[00:00:01] Speaker 02:
Place number 17-3057 at town.

[00:00:05] Speaker 00:
United States of America versus Hercar Cooper, also known as the Car Appellant.

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Mr. Young for the Appellant Bryant, Mr. Hart for the Appellant Cooper, Ms.

[00:00:16] Speaker 00:
Kelly for the Appellant.

[00:00:27] Speaker 05:
May it please the Court, my name is Brian Young and I represent the Appellant, Brian Bryant.

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I'd like to reserve one minute of my time for a bottle.

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The judgment of the district court against Brian Bryant should be reversed for two reasons.

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The district court should have granted a mistrial for IRS Special Agent LaRose's improper testimony, and two, the district court calculated the loss amount at sentencing in an arbitrary manner that overstated Brian Bryant's role in the alleged conspiracy.

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This court has repeatedly made clear that non-expert summary and overview testimony presents obvious and pervasive dangers, and that such testimony should be closely examined.

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Each of the dangers arose in Agent Larose's testimony, and his testimony does not withstand close examination.

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First, Agent LaRosa's testimony served as additional evidence or as corroborative of the truth of the underlying testimony and evidence.

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He usurped the role of the jury by offering conclusions on disputed issues of fact.

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First, he testified that Brian Bryant controlled bank accounts that were not in Brian Bryant's name.

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He testified that checks were fraudulent and account balances consisted of proceeds of fraudulently obtained Treasury checks.

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Third, he testified that certain signatures were purported while others were as they appeared to be, even though he was not a handwriting expert.

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Additionally, LaRose facilitated the subtle introduction of hearsay testimony.

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What LaRose knew and testified concerning China Watkins' bank account was necessarily derived from her out-of-court witness statement.

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Larose did the same for purported victim Vincent Short, who had not testified before Larose was on the scene.

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Nevertheless, Agent Larose testified that returns completed in Short's name were fraudulent.

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The third danger that this court has identified as being problematic with non-expert summary and overview testimony is that it gives the government an additional closing argument.

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And LaRose's testimony was an additional.

[00:02:40] Speaker 04:
I am somewhat confused about what his LaRose's status was.

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Was he a summary witness?

[00:02:49] Speaker 05:
Your Honor, he was both a summary witness and an overview witness.

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A summary witness in that he did to some extent testify, I mean testify about witnesses who had already testified, but he also was an overview witness and that he testified for China Watkins and Vincent Short even though they had not testified.

[00:03:09] Speaker 04:
Well, if he was a summary witness, how do you explain the judge's admonition that he should

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only testify about what he learned in the investigation and not what he heard during the trial.

[00:03:24] Speaker 04:
Your Honor, I don't recall on the record exactly when that admonition was given, but I think the problem- It was on page, it was on the first day of trial, I think, or the seventh, at page 149 to 150.

[00:03:39] Speaker 05:
Yes, Your Honor.

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My recollection is, though, he had already given the problematic testimony before that particular admonition was given.

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And so he had already testified about China Watkins, for example, that Brian Bryant controlled her bank account, and then the admonition was given.

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So the problematic aspects of his testimony were already before the jury.

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What I'm leading up to is that if he's not a summary witness in the sense that

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The IRS puts, not the IRS, but the Department of Justice Tax Division puts these IRS special agents and has them seated at council table during the whole trial, and then they're the last witness the government usually calls.

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But if he's not a summary witness, then what was the basis for allowing him to be an exception to the witness rule?

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The basis for him being allowed to sit in the courtroom is, I know that it was objected to.

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In the record itself, I don't think that there was... But you haven't erased that or appealed.

[00:04:38] Speaker 05:
No, Your Honor.

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Not that particular aspect of this case.

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Right.

[00:04:44] Speaker 05:
To Your Honor's point is that he was both an overview witness and a summary witness, and I don't think that the nature of his testimony or his role in the trial really became clear until, again, he testified on the seventh, eighth, and ninth day of trial towards the close of the case.

[00:05:00] Speaker 05:
And towards the close of the case, he offered an additional closing argument for the government, which this court has said is a particularly inherent danger of this kind of witness.

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LaRose went through each count of the indictment and shared his opinion, essentially that Brian Bryant was guilty of each of the charged counts.

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In other words,

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As this court has said before, in other cases, an experienced law enforcement agent has looked at the case and made a decision that Bryant was guilty and conveyed to the jury that they should do the same.

[00:05:28] Speaker 01:
How does his testimony in that regard differ from the testimony that was at issue in Lemire?

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The testimony in Lemire was

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In this particular case, Lemire, what Agent LaRose did was go through each count and the indictment at the very end before the close of the case and explain and basically say that why Brian Bryant was guilty.

