[00:00:00] Speaker 05:
Case 12-3024, United States of America versus Howard R. Schmuckler.

[00:00:07] Speaker 05:
Miss Rowland for the appellant.

[00:00:09] Speaker 05:
Mr. Apperson for the appellee.

[00:00:17] Speaker 00:
Good morning.

[00:00:17] Speaker 00:
May it please the court?

[00:00:19] Speaker 00:
The opportunity to inquire during voir dire when juror bias is suggested is a guarantee of the defendant's rate to an impartial juror.

[00:00:30] Speaker 00:
None of us knows whether juror 0514 was actually biased.

[00:00:35] Speaker 00:
But the switch was so unusual and unexpected.

[00:00:38] Speaker 04:
You referred to the juror who was incorrectly came into the box, never set on the case, did he?

[00:00:45] Speaker 00:
That's correct.

[00:00:46] Speaker 04:
So how is there any jury bias?

[00:00:49] Speaker 04:
The wrong person went in the box.

[00:00:51] Speaker 04:
Nothing happened.

[00:00:52] Speaker 04:
There were no evidences introduced.

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No part of the trial occurs.

[00:00:57] Speaker 04:
And then the correct juror replaces the juror.

[00:00:59] Speaker 04:
Is that right?

[00:01:00] Speaker 00:
Yes, the correct juror.

[00:01:02] Speaker 04:
So before in the world, is there any bias?

[00:01:04] Speaker 00:
What happened was so very odd.

[00:01:08] Speaker 04:
I know it's odd.

[00:01:10] Speaker 04:
I know it's odd.

[00:01:10] Speaker 04:
I'm not asking you whether it's odd.

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I'm asking you how there could be any bias from somebody accidentally going, deliberately going in the box and doing nothing before the trial ever started and leaving before the trial started.

[00:01:23] Speaker 00:
The prejudice is not in juror 1547 going into the box.

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The prejudice is in the juror who sat, perhaps avoided going into the box because of prejudice or

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Having disobeyed the court's instructions, bias was created.

[00:01:45] Speaker 00:
So it really isn't about juror 1547.

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It's about the reasons why juror 0514 might have failed to take her seat and how that might have affected her later.

[00:01:59] Speaker 04:
Tell me the scenario that you think could be to the prejudice of your client, yes.

[00:02:05] Speaker 04:
All I see is the wrong juror went in the box, had three of the same digits, constituted differently, in the jury number.

[00:02:16] Speaker 04:
The attorney's approach, or I think the U.S.

[00:02:19] Speaker 04:
attorney's approach, told the judge, wrong juror was in the box, they take that juror out, before the trial begins on Monday, they'll write jurors back and sit him in the box.

[00:02:28] Speaker 04:
Is that not what happened?

[00:02:30] Speaker 00:
that is what happened to you that is a solid detail that the court left out which is that she failed to follow the judges instructions to report back to the jury room but she did come back on monday after she was called i don't know why she responded all morning long to her juror number that failed to respond

[00:02:50] Speaker 00:
in the moment when it counted.

[00:02:52] Speaker 00:
I don't know why the other juror responded to his juror number all morning long and then responded to someone else's in the moment that counted.

[00:03:02] Speaker 00:
I can speculate.

[00:03:05] Speaker 00:
I mean, I could come up with, like, speculative scenarios.

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I wouldn't mind if you did that.

[00:03:10] Speaker 04:
I'm having a very hard time finding a possibility of prejudice in these events.

[00:03:14] Speaker 00:
OK.

[00:03:15] Speaker 04:
You can speculate for me on what it could be.

[00:03:18] Speaker ?:
OK.

[00:03:19] Speaker 00:
If the two veneer men colluded in the juror lounge while they were waiting and juror 1547 agreed to take O514's place, then we don't know why she might have wanted to avoid jury duty, but having tried and failed and now being called in,

[00:03:47] Speaker 00:
There are cases discussing that kind of prejudice because the juror would or might naturally think that they need to curry favor with the government in order not to be prosecuted for their misbehavior.

[00:04:03] Speaker 05:
You agree that you would be speculating that there was any collusion.

[00:04:07] Speaker 05:
There's no evidence of thought at all.

[00:04:09] Speaker 00:
Yes.

[00:04:10] Speaker 05:
So then you would be speculating that

[00:04:15] Speaker 05:
person felt guilty because you're speculating they colluded.

[00:04:20] Speaker 05:
That's like two levels of speculation.

[00:04:23] Speaker 00:
I don't need to offer the speculation except to answer the court's questions, but to prevail we don't need to speculate.

[00:04:32] Speaker 00:
We just need to see that he had a right to an impartial and different jury and this

[00:04:41] Speaker 00:
The circumstances were so odd that they simply required inquiry.

[00:04:46] Speaker 05:
Don't they have to raise a question of, at least some question of potential prejudice beyond speculation?

[00:04:55] Speaker 00:
Well, we have a right to, or Mr. Schmuckler has a right to

[00:05:02] Speaker 00:
that would ferret out any kind of partiality, any bias.

[00:05:07] Speaker 01:
Can you cite a case where this obligation was recognized by court where there was no actual evidence of jury bias?

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In other words, every case you cite in your brief, there was evidence, actual evidence of possible juror bias.

[00:05:30] Speaker 01:
Can you cite a case?

[00:05:32] Speaker 01:
I mean, you're sort of making a racist argument, right?

[00:05:36] Speaker 01:
It was so odd that the court had to investigate.

