[00:00:05] Speaker 00:
Mr. Zucker for the appellate, Ms.

[00:00:08] Speaker 00:
Kim for the equity.

[00:00:10] Speaker 01:
Good morning.

[00:00:11] Speaker 03:
Good morning.

[00:00:12] Speaker 03:
I think you've been advised Judge Henderson is with us today.

[00:00:17] Speaker 01:
I have.

[00:00:18] Speaker 01:
And she's sorely missed, but we enjoy her participation by phone.

[00:00:23] Speaker 01:
There's three issues in this case.

[00:00:24] Speaker 01:
The prosecution concedes that the

[00:00:27] Speaker 01:
Sentencing a 68-month sentence exceeded the statute and that's clearly going to be re-sentenced.

[00:00:31] Speaker 01:
The two issues remaining are was it error to apply the two-point enhancement for a fiduciary against Mr. Cooper when the government concedes and it's clear he was not a fiduciary.

[00:00:41] Speaker 01:
The second is were counts one and two multiplicitous.

[00:00:44] Speaker 01:
I would, and Council wanted to with the conspiracies, the two 371 conspiracies.

[00:00:49] Speaker 01:
And the question is, do they reflect one conspiratorial agreement, or are they, as a government, charged two separate agreements?

[00:00:55] Speaker 01:
I'd like to begin with the fiduciary issue first.

[00:01:00] Speaker 01:
The defendant was charged with two counts with conspiracies, both 371s.

[00:01:04] Speaker 01:
The first was essentially a conspiracy to steal from a labor union.

[00:01:09] Speaker 01:
The second one was what I'll call kickbacks, payments to the labor union official, the fiduciary, in this case, Mr. Frederick.

[00:01:18] Speaker 01:
The guidelines applicable in the first conspiracy are 2B1.1, which is also the same guideline applicable in count three.

[00:01:26] Speaker 01:
And then the second count is 2E5.1.

[00:01:31] Speaker 01:
The court correctly decided it had to group and figure out what the guidelines were under each count.

[00:01:39] Speaker 01:
first, separately, and then group them together and go with the highest one.

[00:01:42] Speaker 01:
And he correctly found that count two, which is the 2E5.1, is the highest defense level and went with that.

[00:01:50] Speaker 01:
Count two had a base defense level of 10 and an enhancement of 16 based on the quantity involved.

[00:01:56] Speaker 01:
And there was no contest about any of that.

[00:01:59] Speaker 01:
The contest comes because count two is the only one, the 2E5.1 guideline, is the only one that has an enhancement for a fiduciary.

[00:02:07] Speaker 01:
And there's a two-point enhancement, which the court applied.

[00:02:09] Speaker 01:
Our claim is that that is error because Mr. Cooper was clearly not a fiduciary.

[00:02:15] Speaker 01:
He had no role in the union.

[00:02:17] Speaker 01:
He was not... There was no claim.

[00:02:20] Speaker 03:
Even the government conceded.

[00:02:21] Speaker 03:
Where do you make this argument in your brief?

[00:02:24] Speaker 01:
Where do I make this argument?

[00:02:26] Speaker 01:
That which?

[00:02:26] Speaker 01:
The one you're now talking about.

[00:02:28] Speaker 01:
That he wasn't a fiduciary?

[00:02:29] Speaker 03:
Yeah.

[00:02:29] Speaker 03:
No.

[00:02:30] Speaker 03:
That the judge went to the wrong guideline.

[00:02:33] Speaker 01:
I believe it's throughout the brief, Judge.

[00:02:35] Speaker 01:
I believe we... I know it's in the reply brief.

[00:02:39] Speaker 03:
I know it's in the reply brief.

[00:02:41] Speaker 01:
I believe it was in the initial brief as well.

[00:02:46] Speaker 01:
But that's clearly the error we're alleging here, and that was what we objected to at trial, and that's what we, I believe, briefed in the original brief, that the fiduciary enhancement should not have been given because it wasn't fiduciary, and that the court became confused because it applied the 2X 2.1, which applies to aiding and abetting.

[00:03:06] Speaker 01:
The defendant was charged as an aider and abetter not in counts one and two, but only in count three, which is the honest services wire fraud.

[00:03:15] Speaker 01:
And based on that, I believe the trial court became confused and applied.

[00:03:21] Speaker 01:
2X2.1 says that if you're convicted as an aider and abetter, you're sentenced for the offense, the same offense as if you were principal.

