13] Speaker 02:
An adjustment for obstruction of justice under USSG 3C 1.1 is a serious matter that is supposed to be directed only towards willful conduct that is above and beyond the offense of conviction.

[00:00:26] Speaker 02:
It is supposed to be reserved for defendants who consciously act with the purpose of obstructing justice.

[00:00:34] Speaker 02:
It is not intended

[00:00:36] Speaker 02:
to punish a defendant for the exercise of a constitutional right, a denial of guilt, a refusal to enter a plea, or a mere continuation of the illegal conduct already charged in the case.

[00:00:49] Speaker 02:
That is exactly what happened here.

[00:00:51] Speaker 02:
In this case, the appellant represented herself.

[00:00:54] Speaker 02:
She was an inmate at the time, but even pro se, as an inmate, she did object to this enhancement as it was proposed in the PSR.

[00:01:05] Speaker 02:
The court did impose it anyway over her objection, and in doing so, the court did not make any findings about the facts underlying the enhancement or the reason for the enhancement, and for all of those reasons.

[00:01:18] Speaker 02:
We believe the case needs to be remanded at this point for re-sentencing.

[00:01:22] Speaker 04:
Counsel, could I ask you a question about page 11 of the PSR?

[00:01:28] Speaker 04:
Yes.

[00:01:28] Speaker 04:
Paragraph 40, and I think this is block quoted in the briefing and so forth, but it's sort of in the middle of that paragraph.

[00:01:36] Speaker 04:
It talks about the arguments you're making.

[00:01:38] Speaker 04:
She claims that she was Montague and so forth and so on.

[00:01:41] Speaker 04:
But the next sentence says, further, the defendant continued to provide materially false information to the pretrial services officer during the pretrial services investigation into the defendant's motion for revocation of detention order.

[00:01:56] Speaker 04:
What is the court referring to, or what is the author referring to there?

[00:01:59] Speaker 04:
What happened?

[00:01:59] Speaker 04:
I'm just wondering if this is conduct beyond the offense that she was charged with.

[00:02:08] Speaker 02:
Yes, Your Honor, I'm happy to answer that question.

[00:02:10] Speaker 02:
So first, I would say that that same sentence is repeated verbatim in paragraph 30, which is the paragraph that she objected to.

[00:02:18] Speaker 02:
So that is what she is objecting to in part.

[00:02:22] Speaker 02:
And that, I would say, is not a surprising question to me, because I think that's the closest this court, the district court, I mean, ever came to finding a valid basis for this enhancement.

[00:02:33] Speaker 02:
What they're referring to is reflected in the supplemental excerpts of record at 40 or sorry, 54 and page 55.

[00:02:42] Speaker 02:
The government's briefing talks about the pretrial services report on the appellant's motion to revoke the detention order.

[00:02:52] Speaker 02:
That's at 59 to 61.

[00:02:54] Speaker 02:
There's nothing new in that report.

[00:02:56] Speaker 02:
What the government's really referring to is the report that was dated for the August 2nd, 2022 hearing.

[00:03:05] Speaker 02:
And in that report, the record that we have here in front of the court, it states that the appellant advised that her name was Julie Lynn Montague and not Gwyn Morrison, and that she advised that she was born in Burnett, Texas.

[00:03:22] Speaker 02:
Here's the rub though, those statements to support an adjustment for obstruction have to be material and they have to be willful.

[00:03:31] Speaker 02:
And when you read the rest of the report, you can see that these are not material representations at that point.

[00:03:39] Speaker 04:
We're talking at that point about bail revocation, which I think is what was going on.

[00:03:42] Speaker 04:
What I'm concerned about is that there's indications in here that she wouldn't, at one point she said she didn't have family.

[00:03:49] Speaker 04:
Well, we know she has family.

[00:03:51] Speaker 04:
At one point she said she didn't have any assets, and then there's this bank account that she's sharing, it's on paragraph 63A.

[00:04:00] Speaker 04:
The government provided, sorry, 63 says her husband's responsible for all of their finances, the government has confiscated all of their assets.

