[00:00:06] Speaker 03: Good morning. [00:00:06] Speaker 03: May it please the court. [00:00:07] Speaker 03: Becky James on behalf of Yusuf Abramov, the petitioner and appellant. [00:00:12] Speaker 03: I would like to reserve three minutes for rebuttal. [00:00:15] Speaker 02: Just keep an eye on the clock. [00:00:19] Speaker 03: Mr. Abramov was a resident of Russia, who is legally and factually innocent of the crimes with which he's charged, which all allegedly occurred in Russia, for which he is serving 150 years in an American prison. [00:00:32] Speaker 01: Well, the issue in front of us is not whether he's legally and factually innocent. [00:00:36] Speaker 01: The certified issue is whether he received ineffective assistance of counsel and direct appeal, right? [00:00:42] Speaker 01: That's correct. [00:00:43] Speaker 01: So I want to ask you a question about that. [00:00:48] Speaker 01: You address that issue on the merits and say he did. [00:00:50] Speaker 01: The government addresses that issue on the merits and says he did not. [00:00:55] Speaker 01: The trial court doesn't seem to have addressed the issue. [00:01:00] Speaker 01: What do we do with that? [00:01:03] Speaker 01: Do you want us to address the issue on the merits, even though the trial court didn't? [00:01:08] Speaker 01: And I assume we can. [00:01:10] Speaker 01: It's based on a record. [00:01:12] Speaker 01: Or you don't ask that we send it back to the trial court to address it in the first instance. [00:01:17] Speaker 01: So I'm curious. [00:01:19] Speaker 01: What do you think we should be doing? [00:01:21] Speaker 03: I think the court should address the issue of ineffective assistance of counsel directly on the merits. [00:01:29] Speaker 01: Trial course decision didn't didn't address it, but it was raised clearly presented to them I'm not contending you you waived it or forfeited it And I guess the judge implicitly rejected it by turning down your 2255, but there's no discussion of it. [00:01:44] Speaker ?: I [00:01:45] Speaker 01: And so you make an argument about why it's ineffective assistance. [00:01:49] Speaker 01: The government makes an argument about why it isn't. [00:01:51] Speaker 01: But I don't have the benefit of the trial judge's views on this. [00:01:55] Speaker 01: So I was wondering whether or not the better course of action here would just be to say to the trial judge address it in the first instance and we'll come back and deal with it after you rule on it. [00:02:05] Speaker 03: Well, I think the court needs to give the district court some guidance on the issue. [00:02:09] Speaker 03: So I would ask that the court [00:02:11] Speaker 03: address the issue on the merits and in the interest of judicial economy and bringing this case to some closure, I think it would be a more efficient course for this court to address the issue on the merits. [00:02:22] Speaker 01: So if we were to address it on the merits, now I think I'm mirroring what the government argues. [00:02:29] Speaker 01: Your appellate counsel had two options. [00:02:33] Speaker 01: He might have chosen both of them. [00:02:35] Speaker 01: One is an option that got your client off, which is to say the argument that the statute doesn't apply to this circumstance. [00:02:43] Speaker 01: The other one is, well, maybe it does, but the instruction wasn't any good, which would have gotten him a new trial at which, looking at this record, he would likely have been convicted again. [00:02:54] Speaker 01: So I'm trying to figure out why it wasn't a least reasonable strategic choice for counsel to say let's go for the home run rather than the single. [00:03:04] Speaker 03: Well, the counsel, for one thing, has declared that... Yeah, but it doesn't matter what he says. [00:03:09] Speaker 01: We're looking at this objectively. [00:03:10] Speaker 03: I think it does matter what he says. [00:03:12] Speaker 03: The case law does say that it matters whether it was a strategic decision. [00:03:17] Speaker 03: You do look at what the defense counsel says. [00:03:20] Speaker 01: We look at what he says if he says it was strategic. [00:03:24] Speaker 01: We don't find it automatically to have been ineffective assistance if the defense counsel says, gee, it wasn't strategic. [00:03:32] Speaker 01: I didn't think about it. [00:03:34] Speaker 03: Well, I would disagree, I guess, Your Honor. [00:03:36] Speaker 03: I think if it's either it was strategic or it wasn't, the court needs to consider that, consider what the trial or the appellate counsel in this case said. [00:03:46] Speaker 03: And even the Harrington case cited by the government says that we shouldn't engage in post hoc rationalizations of a decision, counsel's decision making that contradicts the available evidence. [00:03:58] Speaker 03: So it was not a strategic decision. [00:04:03] Speaker 03: But even if it, I mean, I would say it was an unreasonable decision even so because, I mean, the error in Pepe was clearly an instructional error. [00:04:11] Speaker 03: And to ignore that issue, and he certainly could have argued in the alternative too. [00:04:18] Speaker 03: He could have argued, there's no reason he couldn't have argued both and said it should have been dismissed outright and should be vacated outright or in the alternative. [00:04:26] Speaker 03: remanded for new trials. [00:04:27] Speaker 03: So there's no real strategic benefit to just ignoring the instructional error, which was the issue in Pepe. [00:04:35] Speaker 03: So in Pepe, the court did hold that the pre-2013 version of 2423C does not apply to foreign residents. [00:04:47] Speaker 03: And the court held that it was reversible error not to instruct the jury on that issue. [00:04:52] Speaker 03: So that was the exact same error that