[00:00:04] Speaker 00:
Case number 15-3044 at L, United States of America versus Sherry Davis appellant.

[00:00:10] Speaker 00:
Ms.

[00:00:10] Speaker 00:
Wright for appellant Andre Davis, Mr. Curlin for appellant Sherry Davis, and Mr. Robbins for the appellee.

[00:00:19] Speaker 05:
May it lead the court.

[00:00:20] Speaker 05:
Lisa Wright, representing Mr. Andre Davis, I'd like to reserve two minutes for rebuttal.

[00:00:26] Speaker 05:
As to the sufficiency of the evidence, the evidence at trial established the falsity of only a fraction of the 2012 returns.

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The government needed to prove beyond reasonable doubt that Andre Davis was in on the fraudulent scheme, knew Sherry was filing false returns, and not simply an unwitting participant in what he understood to be a legitimate tax business.

[00:00:45] Speaker 05:
First, as to his evidence of his knowledge generally, the fact that the Ethan application was filed under his name is alone useless.

[00:00:53] Speaker 05:
There's no reason to think that Andre's intent was anything other than to participate in a legitimate business.

[00:00:58] Speaker 07:
Do you draw a distinction between Count 1 and Count 19 as to what the government must show as to your client's intent?

[00:01:09] Speaker 05:
Well, I think that if they show that he knew that he was assisting in the Jaycox return, I think that's probably sufficient to show assisting.

[00:01:22] Speaker 07:
What about the district court's ruling in dismissing Count 15?

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District court said it's not enough that the government simply offered evidence that the person was sitting at the computer.

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that Title 26, Section, whatever it was, 7062A, requires more.

[00:01:46] Speaker 05:
Right, oh, absolutely, knowledge of the falsity.

[00:01:49] Speaker 07:
So with Count 19, what's your argument about in this case?

[00:01:57] Speaker 07:
Well, yeah, I can, yeah, because I don't think this... Because you know, I mean, you saw what the government said in its brief as to Count 1.

[00:02:05] Speaker 07:
Reasonable inferences from the evidence are sufficient as to conspiracy.

[00:02:12] Speaker 05:
Which we disagree about because the general knowledge, the information they point to and they don't, they can't establish that he actually knew about the Jaycox, falsity of the Jaycox.

[00:02:20] Speaker 07:
That's count 19.

[00:02:22] Speaker 07:
I thought the government's argument that I was referring to had to do with count one conspiracy.

[00:02:28] Speaker 05:
Well, he has to know that he's joining a fraudulent scheme.

[00:02:32] Speaker 05:
And if there's no evidence he ever knew of any particular false document, and Jaycox is the only one they claim he does, then they're left with just things that are equally consistent with participation in a legitimate tax prep business.

[00:02:45] Speaker 05:
And the jury can be left to only speculate by his state of mind, whether he joined a conspiracy to violate the law or whether he was just participating unwittingly.

[00:02:55] Speaker 05:
It's really, that's the question.

[00:02:57] Speaker 07:
Well, he knew the IRS was investigating his mother as of 2011, that it had withdrawn her authorization to file electronically.

[00:03:10] Speaker 05:
I don't think it's too clear what he knew about that.

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The government relies on the conversation with LaDonna for his knowledge.

[00:03:17] Speaker 07:
He, or I suppose you would say someone on his behalf, asked for authorization for him to file electronically.

[00:03:26] Speaker 05:
Right.

[00:03:26] Speaker 07:
So his name was appearing on it.

[00:03:28] Speaker 05:
Right, but that's equally consistent.

[00:03:30] Speaker 05:
It doesn't tell us anything about whether he's witting or unwitting.

[00:03:32] Speaker 07:
So you think the only evidence the government has is mere presence?

[00:03:36] Speaker 05:
Yeah, essentially, LaDonna, the LaDonna, quote, warning, which was nothing other than saying, you know, everything else is going on.

[00:03:44] Speaker 05:
I don't think it's clear when you're saying that he knew his mother was being investigated.

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I think that the focus, LaDonna's testimony, was that family members were blaming LaDonna, not Sherry, and that the problem they were upset about was that the taxpayers are getting audited.

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And it's LaDonna's fault.

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And yes, they know that their records about these returns have been seized.

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But I don't think it's clear.

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at all that anyone knows that LaDonna is being charged criminally.

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Her indictment doesn't come down until her information isn't filed until September.

[00:04:12] Speaker 05:
The government's trying to flip her.

[00:04:14] Speaker 05:
So presumably, the fact that they're talking to her about criminal charges is a secret at this point.

[00:04:19] Speaker 05:
I mean, I don't think there's any reason to think Andre is really being warned of any criminal activity.

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And if he is, LaDonna said that Sherry kept telling LaDonna that I, Sherry, didn't do anything wrong.

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Now, LaDonna may have had information otherwise, but she did not tell Andre that.

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She didn't say, listen, here's what's been going on.

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She just said, you know, do you want to get involved in light of everything else that's going on?

[00:04:41] Speaker 02:
What's your argument on the knowledge with respect to the fault, the tax return?

[00:04:46] Speaker 02:
Yeah, because there's no doubt that there was a false return filed.

[00:04:50] Speaker 05:
Correct.

[00:04:50] Speaker 02:
And there's testimony that he prepared the return.

[00:04:53] Speaker 05:
Well, there's testimony that a young man prepared to return.

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Yeah.

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And of course, you know, he didn't identify him as the person.

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What he said was, you know, he made absolutely clear that he was, you know, this was based on the signature.

[00:05:04] Speaker 02:
Well, let's just assume, just, I know your argument about that it might not have been him, but let's just assume that it was him.

[00:05:10] Speaker 02:
Right.

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So there's testimony that there's a false return that he prepared to return.

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then what's your argument as to Venezuela?

[00:05:17] Speaker 05:
Well, the testimony wasn't really that he, okay, that he prepared it.

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So it really does come down to the fact that the signature is on there.

[00:05:23] Speaker 05:
And Ladona, first of all, Ladona testified that, well, that they, it's not clear that because, okay, let me skip to what you're asking me, that essentially, even if he is the one that he's talking about, it's a pairing term.

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Jay Cox testified that all he did was initialize and put in, that they both input information.

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And that LaDonna testified that these logins, these names on the bottom aren't meaningful.

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So it doesn't, we don't know that at the time, that what happened seems to be that the young man, Andre,

[00:06:00] Speaker 05:
is entering data and then Sherry comes over and they sign it.

[00:06:05] Speaker 05:
It actually says... And finalizes it.

[00:06:08] Speaker 05:
Yeah, finalizes it.

[00:06:09] Speaker 07:
Well, that's the critical word, isn't it here?

[00:06:11] Speaker 05:
And he actually says, who did you see putting information on the return?

[00:06:16] Speaker 05:
It was actually both of them.

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So we know that Sherry actually entered data onto the return and that she did so after

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he had done the initial part of the return.

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So it is really pure speculation at what point these numbers go on.

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Mr. Jay Cox was never asked, did not ever say who he discussed these numbers with, who came up with the valuation number.

[00:06:39] Speaker 05:
He said Andre did not.

[00:06:41] Speaker 02:
And then the jury acquitted her as to this return, right?

[00:06:45] Speaker 05:
It appears that the jury went on the name on the bottom of the return.

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And we know that that alone cannot be enough.

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The government's questioning of Mr. Jaycox really left this sort of giant gap regarding which one?

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Andre, Sherry, or both of them created or knew of the falsity of the donation.

[00:07:01] Speaker 05:
Now, they were both charged in Count 19, as the court says.

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And it seems like the government was content to sort of leave that ambiguity.

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They have charged them both.

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We kind of got them both sort of unthinkably.

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We don't know who did it.

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But I think the government thinks that it's other evidence.

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You know, the E-Fin, the fees, the LaDonna conversation are somehow enough

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to take this, allow the jury to resolve this despite this ambiguity and not have to speculate whether he had intent.

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Now, as to Sherry, that's not whether that's true or not.

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But as to Andre, it turns out those other things add up to nothing.

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So all you're left with at the end is this just complete

[00:07:38] Speaker 05:
ambiguity, which the government left there.

[00:07:40] Speaker 05:
You know, they just didn't even really try to establish which one of them, or Jay Cox was unable to say, which one of them created these numbers, or even knew of these numbers.

[00:07:48] Speaker 04:
Well, he did say that they both went through, that Andre went through everything.

[00:07:54] Speaker 05:
He did say that, but, I mean, when she comes in and finalizes, I think we know how this works when you're in one of these... And apparently you have it back to him to sign, right?

[00:08:03] Speaker 05:
Yeah, I think he was unclear who gave it back to him to sign, even.

[00:08:07] Speaker 04:
It doesn't matter.

[00:08:07] Speaker 04:
It came back to him after his finalization, and he then signed it.

[00:08:10] Speaker 05:
Jay Cox.

[00:08:11] Speaker 05:
Yeah.

[00:08:11] Speaker 04:
No, no.

[00:08:13] Speaker 04:
Andre.

[00:08:14] Speaker 04:
Oh, I don't think that's... As the preparer.

[00:08:17] Speaker 04:
As the preparer, isn't that correct?

[00:08:19] Speaker 05:
Well, no, I think he said...

[00:08:21] Speaker 05:
He actually did them, the young man, and then Sherry would go back over them, finalize them.

[00:08:27] Speaker 05:
I do remember him sitting down and signing them.

[00:08:30] Speaker 05:
And then Sherry and I had a discussion after that.

[00:08:33] Speaker 05:
So as far as the record shows, Andre's off the scene.

[00:08:36] Speaker 05:
And the way these tax prep things work, there's like a running total.

[00:08:39] Speaker 05:
I mean, we all know how you change any number and instantly the bottom line changes.

[00:08:43] Speaker 05:
So it's not as if

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And the tax-wise person and LaDonna both explained that once your name is on there as the prep, once you're logged in with your preparer ID, unless someone logs you out and changes it to them, it's going in under your name.

[00:08:58] Speaker 05:
So there's no reason to infer that the fact that his name is on there means that...

[00:09:04] Speaker 05:
I don't think she framed him.

[00:09:07] Speaker 04:
He sets it up on his name, or he does, then she puts in the false information and does it be filed under his name.

[00:09:14] Speaker 05:
Well, I think, as LaDonna said, that what happens, he did, I'm not saying she framed him, he did do the initial entry, whether Sherry didn't realize that it was still under his login or whatever, but the point is it doesn't tell us one way or the other what information Mr. Davis ever really laid eyes on.

[00:09:32] Speaker 05:
and at what point in time this information was put in.

[00:09:36] Speaker 05:
And as I said, I think the government believed that it had this sort of conspiracy evidence against him, so it didn't bother them that there was sort of a complete lack of this gap as to who created these numbers, who knew about these numbers.

[00:09:56] Speaker 05:
And if he doesn't, he's not the one that's talking to Mr. Jaycox, and she's just giving him the, possibly she said, here, these are the valuation numbers.

[00:10:04] Speaker 05:
He doesn't know they're not right, even under that scenario.

[00:10:06] Speaker 05:
So there's just, we just don't know what happened.

[00:10:08] Speaker 05:
There's a complete gap.

[00:10:10] Speaker 05:
And you know, I think we all know that

[00:10:12] Speaker 05:
Welcome to this e-signature.

[00:10:14] Speaker 05:
Since the timing is unclear, an e-signature loan cannot be enough to have beyond reasonable doubt.

[00:10:20] Speaker 05:
If it were, we could all be convicted of things that our coworkers submit under our names.

[00:10:24] Speaker 05:
A doctor could be held responsible for a prescription or any circumstance like that.

[00:10:31] Speaker 05:
A judge approving CJA vouchers.

[00:10:33] Speaker 05:
I mean, you can think of a million examples in today's world of house signatures.

[00:10:39] Speaker 05:
It's not like you can look at a handwritten signature

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definitively link it to anyone.

[00:10:46] Speaker 05:
I want to talk about the insufficiency as long as the court's interested, but I did want to say also that even if the government did manage to eke out a sufficient case here, that I want to look at a couple of quick, the closing argument that was so prejudicial that a couple of things I really want to point to are the

[00:11:08] Speaker 05:
When the government said, they basically accused, implied that they knew that Mr. Davis had filed personally inaccurate returns.

[00:11:15] Speaker 05:
And there's no evidence of that.

[00:11:16] Speaker 05:
It was Sherry that was charged with personal returns.

[00:11:18] Speaker 05:
And they're implying that he committed a separate, uncharged crime.

[00:11:22] Speaker 05:
They said in four months, they made a staggering amount of money.

[00:11:25] Speaker 05:
It's really only $16,000.

[00:11:27] Speaker 05:
which is not illegal.

[00:11:29] Speaker 05:
The illegal part is preparing false returns.

[00:11:31] Speaker 05:
The illegal part is that they didn't accurately report the gross receipts that they were earning.

[00:11:36] Speaker 05:
That's pretty outrageous statement to make in a closing argument in a case where there's been no evidence and suggestion that Mr. Davis ever filed a personally inaccurate return.

[00:11:46] Speaker 05:
And the government does not defend this statement in its brief or even address it.

[00:11:50] Speaker 05:
And also, I would want to mention the LaDonna conversation, I think, is grossly misrepresented in the closing argument to make it sound much more sinister and inaccurate.

[00:12:00] Speaker 05:
They have her saying, you see the trouble I'm in.

[00:12:02] Speaker 05:
You see the criminal charges I'm facing.

[00:12:04] Speaker 05:
And that was the point I was making earlier.

[00:12:05] Speaker 05:
There's no evidence that anyone knows that LaDonna is facing criminal charges.

[00:12:11] Speaker 05:
And also, his response that I know what I'm doing is quite a bit more sinister than what he really said, which is just showing faith in his mother's statements.

[00:12:19] Speaker 04:
Finally, as to sentencing... When this closing argument was made, were there transcripts already available on the testimony?

[00:12:28] Speaker 05:
That I don't know.

[00:12:29] Speaker 05:
I doubt it.