[00:05:40] Speaker 00:
It's so odd.

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There is the possibility of bodies.

[00:05:44] Speaker 01:
Is there any case that says that?

[00:05:46] Speaker 01:
You may be right.

[00:05:46] Speaker 01:
I just want to know if there's any case, because I haven't found it.

[00:05:49] Speaker 00:
Well, there are no cases that I'm aware of that have this particular circumstance, but there are cases cited in my brief that say when there is a suggestion or the possibility.

[00:06:00] Speaker 01:
Yeah, evidence.

[00:06:01] Speaker 01:
Evidence.

[00:06:01] Speaker 01:
Some indication, not speculation.

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And the evidence is that all morning long, juror 0514 answered to her name, 1547 answered to his.

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And at the final moment,

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she fails to take her seat and he takes her seat.

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So the two of them would have to be making the same mistake at the same time, which seems highly unlikely.

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And all we have to show is possible bias to get

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to require the court to ask questions.

[00:06:39] Speaker 05:
Is that true under plain error?

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You agree this is a plain error case, right?

[00:06:42] Speaker 00:
Yes, it is.

[00:06:43] Speaker 05:
Because they didn't ask the question.

[00:06:46] Speaker 00:
Right.

[00:06:46] Speaker 05:
So assuming that you're right, that they would have had the right to question then, how do we translate that to the standard of review here?

[00:06:56] Speaker 00:
It was plain

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it was an error that was clear and obvious that when something like that comes up that suggests possible bias, the court needs to make an inquiry and failing to do so affects his substantial right to an impartial jury and of course affects the perception of the court.

[00:07:19] Speaker 05:
Could you say something about the sufficiency of the evidence or what you describe as a variance question with respect to that counterfeiting?

[00:07:29] Speaker 00:
Our argument is that there was a variance between the grand jury's indictment and the proof at trial.

[00:07:36] Speaker 00:
The testimony could not have been more clear that the check in question was the valid check of the company.

[00:07:43] Speaker 05:
Can I ask you, so I'm not understanding why actually both sides are describing this as a variance question rather than just the sufficiency of the evidence question.

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I mean isn't it correct that if

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We assume you're right that there was insufficient evidence to establish the charge of counterfeiting.

[00:08:04] Speaker 05:
There would be prejudice and a variance, right?

[00:08:08] Speaker 05:
There would be a prejudicial variance.

[00:08:10] Speaker 05:
It's clear that if you were right about the insufficiency of the evidence, that there would be a variance, right?

[00:08:16] Speaker 02:
Yes.

[00:08:16] Speaker 05:
A prejudicial one.

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

[00:08:17] Speaker 05:
And it's also clear that if the evidence were sufficient for counterfeiting, you would not have a prejudicial variance, right?

[00:08:27] Speaker 05:
Yes, we would have a prejudicial... Even if there was enough evidence for counterfeiting?

[00:08:34] Speaker 00:
Oh, I'm sorry.

[00:08:35] Speaker 00:
If there was sufficient evidence of counterfeiting, and he was charged with counterfeiting... Which he was?

[00:08:41] Speaker 00:
We have no problem.

[00:08:42] Speaker 05:
And he was charged with counterfeiting?

[00:08:43] Speaker 00:
Yes, he was charged with counterfeiting, and if they had produced evidence of counterfeiting, we would have no problem.

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And if they didn't produce evidence of counterfeiting,

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You would have insufficient evidence.

[00:08:54] Speaker 00:
Yes.

[00:08:55] Speaker 05:
And you would have what you call variance.

[00:08:56] Speaker 00:
And a variance is a subset of insufficient evidence.

[00:08:59] Speaker 05:
So why are we talking about variance here?

[00:09:01] Speaker 05:
Why isn't this just a straightforward question?

[00:09:05] Speaker 05:
Was the evidence sufficient?

[00:09:06] Speaker 05:
What is the variance discussion, which is extremely complicated in both briefs, what does it add to our analysis?

[00:09:17] Speaker 00:
it has to be a great eliminates the issue of uh... on the fact that he was not on notice of what in the charge was in what kind of that's only true my that's only true if there was an insufficient evidence counterfeit right so isn't this just i'm not saying this is bad for you right now because you know that i think it's just an insufficiency case i think that you will find in our brief

[00:09:41] Speaker 00:
we did actually argue that it was insufficient evidence.

[00:09:44] Speaker 05:
I agree with you.

[00:09:45] Speaker 05:
You did not waive this argument.

[00:09:46] Speaker 05:
This is not a trick.

[00:09:47] Speaker 05:
I'm just trying to figure out.

[00:09:51] Speaker 05:
You raised the sufficiency, and personally I think it's better for you to argue this as a lack of sufficiency.

[00:09:57] Speaker 05:
I don't understand why both sides have all these pages on variance when this is not the kind of case where that makes any difference.

[00:10:03] Speaker 05:
The question is, if there's sufficient evidence,

[00:10:07] Speaker 05:
then you have no prejudice, and so any variance arguments adds nothing.

[00:10:11] Speaker 05:
And if you have insufficient evidence, you do have a prejudice, and so your variance argument adds nothing.

[00:10:17] Speaker 05:
So is there any reason why I shouldn't think of this just as the question of whether there's sufficient evidence?

[00:10:27] Speaker 00:
I ponder that and get back to you.

[00:10:30] Speaker 05:
I'm taking your silence as at least leaning toward agreeing with me on the analysis.

[00:10:35] Speaker 00:
I don't know.