[00:04:09] Speaker 04:
The following paragraph says the government has provided the probation office with a bank statement addressed to her under the name Primrose, and it had a balance of $80,000 in it.

[00:04:20] Speaker 04:
So of course, when we're talking about bail, we're looking at flight risk.

[00:04:23] Speaker 04:
And so I'm just reading between the lines and trying to figure out what's going on here and why these misstatements would not be obstruction.

[00:04:29] Speaker 04:
Can you help me out?

[00:04:30] Speaker 02:
I can, I hope.

[00:04:32] Speaker 02:
So at the time of both of these reports, from the very beginning of the case, she was in custody.

[00:04:37] Speaker 02:
She didn't have access.

[00:04:39] Speaker 02:
The topic of the day was whether that should be revoked, right?

[00:04:42] Speaker 02:
This is their joint motion to revoke.

[00:04:43] Speaker 02:
It's called a motion to revoke.

[00:04:45] Speaker 02:
It was filed by the appellants.

[00:04:48] Speaker 02:
I appreciate that.

[00:04:50] Speaker 02:
It's a motion to revoke the detention order, not a motion to revoke bail.

[00:04:54] Speaker 02:
Sorry.

[00:04:55] Speaker 04:
I'm not sure why that matters because they wanted to get out, right?

[00:04:58] Speaker 04:
Isn't the concern flight risk?

[00:05:00] Speaker 04:
Flight risk is a concern, Your Honor.

[00:05:02] Speaker 04:
Right, so that's what we care about.

[00:05:03] Speaker 04:
Does she have family?

[00:05:04] Speaker 04:
Does she have assets?

[00:05:05] Speaker 04:
That's what I'm trying to get at.

[00:05:07] Speaker 04:
I appreciate that it was her husband's motion and that she joined it, but what am I missing here?

[00:05:11] Speaker 02:
Well, she does indicate, and this information is in the pre-trial services reports, both of them, that she has sisters.

[00:05:17] Speaker 02:
That's true.

[00:05:18] Speaker 02:
The government is aware of the sisters of the person born Morrison.

[00:05:23] Speaker 02:
So there's no indication that she doesn't have family.

[00:05:27] Speaker 04:
I think she said she didn't have family is the point.

[00:05:30] Speaker 04:
Just like this bank account, it's the government pointing this out.

[00:05:33] Speaker 04:
The government provided the bank statement, but it contradicts, I think, her statement.

[00:05:37] Speaker 04:
If I'm reading this correctly, and I really invite you to let me know if you think I'm missing it.

[00:05:43] Speaker 02:
Well, I think what the government says is that her representation about her name provided a potential to impede a background investigation.

[00:05:54] Speaker 04:
But it wouldn't provide her name or educational records or her

[00:05:58] Speaker 04:
medical records, her birth records, and she says on advice of counsel.

[00:06:01] Speaker 04:
I'm very mindful of that.

[00:06:03] Speaker 02:
Right.

[00:06:04] Speaker 02:
Which, of course, could never be the basis if it's on the advice of counsel.

[00:06:09] Speaker 02:
There's case law that says that that can't be the basis for it.

[00:06:12] Speaker 04:
Right, and so I'm not sure she gets to have it both ways.

[00:06:14] Speaker 04:
At this point in the proceeding, she was originally, when she gave this information or refused to give it, I think she wasn't represented, right?

[00:06:21] Speaker 02:
At the very beginning, I think she had an attorney, but the attorney hadn't contacted her.

[00:06:28] Speaker 02:
I think someone had been appointed.

[00:06:29] Speaker 01:
So what precisely did the government argue was the obstruction of justice?

[00:06:35] Speaker 02:
The government, well, probation argued that there was this materially false representation in the original pre-sentence report that

[00:06:47] Speaker 02:
August 2nd report.

[00:06:49] Speaker 02:
What was that?

[00:06:50] Speaker 02:
About the name.

[00:06:51] Speaker 01:
What I'm after is, is the government arguing that there's a misrepresentation that should trigger the guideline beyond the statements as to what a true name was?