[00:12:30] Speaker 05:
I don't think so.

[00:12:31] Speaker 05:
Normally that would not be the case.

[00:12:32] Speaker 05:
We normally have to order those in a produced connection with the appeal.

[00:12:36] Speaker 07:
As to the sentencing, at a minimum... Let me just ask you a question about the argument.

[00:12:44] Speaker 07:
Now, there was no objection

[00:12:48] Speaker 07:
to the initial closing argument.

[00:12:53] Speaker 07:
But your client's counsel did join one of co-counsel's objections to the rebuttal.

[00:13:06] Speaker 07:
And in Andre's counsel's closing argument,

[00:13:16] Speaker 07:
He didn't focus on these things that you are now focusing on.

[00:13:23] Speaker 07:
And while he said he was relying largely on co-counsel's closing argument, these points you're making were not addressed by Andre's council in his closing argument.

[00:13:46] Speaker 07:
Were these points raised in his motion for judgment notwithstanding verdict?

[00:13:53] Speaker 05:
I don't think in quite the way, but he did raise it.

[00:13:56] Speaker 05:
He raised a general MJOA.

[00:13:59] Speaker 07:
But he didn't list all these things you have in your brief.

[00:14:04] Speaker 05:
Oh, were you talking about the closing argument errors?

[00:14:06] Speaker 05:
Yes.

[00:14:10] Speaker 05:
No.

[00:14:11] Speaker 05:
And we're acknowledging that, you know.

[00:14:13] Speaker 07:
I understand.

[00:14:14] Speaker 07:
And what I'm getting at is that the district court seemed quite responsive to addressing co-counsel's concerns and gave special instructions to the jury on three of the four points and co-counsel rate.

[00:14:33] Speaker 07:
So this is plain error where none of these things was brought

[00:14:38] Speaker 07:
to the district court's attention.

[00:14:44] Speaker 05:
I mean, it is unfortunate that no.

[00:14:47] Speaker 07:
No, but what I'm trying to understand is, given the plain error standard, even if the three factors weigh in your favor as to the seriousness of some of the comments during the closing argument, the burden is very heavy.

[00:15:10] Speaker 07:
And how do you surmount it?

[00:15:12] Speaker 05:
Well, I think we have to show that the error is clear.

[00:15:16] Speaker 05:
And it is clear, because there's just no.

[00:15:19] Speaker 07:
Well, apparently it wasn't clear enough to counsel.

[00:15:21] Speaker 07:
All right, so it wasn't clear enough to argue in a motion for judgment.

[00:15:26] Speaker 05:
Well, that's the premise of plain error review, is that it was missed.

[00:15:30] Speaker 05:
No, I understand.

[00:15:30] Speaker 05:
And I don't, if that was the, the court may have been asking towards the transcript question about that.

[00:15:36] Speaker 05:
But I mean,

[00:15:38] Speaker 05:
This is a factual statement, so it's either true or it's false.

[00:15:43] Speaker 05:
And if it's false, it's clearly false.

[00:15:44] Speaker 07:
So it affected his substantial rights?

[00:15:48] Speaker 05:
That's the standard.

[00:15:50] Speaker 07:
I'm into plain error standard.

[00:15:52] Speaker 07:
Error has to be clear.

[00:15:53] Speaker 07:
It has to affect your client's substantial rights.

[00:15:56] Speaker 05:
And the burden is on us on that.

[00:15:58] Speaker 07:
And how do you meet it?

[00:15:59] Speaker 05:
Well, because accusing someone, when the prosecutor is implying that he has information, and frankly the fact that no one says anything, I mean it actually makes it more likely that the jury must have thought, well, I guess that must be, boy, he must know something.

[00:16:13] Speaker 04:
I don't think you can benefit from your... Well, maybe not.

[00:16:17] Speaker 07:
But I do think that... Well, what I'm trying to understand is, under the three factors that we consider, namely the closeness of the case, the centrality of the issues, and what mitigation was taken to address the errors.

[00:16:32] Speaker 07:
And here all we have is the general instruction about arguments of counsel are not evident.

[00:16:39] Speaker 07:
That's right.

[00:16:42] Speaker 07:
How would you write this paragraph in the opinion?

[00:16:46] Speaker 07:
No, I'm serious about it.

[00:16:47] Speaker 07:
I mean, your brief just says it is.

[00:16:50] Speaker 05:
Right, it's central to the issue because it goes to his intent and knowledge.

[00:16:54] Speaker 05:
If he's filing his own, if he's not reporting this, that suggests he thinks it's dirty money.

[00:17:00] Speaker 05:
And he's also committed another crime.

[00:17:03] Speaker 05:
an uncharged crime, and that he and Sherry are comparable, and that they're both making this money and not telling the IRS.

[00:17:09] Speaker 05:
I mean, it's deadly to any suggestion that he thinks this is a legitimate business if he's not reporting his income from it.

[00:17:15] Speaker 05:
So the centrality is clear, and I think the closeness of the case is obviously clear.

[00:17:18] Speaker 05:
We don't think they met it at all.

[00:17:20] Speaker 05:
And I don't think it's a, the explosiveness of this allegation, and I mean, Maddox is a little different, but it does talk about when, you know, there's sort of a prosecutor sort of vouching for

[00:17:32] Speaker 02:
evidence for which there's just none, that... So why are – you're focusing on the part about the use of they to intimate that André had filed his own false tax returns, not the closing argument characterization of the conversation with LaDonna?

[00:17:51] Speaker 05:
That is also – those two together, I think, are the worst, and they obviously are cumulative, and I want to not be dropping any of our claims.

[00:17:58] Speaker 05:
I mean, the goodwill receipts also is, I think, quite damaging.

[00:18:01] Speaker 05:
I mean, I can talk about any of those things, but I was focusing on I think the most explosive is that the Ladonna conversation – as I said, I think it's really quite different to say you see the criminal charges I'm facing.

[00:18:16] Speaker 05:
That's what the government's saying.

[00:18:17] Speaker 05:
They warned him that there was a crime going on, potentially.

[00:18:20] Speaker 05:
I mean, if he had known that

[00:18:24] Speaker 05:
I say leading the jury to think that Andre proceeded, knowing the government thought a crime had been committed by a 2FT preparer, it really tips the scale.

[00:18:32] Speaker 05:
As opposed to just thinking, LaDonna has gotten our clients into trouble, and now they're being audited.

[00:18:39] Speaker 05:
But mom says it's all going to go away.

[00:18:43] Speaker 05:
I'm saying I know what I'm doing.

[00:18:44] Speaker 04:
The error that's playing in your view is the district court's failure to intervene at this point?

[00:18:54] Speaker 05:
I think it has been a factual misstatement.

[00:18:56] Speaker 04:
Right.

[00:18:56] Speaker 04:
Okay.

[00:18:57] Speaker 04:
So the closing argument incorporates a factual misstatement of prior testimony.

[00:19:04] Speaker 04:
Neither the district judge nor the defense counsel picks that up, but it's plain.

[00:19:12] Speaker 05:
It's plainly incorrect.

[00:19:15] Speaker 05:
And I guess I would point the court to... Well, it is unarguably incorrect.

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

[00:19:20] Speaker 04:
The question is whether that would be plain to someone sitting in the courtroom.

[00:19:23] Speaker 05:
Well.

[00:19:24] Speaker 04:
someone with a great interest in the matter, such as defense counsel.

[00:19:27] Speaker 04:
But beyond that, the district judge.

[00:19:29] Speaker 04:
It's not a question of law.

[00:19:30] Speaker 04:
We're talking about whether they picked up on a mischaracterization of testimony offered some days before.

[00:19:36] Speaker 05:
Well, to be honest, I don't think it is unreasonable to think that when the judge is very familiar with the indictment, he understands perfectly well that only Sherry is charged with personal return.

[00:19:44] Speaker 05:
So if he heard that, if he caught it, granted, it's a quick statement.

[00:19:48] Speaker 05:
But anyone that actually heard what the judge said would plainly be like, what?

[00:19:51] Speaker 04:
That Sherry was the only one charged with that isn't really

[00:19:54] Speaker 05:
But there was no evidence at all.

[00:19:56] Speaker 04:
That's more important, right?

[00:19:58] Speaker 04:
It's not that Sherry was the only one charged with it.

[00:20:00] Speaker 04:
This could have been uncharged conduct.

[00:20:02] Speaker 04:
It's just that there's a mischaracterization of the private testimony.

[00:20:07] Speaker 05:
Well, it was creating something for which there was no testimony.

[00:20:10] Speaker 05:
I think Judge Hogan was very well paying close attention to what the evidence came in and knew well.

[00:20:17] Speaker 05:
Anybody who was in the courtroom would have known that there had been no evidence at all.

[00:20:20] Speaker 05:
There was quite a distinction between.

[00:20:22] Speaker 04:
So if he was very much aware of that, what happened?

[00:20:24] Speaker 05:
Well, it's a quick statement.

[00:20:25] Speaker 05:
That's all I can say.

[00:20:26] Speaker 05:
It's a quick statement.

[00:20:27] Speaker 05:
We don't know why the people in the courtroom, other than the participants, didn't say anything.

[00:20:32] Speaker 04:
When you say something's binary, you're asking us.

[00:20:34] Speaker 04:
now and going forward to hold the district judge to that standard of acuity.

[00:20:42] Speaker 05:
Well, I think it's an unusual case.

[00:20:44] Speaker 05:
Most cases are not close like this.

[00:20:45] Speaker 05:
And most misstatements aren't explosive like this.

[00:20:49] Speaker 05:
I mean, this is really an unusual situation.

[00:20:51] Speaker 05:
And it's also combined with all these other problems as well.

[00:20:54] Speaker 05:
The altering, it's really a shifting towards a much more sinister interpretation of LaDonna, suggesting that Andre is involved in copying receipts is really

[00:21:06] Speaker 05:
It's just devastating because otherwise there's zero evidence that he has anything to do with receipts, valuations, donation numbers, any false anything.

[00:21:16] Speaker 05:
To have his hands on these receipts that are being given out is devastating.

[00:21:21] Speaker 07:
All right.

[00:21:23] Speaker 07:
Did you want to finish up your argument?

[00:21:25] Speaker 05:
Well, I just want to say about the sentencing.

[00:21:27] Speaker 05:
I'm not going to go into detail, but I just wanted to say that at a minimum, he's entitled to remand for re-sentencing at a loss in restitution.

[00:21:35] Speaker 05:
And the number, we would say, is $21,287, which eliminates the three items of loss that defense counsel clearly objected to.

[00:21:43] Speaker 05:
One in the most egregious was the loss from Sherry's personal tax returns.

[00:21:49] Speaker 05:
which he was not charged with and were not part of the conspiracy.

[00:21:53] Speaker 05:
And this other two were the Thomas Williams and Deborah Johnson losses, which were based on this unexplained preparer pattern, which no one ever explained, and the judge had concerns about.

[00:22:06] Speaker 05:
And we don't – the critical thing was Agent Naim said that

[00:22:12] Speaker 05:
we took the amount that was the inflated amount and we gave them credit for any actual donation and the problem is and those as to those two taxpayers we don't know what the size of the

[00:22:22] Speaker 05:
donation was.

[00:22:23] Speaker 07:
And so... All right.

[00:22:24] Speaker 07:
And your last argument is... That's your last argument.

[00:22:29] Speaker 05:
Right.

[00:22:29] Speaker 05:
And just to be super clear about the conspiracy, if there's no evidence of Count 19, if Count 19 is insufficient, then there's just absolutely no evidence of conspiracy, because that's the only count that charges him with any knowledge of any falsity at all.

[00:22:42] Speaker 05:
So the conspiracy falls with it.

[00:22:45] Speaker 07:
All right.

[00:22:45] Speaker 07:
Thank you.

[00:22:46] Speaker 05:
Thank you very much.

[00:22:59] Speaker 03:
But let me... Always a challenge.

[00:23:09] Speaker 03:
What time booth is that?

[00:23:11] Speaker 03:
Good morning, members of the court.

[00:23:13] Speaker 03:
Adam Curlin representing Sherry Davis.

[00:23:16] Speaker 03:
I'm going to focus my elaboration points mostly on the Brady issue.

[00:23:23] Speaker 03:
But of course, if I have time, I'll deal with a variety of other issues as well, including the mistrial issue.

[00:23:30] Speaker 03:
The starting point with respect to the Brady issue, a couple things are clear.

[00:23:35] Speaker 03:
Sherry's not raising a sufficiency of the evidence argument.

[00:23:39] Speaker 03:
And obviously, we don't have to meet that standard in prevailing on the Brady claim.

[00:23:43] Speaker 03:
The real issue is the third, the prejudice prong.

[00:23:46] Speaker 03:
And as this court said in Pasha, as reflected in the variety of the post-Brady Supreme Court cases, the focus is, would an objective fact finder who had not previously determined guilty on a reasonable doubt, which means essentially ruling out the district judge,

[00:24:02] Speaker 03:
Is there sufficient issues with respect to the untimely disclosure or the nondisclosure to raise a question that really raises significant issues that undermines the confidence in the verdict?

[00:24:16] Speaker 03:
And in this particular case, the answer is clearly yes in four critical respects.

[00:24:25] Speaker 03:
three of which the district judge got totally wrong, and this court has the opportunity under de novo review to reevaluate that.

[00:24:33] Speaker 03:
The first point is that the issue with respect to the Brady non-disclosure has to do with evidence that concerns the government's star witness.

[00:24:45] Speaker 03:
There is no doubt

[00:24:46] Speaker 03:
that the government, no matter how strong they think the other evidence is, without LaDonna's testimony, without her cooperation, this case is not brought, or at least it's not brought in any way with respect to how it was actually indicted.

[00:25:04] Speaker 03:
And I don't think there's any, there's no question about that.

[00:25:06] Speaker 03:
The government, both I believe in some post-trial motions for judgment of acquittal and the mid-trial motion for judgment of acquittal,

[00:25:15] Speaker 03:
emphasizes that when the court asks what's the evidence of the conspiracy, the main focus is on LaDonna's testimony and LaDonna's involvement.

