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Case number 19-3079, United States of America versus Asim Doust, also known as Adam Doust, also known as Mohammed Asim Doust, also known as Mohammed Azim, appellants.

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Mr. Schwartz for the appellant, Mr. Meisler for the appellee.

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Good morning, counsel for appellant.

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Please begin.

[00:00:20] Speaker 01:
Good morning.

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May it please the court, my name is Aaron Schwartz on defendant appellant Adam Doust.

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The reason we are here today is because the district court suespante and improperly raised a statute of limitations argument which the government had waived.

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The district court then denied the defendant's post-trial motions based upon the same issue in which it improperly raised.

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The district court had no authority to raise clause three of the wartime suspension of limitations act.

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It was not raised in the government's brief and it was not raised during oral argument on the post-trial motions.

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So you draw no distinction between a waiver and presenting part of an argument and adding to it?

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So, Judge, thank you.

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I think what happened is that initially the district court itself, as you said, raised clause three.

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The government initially only argued clause one.

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The string of cases that I'm relying upon about the district court's authority, they talk about forfeiture and not waiver.

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And clearly, the government failing to raise it in their briefs or during oral argument and before the first opinion was released in this case, that was a waiver.

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And so the district court was out without authority.

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If it were a forfeiture, then what?

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If it were a forfeiture, I would refer to the Maloof versus the Islamic Republic of Iran case out of 2019 DC Court of Appeals.

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There are very narrow limited circumstances in which the courts can intervene.

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And actually another case, USXREL Totten versus Bombardier Corp says that the situation here, the government failing to make a number of arguments would not be an exceptional circumstance to the point where the district court could step in and essentially defeat the statute of limitations claims that we were making.

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Usually courts have discretion to excuse forfeitures.

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Why shouldn't we think of this as a question whether the district court abused its discretion?

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And in thinking about that question, take account of the other point Judge Rogers made, which is they did preserve a clause one argument.

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And frankly, there's not that much difference between these three clauses as I read the statute.

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So, Judge, first of all, I would resort back to the fact that I think that it was a waiver that occurred.

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I think it's pretty clear in this circuit that an argument not raised in a reply brief is waived.

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And

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you know, whether it was an abuse of discretion, again, there's a two-part test under Maloof.

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And the first is, you know, were there institutional interests of the judiciary implicated?

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And, you know, I don't think so.

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It's certainly not in a criminal case.

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I believe that the defendant is, you know, the most important here over, you know, judicial economy.

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The second part of that test is if both parties are present in litigation.

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And again Maloof states that the statute of limitations exists to protect the defendant.

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So, you know, whether it was an abuse of discretion I'm arguing that it completely lacked authority to intervene and basically

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violate the party presentation doctrine.

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The government is supposed to submit arguments.

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The defendant submits arguments.

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And the court acts as a neutral arbiter.

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And that didn't happen in this case.

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And it would have been one thing if it was an issue that was raised and maybe addressed.

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But this was the sole issue that the district court relied on to deny the defendant's claims, the ineffective assistance claims.

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And so that's why it's so important.

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Oh, do you want to push back on the suggestion that there's really not much difference between the three causes?

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Well, the if they're if they're so the district court held the clause one did not apply.

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Obviously, we're not challenging that.

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I do think there are important differences.

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I think Clause 2 addresses surplus property, real or personal property.

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And of course, the loan funds at issue here didn't apply, don't apply.

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And Clause 3 should be narrowly construed in favor of repose.

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You know, there was no rational nexus.

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There was no direct connection or direct relation to the authorized use of the military forces.

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In your research on Clause 2, while I understand your point that the legislative history ties it to the Surplus Property Act, have courts limited Clause 2?

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Or is there any suggestion it should be so limited

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The courts that have addressed Clause 2, they didn't really perform a lengthy analysis.

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But I don't think that the statutory history should be completely ignored.

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The Supreme Court's touched on it a number of times.

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And it's pretty clear that Clause 2 really only applies to movable property.

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make sure that chattel that was being used in wars could be disposed and even given to veterans that needed certain types of property to begin farming expeditions.

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I have to distinguish our cases and other circuits that say money is personal property.

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The case I cited in my brief, I thought was pretty on point.

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There was a seventh circuit case as well that talks about when a statute references only money, I'm sorry, when a statute references real or personal property, that's narrowing it down.

