[00:00:00] Speaker 02:
We'll take up the next case, the third case on the docket today, United States versus Cunningham 24-3059.

[00:00:21] Speaker 03:
Good morning, Your Honors.

[00:00:23] Speaker 03:
Pardon me.

[00:00:23] Speaker 03:
My name is Paige Nichols.

[00:00:25] Speaker 03:
I represent the appellant, Mr. Cunningham.

[00:00:28] Speaker 03:
May it please the Court

[00:00:29] Speaker 03:
I'll jump straight into issue four, which is the evidence is insufficient to support the money laundering convictions.

[00:00:37] Speaker 03:
So if I may briefly set the stage.

[00:00:39] Speaker 03:
The trial evidence showed that Mr. Cunningham engaged in three main acts with respect to each car that's the subject of a money laundering count.

[00:00:48] Speaker 03:
First, he would buy a car after giving false information to secure a bank loan.

[00:00:53] Speaker 03:
Then, and really weeks to months later, he would take the title to that car, erase the lien holder information, walk it into a county clerk's office, register the car, and come out with a clear title.

[00:01:06] Speaker 03:
After that, 12 days to six weeks after that by my account, he would take that title into

[00:01:13] Speaker 03:
a dealer or title loan company and he would transfer that title, sell it or borrow against it for cash.

[00:01:20] Speaker 03:
Car, title, cash.

[00:01:23] Speaker 03:
And the indictment charges these end title transfers for cash as money laundering.

[00:01:30] Speaker 03:
But here's the problem.

[00:01:32] Speaker 03:
Money laundering focuses on a specific transaction, not a broad scheme to defraud, not a conspiracy, but a transaction and asks why the defendant engaged in that transaction.

[00:01:47] Speaker 03:
Why did Mr. Cunningham transfer these titles at this point?

[00:01:51] Speaker 03:
He did it to put money in his pocket.

[00:01:53] Speaker 03:
Even the government agrees during its closing argument, argued to the jury that his end goal was cash.

[00:02:00] Speaker 03:
He did this for profit.

[00:02:02] Speaker 03:
And he gained a significant personal benefit each time he transferred those titles, an immediate benefit, tens of thousands of dollars of cash.

[00:02:11] Speaker 03:
Okay.

[00:02:12] Speaker 03:
This is exactly when this court has said that the design to conceal inference is more difficult to draw.

[00:02:20] Speaker 03:
That language comes from Garcia Emanuel, which between Garcia Emanuel and the Supreme Court case Cuellar makes it clear that these are not money laundering transactions.

[00:02:32] Speaker 04:
So your argument is that that is part of the underlying crime to get the money in the first place, not

[00:02:40] Speaker 04:
after the crime has occurred, the subsequent conduct to conceal how that money was obtained.

[00:02:50] Speaker 04:
You're drawing a sharp line, or a line, I guess, between the elements necessary to commit the crime, to get the money, and that's all part of the elements charges.

[00:03:05] Speaker 04:
and then a concealment after that, what do you do now that you got the illegal money so they can't trace it back?

[00:03:13] Speaker 04:
Is that the line you're trying to draw?

[00:03:17] Speaker 03:
I'm thinking of it slightly differently that, okay, the government charges the initial car purchases as bank fraud, and some of these end purchases as, or these end transfers as wire fraud.

[00:03:32] Speaker 04:
Let me state it this way.

[00:03:34] Speaker 04:
Okay.

[00:03:34] Speaker 04:
When would you think, forget money laundering, when was the crime complete?

[00:03:39] Speaker 04:
What was the final element that was done to complete the crime?

[00:03:44] Speaker 03:
But it depends on which crime we're talking about.

[00:03:46] Speaker 03:
So bank fraud, which is the initial purchase.

[00:03:50] Speaker 04:
Any other crimes other than money laundering.

[00:03:51] Speaker 03:
Other than money laundering, yes.

[00:03:52] Speaker 03:
So the government charges the whole thing as a broad conspiracy between the Cunninghams, right?

[00:04:00] Speaker 03:
A broad conspiracy to commit a scheme to defraud.

[00:04:03] Speaker 03:
And the government charges that from the first loan to the last thing that's charged as money laundering.

[00:04:09] Speaker 03:
So in the government's view, in the indictment's view, all of this is part of a big conspiracy to commit a scheme to defraud.

[00:04:17] Speaker 03:
But only these transactions here are charged as money laundering.

[00:04:22] Speaker 03:
I don't know if I'm answering the court's question or not, but the fact that... No, I'd like to put it... I just want to know...

[00:04:31] Speaker 04:
Money laundering is an additional penalty over and above the penalty for doing the crime.

[00:04:36] Speaker 02:
Yes.