[00:25:24] Speaker 03:
So I don't think there's any question about that.

[00:25:26] Speaker 03:
Now the other three are wrong.

[00:25:29] Speaker 03:
The evidence that was at issue with respect to the grading on disclosure

[00:25:34] Speaker 03:
was critical evidence that was both new impeachment evidence and an entirely new avenue that was not heretofore brought up.

[00:25:44] Speaker 03:
And that is that the Brady statement was the acknowledgment that LaDonna knew that when she filed her 2006 to 2010 returns, she knew that she was preparing a false return with false dependence.

[00:25:59] Speaker 03:
that is different from the earlier statement that had been provided that said that she, and in the Brady statement, she says that, somewhat ambiguously, she says that Sherry prepared the first one, she prepared all the other ones.

[00:26:17] Speaker 03:
That's coupled with her express acknowledgement

[00:26:19] Speaker 03:
that she knew the information was false.

[00:26:21] Speaker 03:
Her earlier statement that had been turned over in discovery was that she herself personally had prepared her 2006 and 2010 returns and they were accurate.

[00:26:31] Speaker 03:
This line of question concerning dependence, so at minimum

[00:26:36] Speaker 03:
When the Brady information is finally disclosed after trial, there's now a whole new inconsistent statement that didn't exist before.

[00:26:44] Speaker 03:
So this entire line of questioning with respect to when LaDonna was on the stand, both on direct and on cross, is not brought up because there's no reason to.

[00:26:52] Speaker 03:
It's a fraud theory or falsehoods that aren't charged in the indictment.

[00:26:58] Speaker 03:
And there's no inconsistent statement yet.

[00:27:00] Speaker 03:
So the new information provides an additional avenue of substantial impeachment on an avenue that had not been pursued before.

[00:27:09] Speaker 03:
So that's number one with respect to impeachment.

[00:27:12] Speaker 03:
Number two, and this kind of dovetails because this is not exactly, but it's the same thing that happened in Pasha under different facts.

[00:27:21] Speaker 03:
And that is that the argument was made at the trial court

[00:27:27] Speaker 03:
And we make it in our brief that the evidence was also substantive evidence that could have been admitted at trial had that statement been prepared that LaDonna was the one who actually filed her 2006 return by herself.

[00:27:46] Speaker 03:
She had earlier stated that one time.

[00:27:49] Speaker 03:
And that then sets up the entirely different argument that was clearly preserved in the record and timely raised.

[00:27:57] Speaker 03:
that she had the knowledge to cook up her own independent tax fraud scheme.

[00:28:08] Speaker 03:
That point, the judge totally sort of pooh-pahs is just merely cumulative.

[00:28:16] Speaker 03:
On the other point with respect, no, the impeachment is merely cumulative.

[00:28:20] Speaker 03:
On the substantive issue,

[00:28:22] Speaker 03:
The judge says, well, it's proponent.

[00:28:25] Speaker 03:
He says, highly unlikely that she would testify, because that's the other argument, the third thing the judge got wrong, that Sherry's lawyers argued that had we had this information, we would have pursued LaDonna more aggressively.

[00:28:36] Speaker 03:
We would have gotten admitted into the evidence as substantive evidence, not just new impeachment.

[00:28:40] Speaker 03:
It's major stuff.

[00:28:42] Speaker 03:
And on top of that, that it would have come in in such a manner that would have also opened up the opportunity for Sherry to testify.

[00:28:51] Speaker 02:
Now, the judge basically says that- With this line of argument, as I understand this line of argument, it's that had you been aware that LaDonna had falsified her own tax returns, then it would have set up a potential substantive defense to the effect that it wasn't Sherry, it was LaDonna.

[00:29:09] Speaker 02:
Yes.

[00:29:09] Speaker 02:
It was orchestrating things.

[00:29:11] Speaker 02:
And then as to that, what do you do with the fact that the jury convicted Sherry on a number of counts after LaDonna left?

[00:29:17] Speaker 03:
All right.

[00:29:18] Speaker 03:
Here's the way I looked at it.

[00:29:19] Speaker 03:
The first thing, Your Honor, is that I'm just going to read one line out of Pasha with respect to the speculation as to what would have happened.

[00:29:27] Speaker 03:
It goes, we never would have known the statement would have been favorable or unfavorable, but because the government had failed to comply with its Brady obligations, the uncertainty must be charged to the defendant's case.

[00:29:38] Speaker 03:
Here's the way that this goes down.

[00:29:41] Speaker 03:
Two arguments.

[00:29:42] Speaker 03:
The first, Your Honor, is that if the court accepts the fact that this sort of really eroded or raised

[00:29:50] Speaker 03:
undermine the confidence in the verdict with respect to Sherry's credibility and her role in the conspiracy, that knocks out the first half of the conspiracy.

[00:29:58] Speaker 03:
Because even though the government indicted with the normal language, you know, known and unknown, there is zero evidence in the record that there were any other co-conspirators.

[00:30:06] Speaker 03:
I have the sites, if you want me to dig them up, with respect to the government arguing specifically that it's Sherry and LaDonna, that it's LaDonna and Andre.

[00:30:13] Speaker 03:
I mean, then it's Sherry and Andre.

[00:30:15] Speaker 03:
With regard to the arguments the co-counsel has made, the first answer is that if the court reverses for insufficient evidence against Andre,

[00:30:25] Speaker 03:
then the second half of the conspiracy charge, the conspiracy charge, not the substantive counts necessarily, but the conspiracy charges fall away under the rule of consistency because they were tried together.

[00:30:36] Speaker 03:
And if this court determines as a matter of law that there was insufficient evidence that Andre was involved in the conspiracy, there are not two co-conspirators anymore.

[00:30:45] Speaker 03:
So that knocks out the entire conspiracy charge.

[00:30:47] Speaker 02:
So your argument depends on our view.

[00:30:49] Speaker 03:
No, no, no.

[00:30:50] Speaker 03:
That's the first part.

[00:30:51] Speaker 03:
The second part is, and I would say that even if

[00:30:53] Speaker 03:
Well, that's clearly, if you knock out Andre, that follows.

[00:30:58] Speaker 03:
Even if you don't rule on the insufficiency argument with respect to Andre, going back to the undermining the confidence in the outcome of the case, this is the government's star witness.

[00:31:11] Speaker 03:
This case really isn't as strong

[00:31:15] Speaker 03:
as the government claims it is.

[00:31:18] Speaker 03:
And consistent with Pasha, and I think it's one of the other cases, a Sullivan or whatever, it says that the spillover, you don't necessarily apply the spillover, but you can under the circumstances.

[00:31:30] Speaker 03:
This is a complicated, it's not the most super complex conspiracy charge that any of us have ever seen.

[00:31:35] Speaker 03:
I acknowledge that.

[00:31:35] Speaker 03:
But it's intricate in some ways, and it focuses heavily on

[00:31:40] Speaker 03:
the credibility of LaDonna and the fact that if they now would have this information, again, I don't have to establish it beyond a reasonable doubt, but it raises, it erodes the confidence and the verdict that maybe the jury would have think, and it's logical to think, but wait a minute, Sherry gets up there now and testifies.

[00:31:56] Speaker 03:
And that's their fault, because they were the ones that caused the speculative problem, that it undermines everything that has happened.

[00:32:02] Speaker 03:
If there's evidence now, substantive evidence in the record, that LaDonna has the wherewithal to create her own fraud scheme,

[00:32:11] Speaker 03:
That sort of undermines her killer as holding up the whole case.

[00:32:16] Speaker 03:
So I think that the confidence in the verdict is so eroded with respect to her credibility, even with respect to the counts that come after she leaves the conspiracy.

[00:32:27] Speaker 03:
And Judge Dunn, the other thing that I want to emphasize with regard to

[00:32:31] Speaker 03:
the weakness of the case that goes to the prejudice, there are three things that are really going on with this case.

[00:32:36] Speaker 03:
Now, I know that Judge Rogers went through it, how specific it is as to some counseling involvement.

[00:32:42] Speaker 03:
And I recognize that this is not a super weak case against Sherry.

[00:32:47] Speaker 03:
But nor is it as strong as the government suggests.

[00:32:49] Speaker 03:
The strongest evidence of that, Your Honor, is that the way they argued this case throughout the trial,

[00:32:56] Speaker 03:
was that Sherry and Andre were guilty, and they were very problematic as a charitable term to use concerning how they tried to deal with the taxpayers.

[00:33:08] Speaker 03:
Their position before the jury was that the taxpayers were not culpable.

[00:33:14] Speaker 03:
were not culpable, that it's OK to sign stuff under penalty of perjury if you're not reading it.

[00:33:20] Speaker 03:
They didn't even want to give the taxpayers immunity.

[00:33:24] Speaker 03:
It was a big fight.

[00:33:24] Speaker 03:
If you pulled the transcripts there, Judge Hogan had to basically tell them, if these guys are going to assert the Fifth Amendment rights, they're not going to testify unless they get formal court-ordered immunity, which happened.

[00:33:35] Speaker 03:
So according to the government, non-culpable taxpayers.

[00:33:39] Speaker 03:
That's what leads to one of the reasons why they're so powerful with regard to their wrong statement about Andre in closing and their misstatement in the rebuttal.

[00:33:47] Speaker 03:
But at the Rule 33 motion, after the jury has done its job and gone home, at the Rule 33 motion, they totally changed their tune, and now they argue that the strength of the case against both defendants

[00:34:01] Speaker 03:
is enhanced because the taxpayers are co-conspirators too, or are criminally culpable too.

[00:34:09] Speaker 03:
Now that's it.

[00:34:10] Speaker 03:
I don't have the site.

[00:34:10] Speaker 03:
I mean, I could dig it up, but I know I'm running out of time.

[00:34:13] Speaker 03:
Judge, there's tons of case law, whether it's from Justice Scalia in the entrapment case, whatever, inconsistent theories.

[00:34:23] Speaker 03:
show a weakness in the case and normally that hurts the defendant who sometimes likes to argue I didn't do it or if I did it was entrapment but the principle holds with regard to both parties and their focus on a totally different theory to convince the judge not to rule for a new trial in the post trial rule 33 motion which was totally contrary to how they argued the case before the jury

[00:34:51] Speaker 03:
is the clearest signal from their own out of their own mouth that the strength of the case they presented to the jury start to finish is

[00:35:04] Speaker 03:
is weak to some extent.

[00:35:08] Speaker 03:
And that funnels into why the confidence of the verdict, if Sherry's credibility is now called into further question, consistent with Pasha and consistent with Brady, Bagley, all those cases, if LaDonna's credibility is called into question in that manner, that to me is a clear extension of

[00:35:30] Speaker 03:
Tasha to cover this case throughout the whole thing.

[00:35:33] Speaker 03:
Now, what's left also are some additional counts, substantive counts, against Sherry.

[00:35:39] Speaker 03:
But once you throw out the conspiracy, no, no, no, I won't even go there, obviously.

[00:35:43] Speaker 03:
Because if you throw out the conspiracy against Andre, then everything has to go.

[00:35:47] Speaker 03:
But then the nature of how all of the evidence is evaluated, even the counts, the substantive counts afterwards, Sherry, I think, was acquitted of one of those.

[00:35:58] Speaker 03:
But in addition to that, you have a situation where Sherry would have been able to testify.

[00:36:05] Speaker 03:
That assertion was made at the trial that with this different way of dealing with the case, she would have testified.

[00:36:12] Speaker 03:
Pasha says that, again, the uncertainty and the speculation has to be, again, the language has to be

[00:36:19] Speaker 03:
That must be, that certainly has to be charged to the government.

[00:36:22] Speaker 03:
So the court was wrong when the judges said, I find it incredulous that she would have testified.

[00:36:27] Speaker 03:
But this is specifically with respect to her individual counts, which should not have been in the indictment at all.

[00:36:35] Speaker 04:
So it should have been charged.

[00:36:37] Speaker 04:
The government should have had a burden on this, right?

[00:36:39] Speaker 04:
But if it's not, if it's not a credible claim, I don't know why you would pursue that.

[00:36:45] Speaker 03:
Judge, you see, I'm sorry, Judge, you mean Judge, it's not a credible claim that she would have testified?

[00:36:51] Speaker 03:
You know,

[00:36:58] Speaker 03:
look the rule of thumb if you read all the white-collar stuff is never have the criminal defendant testify because for whatever reason okay that's probably for the most part good sense and that's generally how it happens most of the time but not always and to say that it's not credible

[00:37:17] Speaker 03:
is to take it from the point of view of the trial judge.

[00:37:21] Speaker 04:
You come up with a theory as to why this was highly prejudicial.

[00:37:27] Speaker 04:
It altered the way in which the defense was presented significantly.

[00:37:31] Speaker 04:
Different theory altogether.

[00:37:33] Speaker 04:
Yes.

[00:37:33] Speaker 04:
That theory has to be at least somewhat plausible in order to credit your claim that that's how it would have been argued.

[00:37:40] Speaker 03:
Well, Judge, two things.

[00:37:42] Speaker 03:
The main thing would be, or not the main thing, but point one would be that if there's substantive evidence in the record,

[00:37:51] Speaker 03:
that LaDonna was the, I use the term mastermind in the general sense.

[00:37:56] Speaker 03:
The government sort of makes fun of that.

[00:37:58] Speaker 03:
But if there's substantive evidence in the record that would have yielded a whole different cross-examination of LaDonna, by the way, that she has the wherewithal to create her own independent fraud scheme.

[00:38:10] Speaker 03:
It would have done that.

[00:38:11] Speaker 04:
Pardon?

[00:38:12] Speaker 04:
It would have done that.

[00:38:13] Speaker 03:
It would have done that.

[00:38:13] Speaker 03:
In addition to that, there's the evidence that, again, when Sherry, when the search went down, Sherry is teaching in Las Vegas.

[00:38:22] Speaker 03:
LaDonna is sort of bragging to the undercover officer who comes in that she's running the show, whatever, so on and so forth.