[00:07:04] Speaker 02:
The government has not argued that, no.

[00:07:06] Speaker 02:
The government said that the representation about the name had the potential to impede a determination of her background, her employment, her criminal history, and the suitability of bail conditions.

[00:07:17] Speaker 02:
I get that.

[00:07:18] Speaker 01:
And is there anything else that the government argued constituted obstruction of justice?

[00:07:22] Speaker 01:
No, Your Honor.

[00:07:23] Speaker 01:
Not that I'm aware of.

[00:07:25] Speaker 04:
Would you like to reserve your time for rebuttal?

[00:07:28] Speaker 02:
Yes, please, Your Honor.

[00:07:29] Speaker 02:
Thank you.

[00:07:49] Speaker 00:
Thank you, Your Honor.

[00:07:50] Speaker 00:
May it please the Court, Jonathan Slack from the United States.

[00:07:53] Speaker 00:
I'm going to start with addressing the question posed to Appellants Council previously about additional statements made to pre-trial services that could amount to obstruction.

[00:08:03] Speaker 00:
The one that was missed and was argued in our briefing, I believe, is representation is diversity.

[00:08:08] Speaker 00:
So Berth City was represented as Burnett, Texas.

[00:08:11] Speaker 04:
In other words, the... There are several inconsistencies, I think.

[00:08:16] Speaker 04:
But to follow up on Judge Fletcher's point, I don't think that's what the government argued here.

[00:08:21] Speaker 00:
The at the district level, your honor, there honestly wasn't a lot of argument on this issue.

[00:08:27] Speaker 00:
Pre child services report, excuse me, the PS are addressed it kind of summarily.

[00:08:32] Speaker 00:
And then there was an additional argument sentencing on appeal.

[00:08:35] Speaker 00:
I believe we did argue in the briefing that one of the grounds was the birth city was wrong.

[00:08:40] Speaker 00:
And that's a distinguishing fact because, you know, in this case, the government does recognize there's a collision between

[00:08:46] Speaker 00:
One of the main charges is identity theft, but also the individual's assertion of a name.

[00:08:52] Speaker 00:
There's quite a bit of a collision there in the Fifth Amendment as well.

[00:08:55] Speaker 00:
But representing your birth city to be something, a place you were not born in, and instead representing it to be the city of an assumed name is completely different.

[00:09:04] Speaker 01:
Why do we regard that as something distinct from saying that you've got an assumed name?

[00:09:07] Speaker 01:
Because that's just part of the identity as to where the assumed named person was born.

[00:09:11] Speaker 00:
It would be distinct from it, Your Honor.

[00:09:13] Speaker 00:
That's correct.

[00:09:14] Speaker 01:
Why is it distinct?

[00:09:15] Speaker 00:
It's part of the investigative steps of the pre-trial services officer to look at this individual who's before the court and to say, you're not, you and I aren't quite matching yet.

[00:09:27] Speaker 01:
She's been living under an assumed name for a long time.

[00:09:30] Speaker 01:
She maintains while she's in the proceedings that are dangerous to us that she is the person from time to time.

[00:09:38] Speaker 01:
She admits who she is, but much of the time she is assuming that she is saying she's living under the assumed name.

[00:09:43] Speaker 01:
Well, the birth city that you're identifying is the birth city of the person with the assumed name.

[00:09:49] Speaker 01:
So why should I view giving the birth city of the person with the assumed name as separate and distinct from just saying I'm the person with the assumed name?

[00:09:59] Speaker 01:
That's just part of the assumption, the identity in my view.

[00:10:01] Speaker 00:
I can see the argument, Your Honor, that's sort of part and parcel of the whole issue of who she is.

[00:10:06] Speaker 00:
But additionally, there's another statement she made, and it's going a step further and saying she's not Morrison.

[00:10:11] Speaker 00:
That's an affirmative assertion of rejecting the Morrison name.

[00:10:15] Speaker 03:
That's a direct denial of the charge that's brought against her, though, right?