[00:10:37] Speaker 05:
Think about it.

[00:10:37] Speaker 00:
Like the defense counsel here, I'm not thinking on my feet.

[00:10:40] Speaker 00:
Oh, yes.

[00:10:40] Speaker 05:
We know you better than that.

[00:10:41] Speaker 05:
We know you can think on your feet.

[00:10:43] Speaker 05:
All right.

[00:10:43] Speaker 05:
So your view is that on this one check,

[00:10:46] Speaker 05:
that this really at best is a forgery and not a convent because it does not entirely change the check.

[00:10:54] Speaker 05:
Can you tell me, were the original checks put in or just these copies?

[00:11:00] Speaker 00:
I think that the

[00:11:07] Speaker 00:
the original, you know, the valid check.

[00:11:10] Speaker 05:
No, I mean the physical piece of paper.

[00:11:12] Speaker 00:
Right.

[00:11:13] Speaker 00:
I think it was a copy of the check that the young agency had actually written to its insurance carrier.

[00:11:21] Speaker 00:
I don't think it was the actual check.

[00:11:24] Speaker 05:
And the same with respect to the, I'm assuming for the moment, forged check.

[00:11:32] Speaker 05:
That was also just a copy.

[00:11:33] Speaker 05:
Because the version we have has obviously both has a front and a back on the same piece of paper.

[00:11:38] Speaker 05:
So I'm guessing this is also the only put in a copy, but I don't know.

[00:11:42] Speaker 00:
I think that it was a copy, yes.

[00:11:46] Speaker 00:
I think that they were all copies.

[00:11:49] Speaker 01:
So what's the evidence you point to that suggests that this was a forgery and not a counterfeit?

[00:12:00] Speaker 00:
The representative from the young agency gave the only testimony on this matter and he testified that the company had issued a check to its insurance carrier and that that check had been altered fraudulently to change the payee's name.

[00:12:21] Speaker 01:
But how would he know that that's

[00:12:24] Speaker 01:
When did he discover this, subsequently?

[00:12:27] Speaker 01:
He didn't know about it at the time, right?

[00:12:29] Speaker 01:
That it was cash?

[00:12:30] Speaker 00:
Well, he learned about it when it was deposited in the bank.

[00:12:35] Speaker 01:
After whatever was done to it happened, right?

[00:12:38] Speaker 00:
Right.

[00:12:39] Speaker 00:
Well, I think he knew it by inference because the insurance company did not receive their check and he had to put stop payment on that one and reissue a check to them.

[00:12:52] Speaker 01:
Well, there were

[00:12:54] Speaker 01:
So that's what you're relying on his testimony?

[00:12:56] Speaker 01:
Where he says the word forged?

[00:12:58] Speaker 00:
Well, not simply that he used the word altered fraudulently, but the fact that he had to put stop payment on that check and his insurance company had not received the check that Young Company had written to them and he had to issue a new check to them.

[00:13:22] Speaker 01:
But couldn't it, the jury, there was testimony about how effective these copiers are, right?

[00:13:28] Speaker 01:
Color copiers, right?

[00:13:30] Speaker 01:
Wasn't there?

[00:13:32] Speaker 01:
I mean, couldn't the jury have, was the name of it just, the so-called forgery was the P, E's name was changed, right?

[00:13:42] Speaker 00:
Yes.

[00:13:42] Speaker 01:
I mean, somebody could have made a copy of the check with the name blocked out and put in the new P, right?

[00:13:51] Speaker 01:
And that would have been a counterfeit, correct?

[00:13:56] Speaker 00:
Yes, if they recreated...

[00:14:00] Speaker 00:
If you create something out of whole cloth, and I suppose they do use some sort of copying method to do that, then it would be a counterfeit check.

[00:14:10] Speaker 00:
But the testimony, he was quite certain that this was the check that he issued, and he had the check numbers.

[00:14:19] Speaker 01:
But that would still be the same, that would be the same if it was copied, right?

[00:14:24] Speaker 01:
Check number would be the same.

[00:14:28] Speaker 00:
Yes, it wouldn't explain why.

[00:14:32] Speaker 00:
the company never got their check if it was simply a counterfeit.

[00:14:37] Speaker 00:
In these other counterfeits, all the other charges, it was never a check that was altered.

[00:14:44] Speaker 00:
It was always, or it was never a legitimate check of the bank or the company.

[00:14:49] Speaker 00:
It was always, I suppose somebody had a template and was creating these checks.

[00:14:55] Speaker 00:
The numbers didn't correspond to

[00:15:00] Speaker 01:
So the other four, there were four other checks, correct, or three?

[00:15:04] Speaker 01:
Four.

[00:15:06] Speaker 01:
Also four, and you don't object to, you don't argue lack of sufficiency evidence with respect to those, right?

[00:15:13] Speaker 00:
Correct.

[00:15:14] Speaker 01:
So are they different in some respect?

[00:15:15] Speaker 01:
How are they different?

[00:15:16] Speaker 00:
Well, it makes a difference to Mr. Schmuckford.

[00:15:18] Speaker 01:
No, no, oh, and that's a different question.

[00:15:20] Speaker 01:
I was just asking you why, why is this check?

[00:15:24] Speaker 01:
different from those other checks?

[00:15:26] Speaker 00:
This check is different because all of the other checks were created from whole cloth.

[00:15:33] Speaker 00:
They were not stolen from the banks or the companies.

[00:15:36] Speaker 00:
They were not checks that... Was there testimony about that?