[00:38:28] Speaker 03:
The implausible nature, again, you can't credit the district judge because the Supreme Court case law with respect to the standard that this court has clearly adopted that it's the hypothetical fact-finder who hasn't already found guilt beyond a reasonable doubt.

[00:38:43] Speaker 03:
So it's this court looking at it that it's not so implausible to say this would have, again, raised that totally different defense.

[00:38:50] Speaker 03:
And two, at least, let's work backwards, at least with respect to her own counts, with respect to her own tax returns, that weren't charged in the conspiracy and should have been severed out.

[00:39:02] Speaker 03:
It raises a weird question why they were in there.

[00:39:04] Speaker 03:
At minimum, it gives her an opportunity to get up there and testify about the four counts concerning her own tax returns, which she was hamstrung from doing now.

[00:39:13] Speaker 03:
She's going to take the stand.

[00:39:15] Speaker 03:
Now she can address those things.

[00:39:17] Speaker 03:
But on the larger thing, you've got these culpable taxpayers.

[00:39:25] Speaker 03:
And the main thing, or one of the big things, are the blank receipts or the white-out receipts.

[00:39:29] Speaker 03:
I don't want the IRS to come after me.

[00:39:32] Speaker 03:
But every year, we all drop off stuff at the Goodwill, whatever.

[00:39:37] Speaker 03:
And nine times out of 10, or 98 times out of 100, we receive a blank receipt.

[00:39:45] Speaker 03:
So it is.

[00:39:46] Speaker 04:
It's not blank.

[00:39:47] Speaker 04:
It's itemized.

[00:39:48] Speaker 04:
It just doesn't have dollar amounts.

[00:39:51] Speaker 04:
No.

[00:39:51] Speaker 04:
Well, no.

[00:39:53] Speaker 04:
If you don't give them an itemized receipt, you're making a mistake.

[00:39:57] Speaker 03:
No, but the goodwill, I don't know what you're talking about.

[00:40:01] Speaker 07:
I think we understand your point.

[00:40:03] Speaker 03:
Well, I hope so, because I don't want to go out.

[00:40:06] Speaker 03:
The government's right here.

[00:40:07] Speaker 03:
I can't have so.

[00:40:12] Speaker 03:
So the fact that filling in a blank receipt is suspicious in some general sense, but it is not.

[00:40:21] Speaker 03:
Look, I can't retry the whole case standing right here.

[00:40:24] Speaker 03:
But there's enough uncertainty going on.

[00:40:27] Speaker 03:
And the focus would have been different to the point where it would have only taken, again, the standard I need to meet is, does it undermine the confidence that maybe one juror, again, a couple of the jurors already acquitted

[00:40:38] Speaker 03:
on some counts that I'm sure the government was upset about because it seems inconsistent with it.

[00:40:42] Speaker 03:
There was no Pinkerton instruction, to my recollection, so they couldn't utilize that.

[00:40:48] Speaker 03:
But there's some difficult and inconsistencies going on with respect to the jury's verdict.

[00:40:52] Speaker 03:
I think consistent with the case law, consistent with a logical extension of Pasha, that it's not inconceivable under the standard that she might have testified

[00:41:06] Speaker 03:
And she might have also then, the erosion of Madonna's credibility, would have had the jury say, look, we can't trust this.

[00:41:13] Speaker 03:
And plus, you've got all these taxpayers out there who have been given walks under weird circumstances.

[00:41:18] Speaker 03:
That has undermined the confidence of everything.

[00:41:21] Speaker 04:
I know I'm at a... But can I... Briefly to switch into a different subject.

[00:41:28] Speaker 03:
OK, on the mistrial.

[00:41:31] Speaker 03:
That was not it.

[00:41:33] Speaker 03:
The sentencing?

[00:41:35] Speaker 03:
Yes.

[00:41:38] Speaker 04:
Specifically this.

[00:41:42] Speaker 04:
The Seventh Circuit Schroeder case is helpful.

[00:41:46] Speaker 04:
What would you have had the government do beyond what it did to determine the amounts that it could attribute to Sherry?

[00:41:57] Speaker 03:
Well, obviously it's their burden, I understand it's by preponderance, but one that you need more than just

[00:42:09] Speaker 03:
a summary that, at least with respect to some of that, the agent who testified didn't even fully understand what was the nature of what went into preparing the summaries.

[00:42:22] Speaker 03:
But the other thing is, is when the government is going to come up with these enormous calculations

[00:42:28] Speaker 03:
that they, it just seems that the preponderance standard can't simply be, and I understand that the caseload says they can use summaries, there's the default 28%, but they made a blanket, essentially, calculation simply based on virtually no evidence.

[00:42:48] Speaker 03:
So do they need to crawl more?

[00:42:51] Speaker 04:
No, they're making some, an inference.

[00:42:55] Speaker 04:
They send out letters and ask to those from whom they receive no response.

[00:43:00] Speaker 04:
They infer that the entire deduction in question was inflated, right, was fraudulent.

[00:43:08] Speaker 04:
Now, what could they, what should they have done to get you down below that $5.50?

[00:43:17] Speaker 03:
probably need to, well, again, any time they're going to prove, and I know that the case law supports this, the guidelines support it, that they're not necessarily limited, and they're certainly not limited to only what was provable at trial.

[00:43:32] Speaker 03:
I totally understand that.

[00:43:34] Speaker 03:
But that inference, I think they just need to do, they need to do more, they at least need to do a selective audit of some of those.

[00:43:44] Speaker 04:
Okay, so some of them respond.

[00:43:47] Speaker 04:
And I'm not sure how specific this is to the record, but assume that some responded and showed that, and invariably it turned out that those who responded had deductions that Sherry had inflated, Sherry Andre had inflated, okay?

[00:44:07] Speaker 04:
Now, the others who don't respond, as to those, is it not a fair inference that the pattern would have been the same?

[00:44:17] Speaker 03:
Judge, I don't think so, because we're still dealing in a criminal case and non-response.

[00:44:23] Speaker 04:
I mean, the government... If they can't do that, what should they do?

[00:44:27] Speaker 04:
Well, then... You're on the verge of a good case here, but I don't know what you're expecting from the government.

[00:44:37] Speaker 03:
They need to do, and I hope this is probably the best answer I can give today, they need to do something more than these essentially carte blanche or totally global inferences that is generally not permitted

[00:44:55] Speaker 03:
in any other areas of criminal law, and particularly with respect to this.

[00:45:01] Speaker 04:
So then you'd say they can't count the people who didn't respond.

[00:45:04] Speaker 03:
No.

[00:45:05] Speaker 03:
Well, listen, the government, listen, if this jacks up sentencing in this case, or in a lot of white collar cases with regard to amount of losses, they go enormous.

[00:45:19] Speaker 03:
I'm not going to re-litigate the whole point of the unfairness in some general sense of what the government proves to be unreasonable about, and then with a mushroom with respect to a higher guidelines calculation, with respect to a much lower standard of sentencing.

[00:45:34] Speaker 03:
But it seems to me not unfair to tell the government that if they are going to

[00:45:42] Speaker 03:
to put together, one, a case.

[00:45:44] Speaker 03:
What is proved at the case is proved at the case.

[00:45:46] Speaker 03:
And in the chart that we have in our reply brief, even with respect to what was proved beyond a reasonable doubt by actual testimony, I believe there's a, there's a, I don't know if it's substantial, but there's, in some cases, a significant difference between the amount of loss claimed and what the actual trial testimony shows.

[00:46:02] Speaker 03:
That's nibbling around the edges with respect to the county.

[00:46:05] Speaker 04:
Let's switch then to the DC procedure.

[00:46:09] Speaker 04:
Okay.

[00:46:10] Speaker 04:
What's your complaint about when D.C.

[00:46:12] Speaker ?:
did?

[00:46:12] Speaker 03:
Well, again, I just think that it's just that they have to do more than what they did.

[00:46:19] Speaker 03:
And if people are not going to respond or if they're going to sort of do a carte blanche on saying that we're categorizing everything and taking an estimate, that the government who has a lot of resources in this regard just needs to do more.

[00:46:32] Speaker 03:
Because otherwise, there is... The government sat down and interviewed 25 taxpayers.

[00:46:38] Speaker 04:
The federal government.

[00:46:40] Speaker 03:
That's right.

[00:46:42] Speaker 04:
And they did a lot.

[00:46:44] Speaker 04:
They ended up being 25 tax payers.

[00:46:45] Speaker 04:
They wrote an MOI on virtually all of them.

[00:46:50] Speaker 04:
Well, it just seems that... You see, I don't think energy went anywhere.

[00:46:52] Speaker 03:
No, it didn't.

[00:46:53] Speaker 03:
That's my reflection as well.

[00:46:56] Speaker 03:
It just seems that the estimate provisions that are in the guidelines deal with a situation that seems to be like a loss in a fraud case

[00:47:13] Speaker 03:
is more ethereal in many respects than loss on a tax return.

[00:47:19] Speaker 03:
Because ultimately, I guess this might be a judge, if the government wanted to, I know it would take an enormous amount of time, with respect to each return, because on the four corners of the return, there is in fact a number out there of a specific calculation based on government documents as to what was the inflated amount on a tax return.

[00:47:39] Speaker 03:
They're sort of borrowing, I think, too far from the larger category of estimates in fraud cases, which sometimes really cannot be calculated.

[00:47:50] Speaker 03:
Like, how much did Enron cost people, whatever?

[00:47:53] Speaker 03:
That's a large, you can estimate in some sense, but it's incalculable.

[00:47:57] Speaker 03:
I think with respect to tax returns, that the court could at least

[00:48:01] Speaker 03:
come up with some direction for the district court to come up with some middle ground more than what they did, it would be more fair to the defendant.

[00:48:10] Speaker 07:
Well, the extreme would be that they would have to audit each return.

[00:48:14] Speaker 03:
That would be the extreme.

[00:48:16] Speaker 07:
All right.

[00:48:16] Speaker 07:
So what's the middle ground?

[00:48:20] Speaker 03:
Sampling.

[00:48:21] Speaker 03:
Sampling would be a possibility, something though more than, I mean there are statistical models that I think are just more comprehensive, I think that would be a good term, than what was done here.

[00:48:37] Speaker 06:
Okay, thank you.

[00:48:38] Speaker 03:
Thank you very much, Your Honors.

[00:48:55] Speaker 01:
Good morning, may it please the court.

[00:48:56] Speaker 01:
My name is Alex Robbins, appearing on behalf of the United States.

[00:48:59] Speaker 01:
And at the outset, I'd like to clear up two things that I think might make Professor Curlin, my colleague, and Judge Ginsburg rest easier.

[00:49:08] Speaker 01:
The first is Professor Curlin is doing nothing wrong by getting blank receipts from Goodwill every year.

[00:49:13] Speaker 01:
That is, in fact, the common practice.

[00:49:16] Speaker 01:
And the reason they do that is because it's the duty of the taxpayer, not Goodwill, to

[00:49:22] Speaker 01:
report what you donated and the value of what was donated.

[00:49:26] Speaker 01:
The reason the goodwill receipts came up in this case wasn't that there's anything wrong with blank goodwill receipts.

[00:49:32] Speaker 01:
It was that Thomas J. Cox testified that he took goodwill receipts that were, or I'm sorry, primarily amvets receipts from different organizations.

[00:49:41] Speaker 01:
He took blank receipts to Sherry Davis' house, and he didn't fill those receipts out.

[00:49:48] Speaker 01:
So the government's argument was that he wasn't the one making up this $50,000, $45,000 figure for his donations that year.

[00:49:57] Speaker 01:
That's the significance of the receipts.

[00:49:59] Speaker 01:
To Judge Ginsburg's point about sentencing, I want to clear something up.

[00:50:05] Speaker 01:
The issue with the correspondence audits, where letters were sent by the tax authority to the taxpayers saying, you know, could you please document these, and they never responded or couldn't document it.

[00:50:15] Speaker 01:
Are you talking about DC or federal?

[00:50:17] Speaker 01:
Yes, Judge, that's DC.

[00:50:19] Speaker 01:
And we're not relying in this appeal on the DC tax laws.

[00:50:23] Speaker 01:
We are relying on the federal tax laws, and the federal tax laws gets us

[00:50:28] Speaker 01:
to $642,000.

[00:50:29] Speaker 01:
I thought you were relying on both.

[00:50:32] Speaker 01:
I mean, you may be saying that you don't need to rely on both, but I thought you were.

[00:50:35] Speaker 01:
Footnote 59 in our brief.

[00:50:36] Speaker 01:
We're not arguing the correctness of the D.C.

[00:50:38] Speaker 01:
tax loss in this case.

[00:50:39] Speaker 01:
So you're fine if we just eliminate D.C.

[00:50:42] Speaker 01:
altogether.

[00:50:42] Speaker 01:
Correct.

[00:50:43] Speaker 01:
Because it keeps us in the same guidelines range.

[00:50:45] Speaker 01:
How about the fine?

[00:50:46] Speaker 01:
And there's no – and the defense argument – the defense argument is exclusively based on the guidelines.

[00:50:52] Speaker 01:
So that's Footnote 59 in our brief.

[00:50:53] Speaker 04:
So you're still above 550.

[00:50:55] Speaker 01:
It's still above 550, which is the cutoff.

[00:50:57] Speaker 01:
It's 550 to 1.5 million under the 2015 guidelines, which I realize is a different issue.

[00:51:03] Speaker 01:
But it's in the same guidelines range.

[00:51:06] Speaker 01:
The defense isn't making no 3553A1 or any kind of discretionary argument.

[00:51:10] Speaker 01:
It's just a guidelines argument.

[00:51:12] Speaker 01:
And so to that extent, it makes no difference.

[00:51:13] Speaker 01:
And in fact, the federal tax laws here wasn't based on correspondence audits.

[00:51:18] Speaker 01:
It was based on MOIs.

[00:51:20] Speaker 01:
So to the extent that Professor Gerland is looking at a memorandum of interview, to the extent that we're looking for a middle ground here between an official IRS audit on one hand and sending out letters to people on the other, we have that in this case.