[00:04:37] Speaker 04:
And so I want to know when the conduct for doing the crime stopped and the crime of laundering the money, proceeds of the crime, began.

[00:04:49] Speaker 04:
How do we define, how do we legally define where that break occurs?

[00:04:56] Speaker 03:
Gotcha.

[00:04:57] Speaker 04:
So one way is to say,

[00:04:58] Speaker 04:
You look at the elements of the original crime.

[00:05:02] Speaker 04:
When those elements are satisfied, then anything subsequent can be money laundering.

[00:05:08] Speaker 04:
But money laundering should not be a duplicate characteristic of one of the elements to commit the crime in the first place.

[00:05:18] Speaker 03:
That is true, because if you don't have a complete crime, then you don't have proceeds from that crime that can be laundered right.

[00:05:26] Speaker 03:
So the crime that the government charges as the predicate crime for money laundering is these bank frauds right here.

[00:05:33] Speaker 03:
Now, the way the scheme to defraud is charged in the indictment, it's not over yet.

[00:05:37] Speaker 03:
So your honor probably has a point there.

[00:05:39] Speaker 03:
But additionally, the, oh, I lost my train of thought.

[00:05:46] Speaker 03:
Not only does the money laundering crime have to post-date the predicate crime such that there are proceeds in the first place, but it also has to be intended to conceal.

[00:05:58] Speaker 03:
And that's been the main focus of our brief, but I understand what your honor is saying additionally.

[00:06:04] Speaker 03:
And there's simply no evidence that this is part of some long concealment game for profit

[00:06:11] Speaker 03:
in the future, this is it.

[00:06:14] Speaker 03:
This is the end game right here.

[00:06:15] Speaker 03:
The government even argued that in closing, the government said, at the end, they used the title to receive cash.

[00:06:22] Speaker 03:
The end goal of this scheme was to use those vehicles as a means to make profit to get cash.

[00:06:27] Speaker 03:
That's the government's closing argument to the jury.

[00:06:29] Speaker 03:
So even the government agrees that the motive down here is to actually reap the benefits of this bank fraud up here.

[00:06:40] Speaker 03:
This is basically Mr. Cunningham cashing in on the fraud there.

[00:06:46] Speaker 03:
And so under everything this court has said about money laundering in Garcia Emanuel, the Supreme Court's case

[00:06:56] Speaker 03:
of Cuellar tells us that the fact, the government's really focused on this money, title washing thing in the middle here, right?

[00:07:03] Speaker 03:
But this is an event that precedes the final cashing out.

[00:07:08] Speaker 03:
And in Garcia Emanuel, this court said very clearly that engaging in a transaction with money whose nature has been concealed through other means is not a crime.

[00:07:18] Speaker 03:
The government must prove that the specific transactions were designed

[00:07:22] Speaker 03:
To launder money or here to launder a title not that those involved money that was previously laundered through other means now I'm not saying the title washing was laundering, but this is just

[00:07:32] Speaker 03:
I think money laundering is kind of looking at, like Your Honor said, you commit a crime.

[00:07:37] Speaker 03:
And then at some point, everybody wants to cash out, right?

[00:07:39] Speaker 03:
And money laundering is really focused on what happens in the middle there.

[00:07:42] Speaker 03:
Is the defendant creating some kind of Rube Goldberg machine that makes it difficult to get caught before he ends up cashing out?

[00:07:54] Speaker 01:
So could I just ask at this point, when we get to the, I guess, the cash out,

[00:08:01] Speaker 01:
step in all this.

[00:08:03] Speaker 01:
I guess he's... Wasn't he at that point intending to conceal that the car still had a lean holder and that he did adorn it, clear?

[00:08:18] Speaker 01:
I mean, why isn't that intent to conceal relevant to the money laundering?

[00:08:28] Speaker 03:
It's not irrelevant to it, but it's not enough.

[00:08:30] Speaker 03:
It doesn't get us there.

[00:08:32] Speaker 03:
So that's what the Supreme Court says in Cuellar, that using concealment to accomplish a transaction might suggest that it's one step in a larger plan.

[00:08:42] Speaker 03:
But its probative force in that context is weak.

[00:08:47] Speaker 03:
That concealment already happened back here at the title washing.

[00:08:50] Speaker 03:
And yes, it continues through this transaction over here.

[00:08:53] Speaker 03:
But it's really just the how, not the why.

[00:08:57] Speaker 03:
And here's a thought experiment.

[00:08:59] Speaker 03:
Would Mr. Cunningham had transferred those titles over here if he wasn't going to get money for them?

[00:09:05] Speaker 03:
Of course not.

[00:09:06] Speaker 03:
That would be an unreasonable inference to make.

[00:09:07] Speaker 03:
That's not even the government's theory.

[00:09:10] Speaker 03:
But the government has to show that this transaction was also intended, not just a trivial intent, to continue concealing.