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I'm trying to find the case.

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It was respectfully it was a district court case in this circuit, but the case in the seventh circuit was the seventh circuit court of appeals.

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And I think it was

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If the court doesn't mind, I can find the citation.

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All right.

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Well, when you come back on rebuttal, if you want to point us to it.

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Yeah.

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I mean, it's in the brief.

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But I hope that does that answer your question between the distinction of each clause in the WSLA?

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Yep.

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OK.

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I understand your position.

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Sure.

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So again, it was ineffective assistance of counsel to not challenge any of the clauses.

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There was no case law research performed on either clause one or two.

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The trial counsel took the statute at base value and failed to recognize that there had been decades old Supreme Court precedent that addressed the elements test, which the district court agreed with in clause one.

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Because trial counsel did not conduct a reasonable investigation, there could have been no strategic decision to not challenge the indictment as time barred.

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What about counsel's explanation of how he viewed the charges and the interconnection of the wire fraud

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charges.

[00:09:08] Speaker 01:
Again, Judge, he took the statute at face value and didn't do any case law research.

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Well, I'm not sure that that is necessarily dispositive of an ineffective assistance of counsel claim.

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I mean, we have taken the position that if there's nothing out there, it's not necessarily a burden on counsel.

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Well, Judge, I would point you towards the Abney case, United States versus Abney.

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The question in that was whether counsel failed to seek a benefit for his client based upon one of two reasonably likely but uncertain interpretations of a statute.

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And that's really what happened here.

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There wasn't even a challenge to begin with.

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And of course the fact that we did win on the first clause, you know, shows that it was prejudicial and obviously resulting prejudice.

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Well, what about counsel's explanation in terms of the wire fraud counts?

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So initially we did challenge the wire fraud accounts.

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They're not an issue here because we do concede that there's an element of fraud that would put them under clause one.

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But I think what you may be referring to is his analysis of the money laundering counts, which he relied on the specified unlawful activity of being the fraud.

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But of course the elements test focuses on the statute, not what the specified unlawful activity would be.

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Um, I do see I'm out of time.

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So if I could, uh, either reserve, uh, time for rebuttal or I can obviously continue to answer your questions.

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Let me be sure my colleagues, whether they have questions they'd like to ask now.

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Awesome.

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Thank you.

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All right.

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So we'll give you a couple of minutes rebuttal.

[00:11:11] Speaker 01:
Thank you very much.

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All right.

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Council for appellee.

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Good morning, Your Honor.

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May it please the Court, Scott Meisler from the Department of Justice on behalf of the United States.

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Can all members of the Court hear me okay?

[00:11:24] Speaker 06:
Yes.

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Thank you so much.

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I'll begin, I'll address the statute of limitations issue, which of course we believe has to be resolved through the lens of ineffective assistance of counsel, through the Strickland two-part test showing deficient performance and prejudice.

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And I guess I'll begin, Your Honor, with the point that Mr. Schwartz started with, the waiver

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or forfeiture issue, we don't believe under the Supreme Court's decision in Wood versus Millard, which is the main authority the appellant has invoked, that this amounts to a waiver in any way.

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Wood was a case, Your Honor, where the state in the habeas corpus proceeding had acknowledged in the district court the availability of a possible statute of limitations defense against habeas corpus relief and basically elected, explicitly elected,

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not to raise that and ask the court to resolve the issue of case on the merits.

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And then the appellate court for the first time asked the parties to brief statute of limitations and resolve the case on those grounds.

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This I think is quite different.

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As the members of the court have pointed out in colloquy with Mr. Schwartz, the government did raise the WSLA here and it raised clause one.

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At a motions hearing, the district court expressed the view that this case was perhaps best resolved under clause three.

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And when it issued its memorandum of opinion, it indicated that it was not inclined to address clause three without giving the defendant, Mr. Dost, a chance to brief the issue.

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And so this is a case where- As I understand appellant's argument, it's, and I tried to push back on this, assume it's a forfeiture.

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As I understand his argument, it is inappropriate an abuse of discretion to the district court to suggest

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a defense that the government itself had not suggested.

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It cited the statute, but it wasn't relying on clause three.

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Yes, Your Honor.

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I don't think, if that's viewed for the abuse of discretion framework, I don't think it's the abuse of discretion at all where the court raises it.

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The government

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And then both sides, your honor, have a chance to brief it.

