[00:00:00] Speaker 02:
We'll call our first case, 24-1410, United States versus Lytle.

[00:00:07] Speaker 03:
Good morning, and may it please the court.

[00:00:08] Speaker 03:
My name is Melanie Morgan.

[00:00:10] Speaker 03:
I represent David Lytle.

[00:00:11] Speaker 03:
And I'd like to reserve three minutes for rebuttal.

[00:00:16] Speaker 03:
This is a sufficiency of the evidence case.

[00:00:19] Speaker 03:
And I want to start with sort of a fundamental understanding.

[00:00:25] Speaker 03:
And that is that direct marketing is not illegal.

[00:00:28] Speaker 03:
advertising is not illegal, selling sweeps reports is not illegal, and operating sweepstakes is not illegal.

[00:00:39] Speaker 03:
Now there may be ways in which those become illegal, but I want to start with that sort of fundamental premise and then jump right into what I think has been the huge part of the government's case, and that is the direct mail pieces that were being used to promote the products

[00:00:58] Speaker 03:
to various consumers.

[00:01:00] Speaker 04:
Council, can I ask you a threshold question about the theories of liability implicated by your sufficiency challenge?

[00:01:09] Speaker 04:
So there are a number of theories of liability.

[00:01:13] Speaker 04:
Sure.

[00:01:13] Speaker 04:
And I'm not sure how or which your sufficiency challenge implicates.

[00:01:21] Speaker 04:
And so that's my question is for you to kind of clarify that.

[00:01:25] Speaker 04:
And the reason why is that the government contends

[00:01:28] Speaker 04:
that we can affirm the convictions on counts two through 20 on the co-conspirator liability theory if we affirm on count one.

[00:01:38] Speaker 04:
And so I need some help around that.

[00:01:40] Speaker 04:
You didn't respond to that directly, I don't think, in your reply brief.

[00:01:42] Speaker 04:
So I'd like you to speak to that now, please.

[00:01:44] Speaker 03:
Yeah, and if I wasn't clear in my reply brief.

[00:01:50] Speaker 03:
I looked at it, I came at this a little bit differently than the government did.

[00:01:54] Speaker 03:
They said, look, just look at the conspiracy, and if you can confirm on the conspiracy, then really we don't need to look at everything else because of Pinkerton.

[00:02:02] Speaker 03:
And I generally agree with that proposition, and I'll give a caveat in just a minute about that.

[00:02:08] Speaker 03:
But I don't think that you can make a decision about whether or not you think there is enough evidence on the conspiracy unless you actually look at all of the substantive counts.

[00:02:19] Speaker 03:
And as to the substantive counts.

[00:02:23] Speaker 00:
Well, counsel, excuse me.

[00:02:26] Speaker 00:
Don't you need an agreement in order to prove a conspiracy?

[00:02:33] Speaker 03:
You do need an agreement to prove a conspiracy.

[00:02:35] Speaker 00:
And where is the agreement in this case?

[00:02:40] Speaker 03:
Well, I don't think there is an agreement.

[00:02:43] Speaker 00:
Well, if there's no agreement, what happens to the balance of the case?

[00:02:51] Speaker 00:
I still think... I didn't see in your brief that you really took that or made that argument.

[00:03:03] Speaker 03:
I did not make that argument.

[00:03:04] Speaker 03:
No.

[00:03:05] Speaker 00:
Why not?

[00:03:07] Speaker 03:
Candidly, Judge, I ran out of space to make that.

[00:03:11] Speaker 03:
This was a pretty convoluted situation because

[00:03:15] Speaker 03:
I felt like each one of these relationships with these entities was a contractual relationship between Epsilon and the business.

[00:03:24] Speaker 03:
And so you had to look at each of those because a scheme to defraud is essentially an agreement to do something.

[00:03:30] Speaker 03:
You had to look at each of those.

[00:03:32] Speaker 03:
And if you don't know... Is Epsilon the defendant in this case?

[00:03:38] Speaker 03:
Epsilon was never a defendant.

[00:03:39] Speaker 03:
They were separately dealt with.