[00:03:30] Speaker 03:
Your point is the district court should have gone to 2B2.1, right?

[00:03:36] Speaker 03:
Yeah.

[00:03:37] Speaker 03:
That's the one he should have used.

[00:03:39] Speaker 01:
Well, no, he had to use 2B2.1 on counts 1 and 3, and he should have used 2E5.1 on count 2.

[00:03:48] Speaker 01:
He just shouldn't have given the enhancement for fiduciary.

[00:03:55] Speaker 01:
And I believe he became confused in that because of the aiding, he relied on the aiding and bedding instruct guideline for 2X

[00:04:03] Speaker 01:
2.1, which says that an aider and abettor is sentenced for the same offense.

[00:04:08] Speaker 01:
And there's no dispute about that.

[00:04:10] Speaker 01:
But he was prosecuted only as an aider and abettor in relation to Count 3, which is sentencing guideline 2B.1.1.

[00:04:18] Speaker 01:
And that doesn't have a fiduciary enhancement.

[00:04:20] Speaker 01:
But even if it did have a fiduciary enhancement, it shouldn't be applied because Mr.

[00:04:25] Speaker 01:
Cooper was not a fiduciary.

[00:04:27] Speaker 01:
I think where the court became confused is that it correctly ruled, not below, but in the first sentencing, that Frederick, who was an officer of the corporation, of the union, is a fiduciary, and that applied to him.

[00:04:40] Speaker 01:
And I think the confusion became when the judge said, okay, but it ain't any better, has the same offense.

[00:04:46] Speaker 01:
Yes, that is correct in relation to Count 3.

[00:04:49] Speaker 01:
It isn't correct in relation to Count 2.

[00:04:51] Speaker 01:
And more importantly, by conspiring with a fiduciary, you do not get the enhancement for being a fiduciary.

[00:04:59] Speaker 01:
It's an enhancement based on status, based on your role as a fiduciary.

[00:05:04] Speaker 01:
And it simply should not have been applied, in this case, against Mr. Cooper.

[00:05:09] Speaker 01:
It was error to do so and prejudicial error.

[00:05:14] Speaker 01:
That's the gist.

[00:05:15] Speaker 01:
If there's anything else, questions on that, I'll be glad to respond.

[00:05:17] Speaker 01:
Otherwise, I'll move to the multiplicitous conspiracy.

[00:05:23] Speaker 01:
OK.

[00:05:24] Speaker 01:
All right.

[00:05:26] Speaker 01:
I think the defense and the government both agree that if count one and count two are both part of the same conspiracy, then this is multiplicitous.

[00:05:35] Speaker 01:
And I think the best proof, the government charged it as two separate conspiracies, one for theft, essentially, in count one, and then payments to the union official in count two, which the government prosecuted as two separate conspiracies.

[00:05:49] Speaker 01:
But if we look at the prosecution's theory at trial,

[00:05:53] Speaker 01:
They prosecuted count two as essentially the quid pro quo for count one.

[00:05:58] Speaker 01:
There was argued throughout in both openings and closing by the prosecutor was you look at the interrelationship between the two.

[00:06:05] Speaker 01:
They kick, they started off with theft based on contracts for construction services at the union headquarters and then

[00:06:16] Speaker 01:
That went on for a while, I think approximately a few weeks.

[00:06:21] Speaker 01:
And then there was the second portion or the second half of the agreement, which was the payback, the kickback to Frederick for making the payments.

[00:06:31] Speaker 01:
And as the prosecutor argued, you look to the two combined and one was the payment for the other.

[00:06:37] Speaker 01:
under that explanation, and I think the prosecutor was right, they are one conspiracy, not two, because they're separate parts of the same conspiracy.

[00:06:45] Speaker 01:
It would be analogous to saying I, as a drug dealer,

[00:06:50] Speaker 01:
consigned or fronted a quantity of drugs to someone else who sold them and came back and paid me a few weeks later or a few days later.

[00:06:58] Speaker 01:
That's all part of one agreement to distribute drugs.

[00:07:01] Speaker 01:
It's not two separate agreements to distribute drugs and then pay for drugs.

[00:07:04] Speaker 01:
And that's what the government tried, not what they tried, it's what they did do here.