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Right, that to me is the main difference here is this is not a situation where the Council preparing for trial, figure out what arguments to present What witnesses to call what documents to introduce

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Yes, Your Honor, but I think this is different because this to me seems like a legal argument under a tolling statute that's raised after trial.

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You don't have that issue of preparation.

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And again, the court, I think, ameliorated any risk of prejudice by allowing both sides to brief the issue and only deciding the question afterwards.

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And in fact, Your Honor, the court ultimately received, I believe, two rounds of briefing on this because it first

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it first issued an order where it held that this tolling issue was properly won for the jury and then only on reconsideration after another round of briefing, did it ultimately decide the prejudice question that turns on the construction of clause three of the WSLA.

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So I really don't think there's any kind of prejudice.

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And if the court is looking at this as a forfeiture and the court's discretion, I think the court should find no abuse of discretion in these circumstances.

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may not be prejudice because everyone had a chance to brief clause three after the district court raised it.

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But what's the justification for the district court injecting this new issue into the case?

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Normally, we do enforce forfeitures and there has to be some good reason to excuse one.

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Well, here, Your Honor, recall the posture of this case.

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This is one of these issues being raised through the lens of ineffective assistance for the first time after trial.

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And I think that's one distinction.

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And I think under a number of cases that I wish I had handy but don't, I think this court and the Supreme Court have a number of times said when a legal issue, a legal issue in a statute is raised before a court, the court is not usually limited to the exact arguments the party makes under that statute.

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This is not a situation where

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the court is injecting something entirely new into a case.

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As your honor mentioned, differences may exist among the clauses in the statute, but there are times subtle.

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And so I don't think it's outside the range of district court discretion to tee up an issue that hasn't been precisely identified by the parties, especially when the court gives both sides a chance, a fulsome chance to address the issue.

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Now turning- Let me ask you, let's assume

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preservation on both sides.

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So the defense timely raised limitations.

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So we take out the IAC overlay and you timely raised clause three as well as clause one.

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On those assumptions,

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Would this, do you disagree with the district court that on those assumptions, this issue would have been submitted to the jury?

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I think that's a very close and hard question, your honor, in light of this court's decision in Wilson that the court discussed at length.

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In our briefing below in response to the motion for consideration, we said that we thought the court's position on this issue was reasonable.

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I think it's difficult because- It seems like it's

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It seems like the applicability of the statute or not is part and parcel of a statute of limitations defense, which is normally a merits defense that a jury would resolve, correct?

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I think it depends, Your Honor.

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I mean, to my mind, these issues exist kind of on a spectrum where you have, for example, withdrawal.

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Assuming the facts are genuinely disputed.

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I still think in some cases, even if the facts are disputed,

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the application or not of a tolling provision can, in some instances, be decided by the court pre-trial, like in the Flores case from the Second Circuit that Mr. Davis decided on the fugitive tolling provision.

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So that's why I was saying before, I think these exist in a spectrum where you have, for example, consummation of the offense during the limitations period or withdrawal from a conspiracy that would render indictment untimely.

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Those issues, I do think, go to the jury.

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The fugitive tolling provision, some courts have held, does not.

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And I think Wilson makes this a harder case than maybe it would be in other circuits, right?

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Because here you do have a tolling provision.

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That was a tolling agreement that involved whether certain defenses were directly related to the period of time that the defendant had waived under the tolling agreement.

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So I think the district court's reading of Wilson was reasonable.

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On the other hand, I do think that many limitations issues under the WSLA can be resolved pre-trial.

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So if we assume that a properly raised defense along these lines would have gone to the jury, why isn't there prejudice, Strickland prejudice in so far as the defendant lost chance to

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have the jury decide that issue?

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And the district court itself told us that had the issue been properly teed up, you would have submitted it to the jury.

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So I think, Your Honor, and that might be enough if the defendant's claim were simply that he wanted a chance to get this, sorry.

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I think that might be enough, Your Honor, if the defendant's claim was these counts never should have gone to the jury, right, in the first place.

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because, sorry, let me take a step back here.

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I think that either way you look at it, really,

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the district court had to resolve the question it ultimately did in its reconsideration order, which was, regardless of the identity of the fact finder, the identity of the decider, is there a reasonable probability that that fact finder, that decider would have resolved the question in his favor?

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I didn't read the order that way.

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I'll take another look at it.