occurred here [00:04:55] Speaker 02: And even though... The government says that the instruction that was requested at trial is not quite the same as the instruction that you're now saying counsel on appeal should have argued, should have been given. [00:05:11] Speaker 02: Can you address that? [00:05:13] Speaker 03: Yes, I would say the trial counsel did adequately preserve this issue. [00:05:18] Speaker 03: They tried to argue that it's plain error. [00:05:20] Speaker 03: The instruction that was requested, and this was pre-PEPE by the way, so I mean he was being... [00:05:25] Speaker 03: you know, having quite a bit of foresight at the time. [00:05:28] Speaker 03: But he did request an instruction that said travel in foreign commerce means to be in a trip from the United States to a foreign country and to engage in an illicit sexual act while on this trip. [00:05:39] Speaker 03: The critical part of that was a wall on this trip. [00:05:42] Speaker 03: And so what Pepe decided was that, unlike in Clark, which it said basically there could be a, you know, a temporal gap between the travel. [00:05:50] Speaker 03: You just have to have traveled at some point in the past and then engage in the sexual conduct. [00:05:54] Speaker 03: Pepe said, no, you have to still be traveling, which is why once you become a foreign resident of some place, you're no longer traveling. [00:06:01] Speaker 02: Do you read Pepe as saying essentially either you live in the United States and then you're on a trip or you live in a foreign country? [00:06:10] Speaker 02: Like those are the two and then you're not on a trip? [00:06:14] Speaker 03: Yes, I think that's correct, Your Honor. [00:06:15] Speaker 03: And that's the way they got around Clark because Clark had been decided before the 2013 amendment [00:06:22] Speaker 03: to the statute. [00:06:23] Speaker 03: The statute was the intervening authority which allowed them to overrule Clark and Clark, excuse me, the 2013 amendment expressly added foreign residents to the category of individuals who could be guilty under 2423C. [00:06:39] Speaker 03: So that definitely says well before 2013 foreign residents must not have been covered [00:06:47] Speaker 03: because otherwise there would have been no reason for Congress to make the change. [00:06:51] Speaker 02: And as you read Pepe, I mean, suppose this had happened in St. [00:06:54] Speaker 02: Petersburg, right? [00:06:56] Speaker 02: So he's a resident, and on your theory of his residency, he's a resident in Moscow, but he's doing this in St. [00:07:04] Speaker 02: Petersburg. [00:07:05] Speaker 02: I guess, is there a scenario in which one could be both [00:07:09] Speaker 02: domiciled outside the United States and on a trip? [00:07:12] Speaker 02: No. [00:07:14] Speaker 03: I don't think so. [00:07:14] Speaker 03: I don't think given Pepe's reasoning. [00:07:16] Speaker 03: No, because Pepe's reasoning was that if you're still traveling, once you reside in a foreign country, you're no longer traveling. [00:07:24] Speaker 03: That was the rationale of Pepe and that's why they said that they had to add that amendment in 2013 to cover foreign residents because it wasn't covered otherwise. [00:07:34] Speaker 03: And that's the distinction that they made with Clark [00:07:37] Speaker 03: and why they reached the conclusion that they did. [00:07:39] Speaker 03: So it's just not really possible under Pepe's reasoning to say, well, you're a foreign resident, but you are somehow still traveling. [00:07:46] Speaker 03: It just doesn't make sense. [00:07:50] Speaker 01: I understand your objection to the instruction. [00:07:53] Speaker 01: I'm not understanding what you've just said. [00:07:57] Speaker 01: You can be a US resident and still traveling when you're in Moscow, right? [00:08:03] Speaker 03: If you're a U.S. [00:08:04] Speaker 01: resident, you can be traveling while you're in Russia, certainly. [00:08:08] Speaker 01: In this case, you make a sufficiency of the evidence argument, but let's put that aside, because I think there's enough evidence from which a reasonable finder of fact could find either way in this case, which is why you think there's prejudice. [00:08:23] Speaker 01: Does the statute deal with residents or domicile? [00:08:27] Speaker 01: That's the question that Judge Miller was posing. [00:08:31] Speaker 03: Well, the statute speaks in terms of residency. [00:08:34] Speaker 03: Right. [00:08:35] Speaker 03: Right. [00:08:36] Speaker 01: So you can be temporarily resident in a foreign country, but a resident of the United States, can you not? [00:08:44] Speaker 03: Theoretically, one might be able to be that, but that's not the fact here. [00:08:49] Speaker 01: I'm residing in Pasadena today by any definition, but I'm not a domiciliary of Pasadena. [00:08:57] Speaker 01: I'm trying to figure out how this matches up with temporary residency in a place where somebody travels to Moscow with the full intention of returning to LA. [00:09:09] Speaker 01: in some sense is resident in Moscow when he's there, but he's still subject to the statutory prohibition if his intention is only to remain there for a short time and return to the United States, right? [00:09:21] Speaker 03: In theory, Your Honor. [00:09:22] Speaker 03: That may be in theory, but that's just not the facts we have here. [00:09:24] Speaker 01: Well, see, I think you're arguing the facts in the light most favorable to your client, which, unfortunately, when we look at sufficiency of the evidence, [00:09:33] Speaker 01: we don't do, there's lots of evidence that he had at LA residents. [00:09:39] Speaker 01: You may not find it convincing, but it certainly doesn't come anywhere close to actual innocence, which, by the way, is not an issue in front