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And Lemire, my recollection is the trial court decided that his testimony, the IRS agents or the agents who

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was actually testifying as to how cash flows went through certain offshore accounts was merely consistent with the underlying evidence, and so there was no harm, I think, was the analysis in Lemire.

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So I think that the particular point here is that LaRose was making a closing argument for the government.

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And that particular aspect of the Lemire expert was not really addressed in a very thorough fashion because the court said that there was no harm because the underlying evidence was consistent with the expert's testimony.

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The district court in analyzing whether or not Larose had made an additional closing argument said that, well, no one would make a closing argument out of this.

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But that's not really the point.

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The point is whether or not Larose added to the government's closing argument, whether or not Larose himself was making the argument that should be made by counsel, that this court and more

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said is the problematic aspect of the expert testimony because it gives the government an extra closing argument.

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The agent is not testifying or summarizing underlying documents, but basically making argument of counsel.

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Even if this court were determined there was no abuse of discretion with respect to Loro's summary testimony or that any error was harmless, then the case should still be remanded for resentencing.

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The loss calculation method was arbitrary, and the resulting loss amount overstated Brian's participation in the Ledge conspiracy.

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The only loss supported by the evidence was the amount of gain.

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At sentencing, the government proposed in the district court accepted, without meaningful comment or scrutiny, that the loss amount was $650,000, $3.06.

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Now, the loss amount is a reflection of the government's effort to saddle Bryant with more than the gain amount, but the amount in the accounts of his name.

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but less than the total amount of losses, which was $1.75 million.

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The issue is that the method the government used to calculate losses for Bryant is unsupported in the record and built on inferences and assumptions that are incapable of being understood on review.

[00:08:21] Speaker 05:
It's unclear to me if I'm out of time, I apologize.

[00:08:23] Speaker 01:
You are.

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The clock's going up.

[00:08:25] Speaker 01:
Yeah, it ends, it goes down, and then your time's up, and then it starts going up.

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I apologize.

[00:08:30] Speaker 01:
No worries, it can be confusing.

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We'll give you some time on rebuttal.

[00:08:34] Speaker 01:
Okay, thank you so much.

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If it please the Court, my name is Dennis Hart.

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I'm here this morning on behalf of T'Carroll Cooper.

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I'd like to concentrate my focus on the search and seizure question we raised in our brief with the Court's permission.

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We begin with the proposition that a statement given by a defendant in order to be admissible must be the product of a free and unconstrained choice of its maker.

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That cannot be said of Mr. Kara's – Cooper's – statements introduced in her trial.

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Yes, we agree there were no handcuffs.

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Yes, we agree there was no bright, shiny lights in her face.

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Yes, we agreed the guns were not drawn, but that simplistic view, I think, must be rejected for a more detailed analysis.

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of what went on, I think, as December 1st raid of Mrs. Cooper's house.

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It was a police-dominated atmosphere in her house that morning, that early morning.

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I tried to count the officers involved.

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At one time, I think we said in our brief, there were 12, but I think there were even more than that.

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Perhaps those outside, there were NPD officers present also.

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So there were at least 12 officers in her apartment.

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I think it's critical to understand that

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the agents in this case did not allow her to leave her house.

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And while it may have been done in her home,

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while it may have been done under circumstances that Agent, IRS Agent Schick thought were comfortable, that cannot be said of Ms.

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Cooper's state of mind at that time.

[00:10:32] Speaker 01:
When you say that did not allow her to leave the house, are you talking about the ride to school?

[00:10:37] Speaker 01:
Yes.

[00:10:37] Speaker 01:
OK.

[00:10:38] Speaker 03:
Yes.

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And that, I'd like to argue that the atmosphere was dominating from the very start, but all I have are the spare facts of Agent Schick.

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demonstrated in the hearing.

[00:10:50] Speaker 04:
Isn't that true of every search warrant?

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Whenever a search warrant is executed in a home, the obligation of the occupant is to stand aside.

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And in that respect, it's not custody necessarily, because if it were, then every statement given by the occupant of the home

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during the execution of the search warrant would be excluded because it's not given with Miranda warnings.

[00:11:20] Speaker 04:
How do you distinguish this particular situation from the run-of-the-mill execution of a search warrant?

[00:11:27] Speaker 04:
The school trip.

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The school trip.

[00:11:30] Speaker 04:
Yes, Your Honor.

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And the government's response to that is that we have a policy that whenever anybody leaves premises that are being searched, they can't reenter until the search is completed.

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That's Agent Schick's policy.

[00:11:46] Speaker 04:
Yeah.

[00:11:46] Speaker 04:
So what's your answer to that?

[00:11:48] Speaker 03:
She didn't have to come back.

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She didn't have to come back.

[00:11:51] Speaker 03:
Ms.

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Cooper did not have to return to the house.