[00:09:18] Speaker 03:
And also remember that Mr. Cunningham conducted these transactions in an open and notorious manner, and that's what... Let me get where I want to be here.

[00:09:31] Speaker 03:
And the fact of that undermines any inference of a design to conceal and helps us understand that whatever lies were being told over here to facilitate the transfer were just for that purpose, to facilitate the transfer.

[00:09:45] Speaker 03:
So he gets his money because that's what he wants.

[00:09:48] Speaker 03:
He appears in person.

[00:09:49] Speaker 03:
He uses his real name, uses a driver's license with his full real name, which is a unique name, Montresa LaValle Cunningham.

[00:09:57] Speaker 03:
He does not disguise the VIN numbers.

[00:09:59] Speaker 03:
And what are the things that show up in the DMV records?

[00:10:03] Speaker 03:
The VIN numbers and his name.

[00:10:05] Speaker 03:
I know effects aren't necessary, but they're also not sufficient.

[00:10:11] Speaker 03:
But there really aren't any concealing effects here.

[00:10:14] Speaker 03:
He's creating a paper trail.

[00:10:15] Speaker 03:
He's raising red flags.

[00:10:16] Speaker 03:
He doesn't know.

[00:10:17] Speaker 03:
He goes to three different title loan companies that have the same parent company, and that parent company sees this happening.

[00:10:24] Speaker 03:
That's kind of how, at least one angle of how he gets caught.

[00:10:28] Speaker 03:
But again, all of those things that were lies down here were lies intended to get that money in his pocket, right?

[00:10:37] Speaker 03:
He had to pass a credit check.

[00:10:39] Speaker 03:
He had to present a clear title.

[00:10:42] Speaker 03:
Well, he did those things, but he didn't do them because he was

[00:10:45] Speaker 03:
had some major plan to continue concealing his fraud.

[00:10:48] Speaker 03:
He did them because he was greedy.

[00:10:50] Speaker 03:
He wanted that money in his pocket, and he got it.

[00:10:53] Speaker 03:
And we can't infer a design to conceal from the evidence here.

[00:10:56] Speaker 03:
It's not like he said anything that would suggest that he had a long game here.

[00:11:02] Speaker 03:
This is not the long game.

[00:11:03] Speaker 03:
This is the end game.

[00:11:05] Speaker 03:
He doesn't do some kind of under-the-counter transaction.

[00:11:10] Speaker 01:
If he played a long game, how many times

[00:11:12] Speaker 03:
He played multiple long games, but this transaction here is the end of each of those games.

[00:11:21] Speaker 01:
Well, I understand, but he wasn't passing clear title.

[00:11:24] Speaker 01:
He was turning over a card.

[00:11:27] Speaker 01:
As far as the buyer was concerned, was free and clear of any encumbrance in it, that wasn't the case.

[00:11:36] Speaker 01:
Right.

[00:11:37] Speaker 01:
So I guess I'm still not following here.

[00:11:39] Speaker 01:
Are we making a mens rea argument?

[00:11:42] Speaker 01:
Are you making a mens rea argument?

[00:11:43] Speaker 03:
Yes, that's exactly what the design to conceal element is.

[00:11:47] Speaker 03:
The mens rea that's required is that this transaction had to have as its purpose concealment.

[00:11:53] Speaker 03:
Now, I'm not saying it had to be the only purpose.

[00:11:55] Speaker 03:
We all know his purpose was to get money and he got money.

[00:11:58] Speaker 03:
In whole or in part.

[00:11:59] Speaker 03:
I'm sorry?

[00:11:59] Speaker 03:
In whole or in part.

[00:12:00] Speaker 03:
In whole or in part, that's right.

[00:12:02] Speaker 03:
But this court has made it clear it can't just be a trivial purpose.

[00:12:05] Speaker 03:
It can't just be a side effect.

[00:12:07] Speaker 03:
The government adopted the language from the Falconberry case out of the Sixth Circuit.

[00:12:11] Speaker 03:
I like that language, too.

[00:12:12] Speaker 03:
It has to be an animating purpose.

[00:12:14] Speaker 03:
It has to be the thing that drives him or propels him to engage in this transaction.

[00:12:18] Speaker 03:
It's not.

[00:12:19] Speaker 03:
Money's driving that.

[00:12:20] Speaker 03:
And you can't infer anything more than that beyond a reasonable doubt.

[00:12:25] Speaker 03:
And if I could save my time for rebuttal, I'd like to do that.

[00:12:29] Speaker 03:
Thank you, Counsel.

[00:12:30] Speaker 03:
Thank you.

[00:12:38] Speaker 00:
Good morning, Your Honors.

[00:12:40] Speaker 00:
James Brown for the United States.