of us. [00:09:46] Speaker 01: So I'm trying to figure out with respect to your instructional argument what you think residency means. [00:09:56] Speaker 01: It simply can't mean presence in the foreign country. [00:10:01] Speaker 01: So I'm trying to figure out whether the statute really is talking in terms of domicile as opposed to residence. [00:10:09] Speaker 03: And that might make more sense in terms of what Pepe's reasoning. [00:10:12] Speaker 03: Pepe didn't discuss the difference between domicile versus residency. [00:10:16] Speaker 03: It talked in terms of residency, but it talked about permanent resettlement in an area. [00:10:21] Speaker 03: And so I think that's what we would be looking at. [00:10:24] Speaker 03: It was an intention to permanently resettle in Russia. [00:10:27] Speaker 03: Your Honor, in this case, there was no resettlement in Russia. [00:10:30] Speaker 03: He had been living in Russia or Azerbaijan his whole life. [00:10:34] Speaker 01: Was there a resettlement in LA? [00:10:36] Speaker 01: He became a U.S. [00:10:39] Speaker 01: citizen. [00:10:40] Speaker 01: He bought property here. [00:10:42] Speaker 01: He registered to, registered his, he got driver's licenses here. [00:10:46] Speaker 01: He got [00:10:47] Speaker 01: bank accounts here. [00:10:48] Speaker 01: None of those are definitive, but there's certainly pieces of evidence that show an intention to resettle in LA. [00:10:57] Speaker 03: A couple of points, Your Honor. [00:10:58] Speaker 03: We are looking at, on instructional error, we are looking at harmlessness beyond... No, I understand. [00:11:02] Speaker 01: I understand. [00:11:02] Speaker 01: See, and that's why you keep lapsing back into, there's no way he possibly could have been convicted because he was so clearly a resident of Moscow. [00:11:10] Speaker 01: And I'm pushing back on you on that because it seems to me your sufficiency argument is not nearly as good as your instructional argument. [00:11:18] Speaker 03: Well, and that's part of the ineffective assistance here, right, was that he didn't raise the instructional error. [00:11:23] Speaker 03: And the standard on the instructional error is much more favorable. [00:11:26] Speaker 03: And that's because there would have had to be, at most, homelessness beyond a reasonable doubt. [00:11:30] Speaker 03: I would actually point out that in Pepe, they didn't even engage in homelessness review at all, which suggests the question whether it's a structural error. [00:11:39] Speaker 03: But Nader and other cases. [00:11:42] Speaker 01: Can you point out a case to me where instructional error has been found to be structural? [00:11:48] Speaker 03: No, Your Honor, but Nader was different in this case because... Nader, they left out an element of the offense. [00:11:54] Speaker 01: They left out an element of the offense. [00:11:56] Speaker 03: But it was an uncontested element. [00:11:59] Speaker 02: But your theory, I thought, was that the instructional error here was essentially leaving out an element of the offense. [00:12:06] Speaker 02: Yes. [00:12:08] Speaker 02: Had this been raised on appeal, it would have been subject to review under the NATO standard and the government would have had to show that there was overwhelming and uncontroverted evidence of that element, right? [00:12:19] Speaker 03: Right. [00:12:20] Speaker 03: Homelessness beyond a reasonable doubt seems to be the prevailing standard here. [00:12:23] Speaker 03: I just would submit that there's perhaps an argument that it doesn't even apply. [00:12:27] Speaker 03: But under a homelessness beyond a reasonable doubt standard, [00:12:30] Speaker 03: I just don't think you can say that this case was harmless beyond a reasonable doubt. [00:12:35] Speaker 03: As opposed to a sufficiency challenge, there certainly was evidence from which the jury could have found him to be a resident of Russia, including he did not buy property in the US, by the way, until 2011. [00:12:45] Speaker 03: That was after the indictment period. [00:12:47] Speaker 03: During the indictment period, his ownership of real property was all in Russia. [00:12:51] Speaker 03: He had a common-law wife there. [00:12:54] Speaker 04: That's where I think Judge Hurwitz question is I agree with you They could have found he was a resident of Russia, but is that really what they would have would that been enough? [00:13:04] Speaker 04: To preclude a conviction under the pre 2013 I guess post-pepe interpretation of the statute so [00:13:12] Speaker 04: On the other hand, you know, another way to look at it would be did they, you know, the government just needed to show that he hadn't established a permanent residency in Russia or that he had an intent to return to the United States is another way to read Pepe and that they showed that because he in fact did return and permanently resettle in the United States. [00:13:36] Speaker 03: Well, but during the indictment period, I mean 2009 to 2011, he had permanent residency in Russia. [00:13:44] Speaker 03: And he had not established a permanent residency in the US during that period. [00:13:49] Speaker 03: He didn't have a permanent home in the US. [00:13:52] Speaker 03: He stayed with people or he stayed at hotels. [00:13:55] Speaker 03: He had a permanent home. [00:13:56] Speaker 03: Actually, I had a couple of permanent homes in Russia where he lived. [00:14:01] Speaker 03: That's the way it was characterized by everyone who knew him. [00:14:04] Speaker 03: And he was a Russian citizen. [00:14:06] Speaker 03: He paid taxes in Russia. [00:14:08] Speaker 03: He had jobs in Russia. [00:14:09] Speaker 03: He had a family in Russia. [00:14:11] Speaker 03: So, I mean, all the evidence of permanent residency was there. [00:14:13] Speaker 