[00:11:53] Speaker 04:
Did she ask to not go back to the home?

[00:11:57] Speaker 03:
No, she wasn't given that alternative.

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She was told that if she wanted to take her daughter to school that morning, the agents had to take her and her daughter in the police car.

[00:12:06] Speaker 04:
Or else she couldn't get back into the house?

[00:12:09] Speaker 03:
No.

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That option was not given to her.

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She was told if she wanted to take her daughter to school that morning, she had to be in the custody of the IRS agents,

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All the time.

[00:12:23] Speaker 02:
Is it established that they told her they must go with her or that they offered to go with her?

[00:12:29] Speaker 02:
No, it wasn't an offer.

[00:12:30] Speaker 02:
It seems like there's some facts that are not established below.

[00:12:33] Speaker 03:
Well, yes.

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It is not entirely clear, but my concrete impression is that she could only go with the IRS agents.

[00:12:42] Speaker 02:
So your concrete impression, but doesn't the defendant here bear the burden of proof to show that she was in custody in this context?

[00:12:52] Speaker 03:
Yes, I suppose she does.

[00:12:54] Speaker 01:
It's your suppression motion, so I would think that's right.

[00:12:57] Speaker 03:
Yes.

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And I think we do that with the school trip.

[00:13:01] Speaker 02:
But we don't know exactly what happened or what was said.

[00:13:04] Speaker 03:
No, and that's the result of the government's presentation at trial and in the motion hearing.

[00:13:08] Speaker 03:
But if the defendant bears the burden of proof.

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I see what your honor says, yes.

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But I think we can restack inclusion from the facts presented.

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There may be missing parts.

[00:13:17] Speaker 01:
How can we reach them?

[00:13:18] Speaker 01:
I mean, suppose the dialogue went something like this.

[00:13:20] Speaker 01:
It went, oh, first of all, the interview starts out, and she's told as voluntary.

[00:13:26] Speaker 01:
And then she says, at some point, I need to get my daughter to school.

[00:13:30] Speaker 01:
And if the officer said, oh, sure, that's fine, would it be OK if we went along with you?

[00:13:36] Speaker 01:
And she says, I know that you don't believe that that's what happened, but we don't have the facts to know what, in fact, did.

[00:13:44] Speaker 01:
And if that were the dialogue, and she just said sure,

[00:13:47] Speaker 01:
Well, I don't think from those facts we'd necessarily... Would you be making the argument that she was in custody by virtue of... Well, based on those facts, I'd hate to commit myself, but your honor's right.

[00:13:57] Speaker 03:
If she said, is it okay if we go with you, then my argument would be much diminished.

[00:14:03] Speaker 04:
What do you do with the fact that after the search was finished, the police left?

[00:14:10] Speaker 04:
They didn't arrest her?

[00:14:14] Speaker 04:
I don't think that...

[00:14:16] Speaker 03:
Yes, I don't think that's dispositive of the conditions of custody during her questioning.

[00:14:22] Speaker 04:
But it's certainly powerful evidence that she wasn't in custody while the search was.

[00:14:27] Speaker 04:
Custody within the meaning of Miranda.

[00:14:30] Speaker 03:
I disagree.

[00:14:31] Speaker 03:
I think the meaning of custody is a significant limitation on your freedom.

[00:14:35] Speaker 03:
And when the officers told her she could only take her daughter to go to school in their custody.

[00:14:41] Speaker 04:
Well, a search is a significant intrusion on your freedom, too.

[00:14:45] Speaker 04:
Yes, it is.

[00:14:45] Speaker 04:
You have to stand around or stand aside.

[00:14:49] Speaker 04:
If they want to go into the bedroom, you want to go into the bedroom while they're searching the bedroom, you can't do it.

[00:14:55] Speaker 03:
That's correct, Your Honor.

[00:14:59] Speaker 03:
I see that my time has expired, and we'll submit on the rest of the issues.

[00:15:02] Speaker 01:
Thank you.

[00:15:04] Speaker 01:
You still have a minute, but that's fine.

[00:15:06] Speaker 01:
We'll give it to you in rebuttal.

[00:15:12] Speaker 00:
Good morning, Your Honors.

[00:15:13] Speaker 00:
May it please the Court?

[00:15:14] Speaker 00:
Kathryn Kelly on behalf of the United States.

[00:15:16] Speaker 00:
If I may, I'll just start with the suppression motion first.

[00:15:19] Speaker 00:
Your Honor, in this case, it's

[00:15:21] Speaker 00:
not the evidence that is in the record that Ms.

[00:15:25] Speaker 00:
Cooper was told that if she wanted to take her daughter to school, that she must go in the agent's car and be driven and then be taken back to her home.

[00:15:33] Speaker 00:
That's simply not in the record.