[00:12:43] Speaker 00:
May it please the Court.

[00:12:44] Speaker 00:
Your Honor, I'd like to start with issue four.

[00:12:47] Speaker 00:
But before doing so, we'd like to make a concession on issue three.

[00:12:51] Speaker 00:
The internet count on count nine, I believe,

[00:12:57] Speaker 00:
whether or not his use of the internet was sufficient to show interstate commerce.

[00:13:01] Speaker 00:
We're conceding that it was not, and we're conceding issue three.

[00:13:05] Speaker 04:
You muddled your words.

[00:13:06] Speaker 04:
You're going to have to say what you said again, but this time, pronounce every word into the microphone.

[00:13:11] Speaker 04:
All right.

[00:13:12] Speaker 04:
We're conceding issue three.

[00:13:15] Speaker 04:
You are?

[00:13:16] Speaker 04:
We are conceding.

[00:13:17] Speaker 04:
Conceding.

[00:13:18] Speaker 00:
Issue three.

[00:13:19] Speaker 04:
Issue three.

[00:13:19] Speaker 04:
That is, counts 12 through 16?

[00:13:24] Speaker 00:
No, that would be issue four, the money laundering.

[00:13:27] Speaker 00:
Issue three relates to count nine, whether or not the transmission was passed through interstate commerce.

[00:13:35] Speaker 00:
So it's the 2014 Land Rover, count nine.

[00:13:39] Speaker 04:
It would be count nine, issue number three.

[00:13:41] Speaker 04:
And you are conceding that there was no evidence there

[00:13:49] Speaker 04:
of interstate transmission of communications.

[00:13:55] Speaker 00:
We didn't prove it.

[00:13:57] Speaker 00:
Correct.

[00:13:58] Speaker 02:
You had already conceded that the internet alone in your briefing was not sufficient, the internet activity alone, and then you had an alternative argument, as I recall, that he was in Georgia at the time.

[00:14:12] Speaker 02:
He emailed, but you're now conceding the full issue.

[00:14:16] Speaker 00:
That's correct, Your Honor.

[00:14:18] Speaker 00:
And just for a little background, the reason we make the concession even in light of our argument in the brief is that what we charged in the indictment was that his communication touched a server in California.

[00:14:28] Speaker 00:
And that wasn't what our argument was.

[00:14:30] Speaker 00:
So we think the better course is just to concede that.

[00:14:33] Speaker 02:
We appreciate that.

[00:14:34] Speaker 04:
Thank you.

[00:14:34] Speaker 04:
He's really uncertain whether the servers were, but there was no indication that they were in Kansas.

[00:14:40] Speaker 00:
Right.

[00:14:40] Speaker 00:
We just didn't prove that it touched a server out of Kansas.

[00:14:43] Speaker 04:
OK.

[00:14:46] Speaker 00:
That being said, I'd like to talk about the money laundering convictions that my colleagues started with, and maybe I can end up with issues one and two.

[00:14:55] Speaker 00:
Going to the issue of intent, and we're talking about the fourth element of the money laundering charge, whether that was

[00:15:07] Speaker 00:
that financial transaction involving giving basically a clean title or a fake title to somebody else for money was designed to conceal the ownership of the car.

[00:15:18] Speaker 00:
That's what we're arguing about here on issue four.

[00:15:23] Speaker 00:
And I'd like to make four points, and I'd like to get my points out if I could before I get questions from the court.

[00:15:29] Speaker 00:
Of course, I'd be happy to take questions afterwards.

[00:15:31] Speaker 00:
I just don't want the argument to get muddled.

[00:15:34] Speaker 00:
No guarantees, I totally understand.

[00:15:37] Speaker 00:
Point number one, giving a clean title was a false statement to the person that they were giving the money to.

[00:15:48] Speaker 00:
Just saying, here's a title, that's a false statement.

[00:15:50] Speaker 00:
That's like saying, I own this car when he did not own the car.

[00:15:54] Speaker 00:
Point number two, the act of giving the title for money was itself an act of concealment.

[00:16:01] Speaker 00:
The act of giving the title for money was itself an act of concealment.

[00:16:06] Speaker 00:
By giving a title to somebody, he was concealing the fact that he did not own the car.

[00:16:12] Speaker 00:
Point number three, a purpose of that act of concealment was to conceal that defendant did not own the car.

[00:16:21] Speaker 00:
Again, a purpose of that act of concealment was to conceal that defendant did not own the car.

[00:16:28] Speaker 00:
And then my final point is point four,

[00:16:31] Speaker 00:
That purpose was more than trivial because the transaction could not have occurred if defendant had not concealed that he did not own the car.

[00:16:41] Speaker 00:
That purpose was more than trivial because the transaction could not have occurred if defendant had not concealed that he did not own the car.