[00:03:42] Speaker 00:
And I'm interested in an agreement between your client and whoever the other conspirator or the company that did the supposed raw.

[00:03:54] Speaker 03:
I'm happy to address that.

[00:03:56] Speaker 03:
I don't believe there is an agreement between my client and any of the customers.

[00:04:04] Speaker 03:
His agreement truly was with his employer, and that was to sell data, and it was

[00:04:11] Speaker 03:
to facilitate that sale of data by collecting information from these different entities, getting their signature on a contract in which they agreed how they were going to manage that data, including complying with all laws, guidelines, regulations that might be applicable.

[00:04:30] Speaker 03:
And then it went to the president of the company who would look at the promotional material, look at the contract, execute the contract.

[00:04:39] Speaker 03:
And then it went to a separate part of Epsilon

[00:04:41] Speaker 03:
for the sale and the management of data.

[00:04:44] Speaker 03:
So I don't believe with any of these, there was any kind of agreement.

[00:04:48] Speaker 03:
And when we look at each of the separate counts, I grouped RDD as one, because I think they can be addressed a little bit differently, but then all of these other individual ones, there's very little contact other than my client being the facilitator

[00:05:07] Speaker 03:
of the paperwork, there's very little contact with my client with these various entities.

[00:05:13] Speaker 03:
And there's certainly no, there was no evidence of any kind of discussion that he had with them about what their business was, other than for them to give the promotional material and for Mr. Lytle to then circulate it.

[00:05:28] Speaker 02:
Well, the record's pretty clear that he knew, he didn't need to talk to them to know what they were doing, did he?

[00:05:35] Speaker 03:
So all he needed was the information to say, hey, we want to buy it because it goes into a particular category.

[00:05:41] Speaker 03:
They send the promotional material to them.

[00:05:43] Speaker 03:
So yes, he had that.

[00:05:45] Speaker 03:
But I want to be clear that his job was not to, like when the government says review it, he collected it, he saw what it was, and he forwarded it on.

[00:05:54] Speaker 03:
There was not an analysis to see if they were doing what they held out to do.

[00:06:00] Speaker 02:
Well, he definitely had opinions on that.

[00:06:02] Speaker 02:
I mean, the record would show that he looked at it, and he had opinions about it, and he even expressed those internally.

[00:06:09] Speaker 00:
Sure.

[00:06:11] Speaker 02:
And he did not necessarily deny that many of these customers were at least shady.

[00:06:18] Speaker 03:
So I think we need to be careful about the use of the word shady, because Fritz Kessler was the... Okay, let's use a different word.

[00:06:26] Speaker 02:
You know, pushing right up to the line of outright fraud.

[00:06:30] Speaker 03:
Right.

[00:06:31] Speaker 03:
But I think it's fair to say that when you say, OK, look, I don't like this, nothing I would want to do, nothing that I would want to buy, doesn't mean that there is objective knowledge that somebody is engaged in fraud.

[00:06:47] Speaker 03:
I assume that there is not a single person in this courtroom that is interested in spending money on a sweeps report.

[00:06:56] Speaker 03:
I also think there's probably nobody in this courtroom that's interested in buying trinket jewelry.

[00:07:01] Speaker 03:
But that doesn't mean that there are not people that want that, that are interested in, who would like to have a report that says, okay, like, I can fill out all of these things, mail in my little card, and I can enter in all of these sweepstakes and let's see what happens.

[00:07:15] Speaker 02:
I agree with all of that, but it seems like we're talking about a little bit of willful blindness here where he's like tracking and

[00:07:24] Speaker 02:
For lack of a better term, I don't want to quibble over the word tracking, but he's cognizant of who's going to jail, who's got their company set up to where one of them won't have to go to jail if they get busted, that kind of thing.

[00:07:40] Speaker 02:
He's aware that they are doing business with people who are very close to the line at best.

[00:07:49] Speaker 03:
At times, right.

[00:07:53] Speaker 02:
So that brings me to a different... Oh, go ahead.

[00:07:56] Speaker 02:
Go ahead, Judge Comey.