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At most all agencies, she was not able to recall a number of the specifics about what was said during

[00:15:42] Speaker 00:
the time at Ms.

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Cooper's house, mainly because it had been over six years since the time of the search warrant execution.

[00:15:50] Speaker 04:
However, what was... Did she have an automobile?

[00:15:56] Speaker 00:
Did Ms.

[00:15:56] Speaker 00:
Cooper have an automobile?

[00:15:58] Speaker 00:
That was not ever addressed in the record runner, I'm not sure.

[00:16:01] Speaker 04:
How old was the daughter?

[00:16:02] Speaker 00:
The daughter was either six or seven years old.

[00:16:06] Speaker 00:
What?

[00:16:06] Speaker 00:
The daughter was around six or seven years old.

[00:16:10] Speaker 00:
The indication

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in the record is that there is no evidence that she could only take the child to school if she was driven by the agents.

[00:16:19] Speaker 00:
There's no evidence that she was forced into the car for interview purposes either.

[00:16:24] Speaker 00:
And there's no evidence that indicates that the trip to school was done in any way to coerce statements from Ms.

[00:16:31] Speaker 00:
Cooper.

[00:16:32] Speaker 00:
Agent Schick testified that the reason for accompanying Ms.

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Cooper to school was due to agent safety along the lines of the fact that if you allow somebody to leave

[00:16:42] Speaker 00:
the premises where a search warrant is being executed, then if they leave on their own, they cannot come back to the premises until the search is finished for agent safety simply because you just don't know where the person goes after that or what they might be doing, if they've spoken to other people, if they've obtained a weapon, and so forth.

[00:17:01] Speaker 00:
So ultimately here, the drive to school does not change the fact that there was no custody going on during this search warrant in the first place.

[00:17:09] Speaker 01:
Why does it even matter what the purpose of the

[00:17:12] Speaker 01:
accompaniment was.

[00:17:13] Speaker 01:
That's not an issue when we're trying to decide whether something's in custody, right?

[00:17:20] Speaker 00:
It's not necessarily what the... I believe it is really in this case because it's really the question about the ride is whether or not that had some coercive effect on Ms.

[00:17:28] Speaker 01:
Cooper in... But if none of this is communicated to her, in other words, their officers may have an impression in their mind about why they feel they need to accompany her.

[00:17:38] Speaker 00:
Correct.

[00:17:39] Speaker 01:
But if none of it's communicated to her, then what does any of this matter?

[00:17:44] Speaker 01:
And we just don't know whether it was communicated to her, right?

[00:17:46] Speaker 01:
The officer testified that he couldn't recall whether anything was communicated to her.

[00:17:50] Speaker 00:
Right.

[00:17:50] Speaker 00:
The officer couldn't recall whether or not anything was communicated to her along those lines.

[00:17:54] Speaker 00:
But my point is, ultimately, there's no evidence that she was told, if you don't get in the car with us, then you're

[00:18:01] Speaker 00:
you're stuck, you can't come back to your house, or that there's no evidence that driving the daughter to school was in some manner coercive of her later statements or anything.

[00:18:12] Speaker 00:
In addition to that, there is an indication, particularly in the trial record, that Ms.

[00:18:19] Speaker 00:
Cooper

[00:18:20] Speaker 00:
had stated that she wanted to stop the interview when a break was necessary to take her daughter to school.

[00:18:25] Speaker 00:
That in the government's mind indicates that Cooper had exerted some control over the interview.

[00:18:31] Speaker 00:
She's saying in some respects that she wants to stop the interview because her daughter is going to be late for school.

[00:18:38] Speaker 00:
It indicates that she wasn't being unduly cowed by the agents even though they were in her home.

[00:18:45] Speaker 00:
Your Honor is correct in saying the search warrant executions, even though they are inherently police dominated, that does not mean that they're coercive or create custodial situations for Miranda purposes.

[00:18:57] Speaker 00:
We cited the Perrin decision from the Eighth Circuit for that point.

[00:19:03] Speaker 00:
And for those reasons, and given the other factors that are not here, as defense counsel has stated, there was no lights in her face, no one yelled at her, there were no guns drawn, and so forth.

[00:19:14] Speaker 00:
So the overall interview situation was not coercive either, and notably it was done in her home as well.

[00:19:23] Speaker 00:
In turning to Mr. Brian Bryant's claims, the summary witness, Agent Larose here, did exactly as a non-expert summary witness is supposed to do.

[00:19:34] Speaker 00:
He helped the jury analyze and evaluate and organize

[00:19:38] Speaker 00:
a variety of factually complex evidence that came in fragmentally through a number of witnesses throughout trial.

[00:19:46] Speaker 00:
And the court, although they've noticed obvious dangers in regard to summary witness testimony, those dangers were simply not present here.