[00:10:20] Speaker 00:
It is a direct denial, but it's not required.

[00:10:24] Speaker 00:
She has no obligation to say to pre-trial services.

[00:10:27] Speaker 03:
Let me ask you this.

[00:10:27] Speaker 03:
Would you agree that we're required to construe pro se pleadings liberally?

[00:10:31] Speaker 03:
I agree with that, Your Honor.

[00:10:32] Speaker 03:
Okay.

[00:10:33] Speaker 03:
And so she was pro se when she filed her objections to the PSR, correct?

[00:10:38] Speaker 03:
Correct.

[00:10:39] Speaker 03:
Okay.

[00:10:39] Speaker 03:
And so if she objected to paragraph 30 of the pre-sentence report, and that's substantively identical to paragraph 40, what's

[00:10:50] Speaker 03:
why can't we construe her objection to one paragraph, especially as you, I think, agree, we're supposed to construe the pleading liberally, why can't we construe that as an objection to the other paragraph?

[00:11:03] Speaker 00:
Certainly, Your Honor, you shouldn't be looking at the numbers objected to and figuring out whether she objected to a certain paragraph.

[00:11:08] Speaker 00:
But the sum and substance of her objection to paragraph 30 is all about facts.

[00:11:13] Speaker 00:
Paragraph 40 adds an additional layer of application of the guidelines to the facts.

[00:11:17] Speaker 00:
Nowhere in her statements objecting to paragraph 30 does she address the application of the obstruction guideline to the facts.

[00:11:24] Speaker 00:
Therefore, she hasn't objected to the application layer.

[00:11:27] Speaker 03:
Okay, so your argument is that unless she objects to the application of the enhancement to the facts, we can't construe that objection broadly to include an objection to the statement of obstruction.

[00:11:46] Speaker 00:
No, Your Honor, you can construe it to be an objection to the underlying factual disputes, which I think there's a couple of layers here, and it was missed in the briefing, to be honest.

[00:11:55] Speaker 00:
The underlying layers, the factual disputes, are viewed for clear error on appeal, and if it's not objected to a plain error, the higher layer is the application of the guidelines to the facts.

[00:12:06] Speaker 03:
I think you're exactly right.

[00:12:07] Speaker 03:
That was completely missed.

[00:12:08] Speaker 03:
I mean, really, surprisingly to me, that the only argument that the government is making here is that

[00:12:16] Speaker 03:
a plain error review is required.

[00:12:19] Speaker 00:
Your honor, I think the the briefer went to the shortest path of victory here and is to say that an objection was not made to the obstruction enhancement.

[00:12:28] Speaker 00:
Well, there are additional arguments to be made.

[00:12:29] Speaker 03:
One one I'm making now is consider them since they were not made below or in the briefing.

[00:12:35] Speaker 00:
Well, Your Honor, I think you were supposed to consider the full record here, and there's really no way to say that the appellant didn't object to the factual disputes.

[00:12:44] Speaker 00:
That's true, liberally construing her statements and her sentencing statement.

[00:12:49] Speaker 00:
However, that's a different matter of objection to the enhancement itself.

[00:12:52] Speaker 00:
And given the objections to the factual statements, clear error does apply, but the court did not clearly err in ruling on those factual disputes.

[00:13:00] Speaker 00:
And there's three of them here.

[00:13:01] Speaker 00:
There's the misstatement to the pretrial services officer, which we discussed.

[00:13:05] Speaker 00:
There's also the expressed denial of guilt as to the specific charge in this case under oath when the appellant was examining herself.

[00:13:13] Speaker 04:
But there's no perjury findings.

[00:13:14] Speaker 04:
And so are you relying on that?

[00:13:16] Speaker 00:
Yes, your honor.

[00:13:17] Speaker 04:
I think I can still is sufficient.

[00:13:19] Speaker 00:
Excuse me, your honor.

[00:13:20] Speaker 04:
You're you're relying on her denial of guilt.

[00:13:23] Speaker 00:
Denial of guilt to the charge itself under oath when examining herself.