[00:07:58] Speaker 00:
Let me ask you one question.

[00:08:00] Speaker 00:
If a person sees a crime being committed, does that person have some kind of a duty to either stop it or report it?

[00:08:12] Speaker 03:
No.

[00:08:15] Speaker 02:
Thank you.

[00:08:17] Speaker 02:
OK.

[00:08:19] Speaker 02:
What did the record show in the proceeding below about legitimate business that this department conducted?

[00:08:28] Speaker 02:
Because I assume that not every one of their customers was engaging in fraud.

[00:08:35] Speaker 03:
the tiniest percentage that was engaging in this activity.

[00:08:41] Speaker 03:
And let me say, when you say engaging in fraud, that's really part of my concern here is because of, with the exception of RDD and Destiny Research Center, which had people who actually worked for those businesses who came in and said, yeah, it was a fraud.

[00:08:56] Speaker 03:
We said that we were gonna give people a guaranteed payment.

[00:09:00] Speaker 03:
The guaranteed payment showed $1.

[00:09:02] Speaker 03:
But we decided not to do that, and we didn't do it, and we didn't send things out.

[00:09:07] Speaker 03:
So those people admitted to that.

[00:09:09] Speaker 03:
But the other folks, like all the other businesses for these, nobody ever came in and said, hey, yeah, this is what we were doing, and this is what we intended to do.

[00:09:21] Speaker 04:
So are you saying that because there was no direct evidence as to the other customers, that's the end of the government's case?

[00:09:31] Speaker 04:
You have to satisfy the sufficiency challenge.

[00:09:33] Speaker 03:
No, I understand that.

[00:09:35] Speaker 03:
And yes, I am because this was such an enormous component that I think once you realize that they never established a scheme to defraud

[00:09:44] Speaker 03:
with most of these businesses, you're then left with focusing on, okay, let's talk about the two that they did establish it with.

[00:09:55] Speaker 03:
That would be RDD and DRC.

[00:09:58] Speaker 03:
And what was David's involvement with both of those?

[00:10:01] Speaker 03:
Well, with DRC, that was signed years before David came on board.

[00:10:05] Speaker 03:
With RDD, that was in 2013.

[00:10:09] Speaker 03:
David had just very recently been assigned that client from or this category of people from Fritz Kessler, and that was a first-liner.

[00:10:21] Speaker 03:
But as to RDD, the person who testified, Sean Sullivan, the owner, he never had any contact with folks at Epsilon, right?

[00:10:29] Speaker 03:
Jill Costellano, who was the broker, who brought it to David Lytle and said, hey, I've got this client who wants to buy some data.

[00:10:38] Speaker 03:
She never said David knew that there was any kind of misdeed.

[00:10:44] Speaker 04:
And so there just wasn't.

[00:10:46] Speaker 04:
I'm not sure why you're focusing.

[00:10:47] Speaker 04:
I don't understand your argument.

[00:10:49] Speaker 04:
You're focusing on RDD, which seems the strongest direct evidence.

[00:10:54] Speaker 03:
Yes, but the reason I'm focusing on them is because I think you get rid of everything else, right?

[00:11:01] Speaker 03:
I don't think that with any of these other entities.

[00:11:04] Speaker 03:
But I have to accept the fact, because of the government's, the light being looked at in the light most favorable to the government, that as to RDD, that the government did establish that there was a scheme to defraud.

[00:11:16] Speaker 03:
But that's why I focus on, what did David know?

[00:11:19] Speaker 03:
And was there evidence that would show his knowledge?

[00:11:24] Speaker 03:
They didn't put any on to show his knowledge.

[00:11:26] Speaker 03:
Not only did they not do that, he denied having any knowledge that they were engaged in that.

[00:11:35] Speaker 03:
Is that my time left?

[00:11:37] Speaker 02:
That's your time left.

[00:11:38] Speaker 02:
So let's see if Judge Kelly has a question.

[00:11:40] Speaker 02:
And then if you want to reserve, I think it'd be all right.