[00:07:08] Speaker 01:
The kickbacks clearly given to Frederick, and they were the House and the improvements to the House, were clearly the quid pro quo, the payment for Frederick

[00:07:18] Speaker 01:
assisting SDS Corporation to be paid absorbent sums for work, overpaid for work they did do, and then ultimately, as the agreement progressed, paid absorbent sums for work that was never done.

[00:07:33] Speaker 01:
It just falsified claims.

[00:07:36] Speaker 03:
So the government argues that we should review this for plain error because trial counsel didn't renew the multiplicity motion at the end of trial.

[00:07:45] Speaker 01:
I disagree with that because we complied with the rule.

[00:07:53] Speaker 01:
The rule said you have to move pretrial for a multiplicitous indictment.

[00:07:57] Speaker 01:
That was filed.

[00:07:59] Speaker 01:
The judge heard it.

[00:08:00] Speaker 01:
We argued it.

[00:08:01] Speaker 01:
He essentially said, well,

[00:08:04] Speaker 01:
He denied it and said we could revisit it after the verdict or at sentencing.

[00:08:08] Speaker 02:
And frankly, I suggest... He says it even more strongly in the written order, defers ruling until after a verdict is rendered.

[00:08:18] Speaker 02:
I'm agreeing with you, don't fight me.

[00:08:21] Speaker 02:
Huh?

[00:08:21] Speaker 02:
I'm agreeing with you, don't fight me.

[00:08:23] Speaker 01:
That's wise of you, Judge.

[00:08:24] Speaker 01:
I appreciate that.

[00:08:29] Speaker 01:
Would a better practice on my part have been to say, hey, Judge, you forgot to go back and rule on us?

[00:08:32] Speaker 01:
Yes, I think that should have.

[00:08:34] Speaker 01:
That should have.

[00:08:35] Speaker 01:
And in an optimal world, I would have done that, should have done that.

[00:08:40] Speaker 01:
However, I don't think it converts it to plain error to say, oh, your failure to renew it at the time of sentencing waives what you had filed and what the judge denied initially.

[00:08:54] Speaker 01:
I mean, I frankly should apologize in the sense he was a new judge, and I should have thought of that, but I didn't in the heat of battle.

[00:08:59] Speaker 01:
But nonetheless, we preserved the issue by complying with the rule, making the motion in advance, and having him deny it in advance, or at least not address it.

[00:09:08] Speaker 01:
Not denied.

[00:09:09] Speaker 01:
Not denied.

[00:09:10] Speaker 01:
He deferred ruling and then never did rule.

[00:09:13] Speaker 01:
I mean, I guess implicit is a denial in his ruling.

[00:09:16] Speaker 03:
Well, the motion, as I understand it, the motion that he was denying included more than just the multiplicity issue, right?

[00:09:23] Speaker 01:
I think it did.

[00:09:24] Speaker 03:
So he was denying everything except the multiplicity, correct?

[00:09:28] Speaker 03:
That's what happened.

[00:09:29] Speaker 03:
Isn't that right?

[00:09:30] Speaker 01:
In all candor, that's the only part I remember because that's what was part of this brief.

[00:09:34] Speaker 01:
But I am not surprised to find I included other requests for relief in my initial motion.

[00:09:39] Speaker 01:
Yeah, but my position is... That helps your case.

[00:09:43] Speaker 01:
Which helped my case?

[00:09:44] Speaker 03:
What I just said.

[00:09:45] Speaker 01:
Okay.

[00:09:46] Speaker 01:
Then I agree with both of you.

[00:09:50] Speaker 01:
All right.

[00:09:50] Speaker 01:
And then if there's no more questions, I'll quit while I'm ahead.

[00:09:53] Speaker 05:
I have one.

[00:09:54] Speaker 05:
Thank you.

[00:09:55] Speaker 05:
Mr. Zucker, let's assume that we agree with you on all three points.

[00:09:59] Speaker 05:
There's multiplicities.

[00:10:01] Speaker 05:
The district judge has to choose between count one or count two.

[00:10:03] Speaker 05:
I'm sorry, Judge, could you keep your voice up a little bit?

[00:10:06] Speaker 05:
Okay.

[00:10:07] Speaker 05:
that assume, we agree with you on all the points, that the district, we send it back, district judge has to choose count one or count two, the enhancement gets locked off, 60 months maximum for whichever conspiracy count remains.

[00:10:24] Speaker 05:
My question is, and I don't think either party really addresses this, is he still free to give the 68 month sentence

[00:10:36] Speaker 05:
And if so, is this, at least with respect to the recensing, more or less ministerial, this remand?