04: Well, I guess the question, though, is the residency, right, is that really the touchstone? [00:14:20] Speaker 04: Because one could argue that Pepe was saying it was about intent to return. [00:14:24] Speaker 04: And as long as there was an intent to return, [00:14:28] Speaker 04: He was traveling. [00:14:29] Speaker 04: I mean, I'm not saying that's the only way to read Pepe, but there is one arguable way to read Pepe and that, you know, part of the problem in Pepe was that he was alleging he had an intent to permanently resettle in Cambodia. [00:14:45] Speaker 04: And there was, you know, whereas here the record does show continual returns to the United States and an ultimate return to the United States after he became a U.S. [00:14:55] Speaker 04: citizen. [00:14:56] Speaker 04: You know, he had family ties here. [00:14:58] Speaker 04: He kept returning here even though he was largely residing in Russia. [00:15:06] Speaker 04: He did keep returning and ultimately permanently resettled in the US. [00:15:11] Speaker 03: Yes, but I think, well, I think, Your Honor, it raises a jury question. [00:15:15] Speaker 03: You know, was there an intent to permanently resettle is definitely a jury question, which the jury just was not asked to resolve in this case. [00:15:22] Speaker 03: And I think that's really the key here. [00:15:25] Speaker 03: I don't think we can just say, well, Pepe doesn't apply because it was a different, you know, there were some different facts. [00:15:31] Speaker 03: So I see I am out of time. [00:15:34] Speaker 03: Would the court indulge a couple of minutes for rebuttal? [00:15:36] Speaker 02: No, we will give you two minutes for rebuttal. [00:15:37] Speaker 03: Thank you, Your Honor. [00:15:48] Speaker 02: Mr. Gantz. [00:15:51] Speaker 00: Good morning and may it please the court, Brendan Gantz for the United States. [00:15:54] Speaker 00: This court should affirm because Mr. Abramoff has not met his burden under Strickland to show either that his prior appellate counsel's performance fell below an objective standard of reasonableness or that he was prejudiced. [00:16:04] Speaker 01: Let me start right there with you. [00:16:07] Speaker 01: You may be right as a matter of this record, but the trial judge never addressed either of those issues. [00:16:16] Speaker 01: And so you're asking us in the first instance to find that the council's performance didn't fall below the standard, and certainly the trial judge never addressed prejudice. [00:16:31] Speaker 01: We're not doing here what we do with California habeas decisions, making up all the reasons that a judge might have ruled. [00:16:38] Speaker 01: And so we're a little bit handicapped here. [00:16:42] Speaker 01: Why shouldn't we ask the trial judge to actually address these issues in the first instance? [00:16:48] Speaker 00: Well, the first point I'd make about the district court's decision, Your Honor, is that the district court correctly understood Mr. Abramoff's claim to be that the jury had to be instructed that he was not to find beyond a reasonable doubt that he was not a resident of Russia. [00:16:59] Speaker 00: And as the court pointed out, that's simply wrong under the law. [00:17:02] Speaker 00: Now, the court didn't then go into the question raised about travel and whether he would have been prejudiced if counsel had asked in the 2255 motion for that instruction. [00:17:11] Speaker 00: But I think it's pretty clear. [00:17:13] Speaker 01: So are you arguing forfeiture into 2255? [00:17:16] Speaker 00: We argue that in the 2255 motion, Mr. Abramov's argument has been that there was instructional error because the jury should have been instructed it had to, quote, find beyond a reasonable doubt that he was not a resident of Russia. [00:17:27] Speaker 00: And Abramoff said when the government presented evidence that he was traveling during the relevant period, Abramoff said that was irrelevant because the question was residency or domicile. [00:17:36] Speaker 00: And we think the district court correctly rejected that claim. [00:17:38] Speaker 00: But setting that aside, because we think Mr. Abramoff's claim fails even if this court overlooks the particular way that the instructional error claim was presented below, we also think that it's pretty clear. [00:17:49] Speaker 00: First of all, this court is well-suited to resolve on the record a claim of ineffective assistance of appellate counsel. [00:17:54] Speaker 00: And if Abramoff had pressed below the same claim that he presses here, I think it's pretty clear how the district court would have resolved that based on the court's comments. [00:18:02] Speaker 00: And granted, this was in the sufficiency of the evidence discussion. [00:18:05] Speaker 00: But the district court commented that Abramoff's counsel had a difficult time presenting a credible case based on the trial evidence that Abramoff's real residence was rather than not in California. [00:18:17] Speaker 01: So you think the district court made an implicit finding of lack of prejudice? [00:18:20] Speaker 00: Well, I think that shows how the district court viewed the trial evidence. [00:18:23] Speaker 01: OK, so let's forget how the district court viewed it since he didn't have to tell us and try to figure out how we should view it. [00:18:34] Speaker 01: Couldn't a reasonable jury? [00:18:37] Speaker 01: I've told your friend that I'm not impressed by the sufficiency of the evidence argument. [00:18:42] Speaker 01: But couldn't a reasonable jury have found that he was a resident of Russia at the time he committed these crimes, which I think the record overwhelmingly indicates that he committed? [00:18:54] Speaker 01: Why couldn't a reasonable jury find that he was a resident of Russia at the