[00:11:42] Speaker 02:
Judge Kelly, do you have any questions right now?

[00:11:45] Speaker 02:
No, thank you.

[00:11:47] Speaker 02:
OK.

[00:11:47] Speaker 02:
If you want to, go ahead and reserve.

[00:11:50] Speaker 02:
Can we put her back up to 330?

[00:12:01] Speaker 01:
May it please the court?

[00:12:02] Speaker 01:
Marissa Miller for the United States.

[00:12:04] Speaker 01:
This is kind of a complicated case, so I think it might be helpful to break it down by counts and looking at those counts, what Mr. Leto did argue and did not argue.

[00:12:14] Speaker 00:
Pencil, before you break it all down, I want to know if Epsilon is a legitimate business.

[00:12:24] Speaker 01:
I believe Epsilon is a legitimate business.

[00:12:27] Speaker 00:
Okay.

[00:12:28] Speaker 00:
And the defendant here was employed by Epsilon.

[00:12:32] Speaker 00:
Is that correct?

[00:12:33] Speaker 00:
That's correct, Your Honor.

[00:12:36] Speaker 00:
And is it correct that the customer signed this master service agreement that specifically agreed the work would not violate any law, rule, or regulation, etc.?

[00:12:49] Speaker 01:
I believe that's also correct.

[00:12:51] Speaker 00:
All right.

[00:12:53] Speaker 00:
Where was the agreement?

[00:12:55] Speaker 00:
with Mr. Lytle, is that how you pronounce that, with either one of these, RDD or DRC, whatever you call them, where was the agreement to face this conspiracy on?

[00:13:13] Speaker 01:
I recognize that Your Honor has concerns about the agreement and I would like to address them.

[00:13:17] Speaker 00:
I'm sorry?

[00:13:19] Speaker 01:
I will address the agreement, but I do think it's important to recognize that the existence of an agreement is not something

[00:13:25] Speaker 01:
that was ever challenged in the opening brief or the reply brief.

[00:13:29] Speaker 00:
This is... Well, counsel, regardless of whether it's challenged or not, I want to know if there was an agreement with Lytle and any one of these other fraud feesers, if I could use that term.

[00:13:43] Speaker 01:
I mean, I don't believe there was a formal written agreement, but I believe that they all- Okay.

[00:13:47] Speaker 00:
Then I want to know where in the record it shows that there was any type of understanding that if I give you what you want, which are the addresses, that you're going to use them to defraud somebody.

[00:14:03] Speaker 00:
Where is that in the record?

[00:14:05] Speaker 01:
I apologize, Your Honor.

[00:14:06] Speaker 01:
I don't have a citation for that because this is the first time I'm hearing of this challenge.

[00:14:10] Speaker 01:
But I can submit a 27.

[00:14:12] Speaker 00:
The first time you're hearing about it, if you're the U.S.

[00:14:15] Speaker 00:
attorney, you must have known that you needed an agreement in order to prove a conspiracy.

[00:14:23] Speaker 01:
That's correct, Your Honor.

[00:14:24] Speaker 00:
You don't know what the basis of the conspiracy agreement is for starters.

[00:14:30] Speaker 01:
I mean, I think it's the construction of the DTC unit here, and Epsilon, and all of the interactions between these direct mail clients.

[00:14:38] Speaker 01:
and the key figures in this conspiracy.

[00:14:42] Speaker 00:
So then it's your position that an employee has got a duty to report or to stop any type of criminal undertaking that might come down the road?

[00:15:02] Speaker 01:
Your Honor, I think that's an interesting question.

[00:15:04] Speaker 01:
I think the way to think about it

[00:15:06] Speaker 01:
is how we would deal with this in the drug context, right?

[00:15:09] Speaker 01:
You can imagine someone who works at a garage and a drug dealer comes in and says, could you please create a special compartment in my car so I can bring these drugs across the border?

[00:15:19] Speaker 01:
He would just be doing his job in that case, but he has an obligation.

[00:15:24] Speaker 00:
That's not really what we've got here.

[00:15:28] Speaker 00:
They sold addresses, and then you said that was legitimate.