[00:51:33] Speaker 02:
So when you say MOI, the interview is the one that's conducted by the agent?

[00:51:36] Speaker 01:
Correct.

[00:51:37] Speaker 01:
The interviews were conducted by the IRS revenue agent.

[00:51:40] Speaker 01:
Is that a name?

[00:51:41] Speaker 07:
Of the 25 taxpayers.

[00:51:42] Speaker 01:
Correct.

[00:51:43] Speaker 01:
And those are the taxpayers that are listed in the sentencing chart that the government introduced at sentencing.

[00:51:48] Speaker 01:
Primarily, it's the people who testified at trial.

[00:51:50] Speaker 01:
There are a few additional witnesses.

[00:51:53] Speaker 01:
And that's where the $642,000 figure comes from.

[00:51:56] Speaker 01:
All of those were based on memorandum of interview where someone from the government sat down with the taxpayer, asked the taxpayer about a return, and the taxpayer said, yeah, these items aren't right.

[00:52:07] Speaker 01:
I didn't put those on there.

[00:52:08] Speaker 01:
The special agent who testified, as he testified, reviewed all of the memorandum of interview.

[00:52:13] Speaker 01:
All of those memorandum of interview were turned over to the defense before the sentencing proceeding.

[00:52:17] Speaker 01:
That's where the Brady issue came from, actually.

[00:52:20] Speaker 01:
And then, I should say, the only exception to that is

[00:52:24] Speaker 01:
Sherry Davis did not have a memorandum of interview.

[00:52:28] Speaker 01:
She was the defendant.

[00:52:28] Speaker 01:
So we relied on our proof of trial for that.

[00:52:30] Speaker 01:
So these were based on talking to the taxpayers and having the taxpayers say that this item is false.

[00:52:36] Speaker 01:
That's how we got to the federal tax law figure.

[00:52:39] Speaker 04:
What are we to make of the notations regarding some of these entries that they're per DOJ's instructions or I think in some cases no MOI?

[00:52:51] Speaker 01:
I think, Your Honor, the – per DOJ instructions – well, let me back up.

[00:52:55] Speaker 01:
That document is – was not a document the government relied on in a sentencing.

[00:52:59] Speaker 01:
It was not a document the special agent who testified had ever seen before.

[00:53:02] Speaker 01:
It's not in the record from either side what the document is, other than it was – This document was submitted by the government with a sentencing memory.

[00:53:11] Speaker 04:
It was – Did it somehow leave the record?

[00:53:13] Speaker 01:
What is in the record, and I can tell you where the document actually came from, but I want to make clear that what is in the record from the district court proceedings is that this document was attached inadvertently to a filing at sentencing, and it was not something that the testifying special agent had ever seen.

[00:53:29] Speaker 04:
So that became clear.

[00:53:30] Speaker 04:
He was unable to defend himself.

[00:53:31] Speaker 01:
And I think he, the special agent, quite properly, instead of saying he knew something he didn't, answered the question truthfully.

[00:53:37] Speaker 01:
He has no idea what these things mean because he's never seen the document before.

[00:53:40] Speaker 01:
That's what I would say, too.

[00:53:41] Speaker 04:
I hope if someone... Now, when this first came before the district judge, he expressed a great deal of concern with what these notations meant.

[00:53:50] Speaker 04:
correct because it would need to be explained and the government and the government explain that this was this said well here's a clean version of the document that doesn't have these ambiguous notations again

[00:54:03] Speaker 01:
For context, what actually happened was this was a draft document prepared well before the trial that the government erroneously attached to its sentencing filing, which is why some of them don't have MOIs and some of them are incomplete, because it was prepared long before trial.

[00:54:17] Speaker 01:
I don't think the government said that in front of the district court.

[00:54:19] Speaker 01:
What the government said in front of the district court was this document was erroneously attached.

[00:54:23] Speaker 01:
The special agent has never seen it.

[00:54:25] Speaker 01:
If you look at the two documents, the tax loss on the real document is lower than the

[00:54:31] Speaker 01:
erroneously attached document and on the real document all the names there correspond to a memorandum of interview that by that point had been taken and the special agent had read and was able to testify about it.

[00:54:45] Speaker 01:
So the fact that the special agent had no idea what this draft document was that he had never seen before doesn't in any way undermine the government's evidence of sentencing and it's completely irrelevant, frankly.

[00:54:57] Speaker 04:
The problem is not, at least not

[00:55:00] Speaker 04:
limited to the inability of Naim to explain the document.

[00:55:04] Speaker 04:
He clearly couldn't do that, not having prepared it or even seen it.

[00:55:09] Speaker 04:
It's that the district judge was given, perhaps inadvertently, what is perhaps a penultimate draft that raises questions about the source of some of these numbers.

[00:55:25] Speaker 04:
It's particularly those that say based on preparer pattern,

[00:55:30] Speaker 04:
And the ones that say based on an MOI, you've taken their face value.

[00:55:34] Speaker 01:
The ones that say per data instructions, I would point out, are LaDonna Davis and Sherry Davis.

[00:55:39] Speaker 01:
So it's pretty obvious, I think, just from context, why those say what they did.

[00:55:43] Speaker 04:
I don't know what it means to be based on the preparer pattern.

[00:55:47] Speaker 01:
The ones that said based on preparer pattern, a number of those don't appear in the final document.

[00:55:52] Speaker 01:
So those are out.

[00:55:53] Speaker 01:
A number of the individuals listed there.

[00:55:54] Speaker 01:
That's why the tax law figure goes down by about $25,000.

[00:55:58] Speaker 01:
The other ones had MOIs.

[00:56:00] Speaker 01:
There were MOIs prepared for those people.

[00:56:03] Speaker 01:
The special agent testified that there were MOIs prepared for those people, that he had read them, and those MOIs were produced to the defense.

[00:56:09] Speaker 01:
Which is why the defense doesn't allege that there weren't MOIs.

[00:56:14] Speaker 01:
What the defense argument is, is

[00:56:16] Speaker 01:
This is confusing.

[00:56:17] Speaker 01:
Therefore, it fails guidelines 681.3.

[00:56:20] Speaker 02:
And that's... So just to be clear, I mean, you were... Are you saying that for every one of those, it either wasn't relied on or there was an interview conducted?

[00:56:29] Speaker 02:
Yes.

[00:56:30] Speaker 01:
Every one.

[00:56:31] Speaker 01:
And those memorandum of interview were produced to the defense, and the special agent testified that he reviewed all the memorandum of interview, and that's what the case... That is what the tax loss figures were based on.

[00:56:41] Speaker 04:
Which I think is why... Are you talking about Naim McGinn or someone else?

[00:56:44] Speaker 01:
agent name, special agent name.

[00:56:46] Speaker 01:
And again, he didn't take the interviews.

[00:56:48] Speaker 01:
He reviewed them because he had also sat through the trial.

[00:56:51] Speaker 01:
He had sat for the trial.

[00:56:52] Speaker 01:
He had seen the evidence.

[00:56:53] Speaker 01:
He had seen the witnesses testified.

[00:56:54] Speaker 01:
He also then reviewed the MOIs.

[00:56:57] Speaker 01:
And then at that point, all the information was in one place.

[00:57:00] Speaker 01:
So then he testified at the hearing.

[00:57:01] Speaker 02:
But someone did the interviews.

[00:57:02] Speaker 01:
Correct.

[00:57:03] Speaker 02:
So they're not based on extrapolation.

[00:57:05] Speaker 01:
This is not extrapolation.

[00:57:06] Speaker 01:
This is not meta or sampling.

[00:57:08] Speaker 01:
This is nothing to do with sampling.

[00:57:10] Speaker 01:
And frankly, it has really, this extra document has nothing to do with anything, because there's no dispute, I don't think,

[00:57:16] Speaker 01:
If you take away the draft erroneously filed document, then what the government did here in its sentencing proceeding is completely proper.

[00:57:22] Speaker 01:
And it's, in fact, normal.

[00:57:23] Speaker 01:
You talk to taxpayers, you take the evidence from trial, plus any additional taxpayers where you can prove by preponderance that these figures were false and knowingly put on the return by Sherry Davis.

[00:57:35] Speaker 01:
And that's the tax loss used for sentencing.

[00:57:37] Speaker 01:
And that's how the agent got to the $642,000 figure that was the federal tax loss.

[00:57:43] Speaker 01:
And then that's what the record reflects.

[00:57:45] Speaker 01:
So we don't need to get to correspondence audits or DCTAC files or anything else to affirm the sentence in this case.

[00:57:52] Speaker 04:
We have the four or five places in the record where the district judge, faced with the repudiated document, raised questions about it.

[00:58:03] Speaker 04:
Is there any place in the record where he explains that those are no longer of concern?

[00:58:09] Speaker 01:
Well, the district judge's ultimate conclusion, I think, no, not at any length.

[00:58:12] Speaker 01:
The district judge's conclusion after hearing both sides of it was, I think the government has adequately set forth the tax laws in excess of $642,000 and then added the DC tax laws and assigned the guidelines level that way.

[00:58:27] Speaker 07:
But what you just described and told us, we can find that in the record?

[00:58:32] Speaker 01:
In the sentencing hearing, yes.

[00:58:34] Speaker 01:
That is, the sentencing hearing is, as far as I'm aware, the only place in the record where

[00:58:38] Speaker 01:
This comes up and is then explained.

[00:58:41] Speaker 01:
And again, it's because I don't believe the prosecutors were aware of the erroneously attached document until this was brought up in the sentencing hearing.

[00:58:51] Speaker 01:
It all happens relatively fast in terms of what the explanations are and what's happening.

[00:58:56] Speaker 01:
But really what happened here is, and I don't mean to say it was improper.

[00:59:00] Speaker 01:
The government had a prima facie case.

[00:59:03] Speaker 01:
by proponents of the evidence of a tax loss.

[00:59:05] Speaker 01:
The defense found a document that kind of resembled the actual document being used that the testifying agent didn't know anything about and created some confusion by asking him questions that he was unable to answer and then left it at that.

[00:59:21] Speaker 01:
They haven't gone any farther.

[00:59:23] Speaker 01:
That doesn't, as a matter of law, undermine the sentencing proceeding.

[00:59:26] Speaker 01:
As a matter of just common sense, it doesn't either, given what this document was.

[00:59:30] Speaker 01:
It was just a prior draft.

[00:59:31] Speaker 02:
Can I ask you a different question about sentencing, which is a small amount relative to what we've been talking about, but just Andre's objection to the roughly $4,000 restitutionary award predicated on the false tax returns filed by Sherry.

[00:59:49] Speaker 02:
Yes, Your Honor.

[00:59:49] Speaker 02:
What's the government's theory for how Andre can be held responsible for Sherry's own tax returns?

[00:59:57] Speaker 01:
Because, well, two theories.

[01:00:00] Speaker 01:
First of all, chairs on tax terms are part of the charge conspiracy.

[01:00:04] Speaker 01:
So even under Huey and the case saying the restitution is generally based on counsel conviction, it's part of the conspiracy.

[01:00:11] Speaker 02:
And you're basing that on the way the indictment is framed?

[01:00:12] Speaker 01:
On the way the indictment is framed.

[01:00:14] Speaker 02:
So assume I don't agree with you on that.

[01:00:16] Speaker 01:
Then second argument would be under the MVRA, the Mandatory Victims Restitution Act, 3663A I think that we cite in our brief.

[01:00:24] Speaker 01:
when you're dealing with a crime that's a scheme or pattern or conspiracy, restitution is not limited to the offense of conviction.

[01:00:31] Speaker 02:
In other words, when you're dealing with a... But it has to be limited in some way.

[01:00:35] Speaker 02:
I mean, you can't be responsible.

[01:00:35] Speaker 01:
It's limited, essentially, to relevant conduct.

[01:00:37] Speaker 01:
So normally, restitution is more limited than relevant conduct.

[01:00:39] Speaker 01:
You can get relevant conduct for, say, in a case like this, for all kinds of additional false returns that weren't charged.

[01:00:47] Speaker 01:
You can't get restitution for those.

[01:00:48] Speaker 01:
You can only get restitution for the offenses of conviction.

[01:00:50] Speaker 01:
After the Supreme Court's decision in Huey, Congress amended the restitution statute to allow for restitution beyond the offense of conviction in cases involving scheme pattern conspiracy.

[01:01:03] Speaker 02:
Right, but I guess there has to be some nexus.

[01:01:06] Speaker 02:
There has to be some nexus to something that Andre did.

[01:01:08] Speaker 01:
Absolutely.

[01:01:09] Speaker 01:
He was working for a criminal enterprise.

[01:01:11] Speaker 01:
I mean, he was part of the conspiracy because he was working for a tax preparation business that files

[01:01:16] Speaker 01:
almost exclusively false returns.

[01:01:18] Speaker 01:
That's what they did.

[01:01:20] Speaker 01:
The testimony wasn't just Ludon Davis.

[01:01:22] Speaker 01:
Dwendalyn Hart-Walk also worked there and testified that the job of what Sherry's tax return preparation business did was take people who had withholding and get all of their withholding back.

[01:01:37] Speaker 01:
And he's working for them for two years.

[01:01:38] Speaker 02:
So if he's part of a common scheme for a month,

[01:01:41] Speaker 02:
And then Sherry files a false tax return that he has no idea about that's for $10 million.

[01:01:47] Speaker 02:
Has nothing to do with him at all in terms of his own conduct and knowledge.

[01:01:51] Speaker 02:
That he can be hit with a restitutionary award for the $10 million?

[01:01:54] Speaker 01:
So like a temporal argument that

[01:02:00] Speaker 01:
I don't believe the defense has made that argument.

[01:02:02] Speaker 01:
I think the temporal argument that he's only on the hook for the loss for when he was part of the conspiracy, in this case it doesn't matter because the $4,000 reflects

[01:02:13] Speaker 01:
the Sherry's unreported receipts for the time period when Andre was part of the conspiracy.