[00:16:52] Speaker 00:
So Your Honor, those are the four points that we think established that this transaction, the financial transactions, the defendant giving fake titles to others in exchange for money,

[00:17:01] Speaker 00:
were all financial transactions designed to conceal who owned the car.

[00:17:06] Speaker 02:
It doesn't matter that it couldn't have occurred.

[00:17:08] Speaker 02:
That's not really what we look at.

[00:17:10] Speaker 02:
We look at what was the purpose.

[00:17:13] Speaker 02:
Right.

[00:17:13] Speaker 02:
Facilitating the purpose.

[00:17:16] Speaker 02:
What was the purpose of the transaction?

[00:17:18] Speaker 02:
Facilitating the purpose is not sufficient.

[00:17:22] Speaker 02:
And as I read your brief, that's essentially what you were arguing, is that altering the title to conceal the earlier acts of fraud

[00:17:32] Speaker 02:
was somehow sufficient because it was what?

[00:17:38] Speaker 03:
I don't know.

[00:17:39] Speaker 02:
I mean, it wasn't the purpose, but it was certainly a concealment at that point.

[00:17:46] Speaker 02:
How does that make the purpose of this transaction concealment?

[00:17:52] Speaker 00:
Well, the reason we're saying that it makes the purpose non-trivial.

[00:17:57] Speaker 00:
We're saying it's a purpose, that it's a non-trivial purpose.

[00:18:00] Speaker 00:
And as the court pointed out earlier,

[00:18:02] Speaker 00:
It doesn't have to be the entire purpose.

[00:18:04] Speaker 02:
I don't even see how it's a purpose right now.

[00:18:08] Speaker 00:
The court is suggesting that here he gave the title away to facilitate the transfer.

[00:18:15] Speaker 00:
That is how the transaction occurred.

[00:18:19] Speaker 00:
That's how he got the money.

[00:18:20] Speaker 04:
That's part of the crime.

[00:18:21] Speaker 04:
That's part of the underlying crime.

[00:18:23] Speaker 00:
That's how he did it.

[00:18:25] Speaker 00:
But telling the lie shows the purpose.

[00:18:29] Speaker 00:
I mean, they're not mutually exclusive.

[00:18:32] Speaker 00:
Telling the lie, this is my car, and giving away a title that's basically a lie saying, this is my car, in order to get money, shows that the purpose is to lie.

[00:18:42] Speaker 00:
That means the purpose of that transaction was to promote that lie and benefit from that lie.

[00:18:46] Speaker 02:
No, the purpose was to get the cash from the vehicle.

[00:18:49] Speaker 02:
That was his ultimate purpose for all of this.

[00:18:52] Speaker 00:
And we think that's basically irrelevant.

[00:18:54] Speaker 00:
That was his ultimate purpose.

[00:18:56] Speaker 00:
That that was his ultimate purpose does not answer the question

[00:18:59] Speaker 00:
whether the financial transaction was designed in whole or in part to disguise who owned the cars.

[00:19:05] Speaker 00:
It doesn't answer that question.

[00:19:07] Speaker 04:
We've conceived that... Let me ask it this way.

[00:19:09] Speaker 04:
Do you think you could have a money laundering charge that occurs before the underlying crime is complete?

[00:19:17] Speaker 00:
No.

[00:19:17] Speaker 04:
No.

[00:19:18] Speaker 04:
Okay.

[00:19:18] Speaker 04:
So, you agree that it's okay to look at it in a two-step process.

[00:19:23] Speaker 04:
What elements had to be completed to commit the crime?

[00:19:28] Speaker 04:
and then what was done after the crime was committed to launder the fruits of that crime.

[00:19:36] Speaker 04:
Is that analysis acceptable to you?

[00:19:39] Speaker 00:
Well, we think the analysis is consistent with the elements of the crime because the elements of money laundering assume that there's been a bank fraud, which is the previous crime.

[00:19:48] Speaker 04:
If there hadn't been one, you wouldn't have money to launder.

[00:19:51] Speaker 04:
That's correct.

[00:19:52] Speaker 04:
You've got to have illegal money as a predicate

[00:19:55] Speaker 04:
Before you have anything to launder, there's no object to the sentence.

[00:19:59] Speaker 04:
There's no noun to the sentence first.

[00:20:03] Speaker 00:
Right.

[00:20:03] Speaker 00:
We need to prove an antecedent specified in lawful activity, which in this case was bank fraud and wire fraud.

[00:20:10] Speaker 00:
So yes, we would agree with the court's way of looking at it.

[00:20:14] Speaker 00:
But going back to Judge Moritz's question,

[00:20:18] Speaker 00:
You know, the end game doesn't really answer the question of whether or not the financial transaction was designed in whole or in part to disguise who owned the car.

[00:20:31] Speaker 00:
That doesn't answer the question.