[00:15:35] Speaker 00:
Yes.

[00:15:35] Speaker 00:
But it's also against the law to... And so I want to know where the nexus is to connect this defendant to any fraudulent scheme and that the addresses that were legitimate and were paid for by the client were used.

[00:16:00] Speaker 00:
How did that result in him being a conspirator?

[00:16:04] Speaker 01:
I think we have to recognize that the fact that Epsilon sold a legitimate product doesn't insulate it from criminal liability.

[00:16:14] Speaker 01:
Another analogy would be a company that manufactures a chemical compound.

[00:16:19] Speaker 01:
If that company opens a division that is designed to sell that chemical compound to meth dealers, those people are aiding and abetting the distribution of drugs.

[00:16:28] Speaker 00:
It doesn't matter that... But you didn't sue Epsilon.

[00:16:33] Speaker 00:
You didn't charge them.

[00:16:35] Speaker 00:
as a company?

[00:16:37] Speaker 01:
No, we charged these bad operators.

[00:16:42] Speaker 00:
Well, is it your position that if the janitor is an employee of that company, that he would also be responsible?

[00:16:51] Speaker 01:
I think, Your Honor, that the answer to that would be no, because he would not have the intent required unless we're talking about a situation which the janitor really wants the crime to succeed and is

[00:17:04] Speaker 01:
activities are in some way aiding, abetting, inducing, procuring the crime itself.

[00:17:10] Speaker 00:
So I think that's more... But your position is then that a person has a legal duty to stop or report criminal activity.

[00:17:23] Speaker 01:
Our position is that it violates aiding and abetting if you are aware that the crime is occurring and you share

[00:17:32] Speaker 01:
the intent of the criminal doer and you assist them.

[00:17:35] Speaker 00:
Well, what do we do with the cases we have that say it's long established that a person has no legal duty to either stop or report a crime?

[00:17:49] Speaker 01:
Well, in this case, we're not tying liability to Mr. Lytle failing to stop or report the crime.

[00:17:55] Speaker 01:
We're tying it to affirmative actions.

[00:17:58] Speaker 00:
What did he do other than put, sell the or deliver the addresses that had been ordered and which he said was a legitimate business?

[00:18:11] Speaker 01:
So the record shows that he's not just processing these samples.

[00:18:17] Speaker 01:
He is the one who's going out and recruiting the clients.

[00:18:21] Speaker 01:
So in the analogy, he is the one who works at the company is recruiting

[00:18:25] Speaker 01:
the meth dealers and he is deliberately choosing them.

[00:18:28] Speaker 00:
This is not a meth dealer and don't try to get into the drug business.

[00:18:35] Speaker 00:
This is a legitimate company that sells names and addresses for various reasons.

[00:18:43] Speaker 00:
Isn't that correct?

[00:18:45] Speaker 01:
Yes, that's correct, Your Honor, but I think maybe the garage analogy would be more helpful.

[00:18:49] Speaker 01:
It doesn't matter.

[00:18:50] Speaker 00:
I don't think it's helpful at all, unless you can show me how Mr. Little Lytle participated in the fraud of the company to which the addresses were sent.

[00:19:04] Speaker 00:
Without the fact that he may have looked at the paper and thought, gee, this is really not a very good deal.

[00:19:12] Speaker 01:
So the way Mr. Lytle participated in this fraud was as follows.

[00:19:16] Speaker 01:
He is the one who is going out and recruiting these clients.

[00:19:20] Speaker 01:
And he has discretion over who to recruit.

[00:19:22] Speaker 01:
He's not just signing up people.

[00:19:23] Speaker 01:
He's the one who's going out and he is pursuing these accounts specifically.

[00:19:27] Speaker 01:
And I have record citations for you on that, if you would like them.

[00:19:31] Speaker 00:
In addition... Wasn't that his job to try to develop a business?

[00:19:37] Speaker 00:
To go out and find customers who wanted to buy addresses.

[00:19:42] Speaker 01:
Yes, but that doesn't insulate...