[00:10:44] Speaker 01:
Well, I think on a remand the judge has latitude and can frankly restructure a sentence to achieve a sentencing objective that's different than what was imposed on the first one.

[00:10:54] Speaker 01:
I do not think, and it's an interesting question and I can't pretend I've researched it as part of the preparation for this, I know that on remand judges are allowed to re-sentence and structure their sentences differently.

[00:11:05] Speaker 01:
Whether he would be allowed to increase it back to 68 months when the clear import

[00:11:10] Speaker 01:
of being consistent would be to knock off the eight months and leave it at 60 months concurrent for two counts.

[00:11:17] Speaker 01:
I don't know if that would be a violation.

[00:11:20] Speaker 01:
I don't think so.

[00:11:21] Speaker 01:
I think he has the special.

[00:11:22] Speaker 01:
I'm sorry Judge, let's keep it one second.

[00:11:28] Speaker 01:
Did I cut her off?

[00:11:30] Speaker 03:
No.

[00:11:31] Speaker 03:
Karen, are you still there?

[00:11:33] Speaker 03:
Yes.

[00:11:35] Speaker 03:
Do you have a, you don't have something on your, I'm speaking to Mr. Zucker.

[00:11:39] Speaker 03:
Do you have a knob on there that turns up volume?

[00:11:42] Speaker 01:
Look, we do.

[00:11:43] Speaker 01:
Not that I know.

[00:11:43] Speaker 03:
No?

[00:11:47] Speaker 01:
Thank you, appreciate it.

[00:11:49] Speaker 03:
Okay, go ahead again, Karen.

[00:11:50] Speaker 03:
Try, he was just having trouble hearing you.

[00:11:54] Speaker 05:
Okay.

[00:11:56] Speaker 05:
I've just asked you about, on remand, if we agree with you, either party has addressed this,

[00:12:05] Speaker 05:
If we do agree with you, I don't feel that we need to be in the hands of the district court in the first place, but we have a position on what the sentence can the sentence be more than 60 months.

[00:12:20] Speaker 05:
Can it be 68 months?

[00:12:27] Speaker 04:
Hello?

[00:12:32] Speaker 04:
Hello?

[00:12:41] Speaker 04:
Hello?

[00:12:51] Speaker 03:
Hello?

[00:12:52] Speaker 03:
You still there?

[00:12:53] Speaker 03:
Oh, I see.

[00:12:54] Speaker 05:
I think you've answered.

[00:12:55] Speaker 05:
Can you hear me?

[00:12:56] Speaker 03:
Yes.

[00:12:57] Speaker 05:
OK, I think you've answered my question about this.

[00:12:59] Speaker 05:
I don't want to disrupt the proceedings.

[00:13:02] Speaker 01:
All right.

[00:13:02] Speaker 05:
If you can hear me and I can't hear you, my colleagues will tell me what you've said.

[00:13:07] Speaker 01:
We could hear you much better now.

[00:13:08] Speaker 01:
At least I can.

[00:13:10] Speaker 05:
OK.

[00:13:11] Speaker 05:
Well, then my question was simply, can he reimpose the 68-month sentence, or do you have a position on that?

[00:13:18] Speaker 01:
I don't really have a position.

[00:13:20] Speaker 01:
I know that he can restructure it.

[00:13:22] Speaker 01:
And certainly, if he said, you know what, I'm going to run portions of these sentences consecutive, he could get there legally.

[00:13:28] Speaker 01:
Whether or not that would be abusive discretion on a remand, I don't know the answer to that.

[00:13:35] Speaker 03:
Can we go ahead now, Gina, please?

[00:13:37] Speaker 03:
Is it reset?

[00:13:39] Speaker 03:
OK, great.

[00:13:40] Speaker 03:
All right.

[00:13:41] Speaker 03:
Did you have anything else?

[00:13:42] Speaker 01:
I did not.

[00:13:43] Speaker 01:
There's no other questions.

[00:13:45] Speaker 03:
OK.

[00:13:46] Speaker 03:
We'll hear from the government then.

[00:13:47] Speaker 03:
Thanks.

[00:14:09] Speaker 00:
Good morning, and may it please the court.

[00:14:11] Speaker 00:
Rachel Tim on behalf of the United States.

[00:14:14] Speaker 00:
Mr. Cooper's claims fail.