[01:02:19] Speaker 02:
I guess the temporal overlap is just maybe the easiest way to exhibit what seems to be a pretty breathtaking scope of causation that's asserted by the government, which is that if one defendant just has nothing to do with part of another defendant's conduct, even though they're both conceitedly involved in some joint enterprise, has nothing to do with that at all.

[01:02:43] Speaker 02:
as a matter of restitution, defendant A can be responsible for something that was based on the conduct independently of defendant B. I think the nexus is closer than the premise of your question suggests, because first of all, we do have temporal overlap.

[01:02:59] Speaker 01:
So again, so that part's clear.

[01:03:02] Speaker 01:
It's not like this is a drug case, for example, where a lower level person in the drug gang is on the hook for the unpaid income taxes of the kingpin of the drug gang.

[01:03:16] Speaker 01:
I think that would be

[01:03:17] Speaker 01:
closer to the borderline of what you're talking about, Director Nabasin.

[01:03:20] Speaker 01:
This is a case where the entire purpose of this business was to file false tax returns.

[01:03:26] Speaker 01:
They did it for clients, and they did it, Sherry did it for herself.

[01:03:31] Speaker 01:
And LaDonna, after Sherry taught her how to in 2006, did it for herself.

[01:03:35] Speaker 07:
So you can argue what she did independently was not part of the business.

[01:03:40] Speaker 07:
That's all I'm getting.

[01:03:41] Speaker 07:
That's what we're struggling with.

[01:03:42] Speaker 04:
Is there no foreseeability requirement?

[01:03:45] Speaker 01:
I disagree.

[01:03:45] Speaker 01:
I think that it is part of the business because she's preparing her own return sitting at the computer while she's preparing everyone else's returns.

[01:03:50] Speaker 07:
So she goes up into another room and prepares it.

[01:03:52] Speaker 07:
I mean, the business is to prepare these returns for clients.

[01:03:57] Speaker 06:
Sure.

[01:03:58] Speaker 07:
Sherry's not a client.

[01:03:59] Speaker 07:
She's an owner of the business.

[01:04:02] Speaker 07:
I just wonder.

[01:04:04] Speaker 01:
I think if we're talking about restitution and we're dealing with what is the minimum acceptable nexus under the MVRA for restitution, which generally tracks relevant conduct, whereas under HUI, restitution is more limited, once your restitution calculation gets close to the relevant conduct, I think this is well within the relevant conduct concept, I understand it's restitution, because this is a conspiracy whose purpose is to get money from the government,

[01:04:33] Speaker 01:
by defrauding the government by filing false tax returns.

[01:04:36] Speaker 01:
And this is a species of that.

[01:04:37] Speaker 01:
I agree it would be a harder case if it were a drug gang or something like that.

[01:04:42] Speaker 01:
And again, I don't think this particular version of the argument is, at least it's not something that I understood the defense to be making.

[01:04:48] Speaker 01:
I think it's a stronger argument than what they're making.

[01:04:51] Speaker 01:
I think ultimately it fails because of the MVRA and the statutory provision of how restitution works when you're dealing with a scheme or conspiracy or a pattern.

[01:05:00] Speaker 01:
To address, if I might, the Brady issue, I think the problem, Sherry Davis would have a much stronger case here if

[01:05:16] Speaker 01:
the theory of the government's case, or if what actually happened was she was an absentee owner, that she was off at Las Vegas, not just when the search was executed, but while all this criminal conduct was going on, and if LaDonna was there for the whole time period of the conspiracy.

[01:05:33] Speaker 01:
Because then you would have more of a type of case where you have an underling who's saying, well, yeah, I didn't really do it, pointing up my boss, who's the bad guy.

[01:05:42] Speaker 01:
And then the boss says, well, no, it wasn't me at all.

[01:05:45] Speaker 01:
This underling is running the side fraudulent tax preparation business.

[01:05:49] Speaker 01:
And I was off in Las Vegas, and I have no idea what's going on.

[01:05:52] Speaker 01:
That's not this case.

[01:05:54] Speaker 01:
Every witness who testified in the chart on pages 12 and 13 of our brief

[01:05:59] Speaker 01:
identified Sherry Davis as being there when they had their return prepared, at least one of the years, usually most or all of the years.

[01:06:05] Speaker 01:
Sherry Davis was physically present in her house preparing these witnesses' tax returns.

[01:06:11] Speaker 01:
And the conspiracy continues for two years after LaDonna Davis, the potential purported mastermind, or at least person with the wherewithal to commit a tax fraud scheme, leaves the conspiracy.

[01:06:25] Speaker 01:
So that is this case.

[01:06:29] Speaker 01:
The conspiracy kept going just fine without LaDonna Davis there.

[01:06:32] Speaker 01:
And Sherry Davis was physically present.

[01:06:33] Speaker 01:
This is not a case where we're trying to get someone who's not around on the hook based on accomplice testimony.

[01:06:41] Speaker 01:
I also think it's wrong, that Professor Curlin is wrong when he argues that without LaDonna, the scheme goes away because then there's no conspirator.

[01:06:53] Speaker 01:
In other words, if there's no Andre, if Andre gets acquitted and he's not in the conspiracy and LaDonna's not in, there's no conspiracy at all.

[01:07:00] Speaker 01:
I think that's the wrong way to look at the evidence.

[01:07:03] Speaker 01:
What we have is a criminal enterprise that's chugging along nicely.

[01:07:07] Speaker 01:
and then a potential purported key player, LaDonna, leaves, and the criminal enterprise keeps moving along.

[01:07:15] Speaker 01:
That fact is circumstantial, very strong circumstantial evidence that she wasn't really a key player at all, and that in the time period before she was there,

[01:07:25] Speaker 01:
The criminal enterprise basically was functioning the same way.

[01:07:28] Speaker 01:
So you can't just separate the two.

[01:07:31] Speaker 01:
It's not like they're two separate conspiracies here.

[01:07:33] Speaker 01:
It's similar to someone walks out of a department store and the alarm goes off.

[01:07:36] Speaker 01:
If they run, well, that's indicative of guilt.

[01:07:39] Speaker 01:
And if they come back and say, oops, sorry, I don't know, I had this in my bag, that's indicative that maybe they innocently walked out.

[01:07:45] Speaker 01:
The fact that LaDonna leaves and the conspiracy keeps going is evidence of the conspiracy's existence not just after LaDonna left, but before LaDonna left.

[01:07:56] Speaker 01:
So I think that's my response to that particular aspect of the document.

[01:08:03] Speaker 01:
The conspiracy as charged did not predate her arrival because she started living with Sherry Davis in 2004.

[01:08:08] Speaker 01:
The charge conspiracy begins in 2006.

[01:08:11] Speaker 04:
So she's already living there when it starts.

[01:08:16] Speaker 01:
arrived.

[01:08:17] Speaker 01:
I mean, she's living in the house.

[01:08:18] Speaker 04:
I think... Before she takes any active part in the conspiracy.

[01:08:23] Speaker 01:
I'm not sure that's correct, because I think she was involved as early as 2006, and that's the beginning of the conspiracy time period.

[01:08:29] Speaker 01:
I could be wrong about that.

[01:08:30] Speaker 01:
I don't know that the defense has made an issue of it.

[01:08:33] Speaker 01:
I do think that, I mean, she's physically present in the house.

[01:08:36] Speaker 01:
She admits to, or she testifies

[01:08:41] Speaker 01:
she stated, and this is the Brady issue, she stated that Sherry prepared her 2006 return, taught her how to do it falsely, and then thereafter for seven, eight, nine, ten, she did it herself based on what Sherry taught her to do.

[01:08:53] Speaker 01:
So we have her, at the very least, in 2007, preparing false tax returns, and I believe in our chart we have her for the 2006 tax year, which would have been early 2007, preparing false tax returns.

[01:09:04] Speaker 01:
So I think she's there from the beginning.

[01:09:05] Speaker 01:
And then it's Andre, she leaves and Andre comes at roughly the same time in 2011.

[01:09:11] Speaker 01:
Andre comes back from college around the time she leaves and starts at least negotiating with the government, ultimately leading to her cooperation agreement and plea.

[01:09:26] Speaker 01:
I think that this is the recap of our Brady argument.

[01:09:29] Speaker 01:
The defense, I think, is not emphasizing the giglio that is Brady impeachment side of the argument correctly, because five returns versus thousands that she testified to filing is not a significant difference in terms of how untrustworthy this particular person is.

[01:09:46] Speaker 01:
The exculpatory problem of the argument, again, just isn't consistent with the record.

[01:09:50] Speaker 01:
It doesn't make sense in this case.

[01:09:52] Speaker 01:
because the conspiracy kept going after she left, because she was clearly not a mastermind, because she, I mean, primarily those two, but she, this is not a case where she was the key player.

[01:10:07] Speaker 01:
With respect to Andre's sentencing arguments, and I'm happy to address anything particular that the court wants me to, but I think the idea that a signature by itself is meaningless, first of all, is not true.

[01:10:19] Speaker 01:
The signature is circumstantial evidence that a particular person signed something.

[01:10:23] Speaker 01:
That's just common sense.

[01:10:24] Speaker 01:
But a number of times, my colleague was up here arguing that the ethane application alone is useless, I think she said.

[01:10:30] Speaker 01:
The electronic signature alone is useless.

[01:10:35] Speaker 01:
This is not a case where we're relying on just one thing.

[01:10:37] Speaker 01:
This is a circumstantial case where we're relying on the fact that Andre Davis has his name as the electronic signature on the 2012 Jaycox return.

[01:10:46] Speaker 01:
Jaycox testified, notwithstanding the defense arguments, that Andre prepared his return.

[01:10:51] Speaker 01:
And certainly, at the very least, the young man who worked there prepared his return.

[01:10:58] Speaker 01:
There was one witness, Mario Little, mentions an Adam Russell, who was typing numbers into a computer, according to Mr. Little, that Andre Davis told him to.

[01:11:08] Speaker 01:
That's the only mention of any other man who even appeared to work there.

[01:11:14] Speaker 01:
And it's sort of a straight part of the record.

[01:11:16] Speaker 01:
It's there.

[01:11:17] Speaker 07:
Well, but the answer to the judge's question is yes.

[01:11:20] Speaker 01:
I'm sorry.

[01:11:22] Speaker 04:
I thought it was an open-ended question, not a yes-no question, Your Honor.

[01:11:28] Speaker 01:
There was another young man who, according to one witness, was there, Adam Russell.

[01:11:36] Speaker 01:
I mean, that's not in the record, I don't think.

[01:11:40] Speaker 01:
As a factual matter, he was young.

[01:11:41] Speaker 01:
He also didn't work there.

[01:11:42] Speaker 01:
But there is a stray reference in the record to a young man not working there, but playing with the computer, basically, putting in the numbers that Andre Davis told him to.

[01:11:52] Speaker 01:
And I think the record all says he was a family friend.

[01:11:55] Speaker 01:
What's telling here is that this is not an argument.

[01:11:58] Speaker 01:
This is an argument that was available to the defense at trial.

[01:12:01] Speaker 01:
It's not an argument they made to the jury.

[01:12:03] Speaker 01:
This is not a new argument.

[01:12:05] Speaker 01:
The argument the defense counsel who sat through the trial made was, you can't believe Jay Cox because he's lying.

[01:12:11] Speaker 01:
because he's guilty too, he just wants immunity, he's afraid of the government, and he's lying.

[01:12:15] Speaker 01:
That's the argument they made at closing.

[01:12:17] Speaker 01:
There was no Adam Russell theory made at closing, and it's an argument that was perfectly available to them.

[01:12:22] Speaker 01:
The reason they didn't make it is because there's scant support for it, and it would have been rejected for not making any sense.

[01:12:28] Speaker 01:
So I think the defense made the best arguments they had available to them at trial.

[01:12:31] Speaker 01:
And they won some of them.

[01:12:32] Speaker 01:
On Andre's counts, they won two of the three of the false string counts.

[01:12:36] Speaker 01:
And they lost one of them.

[01:12:37] Speaker 01:
And that's exactly what juries are supposed to be doing, is listening to everyone and seeing them and sorting guilty counts and innocent ones.

[01:12:45] Speaker 07:
So two questions you heard me ask about count 19 in light of count 15 and also the closing argument

[01:12:56] Speaker 07:
as to the two points, the La Dona statement.

[01:13:01] Speaker 01:
Yes, Your Honor.

[01:13:02] Speaker 01:
Count 19 and 15.

[01:13:04] Speaker 01:
I believe that was your first question, so I'm gonna wrap my brain a little bit.

[01:13:07] Speaker 07:
The sufficiency of the evidence, all right?

[01:13:10] Speaker 07:
And the District Court granted the motion to dismiss Count 15, saying it wasn't enough to have evidence that somebody was sitting at a computer.

[01:13:19] Speaker 07:
Then as to Count 19, the argument is made that

[01:13:25] Speaker 07:
There's no evidence, again it's a temporal point, that the figures were entered by Andre or that he knew that the figures entered were false.

[01:13:42] Speaker 01:
That's incorrect.

[01:13:45] Speaker 01:
Thomas Jaycox testified that Andre prepared his return and Sherry came by to finish it up or finalize it.

[01:13:51] Speaker 07:
No, but what I'm trying to get at is the argument is that Jaycox on what was it cross-examination withdrew his identification of Andre said if he bumped into him on the street he wouldn't know who he was so he referred to a young man so the question is

[01:14:15] Speaker 07:
If it's the young man or if it's Sherry, is it enough to convict Andre of the Count 19 charge?

[01:14:25] Speaker 01:
I think there are two different components.

[01:14:27] Speaker 01:
There are two different potential defense arguments in your question, Your Honor.

[01:14:31] Speaker 01:
The first is,

[01:14:33] Speaker 01:
Andre versus some young man.

[01:14:35] Speaker 01:
And in the very least, defense counsel concedes that Mr. J. Cox did identify a young man.

[01:14:41] Speaker 01:
He also identified Andre Davis.