[00:15:41] Speaker 05:
That the others were created from whole cloth?

[00:15:43] Speaker 00:
Yes, yes.

[00:15:44] Speaker 00:
For example, the representative from Farmer's State Bank, they had thousands of cashier's check reporting to be from their bank coming in.

[00:15:54] Speaker 00:
And none of those were actual cashier's checks that they had created.

[00:15:59] Speaker 00:
They were created from whole cloth by whoever was doing that.

[00:16:06] Speaker 00:
And I think that that's true for all of the other companies and banks as well.

[00:16:12] Speaker 04:
What is your understanding as to how this one was created, that is to say, how the change was made in the name?

[00:16:20] Speaker 00:
I don't know.

[00:16:21] Speaker 00:
There was no testimony about that.

[00:16:22] Speaker 00:
There was testimony.

[00:16:24] Speaker 04:
So the description or possibility suggested by Judge Tatel is not inconsistent with the evidence in the case?

[00:16:30] Speaker 00:
Well, there was testimony that the font of the payee did not match the font of the rest of the check.

[00:16:41] Speaker 04:
So if it were a copy and that font were typed in while the computer was processing, apps of the computer were processing the creation of a new check, it could well be a different font than in the original.

[00:17:00] Speaker 00:
Yes, the young agency representative testified this is the check that we wrote to our insurance company.

[00:17:08] Speaker 04:
Was that the original physical check in any event, whether it's genuine or whether it's counterfeit or whether it's forged, was the exhibit the actual original physical check?

[00:17:20] Speaker 00:
You know, I don't really know the answer to that question.

[00:17:23] Speaker 00:
I wasn't at the trial.

[00:17:24] Speaker 04:
So all you really know from the evidence is that a check with that number was issued to a different payee.

[00:17:31] Speaker 00:
Never arrived.

[00:17:34] Speaker 00:
And then we have the gentleman's testimony that this is the check.

[00:17:38] Speaker 00:
It was altered fraudulently to change the payee's name.

[00:17:42] Speaker 04:
But the vision of the check part does not necessarily identify this as the physical document originally produced.

[00:17:48] Speaker 00:
That was his testimony.

[00:17:50] Speaker 04:
This is the check.

[00:17:51] Speaker 00:
This is the check.

[00:17:52] Speaker 04:
How was this check presented and processed?

[00:17:57] Speaker 00:
You understand what I mean?

[00:17:58] Speaker 04:
Most people do not take physical checks to the bank and deposit.

[00:18:01] Speaker 04:
Well, maybe not most, but many people do not.

[00:18:03] Speaker 00:
Oh no, these were all directed by, these were all walking into a bank.

[00:18:08] Speaker 00:
and depositing them into his account.

[00:18:10] Speaker 00:
It was nothing digital.

[00:18:11] Speaker 04:
I should not say most, but many people do not.

[00:18:13] Speaker 00:
Right.

[00:18:14] Speaker 00:
Well, this was a number of years ago.

[00:18:16] Speaker 04:
I scope.

[00:18:17] Speaker 04:
I do, too.

[00:18:18] Speaker 04:
I do, too.

[00:18:18] Speaker 00:
Yeah.

[00:18:20] Speaker 04:
I do go through the drive-through.

[00:18:21] Speaker 00:
I don't even understand that thing about taking a picture.

[00:18:26] Speaker 01:
So you were about to answer a different question that I asked, which is, what difference does this make to Mr. Schmuckler, if I'm right?

[00:18:35] Speaker 00:
It's one less conviction, which

[00:18:38] Speaker 00:
potentially has repercussions for him.

[00:18:40] Speaker 00:
He was charged a $100 fee was imposed that he is paid and would be refunded.

[00:18:48] Speaker 04:
Okay.

[00:18:49] Speaker 04:
How many counts was he convicted of in the sentence known?

[00:18:53] Speaker 00:
I think he was convicted of 11.

[00:18:58] Speaker 04:
And the sentences all ran concurrent?

[00:19:02] Speaker 00:
Yes, they did.

[00:19:03] Speaker 04:
It would not affect... So the only real difference is the $100 assessment, right?

[00:19:09] Speaker 05:
Yes, and he is entitled to... There's a Supreme Court case that says we have to consider every conviction regardless of its impact.

[00:19:18] Speaker 00:
Yes.

[00:19:19] Speaker 05:
Okay.

[00:19:20] Speaker 00:
If they're new for the questions, I'd like to reserve my time for rebuttal.

[00:19:23] Speaker 05:
Well, there's nothing to reserve, but you know me.

[00:19:26] Speaker 05:
I'll give you a little time.

[00:19:27] Speaker 05:
Okay, government's on.

[00:19:30] Speaker 03:
Good morning, Your Honor.

[00:19:31] Speaker 03:
May it please the Court, Jay Apperson, for the United States.

[00:19:34] Speaker 03:
Your Honor, the trial court did not clearly air, excuse me, plainly air with respect to failing to inquire further of the jurors.

[00:19:41] Speaker 03:
There is no information suggesting misconduct on the part of the jurors, only speculation offered for the first time here on appeal.

[00:19:49] Speaker 03:
It was never raised below, including... Well, that's not quite right.

[00:19:52] Speaker 03:
There is a motion, there was a motion after the judgment, right?

[00:19:56] Speaker 03:
It is, and there was no, there was, the only thing that was suggested at the end of the motion was a perfunctory statement.

[00:20:04] Speaker 03:
Apparent opponent requests the court to grant this motion for authorization to interview the juror regarding possible misconduct without any further claim.