[00:14:16] Speaker 00:
And except that this court should remand for the limited purpose of resentencing within the statutory maximum on counts one and two, this court should affirm Mr. Cooper's convictions and sentence for several reasons.

[00:14:30] Speaker 00:
With respect to the multiplicity claim, this court applies a five factor totality of the circumstances test

[00:14:36] Speaker 03:
Are you now acknowledging that this is not for plane error, that we should apply our normal standard here?

[00:14:43] Speaker 00:
The government's position is that plane error review still applies to this case.

[00:14:48] Speaker 03:
Well, what's your reaction to Mr. Zucker's point that he did what the rules require?

[00:14:52] Speaker 03:
He made the motion and the court deferred ruling until after trial.

[00:14:58] Speaker 00:
Your honor, the United States position is actually that the fact that Mr. Cooper raised two issues in his motion to dismiss is actually ways in the government's favor in this case because that makes the court's ruling on his motion to dismiss based on multiplicity clear.

[00:15:15] Speaker 00:
Because of this and because the court expressly stated that it was deferring ruling until the verdict, Mr. Cooper's counsel had the responsibility to raise this objection if a verdict was returned guilty, which in fact it was.

[00:15:32] Speaker 03:
But why?

[00:15:32] Speaker 03:
He raised it pretrial and the court deferred its ruling until after trial.

[00:15:38] Speaker 03:
As he said, sure, it would have been nice if he had done it, but do you know any case

[00:15:42] Speaker 03:
Do you know of any authority at all that under a circumstances like this, council had to renew the motion?

[00:15:52] Speaker 00:
I could not find a case directly on point where the motion was made with respect to multiplicity.

[00:15:58] Speaker 00:
In this court's opinion in United States versus Anderson, which is a case that's cited in the United States brief, the court determined that the true objection in a similar multiplicity claim was that the sentence on the multiplicitous count itself was illegal, and stated that the appropriate time to

[00:16:21] Speaker 00:
to object to that sentence was after sentencing.

[00:16:25] Speaker 00:
The United States does recognize that in this court, the defendant, or in this case, the Anderson case, the defendant didn't raise this issue pre-trial.

[00:16:34] Speaker 00:
But other cases that support the government's position, like the- That's a major difference.

[00:16:39] Speaker 03:
I mean, it's just not the same case.

[00:16:41] Speaker 00:
It is different.

[00:16:43] Speaker 03:
It's like irrelevant.

[00:16:46] Speaker 00:
This case is also not unlike a case where a defendant files a pretrial motion in limine under Rule 12 and the court defers ruling as in the Galati case, which is an evidentiary question, and that's a Seventh Circuit opinion cited by the United States, and in that case,

[00:17:04] Speaker 00:
The court expressly conditioned the pretrial ruling and then found that because the defendant didn't raise his objection at the time that the evidence came in at trial, that the court's review was for plain error.

[00:17:17] Speaker 00:
The cases that deal with multiplicity really underpin the United States position, because as the court can see, these cases are highly fact dependent.

[00:17:28] Speaker 00:
And for this reason, the district court should have had the opportunity to make the determination, because the district court was a court.

[00:17:35] Speaker 02:
Well, the district court did have the opportunity.

[00:17:38] Speaker 02:
The issue we're wrestling with was that it wasn't prompted.

[00:17:46] Speaker 02:
In the United States position... The issue was raised and he said, court defer is ruling.

[00:17:53] Speaker 00:
The United States' position is that the court's ruling and stating that its ruling was deferred until after verdict created a responsibility of the defendant to raise the objection at the end of trial, even still, even under a de novo review.

[00:18:11] Speaker 00:
OK, why don't you just go on to that now?

[00:18:15] Speaker 03:
Just go on to the argument about multiplicity.

[00:18:17] Speaker 00:
The five factors in this case established that Mr. Cooper entered into two separate and distinct conspiratorial agreements.

[00:18:28] Speaker 02:
Do you have any case where the interdependence is so extreme as this case that the other four factors somehow or other outweighed it?

[00:18:41] Speaker 00:
Well, in the United States versus Machia, that case, the Ninth Circuit found that the conspiracies had relative interdependence, but did actually find that that favor still weighed in favor of finding two conspiracies.

[00:18:58] Speaker 00:
That case is actually not that much different from this case.