[00:13:27] Speaker 00:
Yes.

[00:13:29] Speaker 00:
And there's case law that I can distinguish that cited here.

[00:13:32] Speaker 00:
It's the Dunigan opinion from the Supreme Court talking about how there must be expressed findings of fact, right?

[00:13:38] Speaker 00:
With respect to mindfulness, materiality and also falsity.

[00:13:42] Speaker 00:
None of those cases that are cited doing again him and as many as are taken Castro Ponce address the situation where the defendant is asked point blank on the stand.

[00:13:52] Speaker 00:
Did you commit this crime and she says no, they're all about sort of collateral matters.

[00:13:57] Speaker 00:
You know, if it was a car theft case, was the car red or green?

[00:14:00] Speaker 00:
What date was it?

[00:14:01] Speaker 00:
And the Dunigan opinion expresses, here's a quotation, that testimony may be truthful, but the jury may nonetheless find testimony insufficient to excuse the criminal liability or prove lack of intent.

[00:14:12] Speaker 00:
That gets at the issue of where the defendant is testifying something collateral, but not the whole shebang, not the actual charge itself.

[00:14:18] Speaker 00:
And here, Miss Morrison decided to testify in her own case, examine herself, and ask herself the question, did you commit identity theft?

[00:14:28] Speaker 00:
And she said no.

[00:14:30] Speaker 00:
So that is an expressed denial of guilt.

[00:14:32] Speaker 00:
The guideline itself in 3C 1.1 discusses how an expressed denial of guilt can be perjury if it's under oath, and that can constitute obstruction of justice.

[00:14:43] Speaker 04:
Would we need findings from the court about that?

[00:14:45] Speaker 00:
You would, Your Honor.

[00:14:47] Speaker 00:
However, only one was objected to by the appellant.

[00:14:51] Speaker 00:
That's the willfulness element.

[00:14:52] Speaker 00:
If you look at her sentencing statement in response to paragraph 30, she says, I did not intend to obstruct justice.

[00:14:59] Speaker 00:
That's construed as an objection to the willfulness required.

[00:15:03] Speaker 04:
It's an interesting record from my perspective because she pretty much admitted to the whole thing.

[00:15:08] Speaker 04:
I'm not sure what she really denied.

[00:15:11] Speaker 04:
Factually, she admitted to the government's case about how she'd been living under this assumed name.

[00:15:18] Speaker 04:
So she wasn't sneaky about it.

[00:15:19] Speaker 04:
And we're looking at obstruction.

[00:15:22] Speaker 04:
She continued to express confusion about, why are you prosecuting me for this, and outrage, and indignation, and whatnot.

[00:15:28] Speaker 04:
But obstruction seems to be a stretch.

[00:15:30] Speaker 04:
And it strikes me that the government argued this.

[00:15:34] Speaker 04:
I just want to invite you to tell me what I'm missing, right?

[00:15:38] Speaker 04:
as you would in another case, if the crime were bank robbery or something, right, and the defendant denied his or her identity, we often see obstruction charges right, because if a defendant is trying to pretend to be somebody else, so we don't discover the prior convictions or whatnot.

[00:15:55] Speaker 04:
It feels to me like what happened is the government argued it that way without regard to the fact that in this case the charge was identity theft.

[00:16:04] Speaker 00:
I understand that, Your Honor, and admittedly, trying to ping the defendant for obstruction in her trial testimony is a difficult issue.

[00:16:12] Speaker 00:
However, I would distinguish and express denial of the charge itself when examining herself.

[00:16:18] Speaker 00:
Nowhere in the case law is that addressed.

[00:16:19] Speaker 00:
I think in that scenario, the defendant is saying, I didn't commit the crime.

[00:16:23] Speaker 00:
The jury later says you did commit the crime.

[00:16:25] Speaker 00:
By making that decision to testify and to answer that question and pose it to herself, she is risking obstruction in that scenario.

[00:16:32] Speaker 04:
Thank you for your argument.

[00:16:41] Speaker 04:
We'll hear from opposing counsel.