[01:14:43] Speaker 01:
They think he reputed that.

[01:14:44] Speaker 01:
We think his testimony is inconsistent.

[01:14:46] Speaker 01:
And the record can speak for itself on that.

[01:14:48] Speaker 01:
But the second.

[01:14:49] Speaker 07:
Let me just say, suppose the court

[01:14:52] Speaker 07:
takes his cross-examination testimony, which was not just one question, one answer, as what the evidence was in terms of the government meeting its burden of proof.

[01:15:06] Speaker 07:
Then what do you have?

[01:15:08] Speaker 01:
The difference between count 15 and count 19 is not anything about a young man or the sufficiency of the identification.

[01:15:19] Speaker 07:
No, it's the knowledge issue.

[01:15:21] Speaker 01:
No, I don't think it is.

[01:15:22] Speaker 01:
I think it's the actus reus issue.

[01:15:25] Speaker 07:
All right, who did it?

[01:15:26] Speaker 07:
And the question is, what's the evidence to show Andre did it?

[01:15:31] Speaker 01:
The evidence is, I don't think that's in dispute.

[01:15:34] Speaker 01:
The evidence is that the young man prepared the return.

[01:15:37] Speaker 01:
Their issue is one of identification.

[01:15:38] Speaker 01:
But if Your Honor, I can explain that count 15 is a very different issue than what we have in count 19.

[01:15:45] Speaker 07:
I just gave it as an example of the district court understanding it wouldn't be enough to just say the guy was sitting at the computer entering numbers.

[01:15:53] Speaker 01:
And that was in Actus Reius holding.

[01:15:55] Speaker 01:
What the district court said with Count 15 was the mere fact that Andre was there and his name did appear on the return, which is probably why Sherry was acquitted of the same count.

[01:16:05] Speaker 01:
The district court then ruled 29's Andre because the witness's testimony was not that Andre did anything.

[01:16:11] Speaker 01:
He was just there.

[01:16:13] Speaker 01:
Mr. Jay Cox's testimony was that Andre, and or the young man, prepared his return.

[01:16:19] Speaker 01:
That's an actus reus issue.

[01:16:21] Speaker 01:
The defense argument is, it was on or it was somebody else.

[01:16:24] Speaker 07:
But if the evidence is somebody prepared my return, it may have been the defendant or it may have been someone else.

[01:16:38] Speaker 07:
And then on cross-examination, I say, even though I earlier testified that it was the defendant,

[01:16:48] Speaker 07:
and I was sitting across from him, but I wouldn't know him if I saw him in the street.

[01:16:53] Speaker 07:
Is that proof beyond a reasonable doubt?

[01:16:57] Speaker 07:
That's what I'm trying to get you to focus on.

[01:16:59] Speaker 01:
You want to skirt around it, I know.

[01:17:01] Speaker 01:
Yes, because the identification is simply one piece of evidence.

[01:17:05] Speaker 01:
It's a brick in the wall of the evidence against Andre.

[01:17:07] Speaker 01:
So yes, it is.

[01:17:08] Speaker 07:
And what do you think your burden is?

[01:17:11] Speaker 01:
Beyond a reasonable doubt.

[01:17:12] Speaker 01:
Oh, you're here?

[01:17:13] Speaker 07:
Yeah.

[01:17:13] Speaker 07:
I mean, counsel, that's too facile by.

[01:17:15] Speaker 01:
I mean, the burden below is appropriate under reasonable doubt.

[01:17:17] Speaker 01:
The burden here is Jackson v. Virginia.

[01:17:20] Speaker 07:
For sufficiency of the evidence, what did the government have to show for Count 19?

[01:17:25] Speaker 07:
And I thought it was, and maybe I'm wrong, and it had to have evidence from what a reasonable jury could find, that Andre entered the false numbers or approved the return that had the false numbers, knowing they were false.

[01:17:44] Speaker 01:
Yes, that's right.

[01:17:46] Speaker 01:
And the evidence was that the young man who prepared, let's just take the defense theory for a second.

[01:17:54] Speaker 01:
The evidence was that the young man who prepared Mr. Jay Cox's return, prepared it, sat at a table with him and entered numbers for the 2012 year,

[01:18:05] Speaker 01:
And then Sherry came by to look it over and finalize it.

[01:18:08] Speaker 01:
And then it was signed and filed.

[01:18:10] Speaker 07:
So how could the jury find, based on the evidence before it, that Andre is the one who entered the false numbers as opposed to Sherry?

[01:18:21] Speaker 07:
That's all I'm trying to understand.

[01:18:23] Speaker 01:
Oh, and I apologize, Your Honor, for being tense.

[01:18:25] Speaker 07:
Because Sherry comes over, finalizes the return, and we're not clear

[01:18:32] Speaker 07:
you know, and the timing, et cetera.

[01:18:33] Speaker 07:
That's all I'm trying to understand.

[01:18:35] Speaker 01:
Oh, I see.

[01:18:35] Speaker 01:
And I apologize for not getting your point earlier.

[01:18:38] Speaker 01:
They both, we charged them with, because we believed that they both

[01:18:44] Speaker 07:
filed a false return.

[01:18:46] Speaker 01:
I understand.

[01:18:46] Speaker 01:
What's the proof?

[01:18:48] Speaker 01:
I understand.

[01:18:49] Speaker 01:
We had to prove it.

[01:18:50] Speaker 01:
The jury acquitted Sherry on Jay Cox's return, presumably because her name wasn't on it.

[01:18:56] Speaker 07:
No, no, no.

[01:18:57] Speaker 07:
You can't speculate as to what the jury found.

[01:19:00] Speaker 07:
The question is, what was your evidence that Andre either entered the false numbers or knew they were false and approved the return?

[01:19:11] Speaker 07:
That's all I'm asking.

[01:19:13] Speaker 01:
Andre knowingly joined a criminal organization that did nothing but file false tax returns all day for years.

[01:19:20] Speaker 01:
He was warned about it by LaDonna Davis and was dismissive of it and said, it's not a big deal.

[01:19:25] Speaker 01:
It's just going to go away in reference to the criminal investigation.

[01:19:28] Speaker 01:
He helped his mother, who had been kicked out of the electronic filing program by the IRS a few months earlier.

[01:19:35] Speaker 01:
He used his name to sign her up for the electronic filing program again, which

[01:19:43] Speaker 01:
Contrary, I think the defense argument would itself be fraud, because it would fall with an inclined conspiracy charge, and then begins preparing returns with her.

[01:19:51] Speaker 02:
And working in the business.

[01:19:53] Speaker 02:
Most of what you just said there has to do with the conspiracy conviction.

[01:19:56] Speaker 01:
Yes.

[01:19:56] Speaker 02:
I thought what Judge Rogers was asking about was the filing of the false return for the 2012.

[01:20:00] Speaker 02:
And as to that, I thought that the evidence is Jay Cox's testimony.

[01:20:06] Speaker 02:
Yes.

[01:20:06] Speaker 02:
So it depends on how you characterize his testimony.

[01:20:09] Speaker 02:
And if his testimony to the effect that

[01:20:12] Speaker 02:
he prepared my return is enough, it's enough.

[01:20:15] Speaker 02:
If it's not, it's not.

[01:20:16] Speaker 01:
I agree.

[01:20:16] Speaker 01:
I know what I'm attempting to respond to the judge's question, saying that's not all we have.

[01:20:21] Speaker 01:
Because to the extent that there is ambiguity in Thomas J. Cox's question, testimony, it has to be evaluated in light of the overall conspiracy.

[01:20:30] Speaker 01:
Obviously, being involved in a criminal conspiracy whose goal is to file false tax returns makes it more likely on any given point in time, on any given day, that you

[01:20:39] Speaker 01:
knowingly filed a false tax return.

[01:20:40] Speaker 01:
So that plus the Jay Cox testimony.

[01:20:43] Speaker 02:
I think the problem with the plus part, I'm not saying that if you take out the plus part it's not enough, but it seems to me one problem with the plus part is, as to this count, one of them did it.

[01:20:53] Speaker 02:
That's what the jury thought.

[01:20:55] Speaker 02:
So then the question becomes which.

[01:20:57] Speaker 02:
And I think Andre's argument is that, wasn't me, I didn't have anything to do with it.

[01:21:02] Speaker 02:
If it's false, Sherry was the one who did it.

[01:21:05] Speaker 02:
So the fact that they're both involved in conspiracy together, which is all the more stuff, doesn't really help you as to that.

[01:21:10] Speaker 02:
Because, yeah, they're both involved in the conspiracy.

[01:21:12] Speaker 02:
But as to this count with respect to the false 2012 tax return for Jaycox,

[01:21:19] Speaker 02:
It's just a dispute about which one of them is the one that's responsible for the falsity.

[01:21:23] Speaker 02:
I'm not sure it's that mutually exclusive.

[01:21:25] Speaker 01:
I think the jury appears to have believed it was based on what we see from the convictions.

[01:21:31] Speaker 01:
But two people can prepare a false tax return knowingly.

[01:21:33] Speaker 01:
Sure.

[01:21:34] Speaker 01:
I think in this case, yeah, it was a who did it.

[01:21:36] Speaker 01:
and it was to the jury to decide who did it and the jury decided that Andre did it based on listening to Thomas J. Cox testify for a day.

[01:21:41] Speaker 01:
It comes down to J. Cox's testimony.

[01:21:42] Speaker 01:
It comes down to J. Cox's testimony as to the identity and the actus reus.

[01:21:46] Speaker 01:
I think that because Judge Rogers was asking more generally about knowledge, I think that conspiracy and the existence, the proved existence of the conspiracy is very good evidence of knowledge and I think my opposing counsel said something at the beginning

[01:21:59] Speaker 01:
you know, agreeing with that, that, you know, the conspiracy charge and the false return charge are going to... In other words, if there's a false return, there's going to be conspiracy because the knowledge elements overlap for those.

[01:22:13] Speaker 01:
The question here is the specific actus reus for this tax return, and that was based on Judge... That was based on Thomas J. Cox's testimony as Judge Turner-Bossom pointed out.

[01:22:22] Speaker 01:
But I think that's our case on Mr. Davis.

[01:22:25] Speaker 04:
Jay Cox's testimony that he sat down with the young man, went through this process, but he wouldn't know Andre if he bumped into him.

[01:22:35] Speaker 04:
It seemed to suggest that it was someone other than him.

[01:22:38] Speaker 01:
And I think that's, I mean, I think the defense is over reading that line.

[01:22:42] Speaker 01:
You wouldn't know him if he bumped into him on the street.

[01:22:44] Speaker 01:
There are plenty of people that I could say that I've met or interacted with that I might not recognize if I bumped into them on the street.

[01:22:52] Speaker 01:
They're just different standards.

[01:22:53] Speaker 01:
He didn't say, you know, I don't remember who it was.

[01:22:56] Speaker 01:
He didn't say, I have like no idea what the guy looks like.

[01:22:59] Speaker 01:
He said he wouldn't recognize him if he bumped into him on the street.

[01:23:01] Speaker 01:
Again, that's true for professors I've had in law school.

[01:23:05] Speaker 01:
I can say I had this professor in law school.

[01:23:07] Speaker 01:
I wouldn't necessarily know him if I bumped him into the street.

[01:23:09] Speaker 01:
I wouldn't recognize him right away.

[01:23:10] Speaker 01:
He didn't know him.

[01:23:11] Speaker 01:
Well, the testimony from Jay Cox was he knew Sherry, and he had seen Andre, and he identified Andre.

[01:23:16] Speaker 01:
And when he was cross-examined about it, in the testimony that the defense points to in their opening brief,

[01:23:23] Speaker 01:
They point to the line of saying, based on the name and the return, and then he gets interrupted.

[01:23:28] Speaker 01:
And then the next page is the part we quote in our brief, where he says, what I'm saying is, I'm not sure it's 2012.

[01:23:35] Speaker 01:
I need to see the name and the return to know which year Andre prepared my return.

[01:23:39] Speaker 01:
So I think that J. Cox's testimony is more certain than the defense suggests.

[01:23:49] Speaker 01:
At the very least, it's inconsistent.

[01:23:51] Speaker 01:
And the jury watched this gentleman testify for the better part of a day and convicted Andre on this count when it acquitted him on two other counts.

[01:24:02] Speaker 01:
In sum, there are no further questions, Your Honor.

[01:24:05] Speaker 01:
We think the defendants in this case were properly convicted and sentenced.

[01:24:08] Speaker 01:
And we ask this court to affirm.

[01:24:17] Speaker 05:
I do have quite a few things I want to touch on.

[01:24:20] Speaker 05:
As to the sufficiency, to be clear, in a signature, I just want to be clear about this, it's just the entry of a prepare ID number.

[01:24:28] Speaker 05:
That's all it is.

[01:24:29] Speaker 05:
And regarding the framing issue, the idea that it would be unlikely that Sherry would have

[01:24:34] Speaker 05:
I just want to say that she obviously wasn't worried about having her name all over these things, and LaDonna said that Sherry didn't switch out the preparer ID when she went in and made entries as she did here.

[01:24:46] Speaker 05:
That's the important thing I don't think the government mentioned.

[01:24:48] Speaker 05:
It's not just that she came in and finalized it, but she actually put information in.

[01:24:52] Speaker 05:
The government agrees that it was fine for Jay Cox to bring in these AMVA receipts, so there's no inference from that that it would give Andre any intent.

[01:25:03] Speaker 05:
Saying the young man went over the return is not enough given the timing.

[01:25:06] Speaker 05:
I think we talked about that.

[01:25:08] Speaker 05:
As far as him saying that the defense argument was different below, that's of course obviously completely irrelevant to what the sufficiency is.

[01:25:15] Speaker 05:
whether the evidence was sufficient.

[01:25:16] Speaker 05:
It just doesn't have anything to do with it.

[01:25:17] Speaker 05:
The strategy that was chosen when you were in a joint trial, this doesn't have anything to do with anything.

[01:25:23] Speaker 05:
And also, the withdrawal of the ID was not on cross.