[00:19:02] Speaker 00:
And in fact, the criminal objectives in that case

[00:19:08] Speaker 00:
to distribute bootleg gasoline and avoid taxes is actually, those are much more closely related than the objectives in this case.

[00:19:18] Speaker 02:
And in the Macchia case... Was that a deal where one conspiracy is to move money one way and the other conspiracy is in exchange for the first to move money the other way?

[00:19:33] Speaker 02:
It seems like a contract.

[00:19:34] Speaker 02:
It is a contract.

[00:19:36] Speaker 02:
I mean, contract experiences seem kind of similar.

[00:19:43] Speaker 00:
That case is distinguishable for the reasons that Your Honor pointed out.

[00:19:48] Speaker 00:
But in Machia, the defendants did rely on the same network to distribute the bootleg gasoline, which is not unlike interdependence in this case.

[00:19:58] Speaker 00:
In this case, I would point out...

[00:20:01] Speaker 02:
But it isn't.

[00:20:03] Speaker 02:
It's just that roughly the same people engaged in Nokia in kind of similar transactions at somewhat different times.

[00:20:15] Speaker 02:
But it wasn't A goes, sends money to B, and B sends money to C, and that's the deal, which is the deal here.

[00:20:24] Speaker 00:
I would point out that at the time that the theft conspiracy was first agreed to, which was at least by May 15th of 2013, there was no evidence in the record that Mr. Frederick had stated or implied that he expected to receive something in return.

[00:20:44] Speaker 00:
And by that date, on May 15th of 2013, the theft conspiracy was already in full force.

[00:20:50] Speaker 00:
That's evidenced by the website that SDS Construction created indicating that they had really just grossly exaggerating SDS's capabilities.

[00:21:02] Speaker 00:
That's indicated by the signing of the $1.4 million contract for $500,000 worth of work.

[00:21:08] Speaker 00:
And that's indicated by Mr. Frederick's acts in signing that contract without first going to the board, which he had done numerous times before.

[00:21:19] Speaker 00:
when signing contracts for such an expenditure.

[00:21:22] Speaker 00:
That's evidenced by the fact that by June 4th, before the second conspiracy was entered into, STS had already received five checks, totaling about $23,000.

[00:21:34] Speaker 00:
For some work that had been performed, but a lot of work that had not been performed, by the time that these parties went to look at that house in Upper Marlboro in mid to late June of 2013, the theft conspiracy, which at least began on May 15, 2013, was already in full force.

[00:21:56] Speaker 00:
Mr. Frederick may have had in his mind at the time that he agreed to enter into the theft conspiracy that he wanted to ask for something in return or would pocket that and ask for something in return, doesn't change what was actually established at the time of the agreement.

[00:22:16] Speaker 02:
I see that- Even on your account, it seems as if

[00:22:20] Speaker 02:
a substantial period of the activity of the conspiracy is a flat-out exchange.

[00:22:30] Speaker 00:
That's true.

[00:22:30] Speaker 02:
Not an exchange for corrupt practices.

[00:22:34] Speaker 00:
And the government did have to establish that for a scheme to defraud, which is different from a conspiracy under account too.

[00:22:41] Speaker 00:
However, the overlap in the agreements is not dispositive, and that's another point that's well demonstrated by mafia.

[00:22:48] Speaker 02:
We have something more than overlap here, right?

[00:22:53] Speaker 00:
There is a relation, but each of the counts that could have stood alone.

[00:23:00] Speaker 00:
For example, the conspiracy charging count two, these parties would have violated the law no matter where that money came from.

[00:23:08] Speaker 00:
The unlawful labor payment

[00:23:10] Speaker 00:
from STS Construction Company to the manager of Local 657 was unlawful, regardless of where the money came from.

[00:23:19] Speaker 00:
In this case, it did come from Local 657's bank account.

[00:23:25] Speaker 00:
And I see that I'm almost out of time.

[00:23:27] Speaker 03:
Do you want to say anything about the sentencing issue?

[00:23:30] Speaker 00:
I would like to address the sentencing issue.

[00:23:34] Speaker 00:
With respect to the fiduciary enhancement issue, I would like to clarify the record in the guidelines calculation.

[00:23:40] Speaker 00:
The district court applied section 2E5.1 on the basis of count 3.

[00:23:45] Speaker 00:
That is the count Mr. Cooper was convicted of on a theory of aiding and abetting.

[00:23:49] Speaker 00:
And that is found on the joint appendix page 124, the sentencing transcript.