[00:16:47] Speaker 02:
Thank you, Your Honor.

[00:16:48] Speaker 02:
I think part of the problem that counsel and the court is having here is that

[00:16:54] Speaker 02:
we had an objection to the enhancement and the facts underlying the enhancement, and then we have no findings.

[00:17:00] Speaker 02:
So we don't know, did the court rely on her testimony at trial without making findings about willfulness and materiality?

[00:17:08] Speaker 04:
Well, what about, I appreciate that argument and you've briefed it thoroughly.

[00:17:14] Speaker 04:
What about the court adopting this paragraph that's bothering me?

[00:17:18] Speaker 04:
It seems to me that there are inconsistencies and misstatements in this record attributed to your client that would have supported an obstruction enhancement.

[00:17:27] Speaker 04:
What I don't see is that the government has argued them.

[00:17:29] Speaker 04:
Do you want to speak to that?

[00:17:31] Speaker 02:
I do.

[00:17:31] Speaker 02:
I mean, obviously, I think it's inappropriate for the court to consider new arguments that haven't been briefed by the parties and that we haven't had a chance to discuss.

[00:17:39] Speaker 02:
I also think that because there was an objection here, the proper analysis is not to, as it would be if there had been no objection, not to review the whole record and say, well, is there something I can find here that would support the obstruction?

[00:17:54] Speaker 02:
enhancement.

[00:17:55] Speaker 02:
That's not the proper analysis because it's really not a plain error analysis because we did have the objection.

[00:18:01] Speaker 04:
If she had been charged with something else, if you go back to my hypothetical bank robber, would this support an obstruction enhancement?

[00:18:08] Speaker 04:
Refusing to give a name, giving a wrong name, refusing to give a release to get the educational records, employment records, medical records.

[00:18:17] Speaker 02:
What about all of that?

[00:18:18] Speaker 02:
Even then it would depend on the circumstances.

[00:18:20] Speaker 02:
I'm thinking of a case, for example, I believe from the Ninth Circuit that says, you know, if you, if you apprehend somebody and they give a false idea at the very beginning of the case and everybody, you know, figures it out very quickly.

[00:18:33] Speaker 02:
No, that's not obstruction.

[00:18:35] Speaker 02:
Could it be obstruction if it was carried on down the road and it affected something?

[00:18:40] Speaker 02:
It could.

[00:18:40] Speaker 02:
But when you look at the pre-trial services report in this case, the very first one where she's talking about the Montague name, what you see in that report is that

[00:18:50] Speaker 02:
there are no records that are being hidden here.

[00:18:53] Speaker 02:
Pre-trial services has already looked for records under both of these names and they've already determined that there are no records under the Morrison name.

[00:19:01] Speaker 02:
There's no, you know, bad arrest history or warrant history or anything like that that they're gonna miss because of this.

[00:19:08] Speaker 02:
And the government's argument that, well, you know, if they had looked into it, they would have found that this child died.

[00:19:14] Speaker 02:
How that is material is beyond me.

[00:19:17] Speaker 02:
It's a confusing analysis to think what.

[00:19:20] Speaker 02:
So pre-trial services is going to be confused looking at this live grown woman in front of them and thinking she died at birth.

[00:19:27] Speaker 02:
No, pre-trial services has read the complaint just like everyone else.

[00:19:31] Speaker 02:
And the complaint has already laid all of this out for them.

[00:19:34] Speaker 02:
So the materiality even from... You're out of time.

[00:19:37] Speaker 02:
Could you wrap up?

[00:19:38] Speaker 02:
I am, even from those statements, I would say, is missing.

[00:19:43] Speaker 02:
But again, I think that because there was an objection, the proper analysis is not to review the whole record for things that nobody ever argued below or on appeal.

[00:19:52] Speaker 04:
Thank you for your argument.

[00:19:54] Speaker 04:
Thank you both for your arguments.

[00:19:55] Speaker 04:
We appreciate it very much.

[00:19:56] Speaker 04:
We'll take that matter under advisement and go on to the next case on the calendar,