[00:20:33] Speaker 00:
And that doesn't exclude the fact that the financial transaction was designed at least in part to disguise who owned the car.

[00:20:39] Speaker 00:
The two are not logically mutually exclusive.

[00:20:44] Speaker 00:
Just because the end game was one thing, that doesn't mean that he couldn't have had another part purpose for doing the transactions.

[00:20:52] Speaker 00:
And of course, the transactions were all about a lie.

[00:20:57] Speaker 00:
The lie was what perpetuated the fraud, promoted the fraud.

[00:21:01] Speaker 00:
The lie is what allowed him to get money.

[00:21:03] Speaker 00:
The lie was the concealment, the concealment was the purpose of the transaction.

[00:21:07] Speaker 04:
You're saying that now it's different than what I thought you had conceded before.

[00:21:12] Speaker 04:
You are saying that the act of money laundering could occur simultaneously and with the very same conduct that is used to commit the crime in the first place.

[00:21:23] Speaker 04:
Is that your position?

[00:21:25] Speaker 00:
No, we're not saying that, Your Honor.

[00:21:26] Speaker 00:
We're just talking about the fourth element of the elements of money laundering as they were instructed to the court.

[00:21:32] Speaker 00:
We're just talking about the fourth element of money laundering.

[00:21:34] Speaker 04:
I understand that fourth element, yeah.

[00:21:38] Speaker 00:
But I don't think we said anything inconsistent with what we said before.

[00:21:42] Speaker 00:
All right.

[00:21:44] Speaker 02:
Could you talk about the sufficiency of the evidence issue?

[00:21:50] Speaker 02:
I think it's at the first issue on count two

[00:21:55] Speaker 00:
Account one aiding in issue one aiding in abetting with respect to account two?

[00:21:59] Speaker 02:
Yes, Felicia's bank fraud.

[00:22:01] Speaker 00:
Right.

[00:22:02] Speaker 00:
Your Honor, we'd like to preface our discussion of that with observing that the jury actually found that Felicia and the defendant had a conspiracy to commit bank fraud and wire fraud that started on December 3, 2018, and that Felicia purchased this car on December 5, 2018.

[00:22:23] Speaker 00:
So they were in a conspiracy to commit bank fraud and wire fraud at the time that she purchased this car.

[00:22:31] Speaker 00:
We don't think that that fact can be taken out of the equation or undervalued at all.

[00:22:36] Speaker 00:
That's a pretty significant finding that the defendant does not even contest on appeal.

[00:22:41] Speaker 00:
So we have that as sort of a factual and legal background to look at this.

[00:22:45] Speaker 02:
What else do you have there?

[00:22:47] Speaker 00:
What we have, Your Honor, is we look at not just

[00:22:52] Speaker 00:
what the defendant was thinking at the time that Felicia signed these loan documents, which is the perspective that the defendant would have us look at.

[00:22:59] Speaker 00:
But we looked at all the evidence, the totality of the evidence, what did the defendant know before the transaction and after the transaction.

[00:23:09] Speaker 00:
And Your Honor, we get that from the Joseph case, where this court said that when you're analyzing intent to defraud,

[00:23:21] Speaker 00:
you can look at what happened before the fraud occurred and after the fraud occurred to look at somebody's intent at the time of the fraud.

[00:23:28] Speaker 00:
That's a pretty non-controversial proposition.

[00:23:30] Speaker 00:
So we look at basically the whole course of conduct of that conspiracy to defraud, the conspiracy of bank fraud and wire fraud, and the whole course of defendant's conduct to look at

[00:23:44] Speaker 00:
what his intent was, what circumstantial evidence points to his intent at the time of Felicia's buying of that car.

[00:23:50] Speaker 00:
And when we look at all of that evidence, we can see that

[00:23:56] Speaker 00:
that Felicia's purchase basically fit as part of a pattern with the defendant's other purchases.

[00:24:00] Speaker 00:
They were extremely similar.

[00:24:02] Speaker 00:
You lie on the loan applications, you get the car, you stop making payments on the car, and then you erase the stuff on the title, and then you get a clean title.

[00:24:10] Speaker 00:
It's exactly the same.

[00:24:11] Speaker 00:
It's all the same pattern.

[00:24:12] Speaker 02:
I understand, but you still have to show that he knew of this fraud, Felicia's fraud, in this instance, December 2018 purchase, before it happened.

[00:24:25] Speaker 00:
We have to show that he knew of the fraud.

[00:24:27] Speaker 02:
Yep.

[00:24:28] Speaker 02:
Before it happened.

[00:24:29] Speaker 00:
Well, or at the time that it was taking place.

[00:24:32] Speaker 02:
And that he intentionally participated.

[00:24:34] Speaker 00:
Right.