[00:19:55] Speaker 00:
He was not an overview witness, Your Honor, in this case.

[00:19:58] Speaker 00:
He was presented before trial and during trial as a summary witness.

[00:20:03] Speaker 00:
The court gave the instruction.

[00:20:05] Speaker 01:
What do you mean, then?

[00:20:06] Speaker 01:
What's the distinction between an overview and a summary?

[00:20:09] Speaker 00:
Your Honor, in the Moore case, you were distinguishing the overview witness as somebody, usually a government agent who testifies at the beginning of trial about what you were going to hear during the trial about investigatory techniques that are used often on this court head.

[00:20:29] Speaker 00:
found that sort of overview testimony problematic because they were, the overview witness ended up talking about testimony that never came in later in trial and so forth and often was talking about inadmissible evidence that came as

[00:20:46] Speaker 00:
part of their investigation, but was never part of the trial evidence.

[00:20:49] Speaker 00:
So this court does not allow overview witnesses.

[00:20:53] Speaker 04:
I'm sorry.

[00:20:53] Speaker 00:
I'm sorry.

[00:20:54] Speaker 00:
I'm finished with that.

[00:20:55] Speaker 04:
If he's a summary witness, then how do you account for the... Was the 7th of February the first day of trial?

[00:21:02] Speaker 00:
No, the 7th of February was the first day that Agent Larose testified, and his testimony continued on to the 8th.

[00:21:07] Speaker 04:
How do you account for the admonition the court gave at page 149 of the transcript of that

[00:21:16] Speaker 04:
day saying it would be preferable if you could limit your testimony to what you learned in your investigation.

[00:21:25] Speaker 00:
If I'm recalling that correctly, Your Honor, at that point, Agent LaRose had almost testified in regard to Takara Cooper, not Brian Bryant, that

[00:21:37] Speaker 00:
Yes, that's correct, that he was about to testify something along the lines that she had an agreement with Antonio Cooper regarding receiving tax refund checks at her home.

[00:21:50] Speaker 00:
And at that point, the court stopped Agent LaRose and did not allow him to testify in that regard.

[00:22:00] Speaker 04:
Are you looking at the transcript now?

[00:22:03] Speaker 00:
I am, Your Honor.

[00:22:05] Speaker 04:
Okay, at the bottom of 149 to the top of 150, you need to explain to Epstein and Morose, you need to explain where you're getting your information from, and then you can speak to your information, but I think it has to be, I think, information you have received elsewhere instead of here.

[00:22:29] Speaker 00:
My understanding, and I did find that strange as I was reading the transcript as well, Your Honor, but my understanding of it ultimately was that the court was stopping them and stopping Agent LaRose and essentially telling him to stick to what he's learned from his review of the documents, not testimony that he's heard in trial.

[00:22:50] Speaker 04:
And again, it was a situation where... Well, he was a summary witness only with respect to the charts then, is that what you're saying?

[00:22:56] Speaker 00:
No, I mean, certainly a summary witness can testify more broadly to, in certain times to, as Agent Larose did here, to kind of guide the jury as to what he's about to speak to next and so forth.

[00:23:11] Speaker 00:
My understanding of what the court was really saying is that, for this part, don't be making conclusions like there was an agreement between Takara Cooper and Antonio Cooper about receiving the checks.

[00:23:24] Speaker 00:
That's not what he's supposed to do.

[00:23:26] Speaker 00:
Because that, of course, whether or not there was an agreement is a jury question.

[00:23:31] Speaker 04:
Why was he needed in this case to testify about what government witnesses had to say?

[00:23:40] Speaker 00:
What he was doing in this case was usually guiding the jury to what the next topic was, for instance, because we had a huge number of witnesses in this case and then a number, just a vast number of documents

[00:23:53] Speaker 00:
huge number of bank accounts are involved and so forth.

[00:23:56] Speaker 04:
The documents I understand, it's rule 1006 of the Federal Rules of Evidence.

[00:24:01] Speaker 04:
What I don't understand is why he is, if he was, I'm just not sure if he was authorized to testify about what the government witnesses had to say to summarize their testimony.

[00:24:14] Speaker 00:
Well, under Lemire, there's not a problem with saying what a government witness has said.

[00:24:18] Speaker 00:
And I would agree that the way the court made that statement in the record on the 7th of February was unusual.

[00:24:25] Speaker 00:
But he was mainly, in this case, reviewing documents and so forth.

[00:24:31] Speaker 04:
What's the law of the other circuits on summary witnesses?

[00:24:36] Speaker 04:
They're most often used in tax cases for some reason.

[00:24:40] Speaker 04:
I don't know why.