[01:25:26] Speaker 05:
It was actually on redirect.

[01:25:27] Speaker 05:
It's not as if he was tricked into somehow backing down.

[01:25:30] Speaker 05:
The government maybe should have become obvious on cross, but it didn't.

[01:25:33] Speaker 05:
And then the government elicited on redirect that really, it was a young man, and you don't really recognize the defendant.

[01:25:42] Speaker 05:
So I want to make that point.

[01:25:45] Speaker 05:
And I want to also be clear that the government can't say that the Jaycox stuff makes the conspiracy and the conspiracy makes the Jaycox stuff.

[01:25:54] Speaker 05:
I mean, there's no other evidence of conspiracy.

[01:25:58] Speaker 05:
He cannot be convicted of conspiracy if he has no connection to any false or knowledge of any false returns.

[01:26:05] Speaker 05:
I hope I'm clear about that.

[01:26:07] Speaker 05:
Regarding the closing errors, the error

[01:26:11] Speaker 05:
You can't say that the error must not be plain if defense counsel didn't notice it, because that's always the case, obviously.

[01:26:18] Speaker 05:
All I can say is it's brief, and it was obviously false and should have been caught.

[01:26:22] Speaker 05:
And the case was hanging by a thread if it was sufficient.

[01:26:27] Speaker 05:
The sentencing, I'd like to say that about Huey, I think the government's totally misunderstanding this relevant conduct thing.

[01:26:32] Speaker 05:
I really want to clear that up, because

[01:26:33] Speaker 05:
To the extent this 3663 is saying relevant conduct, 4443 is not relevant conduct of the conspiracy, even to Sherry.

[01:26:42] Speaker 05:
Sherry is held responsible for that because of her substantive counts.

[01:26:46] Speaker 05:
The conspiracy does not cover, Count 12 does not cover Sherry's conduct.

[01:26:49] Speaker 05:
Sherry's conduct counts 34 through 36 or whatever.

[01:26:52] Speaker 05:
So it's not even relevant conduct for Sherry in the conspiracy.

[01:26:54] Speaker 05:
And it could only be relevant conduct for Mr. Even if it was, it could only be relevant conduct for Mr. Davis if it was within the scope of his agreement within the conspiracy and foreseeable to him.

[01:27:05] Speaker 05:
But it's not even relevant conduct for Sherry.

[01:27:07] Speaker 05:
So what 3663 is really saying, 3663 is about a situation where someone pleads to one count of mail fraud and there's a scheme.

[01:27:14] Speaker 05:
And all the other victims who weren't in that count are not getting any money back.

[01:27:19] Speaker 05:
And so they said, if there's a scheme,

[01:27:21] Speaker 05:
If it has as an element a scheme, then what it says is, the government quotes it, that a victim is defined as, the defining victim, victim is defined as someone who is harmed as a result of the defendant's criminal conduct.

[01:27:37] Speaker 05:
So it's just really inapplicable here.

[01:27:39] Speaker 05:
Because the United States – we already know United States is a victim, and this conduct that was done by Sherry was not the defense conduct.

[01:27:44] Speaker 05:
So there is no way the 4443, which was fully preserved, can possibly be affirmed.

[01:27:49] Speaker 05:
The two prepare pattern people that were very clearly challenged by defense counsel below, Williams and Deborah Johnson – the point of that is that the prepare pattern information was inconsistent

[01:28:02] Speaker 05:
with what the agent said.

[01:28:03] Speaker 05:
The judge did not know this out of record information that the counsel is bringing out now and saying this was an earlier draft.

[01:28:11] Speaker 07:
Well, I just, I asked him about that and he said if I read the sentencing hearing completely, I will see this is all explained to the district court.

[01:28:21] Speaker 05:
I'm sorry, I couldn't.

[01:28:22] Speaker 07:
As I understood the counsel's response to my question,

[01:28:27] Speaker 07:
All of this was explained to the district court at the sentencing hearing, and I would see that if I read the complete sentencing hearing transcript.

[01:28:36] Speaker 05:
Well, I don't think it was explained that it had actually been superseded by... Well, did the district court understand that?

[01:28:44] Speaker 07:
I thought that was the thrust of Judge Ginsburg's question.

[01:28:47] Speaker 05:
I did not see that in the sentencing.

[01:28:48] Speaker 05:
That does not sound right to me.

[01:28:50] Speaker 07:
So you think the district court was proceeding on the basis of this inadvertently filed document?

[01:28:59] Speaker 05:
I think he kept asking, what does this mean?

[01:29:01] Speaker 05:
What does this mean?

[01:29:02] Speaker 05:
And the government didn't tell him.

[01:29:03] Speaker 05:
And then in the end, he just said, you know, I'm going to go with the agent's testimony.

[01:29:06] Speaker 05:
And you know, if that document hadn't been there, the agent's testimony would have been sort of a black box.

[01:29:10] Speaker 05:
We wouldn't really understand how the agent got to his numbers.

[01:29:12] Speaker 05:
But he would have said, trust me, I asked about the credit.

[01:29:14] Speaker 05:
I asked, we know what the number is.

[01:29:16] Speaker 05:
And we did it.

[01:29:16] Speaker 05:
And this is what we got.

[01:29:17] Speaker 05:
And that would probably be OK.

[01:29:19] Speaker 07:
When you heard counsel, he said that what the district court finally had before it was a statement based on

[01:29:28] Speaker 07:
the interviews, the reports, the memorandum on these interviews and the trial testimony.

[01:29:38] Speaker 05:
Well, but the two people were challenging.

[01:29:39] Speaker 05:
It says prepare a pattern.

[01:29:41] Speaker 05:
And I guess I didn't make this point.

[01:29:43] Speaker 05:
I just would like to say that the prepare a pattern, it doesn't make any sense because you can't solve, you can't figure out.

[01:29:48] Speaker 05:
So prepare a pattern is still on the final document?

[01:29:52] Speaker ?:
No.

[01:29:52] Speaker 05:
That's my point.

[01:29:54] Speaker 05:
Yeah.

[01:29:54] Speaker 05:
It's not.

[01:29:55] Speaker 05:
But the judge doesn't understand – my reading of the transcript is that it's not clarified for the judge.

[01:30:00] Speaker 05:
It's not cleared up.

[01:30:02] Speaker 05:
And unless the prepared pattern is we always triple the real donations or we always add a zero to the real donations, it makes no sense to

[01:30:09] Speaker 05:
say that you could possibly figure out what the credit is.

[01:30:15] Speaker 05:
And I think Naeem did not try to explain how that was consistent at all.

[01:30:21] Speaker 05:
We would ask the court to vacate both counts of Mr. Davis's conviction, dismiss the case, and in the alternate order, a new trial.

[01:30:30] Speaker 05:
And in the alternative, grant him a resentencing with both loss and the restitution to be no greater than the loss that he was attributed to minus

[01:30:39] Speaker 05:
Sherry's personal return and minus Deborah Johnson and Thomas Waynes' loss.

[01:30:45] Speaker 05:
Thank you.

[01:30:53] Speaker 03:
Your Honors, very briefly, the first thing with respect to the sentencing and the above 550,000, in light of the government's concession, which I think they actually also conceded in their brief, so that wasn't new, the share needs are resentencing anyway, because even assuming, a point that I'm not gonna concede right now, that the proper calculations, I believe that enough stuff is before the court, they might deal with some other issues as well, but even with respect to the government's concession, the total amount of loss

[01:31:21] Speaker 03:
even if it's above $550,000, affects the judge's sentencing.

[01:31:26] Speaker 03:
Judge Hogan already departed in the original sentencing for a variety of other factors, but if the amount of loss comes down if the DCSF is taken out, at minimum, there needs to be a remand for his sentencing.

[01:31:38] Speaker 03:
With the recognition, I would assume that one, the lower number, Judge Hogan can depart if he wants to.

[01:31:45] Speaker 03:
The other thing is that if it turns out with respect to some other factors which has been argued in the brief,

[01:31:50] Speaker 03:
if the number comes down to even more issues with respect to prepare a pattern, I don't think the government is going to, oh, I don't want to assume the government is going to argue, but if the calculation at a resentencing goes below 550,000,

[01:32:05] Speaker 03:
I don't believe that Judge Hogan is going to enter an illegal sentence based on some purported waiver as to how the issues were preserved alone.

[01:32:13] Speaker 03:
But in any event, at minimum, knocking out the DC calculation numbers drops it substantially.

[01:32:18] Speaker 03:
Even if it is above 550,000, that would still give the grounds for a new resentencing and the ability for Judge Hogan to take everything into account.

[01:32:28] Speaker 07:
And so this is the departure argument?

[01:32:30] Speaker 03:
No, I'm simply saying that with regard to – if it turns out – and I'm not conceding this – but if it turns out that even with the government's concession, that the amount is still above $550,000, that's still several hundred thousand dollars below what the original amount of loss was in the first thing, and that is – But why does this matter if you're still in the same trance for the base offense?

[01:32:57] Speaker 03:
Well, no, but that, yeah, I was simply just pointing out that I believe that Judge Hogan, for a variety of other reasons, departed downward a lower number, even within that range, 550,000, what is it, 1.4 million or something like that, that its judges could still, I mean, the trial judge might still feel that with that lower number.

[01:33:19] Speaker 04:
So if it's 551, you might come, okay.

[01:33:22] Speaker 03:
The other point that I just want to make very briefly has to do with some of the statements that the government made concerning the scope of the conspiracy and then with this Adam Russell, the one line in the transcript.

[01:33:38] Speaker 03:
The government in closing

[01:33:40] Speaker 03:
argues this, and this is on page 1303 in the Joint Appendix.

[01:33:44] Speaker 03:
And the elements for conspiracy in an abridged fashion are the defendant agreed with at least one other person to defraud the United States.

[01:33:51] Speaker 03:
This defendant, Sherry Davis, agreed first with LaDonna Davis and then her son after LaDonna pled guilty.

[01:33:58] Speaker 03:
Sherry Davis and LaDonna Davis agreed, and then Sherry Davis and her son agreed.

[01:34:04] Speaker 03:
And that's on 1303 and 1304 in the Joint Transcript.

[01:34:08] Speaker 03:
Just so there is no misunderstanding, and I'm not 100% sure that's what the government was arguing, but when I was listening to the government's argument, any suggestion that the record demonstrates that there was another co-conspirator known or unknown is patently not supported by the record.

[01:34:30] Speaker 03:
and was not the way the government argued the case.

[01:34:33] Speaker 03:
So with respect to the way that the government tried to sort of reconfigure conspiracy law, the conspiracy in this case is a specific charge that deals with manner and means that deal with false schedule C's and false charitable contributions.

[01:34:57] Speaker 03:
The way the government argued it here was that, well, it's conspiracy to defy the government filing fake information all over the place and ripping off the government.

[01:35:06] Speaker 03:
That isn't the charge.

[01:35:10] Speaker 03:
So when the court is evaluating the evidence with respect to if Andre is dropped out for legal insufficiency,

[01:35:20] Speaker 03:
then there is no conspiracy after LaDonna leaves the conspiracy as a matter of law.

[01:35:26] Speaker 03:
And the point that I was making or tried to make, both in the brief and in my initial argument, the government sort of changed.

[01:35:34] Speaker 03:
This isn't a legal sufficiency argument.

[01:35:36] Speaker 03:
We all know that.

[01:35:37] Speaker 03:
The point is that with respect to that first half of the conspiracy,

[01:35:42] Speaker 03:
The underlying attack on LaDonna's credibility and the additional possibility that the statement that LaDonna prepared her original 2006 return is a controverted issue.

[01:35:57] Speaker 03:
The government's representation that it isn't is not the case.

[01:36:01] Speaker 03:
If that could have come in as substantive evidence based on the Brady violation, that in addition to the additional erosion of her plain old credibility,

[01:36:13] Speaker 03:
raise hits the Brady standard and the standards set forth in Pasha that the confidence in the conspiracy verdict is gone.

[01:36:21] Speaker 03:
Now what does that leave?

[01:36:22] Speaker 03:
It might leave, and I'm not suggesting that it does, it might leave a bunch of independent 7206 charges against Sherry and perhaps against, but that is a whole different ballgame.

[01:36:35] Speaker 03:
And on that particular ground, the court would then have to look to is the erosion of the conspiracy charge

[01:36:44] Speaker 03:
so sufficient, so comprehensive, that it creates a situation where, well, you know what?

[01:36:54] Speaker 03:
Sherry might have testified.

[01:36:56] Speaker 03:
And we do not have confidence in any of the verdicts.

[01:37:00] Speaker 03:
And I think when the panel is evaluating it, if the court gets to the point where the conspiracy verdict is in question,

[01:37:12] Speaker 03:
And the decision is made that under Brady that has to go.

[01:37:16] Speaker 03:
The point that also really needs to, as a practical matter, step back and say, doesn't that also sort of unravel everything?

[01:37:23] Speaker 03:
And the fact remains, and the government didn't argue otherwise and didn't contend the point, this case could not go forward without LaDonna's cooperation.

[01:37:35] Speaker 03:
And so if LaDonna's credibility and her ability to be further eroded with respect to substantive evidence that would have come in that indicated that she did file a 2006 tax return, she created the entirely independent fraud scheme with regard to dependents.

[01:37:53] Speaker 03:
If the conspiracy charges eroded, I think the court has to look at Pasha and say, you know what?

[01:37:58] Speaker 03:
That probably does raise a sufficient question concerning the integrity of the verdict on all accounts.

[01:38:05] Speaker 03:
Your Honor, thank you very much.

[01:38:05] Speaker 03:
We want to be able to get that.

[01:38:06] Speaker 03:
Thank you.

[01:38:06] Speaker 07:
And thank you, Professor, on behalf of the court for your assistance in this appeal.

[01:38:13] Speaker 03:
Thank you very much.

[01:38:14] Speaker 03:
It's always an honor to accept the appointments.

[01:38:16] Speaker 03:
Thank you very much.

[01:38:20] Speaker 07:
We will take a brief recess.