[00:20:13] Speaker 03:
And that was made after verdict?

[00:20:15] Speaker 03:
A year later.

[00:20:16] Speaker 03:
A year later.

[00:20:17] Speaker 03:
So even at that point, the suggestion now for the first time on appeal of collusion has been offered

[00:20:24] Speaker 03:
for the first time on appeal, and there is no information suggesting collusion.

[00:20:30] Speaker 03:
In fact, there's no information suggesting that either of the two jurors ever spoke

[00:20:35] Speaker 03:
They were sitting on different sides of the courtroom as appellants briefed so aptly notes.

[00:20:41] Speaker 03:
So they're not even seated next to one another.

[00:20:43] Speaker 03:
So there's simply not a shred of information to suggest as they now claim collusion.

[00:20:49] Speaker 03:
And so the court had no basis to inquire further.

[00:20:53] Speaker 05:
Can we talk about the check?

[00:20:55] Speaker 05:
Yes, sir.

[00:20:55] Speaker 05:
What is the government's theory about how these, well, first of all,

[00:21:01] Speaker 05:
Was there a physical check that was put into evidence or only copies of checks?

[00:21:05] Speaker 03:
There were two checks put into evidence.

[00:21:07] Speaker 03:
One was the original check that was exhibit 64.

[00:21:10] Speaker 05:
And that's the one I have here.

[00:21:12] Speaker 05:
Is that the physical check?

[00:21:14] Speaker 03:
It's the one that has the void on it.

[00:21:15] Speaker 05:
Right.

[00:21:15] Speaker 05:
No, I see.

[00:21:16] Speaker 05:
But what I have is a copy, obviously.

[00:21:17] Speaker 05:
Correct.

[00:21:18] Speaker 05:
Is the original actual physical check produced?

[00:21:20] Speaker 03:
No.

[00:21:20] Speaker 03:
My understanding is that the trial exhibits were both

[00:21:23] Speaker 03:
photocopies of the original.

[00:21:25] Speaker 05:
So no real check, no thing that we in the real world think of as checks was put in.

[00:21:32] Speaker 03:
That's correct.

[00:21:32] Speaker 05:
So what's the government's theory here?

[00:21:34] Speaker 03:
Well, the evidence was the witness testimony, contrary to the following suggestion at page 70 of the brief, the witness testified

[00:21:42] Speaker 03:
Exhibit 9E is the actual check that was the counterfeit check, and the government counsel asked during trial, how do you know that this, 9E, is a counterfeit check?

[00:21:55] Speaker 03:
And the witness answered, because the payee information is different from the original check, and it contains fonts and typesets that are different.

[00:22:03] Speaker 05:
Well, that certainly doesn't prove it's counterfeit.

[00:22:07] Speaker 03:
I submit, in the light most favorable to the government, that is the evidence showing that it is counterfeited.

[00:22:11] Speaker 03:
I don't understand.

[00:22:12] Speaker 05:
It says, I'm reading, because the payee information is different from the original check, and also the fonts and typeset is different from all other aspects of the check, from the original check.

[00:22:23] Speaker 05:
So that could easily mean

[00:22:25] Speaker 05:
that the payee was pasted in on top of a real check.

[00:22:31] Speaker 03:
Not when it's answering a question.

[00:22:33] Speaker 03:
How do you know that this is a counterfeit check?

[00:22:36] Speaker 03:
And the witness then explains why he knows it to be counterfeit.

[00:22:40] Speaker 05:
Nobody defined the word counterfeit to the witness, did they?

[00:22:43] Speaker 03:
No, Your Honor.

[00:22:44] Speaker 05:
And the rule is counterfeit must be entirely different, right?

[00:22:48] Speaker 05:
It has to be manufactured in its entirety.

[00:22:52] Speaker 03:
That is the statutory language.

[00:22:54] Speaker 05:
Right.

[00:22:54] Speaker 05:
So we don't have any idea whether the witness was aware of the statutory requirement.

[00:22:59] Speaker 03:
No.

[00:22:59] Speaker 03:
But we're certainly aware that counsel was aware of that.

[00:23:02] Speaker 03:
And in closing argument at page 70 of closing argument, counsel acknowledged twice that this was a counterfeit check.

[00:23:10] Speaker 05:
Oh, tell me where that is.

[00:23:11] Speaker 03:
Page 70 of the trial transcript, 12-12.

[00:23:14] Speaker 03:
Can you help me with the... Sure, it's the final... December the 12th, page 70.

[00:23:27] Speaker 05:
Is this in either one of the... Oh, December 12th.

[00:23:29] Speaker 05:
Page 70.

[00:23:39] Speaker 03:
Middle of the page.

[00:23:48] Speaker 05:
And this is the defense counsel, is that?

[00:23:50] Speaker 03:
Yes, Your Honor.

[00:23:53] Speaker 05:
So during this time period, Mr. Schmuckler is receiving these checks that later were determined to be counterfeit?

[00:23:58] Speaker 03:
Yes, sir.

[00:23:59] Speaker 03:
And then at the end of that paragraph, he continues that he accepted the checks that later came back to be counterfeit.

[00:24:05] Speaker 03:
And he goes on to describe that these are the five checks.

[00:24:08] Speaker 03:
That's counts six through ten, of which count eight is the pertinent one.

[00:24:14] Speaker 05:
Sorry, just help me.

[00:24:15] Speaker 05:
Where's the second reference to counterfeit?