[00:24:42] Speaker 00:
I mean, my understanding is that you are allowed to speak to some degree, and I imagine not parrot everything that has been said in trial, but remind the jury of what has been said and draw conclusions that are appropriate for a witness rather than the government to make from the evidence that's come before them.

[00:25:01] Speaker 04:
Mrs. Cooper and Mr. Bryan have appointed counsel.

[00:25:05] Speaker 00:
I am not sure.

[00:25:06] Speaker 00:
It was Mr. Seligman who was his attorney, and I don't recall whether he was appointed or whether or not he was retained, Your Honor.

[00:25:11] Speaker 04:
You see, the government has a tremendous advantage because the specialization of the IRS is not paid by the hour.

[00:25:19] Speaker 04:
And it's not paid by anybody except the federal government.

[00:25:23] Speaker 04:
On the other hand, for a defense attorney to get somebody to sit as a summary witness in the courtroom for two weeks or three weeks or a month entails an enormous expense.

[00:25:36] Speaker 04:
So in that respect, the government is at a tremendous advantage in being able to put on these so-called summary witnesses.

[00:25:43] Speaker 00:
Well, I mean, the government certainly used the summary witnesses, but the defense had all the documentation and all the summary charts and so forth well in advance of trial, which was something that was pointed out specifically in trial.

[00:25:55] Speaker 00:
And the case law is that it's not problematic to use a summary witness.

[00:26:00] Speaker 00:
And just because a summary witness ends up being helpful to the government does not make it problematic legally.

[00:26:09] Speaker 00:
I would point out, too, that they're not limited

[00:26:13] Speaker 01:
The government uses them in all kinds of cases, it looks like, right?

[00:26:15] Speaker 00:
They often do, yes.

[00:26:18] Speaker 01:
I know that you draw a distinction between summary and overview, but these witnesses who come in and are talking about evidence at trial, just giving summary slash overview testimony about the evidence at trial, because Moore was a drug and murder case.

[00:26:35] Speaker 01:
Lamir was a fraud case.

[00:26:37] Speaker 01:
This is a tax case.

[00:26:38] Speaker 00:
Correct, but I would say Moore is very distinguishable in that.

[00:26:41] Speaker 00:
The agent in that case was testifying as an overview witness as the first government witness.

[00:26:47] Speaker 00:
He had heard no testimony whatsoever.

[00:26:49] Speaker 00:
He was not testifying as a summary witness like here where Agent LaRose is summarizing evidence that's already come in.

[00:26:55] Speaker 01:
Is the distinction ex post versus ex ante?

[00:26:58] Speaker 00:
It's a very serious distinction, yes.

[00:27:00] Speaker 01:
And that's the distinction?

[00:27:01] Speaker 00:
That's my understanding.

[00:27:02] Speaker 01:
Whether you come first or whether you come later.

[00:27:04] Speaker 00:
Yes, because as a summary witness, you're summarizing evidence that's already come in here, particularly the documentary evidence, leading the jury to be able to understand the mountain of bank records, tax returns, checks, and so forth that came in through a variety of witnesses during trial.

[00:27:19] Speaker 01:
But I guess I don't see the fundamental distinction as long as, even if you do it ex ante, you testify about things that are in fact introduced.

[00:27:27] Speaker 01:
I get the danger that if you testify about things that are never introduced, then that's a problem.

[00:27:32] Speaker 00:
Right.

[00:27:32] Speaker 00:
And this court, and I believe in the Moore case, and I'm not sure if there are others as well, has noted that even if you had an overview witness, they ultimately ended up being harmless because the evidence that they talked about that wasn't in yet did ultimately come into trial.

[00:27:47] Speaker 00:
And here, that's the same thing.

[00:27:49] Speaker 00:
The testimony by Ms.

[00:27:51] Speaker 00:
Watkins that came after and by the victim, Mr. Short, that came after,

[00:27:56] Speaker 00:
they both ended up being consistent with what Agent Larose had testified to ahead of time.

[00:28:02] Speaker 00:
And the only reason that happened really was because Ms.

[00:28:04] Speaker 00:
Watkins' son had gotten ill and they had to call her out of turn.

[00:28:09] Speaker 00:
In addition, the statements that were made about purported signatures versus Brian Bryan's signature and so forth, as we've said in our brief, that was all supported by other evidence and trial by the time those statements were made.

[00:28:24] Speaker 00:
And none of the conclusions that he made in his testimony were really very controversial.

[00:28:30] Speaker 00:
It really wasn't a major question by the time you got on the stand that we were talking about false and fraudulent tax returns and refund checks and so forth.

[00:28:36] Speaker 00:
So Agent Larose's testimony was legally fine in this case.

[00:28:44] Speaker 00:
And I see that I'm almost out of time.