[00:23:54] Speaker 00:
Mr. Cooper did not assert error to this application in his opening brief.

[00:23:59] Speaker 00:
Thus, he's waived any objection to the application of 2E5.1 on the basis of count 3.

[00:24:04] Speaker 00:
Moreover, at sentencing, when the district court explained that Count 3 formed the basis of 2E5.1, defense counsel responded, I'm not quarreling with that.

[00:24:14] Speaker 00:
And the district court went on to explain how the district court thought that the aiding and abetting of a fiduciary was the basis of Count 3, quoted language from Count 3, and made it clear that the district court knew it was applying 2E5.1 on the basis of Count 3.

[00:24:29] Speaker 00:
This is not an error.

[00:24:31] Speaker 00:
Mr. Cooper's guidelines calculation is correct, up to the point that he indicates that the wire fraud statute in the statutory index leads the court to 2B1.1.

[00:24:41] Speaker 00:
But what he leaves out, and this is crucial, and the government didn't have the opportunity to respond to this because he did waive this argument in his opening brief, 2B1.1 has a cross-reference section.

[00:24:56] Speaker 00:
And that cross-reference section, C3,

[00:25:00] Speaker 00:
under that guidelines applies to this case.

[00:25:03] Speaker 00:
And that C3 in 2B1.1 states that when a defendant is convicted under a number of statutes, including 1343, and the conduct set forth in the count of conviction establishes an offense specifically covered by another guideline in Chapter 2,

[00:25:23] Speaker 00:
apply that guideline.

[00:25:25] Speaker 00:
So in this case, through 2X2.1, all the way up to 2B1.1, going to the cross section in C3, the district court properly applied the other guideline section, which is the labor and racketeering bribery and kickback guideline section to count three.

[00:25:46] Speaker 00:
And the district court made it clear that he understood that this was a bribery

[00:25:52] Speaker 00:
and kickback scheme.

[00:25:54] Speaker 00:
At this point, if the court doesn't have any other questions, I could answer Judge Henderson's question about the government's position on sentencing, but... Why don't you do that real quick?

[00:26:05] Speaker 00:
Okay.

[00:26:07] Speaker 00:
Judge Henderson, the answer to your question, at least from the government's perspective, is that under the sentencing doctrine, or the sentencing package doctrine, that this court

[00:26:18] Speaker 00:
should, if the court rules in favor of the government on either the multiplicity issue or the sentencing enhancement, this court should remand for resentencing as a whole, especially if one of the convictions is vacated.

[00:26:34] Speaker 03:
Thank you.

[00:26:36] Speaker 03:
Thank you.

[00:26:37] Speaker 03:
Did Mr. Zucker have any time left?

[00:26:47] Speaker 01:
Just two quick points.

[00:26:48] Speaker 01:
I think the prosecution's factual claim about the $23,000 that preceded the June date is revealing.

[00:26:55] Speaker 01:
This is a $1.7 million conspiracy, and the $23,000 is relatively chump change.

[00:27:02] Speaker 01:
It doesn't really reflect much of a criminal activity.

[00:27:05] Speaker 01:
There was work done that might have been inflated.

[00:27:08] Speaker 01:
It was at the point when the decision was made to buy the house, which was the kickback to Frederick, that the money got serious.

[00:27:15] Speaker 01:
That next day, or within the next two days, there were hundreds of thousands of dollars that were given to SDS from the union that Frederick authorized.

[00:27:25] Speaker 01:
And that's where it shows the interrelationship, and that's where the quid pro quo is most revealed.

[00:27:32] Speaker 01:
I disagree with the prosecution.

[00:27:33] Speaker 01:
I believe that the judge in his

[00:27:37] Speaker 01:
Pre-sentencing memo indicated that 2E5.1 applied it to Count 2, not to Count 3, and that's where the fiduciary relationship enhancement comes in.

[00:27:46] Speaker 01:
But even if I am mistaken, and even if the judge used 2E5.1 in sentencing on Count 3, rather than 2B1.1, it really shouldn't matter because the issue is Cooper was still not a fiduciary, and he shouldn't get the fiduciary enhancement because the codefendant was a fiduciary.

[00:28:05] Speaker 01:
If there's anything else.

[00:28:10] Speaker 01:
Okay.

[00:28:11] Speaker 03:
Thank you.

[00:28:11] Speaker 03:
Thank you.

[00:28:12] Speaker 03:
Case submitted.