time? [00:18:58] Speaker 00: Well, the question isn't whether he was a resident of Russia, Your Honor. [00:19:01] Speaker 00: Respectfully, the question under Pepe is whether he was traveling when he committed the offenses. [00:19:05] Speaker 01: And Pepe uses the term resident in strange ways. [00:19:09] Speaker 01: But at least it seems to me what Pepe really means is that [00:19:12] Speaker 01: If you were in a place and you had no intention of returning to someplace else, then you're not covered by the statute. [00:19:19] Speaker 01: But if you had an intention to return back to the United States, you're covered. [00:19:23] Speaker 01: Why couldn't a jury have found that he had no intention of returning to the United States? [00:19:27] Speaker 00: Because there was overwhelming trial evidence that established within the meaning of section twenty four twenty three see as clarified by pepe the mystery of office still traveling when he committed the offenses in question now just to touch on pepe briefly before I go. [00:19:44] Speaker 04: If you're about to discuss the trial evidence, that's fine. [00:19:47] Speaker 04: That's part of my question. [00:19:48] Speaker 04: In your briefing, you say it's overwhelming. [00:19:50] Speaker 04: The standard, I believe, would have to be overwhelming and uncontroverted. [00:19:55] Speaker 04: It was controverted. [00:19:57] Speaker 04: And there was testimony from the defendant that he was living in Russia, that he was there for substantially more. [00:20:05] Speaker 04: I think the record clearly shows he was in Russia for far more time than he was in the United States. [00:20:13] Speaker 04: you know, that he didn't have a permanent literal home in the United States. [00:20:19] Speaker 04: So I'm not sure why you're saying that the record was overwhelming on this issue. [00:20:24] Speaker 00: Well, first of all, much of the evidence that Mr. Abramoff relies on doesn't come from the trial record. [00:20:28] Speaker 00: It comes either from the motion to dismiss proceeding or from the 2255. [00:20:32] Speaker 04: But there's still a lot of he does testify about a lot of these issues. [00:20:35] Speaker 00: He testifies about a number of issues, but he did not claim in his testimony that he always lived in Russia and he intended to return to Russia. [00:20:42] Speaker 00: The claim that he always intended to return to Russia was made for the first time in this 2255 proceeding after Pepe was decided and it was advantageous for him to try to claim that. [00:20:52] Speaker 00: At trial he said that he was a proud American. [00:20:54] Speaker 00: I think there are five pieces of trial evidence that overwhelmingly establish in combination that Mr. Abramov was [00:21:00] Speaker 00: still traveling within the meaning of Pepe when he committed these offenses. [00:21:03] Speaker 00: And just to touch on Pepe briefly before I go into that trial evidence, I think, Your Honor, Judge Hurwitz, you're correct that although Pepe has some scattered sentences of dicta that refer to residency and travel as somewhat contrasting concepts, that the holding of Pepe is clear that what the government has to prove is travel. [00:21:20] Speaker 00: And the way that the court applies the holding in Pepe and the remand language itself underscores that merely maintaining a residence in a foreign country does not defeat the application of the statute. [00:21:28] Speaker 00: So right after stating the holding, which is that the government has to prove that, quote, that the illicit sexual conduct occurred while the defendant was traveling, the decision then discusses whether Pepe relocated to or resettled in Cambodia, which the court indicates is relevant to the travel element. [00:21:43] Speaker 00: And the court explains that it's remanding because the government disputes Pepe's claim that he had resettled in Cambodia, highlighting Pepe's letters that he had written after he was arrested, expressing an intent to return to the United States. [00:21:54] Speaker 00: And that analysis is consistent with Pepe's adoption of what it calls an expansive definition of the term travels, in line with other circuits and especially the Fourth Circuit and Schmidt. [00:22:02] Speaker 00: So the court quotes Schmidt's statement that a person may be traveling even after a long time in one location, so long as the visit is sufficiently transient or contemplates some future departure. [00:22:11] Speaker 00: And in noting that a stay must be temporary, Pepe approvingly cites Schmidt's treatment of a defendant's 18-month stay in a country [00:22:17] Speaker 00: as temporary where he didn't resettle in a foreign country during that time. [00:22:22] Speaker 02: I think there's a lot more than scattered dicta in Pepe to support the idea that the Pepe court seems to have thought that if you live in a place and you are in the place where you reside, you're not traveling while you're there. [00:22:42] Speaker 02: So you don't think that's what they thought? [00:22:44] Speaker 00: Well, I think, and I think Council said the question is permanent resettlement. [00:22:48] Speaker 00: I think that's correct, that what Pepe says is that travel does not have to be short or have a set end date, but it must be expected to end, that you must contemplate some future departure while you're in the foreign country. [00:23:01] Speaker 02: And so that's the relevant question. [00:23:04] Speaker 02: We have some familiarity with traveling around a lot. [00:23:10] Speaker 02: I always have an upcoming trip to California planned, but it would be very strange to say that when I'm sitting in my chambers in Seattle, I'm traveling just because I contemplate at some point in the future going to California. [00:23:25] Speaker 02: So how do you