[00:24:35] Speaker 00:
And we can discern that intent not only from what happened before the event, which is December 3, which is when they entered into their conspiracy, but also what happened after the event.

[00:24:47] Speaker 00:
We can determine their intent by defendant's actions before

[00:24:51] Speaker 00:
and after that day.

[00:24:53] Speaker 00:
That's what we're saying.

[00:24:54] Speaker 00:
And so that's why we say all that stuff is relevant, because you can look at stuff that happened after it to say, OK, let's go back.

[00:25:00] Speaker 00:
Does any of this stuff is a probative of his intent at the time that transaction took place?

[00:25:05] Speaker 00:
And that's all we're doing.

[00:25:06] Speaker 01:
Counsel, apart from intent, what is the evidence of his conduct?

[00:25:13] Speaker 01:
I mean, how did he aid and abet this particular transaction?

[00:25:19] Speaker 00:
Well, he

[00:25:22] Speaker 00:
His conduct shows that he and Felicia had a common agreement, a conspiratorial agreement that the jury found for bank fraud and wire fraud.

[00:25:31] Speaker 00:
And this transaction occurred during the time that they had this conspiratorial agreement.

[00:25:37] Speaker 01:
OK, I understand that part of your argument.

[00:25:41] Speaker 01:
But as to this specific transaction, is there any evidence that he did it?

[00:25:46] Speaker 00:
OK, there's evidence of his association with the transaction.

[00:25:51] Speaker 00:
And I can go through that.

[00:25:52] Speaker 00:
She purchased the Mercedes in December 18.

[00:25:56] Speaker 00:
Her name is on the purchase and loan documents.

[00:25:58] Speaker 00:
When it's later registered in Georgia, the title application has defendant's contact information, has defendant's email, has the same number the defendant listed as his phone number on her subsequent applications, has the same mailing address the defendant used on his subsequent applications.

[00:26:14] Speaker 00:
That shows that even for this specific car, they were sort of in cahoots.

[00:26:22] Speaker 04:
contact information phone number and all was that her phone number too yes so so he shared it but I mean that's

[00:26:35] Speaker 04:
I think you have kind of gotten off the track a little bit by saying the jury found a conspiracy that predated this first event, so therefore he's involved.

[00:26:46] Speaker 04:
But we're not asking at the moment about the verdict, we're asking what is the evidence.

[00:26:53] Speaker 04:
So you can't create evidence because there's a verdict.

[00:26:58] Speaker 04:
The question is maybe the verdict was wrong if there wasn't evidence.

[00:27:01] Speaker 04:
You can't prove that there was adequate evidence because you got a verdict.

[00:27:06] Speaker 04:
I mean, the question is, was there evidence to support that verdict?

[00:27:10] Speaker 04:
And like Judge Matheson, I just do not see anything that suggests he, and I'm not talking about the verdict, but the evidence, any evidence that he knew or aided and abetted in that first card.

[00:27:29] Speaker 04:
All right, so let me try to be a little bit more clear.

[00:27:33] Speaker 04:
Just focus on the evidence.

[00:27:34] Speaker 04:
Don't say, well, the jury found it, because that's why we're here on appeal anyhow.

[00:27:38] Speaker 04:
Could they?

[00:27:39] Speaker 04:
Should they have found that if there was no evidence to support it?

[00:27:42] Speaker 04:
So let's just focus on the evidence.

[00:27:45] Speaker 00:
Yeah, I see my time is up.

[00:27:46] Speaker 00:
Can I answer the court's question?

[00:27:47] Speaker 00:
Certainly.

[00:27:48] Speaker 00:
I'd like that.

[00:27:49] Speaker 00:
OK.

[00:27:50] Speaker 00:
Your Honor, as far as

[00:27:52] Speaker 00:
Do we have evidence that on the day that she signed those loan documents and committed the bank fraud that he was there or that he knew about it on that specific date?

[00:28:00] Speaker 00:
No, we do not.

[00:28:01] Speaker 00:
However, we think that other matters in the record that predated her signing those documents and post-dated her signing that documents show that he intended to aid and abet her involvement with that scheme.

[00:28:15] Speaker 00:
And we think the conspiracy conviction is probative of his intent because

[00:28:20] Speaker 00:
their conspiracy to commit bank fraud and wire fraud, of which this transaction was a part, started two days before this purchase.

[00:28:29] Speaker 04:
What is the evidence that he knew about and supported that before it happened?

[00:28:34] Speaker 00:
Well, I just said that there is no evidence that he knew about it or supported it before it happened as to the specific event.

[00:28:41] Speaker 00:
But we do know that two days before this event, they had entered into a conspiracy to commit bank fraud and wire fraud.

[00:28:48] Speaker 04:
How do we know that?

[00:28:49] Speaker 04:
You're saying there's a jury verdict.