[00:28:47] Speaker 00:
So I'll just quickly go to the loss calculation, if Your Honors will allow me.

[00:28:52] Speaker 00:
In that situation, Your Honor, the loss amount is definitely not the amount of the gain.

[00:28:56] Speaker 00:
As Mr. Bryant's attorney conceded at sentencing, he was seeking a loss amount of $224,000, which was the amount of checks that were negotiated through

[00:29:09] Speaker 00:
bank accounts that Mr. Brian Bryant had used during the scheme.

[00:29:15] Speaker 00:
The government amply supported its calculations of the $650,000 loss amount.

[00:29:24] Speaker 00:
And I think really the bottom line is that the government supported what it was saying in its calculations through the text of its sentencing memorandum

[00:29:34] Speaker 00:
during its statements at the sentencing itself and through exhibits that were attached to the government's sentencing memorandum.

[00:29:41] Speaker 00:
The only thing that really is perhaps not directly in front of the sentencing court at that time is like another spreadsheet that lays out the exact mathematical calculations.

[00:29:53] Speaker 00:
For instance, like the double counting was removed.

[00:29:55] Speaker 00:
The government said they had not double counted amounts and so forth.

[00:29:59] Speaker 00:
And so there isn't a

[00:30:00] Speaker 00:
spreadsheet that shows we took out this check and so forth.

[00:30:03] Speaker 00:
But beyond that, everything that was necessary was in front of the district court.

[00:30:08] Speaker 00:
And the district court accurately and correctly found a $650,000 loss amount.

[00:30:15] Speaker 00:
If the court has no further questions, I respectfully request that you affirm the judgments of the district court.

[00:30:22] Speaker 04:
What does the $4.6 million with respect to Cooper, what does that represent?

[00:30:28] Speaker 00:
That represents both the

[00:30:31] Speaker 00:
The checks that were sent to her house, it represented the checks that were sent to the five addresses that were used to receive tax checks during the scheme, plus the checks that were deposited into Scheme Bank accounts during her period of participation in the scheme.

[00:30:59] Speaker 04:
And the government asserted that it's not just the checks that were sent to her address.

[00:31:03] Speaker 00:
That's correct.

[00:31:04] Speaker 00:
It's not just those checks.

[00:31:05] Speaker 00:
Our argument was that it was reasonably foreseeable for her to know, based on her particular actions in the conspiracy, that other bank accounts were being used and that additional addresses were being used.

[00:31:20] Speaker 04:
Was this ever a five-year period?

[00:31:22] Speaker 00:
This was over, for her particular loss amount, it was from the period of a little, about two and a half years, February 26, 2010 until June 15, 2012.

[00:31:36] Speaker 00:
So it was limited to her particular work during this conspiracy, that time period.

[00:31:40] Speaker 01:
The time period was limited by her participation, but the amounts weren't limited to her

[00:31:47] Speaker 01:
direct involvement.

[00:31:48] Speaker 01:
They encompassed anybody who was involved during that time period.

[00:31:50] Speaker 00:
Those who were reasonably foreseeable to her, yes.

[00:31:53] Speaker 00:
Thank you, Your Honors.

[00:31:54] Speaker 01:
Thank you, Counsel.

[00:31:57] Speaker 01:
Mr. Yang will give you two minutes.

[00:32:04] Speaker 05:
Thank you, Your Honor.

[00:32:05] Speaker 05:
I just want to address one brief point about this distinction between overview and summary witnesses.

[00:32:11] Speaker 05:
I don't think it's necessarily a matter of whether or not the witness testifies at the beginning of case on day one or whether or not the witness testifies later in the case.

[00:32:19] Speaker 05:
It's about whether or not the witness is testifying about evidence that has not yet been introduced.

[00:32:25] Speaker 05:
And Your Honor's point about whether or not it matters if the evidence later comes in

[00:32:29] Speaker 05:
for example, in the instance of Ms.

[00:32:31] Speaker 05:
Watkins, matters as well because we're not talking about two fact witnesses.

[00:32:35] Speaker 05:
We're talking about an IRS special agent first introducing the testimony to the jury.

[00:32:40] Speaker 05:
And courts have repeatedly said how powerful that testimony is coming from an IRS agent.

[00:32:46] Speaker 05:
And Ms.

[00:32:47] Speaker 05:
Watkins' testimony

[00:32:49] Speaker 05:
was different.

[00:32:50] Speaker 05:
She said that Brian Bryant had access to her account.

[00:32:53] Speaker 05:
She didn't testify, Brian Bryant controlled my account, Brian Bryant opened my account.

[00:32:57] Speaker 05:
She testified as to discrete matters about her account.

[00:33:01] Speaker 05:
He had access, he had starter checks, but Asia LaRose had already testified that Brian Bryant controlled her account.