reconcile your view of travel with what seems like the ordinary understanding of what it means to travel? [00:23:32] Speaker 00: Well, I think the fact that [00:23:34] Speaker 00: If you look at, for example, in Pepe, where the defendant had arrived on a one-way ticket two years before he was arrested, or the Schmidt case, which Pepe approvingly cited, where the defendant was traveling for 18 months before coming back to the US. [00:23:47] Speaker 00: And courts in those cases said, in Schmidt, the court said that he was still traveling because he still anticipated a return to the United States. [00:23:56] Speaker 00: And in Pepe, of course, the court remanding focused on the fact that Pepe had expressed an intent to return to the United States. [00:24:03] Speaker 00: So you can still be traveling for a long time, so long as you are contemplating an intent to return to the United States within the meaning of PEPA. [00:24:12] Speaker 00: And I want to just emphasize, I think there are five most important pieces of trial evidence that in combination put beyond any reasonable dispute that when Abramov was traveling, he contemplated a return to the United States and that he was traveling when he committed these charge defenses. [00:24:26] Speaker 00: The first is that Abramov traveled back and forth between the United States and Russia six times in the two-year indictment period, never staying in Russia for even five months at a time. [00:24:35] Speaker 00: Now, that's a similar pattern of travel to what this court reviewed in Boyajian, where the court was faced with the question of whether a Pepe instructional error, the jury in that case had not been instructed, as Mr. Abramov's jury was not instructed, that it had to find he was still traveling when he committed the offenses. [00:24:50] Speaker 00: But the court found overwhelming evidence that he was, in part based on the fact that he was traveling back and forth to the United States about four times a year. [00:24:57] Speaker 00: In Johnson, this court also found overwhelming evidence that the defendant was still traveling within the meaning of Pepe when he was coming back to the United States about one time a year. [00:25:05] Speaker 04: The second point... I mean, part of it seems to me, although those are unpublished decisions, that there's a home base in the United States and then lots of travel away from that home base. [00:25:16] Speaker 04: And the defendant's argument here is that really for the relevant period, his home base was in Russia and he had lots of travel to the United States. [00:25:24] Speaker 00: Well, and defendants made those arguments in Boyajian and Johnson as well. [00:25:28] Speaker 00: In fact, the period of time that Abramoff was outside the United States. [00:25:31] Speaker 04: But your job here is to say that it was overwhelmingly showing that the home base was here. [00:25:37] Speaker 00: Right. [00:25:38] Speaker 04: And I'm not sure I see that. [00:25:39] Speaker 00: I'm just saying, in Boyajian, the defendant also was outside the United States about 80% or 90% of the time. [00:25:44] Speaker 00: In Johnson, it was also about 80% of the time. [00:25:46] Speaker 00: And in Johnson, when the defendant was coming back to the United States, there's no question he had a permanent place to live abroad. [00:25:52] Speaker 00: Same thing as in Pepe, same thing as in Schmidt. [00:25:54] Speaker 00: The fact that these defendants had foreign residences didn't mean that they weren't still traveling. [00:25:58] Speaker 00: When Johnson came back to the United States, he was often fundraising so that he could go back to the orphanage in Cambodia where he was living. [00:26:04] Speaker 00: But the court said he's still traveling because he's still coming back to the United States, never stayed outside this country for more than a year at a time. [00:26:11] Speaker 00: Here, Mr. Abramov was coming back multiple times a year and never stayed outside for even five months. [00:26:16] Speaker 00: The second key point that I want to emphasize that I think distinguishes this case from every other 2423C case that I've seen [00:26:22] Speaker 00: is that Abramov became an American citizen shortly before this pattern of travel began. [00:26:28] Speaker 00: So he was born and raised in Azerbaijan, not Moscow. [00:26:32] Speaker 00: He moved to Moscow in 1996, according to his trial testimony. [00:26:35] Speaker 00: But he came back to Azerbaijan in 2001, according to his trial testimony, because his children were trying to get him an opportunity to immigrate to the United States from Azerbaijan. [00:26:44] Speaker 00: So he comes to the United States from Azerbaijan in 2001. [00:26:47] Speaker 00: He begins the process of becoming a naturalized citizen, which everyone knows is a very lengthy, difficult, complex process. [00:26:54] Speaker 00: And just before these six trips back and forth to Russia, he takes his oath to become a United States citizen. [00:26:59] Speaker 00: There's no more profound expression of commitment to the United States than to become a naturalized citizen. [00:27:04] Speaker 00: And that distinguishes this case from every other 24, 23 cities. [00:27:07] Speaker 02: Did he give up his Russian citizenship? [00:27:09] Speaker 00: I don't believe he was required to. [00:27:12] Speaker 02: So he still had Russian citizenship, and he still had an apartment and a car and a business in Russia and paid taxes there. [00:27:20] Speaker 02: And so I guess this is essentially the same question Judge Sung was asking earlier. [00:27:26] Speaker 02: You need to show, I think at least for this part of your argument, to show that if the question is, would an instructional challenge have succeeded on appeal, [00:27:37] Speaker 02: It