[00:24:18] Speaker 03:
They're both in that same paragraph.

[00:24:20] Speaker 05:
Yeah, I was just saying.

[00:24:22] Speaker 05:
Point me to a line, that would be helpful.

[00:24:24] Speaker 03:
Can you?

[00:24:25] Speaker 03:
Yes, line 13 and line 20, Your Honor.

[00:24:31] Speaker 05:
So you're taking this as an admission by the, in other words, you're taking this as an admission by defendant?

[00:24:37] Speaker 03:
I think it is, and it certainly suggests that there was no surprise.

[00:24:42] Speaker 03:
In fact, in his opening statement, he said the same thing.

[00:24:46] Speaker 03:
Page 48 of the December 5th transcript, line 17 and 18.

[00:24:52] Speaker 05:
Hold on one second.

[00:24:52] Speaker 05:
Sorry.

[00:24:58] Speaker 05:
One page, sorry?

[00:25:00] Speaker 03:
That's quite all right.

[00:25:01] Speaker 03:
48, the appendix page is 360, Your Honor.

[00:25:09] Speaker 03:
December the 5th.

[00:25:11] Speaker 05:
I've got that.

[00:25:11] Speaker 03:
Transcript.

[00:25:13] Speaker 03:
Page 48.

[00:25:13] Speaker 05:
Yeah, what line?

[00:25:16] Speaker 03:
17 and 18.

[00:25:19] Speaker 05:
Okay, so now.

[00:25:20] Speaker 03:
Mr. Schmuckler had nothing to do with creating these counterfeit checks or distributing these counterfeit checks.

[00:25:26] Speaker 03:
At the bottom, excuse me, on 24 and 25, he again refers to it, these checks were sent to him and he later learned they were counterfeit.

[00:25:33] Speaker 05:
So are you saying that this is an admission by the defendant?

[00:25:36] Speaker 05:
Is that what you're relying on?

[00:25:38] Speaker 03:
I think it is, Your Honor.

[00:25:40] Speaker 03:
The closing arguments confirm that

[00:25:43] Speaker 03:
Council understood that there was sufficient evidence to support the counterfeit check.

[00:25:47] Speaker 03:
There was never an objection to the prosecutor's question to the witness, how do you know that this is a counterfeit check?

[00:25:53] Speaker 03:
And no objection to the answer that he gave.

[00:25:55] Speaker 03:
And so in the light most favorable to government, that is sufficient evidence to support the charge.

[00:26:00] Speaker 03:
It was acknowledged at both opening the statement and the closing argument.

[00:26:04] Speaker 04:
If there were insufficient evidence,

[00:26:09] Speaker 04:
If there were insufficient evidence, can you create a sufficiency by an attorney's admission, attorney's use of the term?

[00:26:18] Speaker 04:
No, but the court would still have to look at the prejudice.

[00:26:21] Speaker 03:
So don't we still have to look at the evidence here to see if it's sufficient?

[00:26:24] Speaker 05:
No question, and that's how I began, by citing the... What I don't see is how, I'm looking at these two checks, and I don't see how I could tell

[00:26:34] Speaker 05:
that beyond a reasonable doubt.

[00:26:36] Speaker 05:
So a reasonable juror would have to find this beyond a reasonable doubt to support sufficiency, right?

[00:26:41] Speaker 05:
Correct.

[00:26:42] Speaker 05:
I don't see how a reasonable juror could tell that this check was entirely manufactured as compared to forged, which means a single alteration.

[00:26:54] Speaker 03:
And the answer, I think, Your Honor, is because the witness also testified at page 39 of the transcript that the original check

[00:27:03] Speaker 03:
Exhibit number 64, the unaltered check, was also presented to the bank separately.

[00:27:09] Speaker 03:
So the jury had before it that each of these checks were each presented to the bank.

[00:27:14] Speaker 05:
Unfortunately, I read that section as meaning the original check, meaning the altered check.

[00:27:20] Speaker 05:
That's the problem.

[00:27:21] Speaker 05:
When he's talking about that on that page, I appreciate it as ambiguous.

[00:27:27] Speaker 05:
which doesn't help you any.

[00:27:28] Speaker 03:
Well, to the extent it's ambiguous and the light most favorable to the government.

[00:27:31] Speaker 05:
It has to be ambiguous in a light that would allow the jury to find beyond a reasonable doubt, not just ambiguous.

[00:27:37] Speaker 05:
It's not enough that the jury could speculate, right?

[00:27:41] Speaker 05:
For sufficiency of the evidence, it is not enough.

[00:27:45] Speaker 05:
for the jury to speculate, correct?

[00:27:47] Speaker 03:
That's our classic statement of the law.

[00:27:48] Speaker 03:
Well, there's no question of that, but I don't think it calls on speculation if the witness that says the original check, which I think reasonably understood by the jury, could properly infer that it was government exhibit 64.

[00:28:01] Speaker 05:
What he says is the original check was presented to the bank, but it was never cleared.

[00:28:06] Speaker 05:
The bank was never cashed.

[00:28:07] Speaker 05:
On the previous page, it explains

[00:28:10] Speaker 05:
that the original check that we just spoke of had been fraudulently altered, presented for payment to the bank, the payee name had been altered fraudulently, was detected by the bank, and was brought to the attention of our corporate offices.

[00:28:21] Speaker 05:
That sounds to me like what he's saying is that the forged check or counterfeited or altered, whatever you want to say, was presented to the bank.