[00:33:07] Speaker 05:
So it does matter.

[00:33:09] Speaker 04:
Does the prosecution mention that in opening statements?

[00:33:13] Speaker 05:
whether or not Brian Bryant controlled the account.

[00:33:16] Speaker 05:
Certainly in closing statements.

[00:33:18] Speaker 05:
No, I'm asking about the opening.

[00:33:19] Speaker 05:
Yes, Your Honor.

[00:33:21] Speaker 05:
My recollection is that the prosecution did argue to that fact.

[00:33:25] Speaker 04:
The jury saw it or anticipated that there'd be evidence of that.

[00:33:30] Speaker 05:
Sure.

[00:33:31] Speaker 05:
Obviously, there's an important distinction between argument of counsel and the evidence presented, particularly when a court instructs the jury to pay attention to the evidence, not the argument of counsel when they differ.

[00:33:40] Speaker 05:
And finally, about the loss amount.

[00:33:44] Speaker 05:
This is a really important point, because as the government concedes, the loss amount is based on assumptions and inferences that are not necessarily in the record.

[00:33:54] Speaker 05:
We've put a very simple argument to the government, support your math, support the amount that you picked.

[00:34:01] Speaker 05:
And their answer is, well, we have a spreadsheet that isn't in the record, that we didn't present to the district court,

[00:34:08] Speaker 05:
and we didn't present to Brian Bryant, but trust us that we removed double counting claims and trust us that we're relying on accounts of co-conspirators to come up with our loss amount, even though those accounts were opened outside of the period that Brian Bryant was alleged to have participated in the conspiracy.

[00:34:25] Speaker 05:
So it's just, it's a trust us, it's a trust us argument that when we're talking about years on a sentence, should matter.

[00:34:33] Speaker 05:
The court should be very concerned about that.

[00:34:37] Speaker 05:
In conclusion, we would ask that the district court should have granted a mispride for IRS Special Agent Larose's improper summary testimony and that the loss amount was arbitrarily calculated.

[00:34:47] Speaker 05:
Thank you, Your Honor.

[00:34:48] Speaker 01:
Thank you.

[00:34:55] Speaker 01:
Mr. Hart will give you two minutes as well.

[00:34:57] Speaker 03:
Thank you, Your Honor.

[00:35:00] Speaker 03:
In response to Judge Randolph's question, Ms.

[00:35:03] Speaker 03:
Cooper was represented by appointed counsel.

[00:35:06] Speaker 03:
And I mention that because I've been here a few years, and I've never seen a request for a defense expert to sit in.

[00:35:18] Speaker 03:
And the reason for that is because everyone knows no district court would ever grant that voucher.

[00:35:24] Speaker 03:
So I think the court is correct that it does present an imbalance.

[00:35:28] Speaker 03:
The second point I'd like to make is about loss.

[00:35:30] Speaker 03:
Although we did not raise this in our initial argument, the government did in response to questions.

[00:35:36] Speaker 03:
I have read the loss calculation by the government several times.

[00:35:40] Speaker 03:
I do not understand it.

[00:35:43] Speaker 03:
If the court reads it, understands it, and considers it reasonable, then we lose this argument.

[00:35:49] Speaker 03:
But I wish to point out that we did list the loss based on Agent LaRose's charts in our brief.

[00:35:56] Speaker 03:
And we came to the arithmetic conclusion, not the possibilities of loss.

[00:36:05] Speaker 03:
But as we point out in our brief, 235 checks sent to her address, 214 were cashed.

[00:36:14] Speaker 03:
But that amounted to a loss in the neighborhood of $500,000, not the amount that the government.

[00:36:20] Speaker 03:
Now the government says, well, we include all the addresses.

[00:36:23] Speaker 03:
No evidence that Mrs. Cooper ever knew about all the addresses.

[00:36:28] Speaker 03:
We have to base our loss based on reasonable foreseeability.

[00:36:35] Speaker 01:
Finally, I want to challenge the government's argument in their brief that even if the suppression motion... On reasonable foreseeability, do you take issue with the proposition that even if the checks weren't associated with her particular address, it still could be reasonably foreseeable that checks would be associated with a different address?

[00:36:51] Speaker 03:
It could be if there were evidence of that, if she knew that other people received the checks.

[00:36:55] Speaker 03:
If there were evidence at trial that she knew that, there is not.

[00:36:58] Speaker 03:
Finally, I see my time is up, and that we should submit.

[00:37:03] Speaker 01:
Thank you.

[00:37:05] Speaker 01:
Thank you, Mr. Hart.

[00:37:06] Speaker 01:
Thank you, counsel.

[00:37:07] Speaker 01:
Mr. Young and Mr. Hart, you are appointed by the court to represent the appellants in this case, and the court appreciates your assistance.