seems like the answer is yes, unless you can show that under Nader the evidence was so overwhelming and uncontroverted. [00:27:48] Speaker 02: And it seems like there's evidence that a reasonable jury could have gone either way on where he was living. [00:27:55] Speaker 00: I think when you look at just the trial evidence, it is an overwhelming case that Abramov was still traveling when he was in Russia. [00:28:00] Speaker 00: And I think the fact that he became a US citizen [00:28:04] Speaker 00: At the same time that he now claims, oh, I was really permanently residing in Russia, really undercuts that claim. [00:28:11] Speaker 00: Usually in 2423C cases, what we have is American-born defendants who go abroad, and then courts are asking, well, did they seek citizenship? [00:28:17] Speaker 00: Did they seek permanent status in the other country? [00:28:19] Speaker 00: Here, uniquely, we have the opposite, where a defendant has come to the United States and said, I want to be a citizen. [00:28:24] Speaker 00: At the same time, he's now claiming, oh, I was really a permanent resident of another country. [00:28:28] Speaker 00: And the fact that he may have had a residency in another country, I mean, a person can be a resident of two places and travel between them. [00:28:35] Speaker 00: That wouldn't, I think, under Pepe. [00:28:37] Speaker 01: But you can be a citizen of the United States and a permanent resident in another country, can you not? [00:28:44] Speaker 00: A citizen of the yes, I think that's true. [00:28:46] Speaker 00: Okay. [00:28:47] Speaker 01: So why isn't that a possible argument for I would love to make in this case. [00:28:52] Speaker 01: I'm a citizen of the United States, but I'm I'm a resident. [00:28:56] Speaker 01: I'm not traveling. [00:28:57] Speaker 01: I'm a resident of Moscow. [00:28:59] Speaker 00: Because I think the question under the pre-2013 amendment statute and the question that Pepe addresses is travel. [00:29:05] Speaker 00: It's not residency. [00:29:06] Speaker 00: And if you're still traveling back and forth, you're within the meaning of the statute. [00:29:09] Speaker 00: There's no residency or domicile element. [00:29:12] Speaker 01: I understand. [00:29:13] Speaker 01: But you can be traveling back and forth, but be a resident of another country at the time of the crime. [00:29:20] Speaker 01: Could you not? [00:29:21] Speaker 01: In other words, you're not required to remain in that country for the rest of your life thereafter. [00:29:26] Speaker 00: Well, I think a person can be arrested into multiple places. [00:29:29] Speaker 00: But I think a third point that the trial evidence shows, which is very important here, is that after the travel and after the charged offenses, Abramoff, in fact, came back to the United States and resided here for three years. [00:29:40] Speaker 00: That, again, is a unique fact. [00:29:41] Speaker 00: Usually in these cases, defendants are arrested. [00:29:43] Speaker 01: Can I ask you to address the other part of ineffective assistance? [00:29:46] Speaker 01: And I don't know whether this was a strategic decision or not. [00:29:52] Speaker 01: But it does seem to me that had the proper instruction been given, given the nature of these offenses and the evidence in the case, a jury was unlikely to acquit. [00:30:06] Speaker 01: But the argument made on direct appeal would have resulted in probably dismissal of the charges. [00:30:13] Speaker 01: We're all making up these reasons afterwards on the record. [00:30:18] Speaker 01: What are we to do with that? [00:30:20] Speaker 00: Well, I mean, I think the we've [00:30:22] Speaker 00: The question for reasonable assistance is whether there was a reasonable, an objectively reasonable basis to argue one claim and not the other. [00:30:30] Speaker 01: And your friend says you should have done Belton Suspenders, the appellate counsel, should have argued both. [00:30:35] Speaker 01: Maybe you wouldn't get a home run, but you get a single. [00:30:37] Speaker 01: And even if you only have a one in ten chance in front of a jury the second time, that's [00:30:41] Speaker 01: better than a 0 and 10 chance. [00:30:43] Speaker 01: Why isn't that the way we should approach this? [00:30:45] Speaker 00: It would have been hard to do here because of course the motion to dismiss was argued based on the record that was developed during the motion to dismiss which didn't include a lot of the evidence that was presented at trial and in fact Abramoff contradicted at trial some of the claims that were made in his motion to dismiss. [00:30:58] Speaker 00: For example, he testified that he did stay at his ex-wife's apartment, which he claims that he didn't. [00:31:04] Speaker 00: So it would have been hard to go back and say, well, as to this claim, we're reviewing a different factual record than has been presented on the motion to dismiss. [00:31:12] Speaker 00: But again, there are multiple objectively reasonable bases not to raise this claim. [00:31:15] Speaker 00: And since I see my time is running out, I just want to make clear that in addition to what I've said about the six travels back and forth, [00:31:23] Speaker 00: the fact that he just became a U.S. [00:31:24] Speaker 00: citizen before these travels ended, that after the travels ended, he comes back to the U.S. [00:31:28] Speaker 00: and lives here for three years. [00:31:30] Speaker 00: He also had a U.S. [00:31:30] Speaker 00: passport, which he got in February 2009, and the jury heard testimony that he told DHS agents that he was a proud American citizen who first came to live here in 2000. [00:31:38] Speaker 00: So in combination, we think that's an overwhelming case [00:31:42] Speaker 00: that he was still traveling. [00:31:43] Speaker 