[00:19:44] Speaker 00:
him from criminal liability.

[00:19:47] Speaker 00:
You're making a lot out of nothing here.

[00:19:51] Speaker 01:
I worry that I'm not going to convince you on this, Judge Kelly.

[00:19:54] Speaker 01:
So perhaps I can speak to some of the other counts.

[00:19:59] Speaker 02:
Can I ask you a question about, I don't remember what count it is, but the one that has to do with Mr. P. Sony?

[00:20:06] Speaker 02:
Yes.

[00:20:06] Speaker 02:
Is that right?

[00:20:09] Speaker 02:
On all of your other ones,

[00:20:11] Speaker 02:
There was a document that was provided to Mr. Lytle that he looked at and presumably your theory is he could look at it until it was a sham.

[00:20:21] Speaker 02:
And then he gives out the addresses and names in furtherance of sending out the sham document.

[00:20:30] Speaker 02:
In the Pisone instance,

[00:20:34] Speaker 02:
We don't have that.

[00:20:36] Speaker 02:
All we know is we have testimony that maybe he was a bad actor, maybe he had done criminal things in the past, and that we were going to reach out to him.

[00:20:50] Speaker 02:
But other than that, we don't have anything because

[00:20:54] Speaker 02:
We don't, just because we've never seen his mailer.

[00:20:57] Speaker 02:
So we can't know if the mailer that we were trying to solicit from him was going to be legit or not legit.

[00:21:04] Speaker 02:
So isn't that a distinction between the other counts that's problematic for you?

[00:21:09] Speaker 01:
I would agree it's a distinction between the other counts.

[00:21:11] Speaker 01:
Count 11 is different.

[00:21:13] Speaker 01:
Our argument remains that this is a co-conspirator liability count.

[00:21:19] Speaker 01:
And the conspiracy here obviously involved Mr. Lytle's efforts to recruit

[00:21:24] Speaker 01:
these people that he either knows or strongly suspects are engaging in behavior that's intended to people out of their money.

[00:21:32] Speaker 02:
Right.

[00:21:32] Speaker 02:
But I guess the problem with that is we have a whole other book of business that you concede is legitimate business that, I mean, we would have to dig into the background of every one of the people he solicited.

[00:21:50] Speaker 02:
in his tenure to determine whether he was conspiring to commit fraud with those people.

[00:21:57] Speaker 01:
I mean, I think this situation is a little bit different because Matt Pesoni is well known to him as someone who has violated the law.

[00:22:04] Speaker 02:
So what?

[00:22:05] Speaker 02:
I mean, he hasn't done anything.

[00:22:07] Speaker 02:
I mean, that's part of the foundation of our country is that once you serve your time, you're not presumed to be breaking the law anymore.

[00:22:17] Speaker 01:
I will agree that the nexus there between the scheme to defraud is more tenuous.

[00:22:23] Speaker 01:
I can't dispute that.

[00:22:25] Speaker 01:
I'll take it.

[00:22:25] Speaker 01:
Okay.

[00:22:26] Speaker 01:
I would argue that it's enough.

[00:22:30] Speaker 01:
Very quickly back to the conspiracy charge.

[00:22:33] Speaker 01:
There are only two challenges as I understand it.

[00:22:36] Speaker 01:
There was no challenge to the existence of an agreement.

[00:22:40] Speaker 01:
The only challenges were whether Mr. Lytle knew the essential objective of the conspiracy and whether he participated in it.

[00:22:46] Speaker 01:
I'm happy to talk about that evidence, but I think the upshot of count one is that if the court does choose to reject those challenges, it can affirm the others on the grounds of co-conspirator liability.

[00:22:58] Speaker 04:
Can you speak to that?

[00:22:59] Speaker 04:
I really want to make sure that you answer the question that I directed to the appellant as well, which is how we should be thinking about alternative theories of liability here and how those interface with the sufficiency challenge on the counts.

[00:23:16] Speaker 01:
I mean, I think that the argument in Hillman about alternative theories of liabilities, it's more of a waiver and a party presentation rule than it is anything.