[00:28:51] Speaker 04:
But the question is, was there evidence to support that jury verdict?

[00:28:55] Speaker 04:
You're giving us a circular argument.

[00:28:57] Speaker 00:
No, I'm not.

[00:28:57] Speaker 00:
They've never challenged the evidence to support the verdict.

[00:29:00] Speaker 00:
So we have to assume the evidence supported it.

[00:29:02] Speaker 00:
They've never challenged it.

[00:29:03] Speaker 02:
That's why I talk about it.

[00:29:04] Speaker 02:
Well, the problem is the conspiracy verdict doesn't have the same elements.

[00:29:08] Speaker 02:
We still have to look separately to see if the elements of this particular aiding or abetting.

[00:29:13] Speaker 02:
Bank fraud are proven, and they're not equal.

[00:29:17] Speaker 00:
Okay, understood.

[00:29:18] Speaker 00:
I understood they're not equal.

[00:29:19] Speaker 00:
The court's point is very well taken.

[00:29:21] Speaker 00:
We're just saying that you can look at evidence that happened before and after the transaction to determine his intent at the time of the transaction.

[00:29:28] Speaker 00:
That's all we're saying.

[00:29:30] Speaker 02:
Thank you, counsel.

[00:29:31] Speaker 02:
Any more questions?

[00:29:32] Speaker 02:
All right, appreciate it.

[00:29:34] Speaker 02:
Rebuttal?

[00:29:35] Speaker 02:
Did you have, yeah, I think you had time.

[00:29:38] Speaker 03:
Very briefly, I think Your Honor has actually already covered this, but the government has a lot to say about how we can discern his intent with respect to that initial

[00:29:47] Speaker 03:
bank fraud by Felicia, but had nothing to say about how we can discern his participation, which is what is required to prove aiding and abetting.

[00:29:55] Speaker 03:
That's how this was charged, and that's what the government needs to do to prove it.

[00:30:00] Speaker 03:
And they did not, definitely not, beyond a reasonable doubt.

[00:30:04] Speaker 03:
I was just going to mention one last thing about the purpose of the final

[00:30:12] Speaker 03:
transactions that put money in Mr. Cunningham's pocket.

[00:30:16] Speaker 03:
The government wants to argue that the things he used to facilitate that transaction show his intent to conceal the bank fraud underlying that transaction.

[00:30:29] Speaker 03:
This is not consistent with this court's decision in Garcia Emmanuel and the Supreme Court's decision in Cuellar.

[00:30:38] Speaker 03:
I think Cuellar, we can kind of slot our facts into Cuellar and Cuellar.

[00:30:42] Speaker 03:
that defendant went to a lot of trouble to build a secret compartment in a car, to hide money, and to transport it across the border.

[00:30:51] Speaker 03:
Concealment has to be the purpose of the transport.

[00:30:54] Speaker 03:
It has to be the purpose of the transaction, not the thing you do en route to the transaction.

[00:30:59] Speaker 03:
Well, that money was still going to be concealed when he crossed the border.

[00:31:03] Speaker 03:
That did not matter.

[00:31:04] Speaker 03:
Even the fact that the concealment of the money was vital to the transport.

[00:31:09] Speaker 03:
that did not make it the purpose of the transport.

[00:31:12] Speaker 03:
We have the same problem here.

[00:31:14] Speaker 03:
We don't have evidence of a design to conceal, an intent to conceal, a driving, propelling reason for him to engage in these, anything other than to make money.

[00:31:25] Speaker 03:
Now, could they have proved it?

[00:31:26] Speaker 03:
Maybe they could have.

[00:31:27] Speaker 03:
Maybe if the wife had testified and said, yes, he told me he was going to go do these transactions and he was going to make a bunch of money, and guess what?

[00:31:35] Speaker 03:
That's also going to help me hide the true owner of these vehicles.

[00:31:39] Speaker 03:
But we don't have anything like that.

[00:31:40] Speaker 03:
We don't have anything like an under-the-table transaction here to get that money.

[00:31:44] Speaker 03:
We don't have anything like him changing the VIN numbers, which actually would have made it harder to trace the cars.

[00:31:50] Speaker 03:
We have him using the VIN numbers, using his name, and in fact creating a paper trail that leads to his capture.

[00:31:58] Speaker 03:
The evidence does not support an inference of a design to conceal beyond a reasonable doubt, and all of the convictions we've challenged should be reversed.

[00:32:08] Speaker 02:
Thank you, counsel.

[00:32:09] Speaker 03:
Thank you.

[00:32:11] Speaker 02:
Appreciate both your arguments.

[00:32:12] Speaker 02:
They're very helpful for us.

[00:32:14] Speaker 02:
And the case will be submitted, counsel be excused, and we will