00: And in fact, it's quite similar to what this court reviewed in the Boyajian case, where it did address on direct appeal whether a Pepe error was harmless. [00:31:50] Speaker 00: In Boyajian, the facts are strikingly similar, where the defendant was traveling back and forth four times a year. [00:31:56] Speaker 00: He always returned to the US after the charged abuse. [00:31:58] Speaker 00: Each defendant told US officials that they lived in the United States. [00:32:01] Speaker 00: Each defendant had the US passport. [00:32:03] Speaker 00: Each defendant spent the vast majority of his time in the foreign country. [00:32:06] Speaker 00: Again, in Boyajian, it was similarly 80% or 90%. [00:32:08] Speaker 00: And notably also, Boyajian also did not own or lease real property in the United States. [00:32:12] Speaker 00: When he was in the US, he stayed with his mother. [00:32:14] Speaker 00: This factual presentation is also very similar to what this court confronted in Johnson, when it similarly found that there was overwhelming evidence that a defendant was traveling. [00:32:23] Speaker 04: Can you remind me of your ER site on the statement that he moved here in 2009? [00:32:30] Speaker 00: That he moved here. [00:32:31] Speaker 04: You said he told the official that he moved here in 2009. [00:32:36] Speaker 00: Yes, your honor. [00:32:38] Speaker 00: That is ER 1214 to 1216 is the statements to the DHS agent that he first came to live in the US. [00:32:44] Speaker 00: in 2000 and the DHS agent was asked if he made statements about travel and he said yes he traveled to Moscow. [00:32:50] Speaker 00: He said that he went to Moscow a few times a year from LAX. [00:32:53] Speaker 00: So those those facts are very similar to what we've seen in Boyaji and Johnson, two cases where the court has made the same finding that it would have needed to make on direct appeal that there was overwhelming evidence that the defendant was still traveling and of course here we're on a 2255 where the standard is raised but I think the fact that in Johnson, Boyaji and other cases [00:33:12] Speaker 00: Courts have uniformly rejected the same arguments that Abramoff is making here on a factual record that was very similar and, in fact, didn't include some important elements like the fact that he became a US citizen just before the travel and then came back to the US after the travel. [00:33:27] Speaker 00: I think that under any standard, this court would have found that there was overwhelming evidence that he was still traveling based on the trial evidence, and for that reason, among others, [00:33:35] Speaker 00: counsel's assistance was not ineffective. [00:33:38] Speaker 00: It was certainly at least reasonable for counsel to fear that the court would hold that way, and Abramoff was not prejudiced because it likely would have. [00:33:45] Speaker 02: Thank you, counsel. [00:33:46] Speaker 00: Thank you. [00:33:50] Speaker 02: Rebuttal? [00:33:55] Speaker 03: Thank you, Your Honors. [00:33:56] Speaker 03: I would just really emphasize that this is where, assuming we're looking at a harmlessness beyond a reasonable doubt standard, [00:34:02] Speaker 03: on jury instructional error. [00:34:05] Speaker 03: You just can't say this was harmless beyond a reasonable doubt on this record. [00:34:08] Speaker 03: There was certainly evidence in the record. [00:34:10] Speaker 03: And I would encourage the court to look at the trial record. [00:34:13] Speaker 03: I actually agree with counsel that the instructional error should be evaluated in terms of what was in the trial record at the time. [00:34:21] Speaker 03: And that was evidence from the case agent Coakley, [00:34:25] Speaker 03: as well as Philippiak, the investigator, and mostly Mr. Obama's testimony himself. [00:34:33] Speaker 03: But there was certainly plenty of evidence. [00:34:34] Speaker 03: Most notably, one thing I haven't said was he was in Russia 85 percent of the time. [00:34:39] Speaker 03: Only 15% of the time was he in the u.s. [00:34:42] Speaker 03: And and he was was that I know a trial He said he was he talked about spending a lot of time there, but was that 85% figure I what was that in the trial record 85% yes, and the trial record actually agent Cokley's the records the flight records came into agent Cokley, but inspector investigator Philippiak analyzed the records and [00:35:05] Speaker 03: and concluded that they were, it showed that he was in Russia 85% of the time, in the U.S. [00:35:09] Speaker 03: only 15% of the time. [00:35:11] Speaker 03: 15% of the time is not, would not be residency, it's visiting. [00:35:17] Speaker 03: And that's what he said he was doing. [00:35:18] Speaker 03: He visited the United States to see his kids. [00:35:21] Speaker 03: He planned his visits around their birthdays and holidays. [00:35:24] Speaker 03: That's consistent with his pattern of going two to three times a year. [00:35:28] Speaker 03: But he always returned to Russia, which was his home. [00:35:31] Speaker 03: That's where he lived. [00:35:32] Speaker 03: And, I mean, certainly the jury could have found that that's where he lived and that he was not subject, therefore, to the pre-2013 statute if they had been so instructed. [00:35:44] Speaker 03: And I just think on that record, the court cannot find that it was harmless beyond a reasonable doubt that they were not so instructed as they should have been in Pepe. [00:35:51] Speaker 03: I do think I'm running out of time. [00:35:54] Speaker 03: So unless I guess the court has any further questions. [00:35:57] Speaker 02: It appears not. [00:35:57] Speaker 02: All right. [00:35:58] Speaker 02: Thank you. [00:35:59] Speaker 02: Thank you both counsel for the arguments in this case and the case is submitted.