[00:23:26] Speaker 01:
And that's if they don't make these arguments, we don't consider that challenge.

[00:23:31] Speaker 01:
And we affirm on the ground they haven't defended.

[00:23:34] Speaker 01:
I do think there probably is some interplay between depending on if there are issues that this court believes that Mr. Lytle raised that I

[00:23:45] Speaker 01:
did not address.

[00:23:46] Speaker 01:
I can certainly see that interacting in a way that would not allow the court to uphold everything on the basis of conspiracy.

[00:23:54] Speaker 02:
Let me stop you for a minute.

[00:23:55] Speaker 02:
And then you can go on if you have more to say to Judge Rossman about that.

[00:23:58] Speaker 02:
But I just want to make sure I'm clear.

[00:23:59] Speaker 02:
So your basic position is they didn't challenge co-conspirator liability.

[00:24:04] Speaker 02:
Ergo, it's out.

[00:24:06] Speaker 02:
We don't consider it.

[00:24:08] Speaker 02:
Doesn't matter whether it's a good theory or not.

[00:24:11] Speaker 01:
That's correct.

[00:24:13] Speaker 02:
OK, fair enough.

[00:24:15] Speaker 04:
But just to follow up on that, I mean, your position is that every count, other than if count one goes your way, every count can be affirmed as sufficient under a co-conspirator theory of liability.

[00:24:28] Speaker 01:
That is our position, yes.

[00:24:30] Speaker 04:
Every count?

[00:24:31] Speaker 04:
Two a count?

[00:24:32] Speaker 04:
I mean, it seems that some of them maybe would not be.

[00:24:37] Speaker 04:
I mean, I want to understand why every count goes that way.

[00:24:41] Speaker 01:
You know, I recognize the tension that you're seeing there.

[00:24:44] Speaker 01:
And again, it goes back to what arguments the party has raised.

[00:24:48] Speaker 01:
And so if the court, the court may be looking at this and saying, well, I don't think there's enough for co-conspirator liability here.

[00:24:54] Speaker 01:
But the problem is that Mr. Lytle did not raise that in his brief.

[00:24:57] Speaker 01:
And so we did not address that.

[00:24:59] Speaker 01:
We only addressed the issues that we had obligations to.

[00:25:01] Speaker 01:
And this court, you know, Mr. Lytle is represented by sophisticated counsel.

[00:25:07] Speaker 01:
These were arguments that he could have and should have probably raised.

[00:25:11] Speaker 04:
And the consequence of not raising those arguments is that the court can skip over them Okay, so if I understand the government's position is you're inviting us Allah Hillman to sort of integrate the Sufficiency challenge and the party presentation here and that's how we get to affirmance on count one and affirmance on co-conspirator liability on the remainder I think that is probably the if we're looking for the

[00:25:37] Speaker 01:
If you're asking me what the quickest path to affirmance is, which you're- Well, we're not looking for the quickest path.

[00:25:41] Speaker 04:
We're looking for the righteous path.

[00:25:43] Speaker 01:
Yes.

[00:25:44] Speaker 01:
But also the path that follows this court's precedence on when we address arguments that haven't been raised.

[00:25:49] Speaker 01:
But no, I mean, the court does have discretion to choose not to do that.

[00:25:54] Speaker 01:
And then again, I would at least point the court to the strongest counts, we believe, which are the ones involving RDD.

[00:26:01] Speaker 01:
Those are counts two, three, and 14 through 20.

[00:26:06] Speaker 01:
repeatedly conceded that there was a scheme to defraud underlying all of those counts.

[00:26:12] Speaker 01:
The only issue that the court has to address on those counts is whether he had knowledge of the scheme to defraud.

[00:26:21] Speaker 01:
And I think given the ample evidence in the record that was presented to that effect, that the evidence met the sufficiency standard.

[00:26:34] Speaker 04:
I understand you're saying 2, 3, 14, through 20.

[00:26:37] Speaker 04:
Could you speak to the counts that involve clients like diamond, dollars, where there was no evidence that anyone was deceived?