[00:28:31] Speaker 05:
Is it the government's position

[00:28:35] Speaker 05:
that this check, which is government exhibit 64 at page 32, that that check was presented to the bank?

[00:28:43] Speaker 03:
Absolutely.

[00:28:44] Speaker 05:
And how do you know that?

[00:28:46] Speaker 03:
I've decided that that's how I read the witness's testimony.

[00:28:49] Speaker 03:
And I think the jury properly could infer that that's what the witness was doing.

[00:28:53] Speaker 05:
Did the government subpoena the bank's records or anything like that?

[00:29:01] Speaker 03:
I'm not sure if these checks came from the bank.

[00:29:04] Speaker 03:
They must have, because it also includes the... Bear with me, Your Honor.

[00:29:08] Speaker 05:
I'm talking about check number 64.

[00:29:10] Speaker 05:
There's no doubt about it that the JA-33 is, because it's got the markings on it.

[00:29:16] Speaker 03:
Correct.

[00:29:16] Speaker 03:
So I'm not sure if that was from the young company that wrote the check or from the bank.

[00:29:22] Speaker 03:
I don't know the answer to that, Your Honor.

[00:29:27] Speaker 03:
Who wrote void on the check on 32?

[00:29:29] Speaker 03:
I don't know the answer to that.

[00:29:30] Speaker 03:
I'm not sure that there was testimony with respect to that.

[00:29:33] Speaker 03:
But I believe that the witness testified.

[00:29:36] Speaker 03:
I read the witness's testimony to refer to government 64 as the original check.

[00:29:42] Speaker 03:
And of course, here's a lay witness talking about, and by the way, the court had asked counsel as to the color copy and testimony.

[00:29:50] Speaker 03:
That was found at page 84 of the December 6 transcript.

[00:29:55] Speaker 03:
another witness, Mr. Badansky, who testified how counterfeit checks are made currently, generally, and that is by the use of color copier.

[00:30:06] Speaker 03:
So when the witness is talking about altering an original check, it's certainly not clear, but in the modern times when one is creating a check, one is simply

[00:30:18] Speaker 03:
not necessarily altering the original check, but capturing image on a copier of the original check, and then manipulating that image to create a counterfeit check.

[00:30:29] Speaker 03:
And I think under those circumstances, the jury could reasonably infer that that's exactly how this counterfeit check was created.

[00:30:36] Speaker 03:
And the witness was directly asked, how do you know that this check is counterfeit?

[00:30:40] Speaker 03:
It should be a lot easier if the original check were put into evidence.

[00:30:43] Speaker 03:
There's no question.

[00:30:44] Speaker 03:
There's no question.

[00:30:44] Speaker 05:
Why does the check on JA-32 have a dark background and the check on 33 have no background and yet nobody mentioned anything about that during the examination?

[00:30:58] Speaker 03:
I don't know the answer to that, Your Honor.

[00:31:00] Speaker 03:
I've copied the two, the actual exhibits with the government stickers on them and that's what I have.

[00:31:07] Speaker 05:
Could you pass those up because mine does not look like that.

[00:31:13] Speaker 03:
Don't expect to get them back.

[00:31:16] Speaker 03:
I hope I haven't written anything incriminating.

[00:31:20] Speaker 05:
I will avert my eyes.

[00:31:22] Speaker 03:
We're good.

[00:31:26] Speaker 03:
So I don't know the course, the shading of it.

[00:31:34] Speaker 03:
it shows their shady checks, I guess, is the best way.

[00:31:39] Speaker 05:
No, no, it's, fortunately and unfortunately, oh, no, it looks the same to me.

[00:31:44] Speaker 05:
What I'm talking about is on government exhibit 64, there is a dark background.

[00:31:54] Speaker 05:
And on government's exhibit 9E, it's just clear.

[00:31:59] Speaker 05:
It's just white.

[00:32:01] Speaker 05:
And, but nobody discussed, nobody mentioned that.

[00:32:03] Speaker 05:
I've never... I'm going to hold on.

[00:32:05] Speaker 05:
I will give you these back, but I don't think, I think that they're a pretty accurate representation of what we have in there.

[00:32:12] Speaker 05:
Okay.

[00:32:14] Speaker 03:
At any rate, appellant cannot show prejudice.

[00:32:17] Speaker 03:
They still have to show prejudice.

[00:32:19] Speaker 05:
Not if the evidence is insufficient, right?

[00:32:22] Speaker 05:
If the evidence is insufficient for a reasonable juror to conclude beyond a reasonable doubt that there was counterfeiting, that's the end, isn't it?

[00:32:30] Speaker 03:
There's no question.

[00:32:32] Speaker 03:
So they don't have to show prejudice.

[00:32:35] Speaker 03:
That's prejudice.

[00:32:36] Speaker 03:
That's per se prejudice.

[00:32:37] Speaker 03:
To the extent the court proceeds on a purely sufficiency, absolutely.

[00:32:44] Speaker 05:
Do you see any reason why we should look at this differently?

[00:32:48] Speaker 05:
Why this case should be thought of as a variance case, one way or the other, rather than as an insufficiency case?

[00:32:53] Speaker 03:
I think the court's analysis makes a lot of sense.

[00:32:56] Speaker 04:
And the United States doesn't have a whole lot to lose if you lose this count, do you count?

[00:33:00] Speaker 03:
There's no question to that, but that's both ways, no question with respect to that.

[00:33:05] Speaker 03:
Unless the court has further questions, we would ask that the judgment of the district court be affirmed.