[00:26:47] Speaker 01:
Well, if I may continue.

[00:26:50] Speaker 01:
Go ahead.

[00:26:52] Speaker 01:
A scheme to defraud doesn't require successful deception.

[00:26:54] Speaker 01:
And all we're really looking at is intent.

[00:26:58] Speaker 01:
And I do think that circumstantial evidence

[00:27:02] Speaker 01:
such as these flyers themselves, can be sufficient to demonstrate intent to deceive.

[00:27:08] Speaker 01:
We can imagine a similar flyer that says, come to the 10th Circuit, we're giving out 500 pre-sports cars, asterisk, while supplies last, there are no supplies.

[00:27:22] Speaker 01:
I would feel pretty confident looking at that document and saying the intention there was to trick people into showing up at the 10th Circuit without asking whether someone was actually deceived.

[00:27:32] Speaker 01:
Or whether the person who sent that out?

[00:27:36] Speaker 03:
Intended anyone to be deceived Okay, thank you counsel you're out of time You have three and a half minutes I'm going back to judge Rossman's question, and I think concern about how this court

[00:27:55] Speaker 03:
should be addressing this.

[00:27:57] Speaker 03:
We address the conspiracy and challenge the sufficiency of the evidence on it.

[00:28:03] Speaker 03:
While we were focusing on the scheme to defraud and knowledge aspect of it, you look at it from an overall challenge of that.

[00:28:13] Speaker 03:
And when you consider all of the other counts as sort of like the basis for this is how we have a conspiracy,

[00:28:22] Speaker 03:
I think it's very difficult.

[00:28:23] Speaker 03:
I also want to point out to the court, when you look at under a Pinkerton theory, they charged count one, and they only focused on RDD, BDK, and DRC.

[00:28:36] Speaker 03:
None of us have really talked about BDK in this.

[00:28:41] Speaker 03:
DRC, we talked about that was signed before David came on board.

[00:28:44] Speaker 03:
And then that just leaves us with RDD.

[00:28:46] Speaker 03:
But all of these other counts aren't actually identified specifically.

[00:28:51] Speaker 03:
And the government declined to identify those specifically when we made that request pre-trial.

[00:28:56] Speaker 03:
So I want to point that out to the court, because when you look at Pinkerton, Pinkerton talks about sort of this idea of overt acts in a conspiracy, and then the substantive counts are actually those overt acts.

[00:29:10] Speaker 03:
We don't have that same kind of interplay here.

[00:29:12] Speaker 03:
And so I think when you're looking at, OK, what actually happened here?

[00:29:17] Speaker 03:
And can we somehow infer that there was this agreement and this intent and all this?

[00:29:25] Speaker 03:
That's why I focus this the way I did on all of these other components of it, because I don't think that the evidence exists on any of those other ones, including live tree, as the court was talking about previously,

[00:29:39] Speaker 03:
And so then we're left with RDD.

[00:29:42] Speaker 03:
And my point continues to be the evidence was not sufficient to establish that he had knowledge.

[00:29:50] Speaker 03:
If he didn't have knowledge about all of these separate individual transactions from a legitimate company that was doing billion dollar business with companies like Fabletics and Champion Windows and all kinds of solar and stuff.

[00:30:06] Speaker 03:
The list was long and there's an exhibit that talks about all of the other products that Mr. Lytle was selling.

[00:30:14] Speaker 03:
I just don't know how we get to a point that there is

[00:30:19] Speaker 03:
that there's a conspiracy that somehow we can use that to support the notion that he's responsible for this conduct.

[00:30:27] Speaker 03:
And unless the court has more questions, I'll leave it at that.

[00:30:32] Speaker 02:
Thank you, counsel.

[00:30:32] Speaker 03:
Thank you.

[00:30:36] Speaker 02:
The case is submitted and counsel are excused.

[00:30:38] Speaker 02:
We'll call the next case.

[00:30:41] Speaker 02:
Looks like Ms.

[00:30:41] Speaker 02:
Miller gets to remain seated.

[00:30:43] Speaker 02:
24-1411, United States