[00:33:17] Speaker 05:
On the jury question and this dispute about whether

[00:33:23] Speaker 05:
the district court had jurisdiction or not.

[00:33:26] Speaker 05:
Yes.

[00:33:27] Speaker 05:
There's no doubt that we have jurisdiction to rule on the motion that they filed with us, right?

[00:33:34] Speaker 05:
I think that's correct.

[00:33:34] Speaker 05:
Regardless of whether the district court had jurisdiction.

[00:33:36] Speaker 05:
Absolutely.

[00:33:37] Speaker 05:
And we could rule on the good cause element of what the district court did, regardless of whether there's jurisdiction.

[00:33:44] Speaker 03:
That's correct.

[00:33:44] Speaker 03:
And that's what we review in abuse of discretion with respect to the court's finding of no good cause.

[00:33:50] Speaker 03:
And with respect to that, I submit the record shows there was no good cause.

[00:33:56] Speaker 03:
I read to you the only reference in the motion with respect to the possibility of misconduct without further elaboration.

[00:34:05] Speaker 03:
So I don't believe that that constitutes good cause.

[00:34:08] Speaker 03:
And the court clearly did not abuse its discretion in so finding.

[00:34:12] Speaker 03:
And the court found that nothing in the factual recitation presented by appellant

[00:34:17] Speaker 03:
rose to the level of good cause and nothing would suggest the possibility of misconduct.

[00:34:24] Speaker 03:
Okay, thank you.

[00:34:29] Speaker 05:
Well, he left you with five extra seconds, which I'll give to you and another whole minute.

[00:34:34] Speaker 05:
How about that?

[00:34:35] Speaker 05:
Could you address this question of the

[00:34:39] Speaker 05:
Defense counsel, I appreciate it wasn't you.

[00:34:41] Speaker 05:
Apparent concession in opening and closing argument that the check was counterfeit.

[00:34:49] Speaker 00:
Well, I don't view that as a concession, and it certainly is contrary to the testimony.

[00:34:56] Speaker 00:
He filed a motion for a judgment of acquittal, or he made a motion for a judgment of acquittal, and that preserves any insufficiency or subset of insufficiency argument.

[00:35:07] Speaker 05:
No, obviously it does.

[00:35:09] Speaker 05:
But it wasn't on this ground, so there wasn't a specific objection about this.

[00:35:13] Speaker 05:
But before the jury, he appears to be conceding that it's counterfeit.

[00:35:18] Speaker 00:
I think it's fair to say that he didn't focus in on this.

[00:35:23] Speaker 00:
If he had, he would have said something specific about it.

[00:35:29] Speaker 00:
But I don't think that using the terms of the indictment is a concession on his part.

[00:35:35] Speaker 00:
The word forgery never came up at the trial.

[00:35:37] Speaker 00:
It's not in the indictment.

[00:35:38] Speaker 00:
It wasn't in the instructions.

[00:35:41] Speaker 00:
No person ever uttered that word during the trial.

[00:35:44] Speaker 00:
So it wasn't his focus.

[00:35:48] Speaker 00:
As to why I raise this as a variance and an insufficiency issue, I'm having trouble recreating my thought process.

[00:36:06] Speaker 00:
I think I thought it gave me a little boost because there is the argument about how, you know, that he was not prepared to defend on that.

[00:36:14] Speaker 00:
You know, he might have presented an alibi for the period in which that check was stolen.

[00:36:20] Speaker 05:
But then, still, in order to get there, you have to win the insufficiency argument.

[00:36:26] Speaker 05:
And if you win the insufficiency argument, you win.

[00:36:28] Speaker 05:
Right.

[00:36:29] Speaker 00:
Right.

[00:36:30] Speaker 00:
And on page 41 of our brief, you say that.

[00:36:32] Speaker 00:
I know.

[00:36:32] Speaker 05:
I looked closely for that.

[00:36:34] Speaker 00:
Insufficiency.

[00:36:34] Speaker 05:
You preserved the argument.

[00:36:35] Speaker 05:
No doubt about it.

[00:36:39] Speaker 05:
And what do you say about their suggestion that the witness was testifying that the check was the original check?

[00:36:51] Speaker 05:
That is, at your appendix 32, that that's the original check and that that was presented to the bank?

[00:37:02] Speaker 05:
It's the government exhibit 64.

[00:37:06] Speaker 05:
The opposing counsel was saying that the witnesses' testimony was that government exhibit 64 was the original check and was presented to the bank.

[00:37:15] Speaker 00:
I don't think that's the case.

[00:37:25] Speaker 00:
His testimony is that the way that they learned of this was a check with Mr. Schmuckler's name on it was deposited in the bank and the bank caught it.

[00:37:41] Speaker 00:
They stopped payment on it and then they reissued a check.

[00:37:46] Speaker 00:
And he testifies that

[00:37:51] Speaker 00:
This is a replacement check that we were required to issue because the first check that I just spoke of that we issued on September 28th had been altered, fraudulently altered, and brought to our attention by the bank.

[00:38:03] Speaker 00:
We were required to put a stop payment on the original check and reissue the replacement.

[00:38:10] Speaker 00:
So I don't think that there was any

[00:38:15] Speaker 00:
reason for them to put a stop payment and reissue if it had not been a fraudulently altered check.

[00:38:28] Speaker 05:
Questions?

[00:38:29] Speaker 05:
Any more?

[00:38:30] Speaker 05:
Thank you.

[00:38:31] Speaker 05:
We'll take a matter under submission.