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But I read it as saying that if the district court were the appropriate fact finder,

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he would resolve the limitations issue in your favor.

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That's different from saying that no reasonable jury, if given the chance, could have resolved it in the defendant's favor.

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I think that's right.

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But I don't think that no reasonable jury standard is the right one under Strickland.

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I think you'd have to say, is there a reasonable probability that.

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Reasonable likelihood.

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Yes.

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There's a reasonable likelihood that the defense would have prevailed.

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And we don't know.

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All we know on that question is what the district court said in the first order, which is that

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there's enough evidence on both sides to send that to the jury.

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Right.

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And I think there, Your Honor, we made this comparison in our footnote 13 of our brief on page 51.

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I would compare it to the Nouellier case from this court, where the question was whether an effective assistance counsel involving a duress defense, whether a defense counsel should have put on

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expert testimony regarding battered woman syndrome, uh, to get, to justify essentially an instruction under rest.

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And this court made very clear in that scenario, it wasn't just enough to say, okay, the first step is, should you have put this on to get the instruction?

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You also have to show in the Strickland posture, a reasonable probability that once you got to the jury, it would have resolved this in your favor.

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I think this, that to me is the right analogy here.

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You can't just say,

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should I have gotten to the jury on this?

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The question is, if I got there, have I shown a reasonable probability that the jury would have resolved this in my favor?

[00:21:39] Speaker 02:
No, I agree with you on that.

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But in order to rule for the government here, we would have to find no reasonable probability that the jury would have resolved it for the defendant, correct?

[00:21:54] Speaker 00:
That's correct.

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And again, that's on prong two, right?

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I think we've made an argument under prong one of the Strickland test, right?

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That council was not deficient given our construction of clause three.

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And of course, the other arguments we've raised below and raised here about clauses one and clause two.

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So we think we have arguments under both prong one of Strickland and prong two, just to be clear, Your Honor.

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But I think on the prejudice question, on the question of how the jury would have resolved this, I do think the best indication is the district court's view.

[00:22:26] Speaker 00:
The district court, which presided over this trial, heard the evidence, including defense counsels reading the statement from Colonel Britton about the importance of Mr. Dost's mining operation to stability in post-war and post-combat operation in Afghanistan.

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The court heard that evidence, was the most familiar with it.

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And so while the court was, as Your Honor correctly pointed out,

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explaining how it would have resolved the case if it was the proper decider.

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I think that's the best metric for this court's review.

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I don't understand Strickland to embrace that view at all.

[00:22:57] Speaker 06:
But let me ask you, what's your response to appellant's argument about clause two?

[00:23:06] Speaker 00:
About the real property versus the movable property issue, Your Honor?

[00:23:11] Speaker 00:
So I think that on the face of the statute,

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it was reasonable for defense counsel to read real or personal property as applying to money or funds.

[00:23:21] Speaker 00:
To take one step back, Your Honor.

[00:23:23] Speaker 06:
Well, clearly the legislative history of that clause had nothing to do with moving money, all right?

[00:23:31] Speaker 06:
Congress had something else in mind.

[00:23:34] Speaker 06:
And I just want to understand how you move beyond that when Congress had

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and knew it had all these other provisions to get at money.

[00:23:48] Speaker 00:
So at two points, Schreiner, I think you are correct, and Mr. Dose is correct, that the original version of clause two referred solely to the certain property under the Surplus Property Act, which perhaps would have lent itself to a reading that a personal property is movable property.

[00:24:06] Speaker 00:
And I'll be honest, Schreiner, this is not in our brief.

[00:24:09] Speaker 00:
But if you actually look at the way the statute evolved,

[00:24:11] Speaker 00:
Congress amended the statute in 1948 to make the WSLA permanent and not just a temporary wartime measure, it actually moved the clauses around and broadened the language of what is now clause two to its current form.

[00:24:26] Speaker 00:
And so it does not have just a reference to the Surplus Property Act, that temporary act.

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It instead embraces what we think on its face for as much broader language, real or personal

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property and it has terms like custody or control that we think are often used to refer to money and funds.

[00:24:43] Speaker 00:
The bank fraud statute, for example, your honor, 18 USC 1344 talks about custody or control.

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I think no one disagrees that the bank fraud statute applies to money.

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So we've included some cases, your honor, including the 10 circuit decision in Delia, North Carolina district court case and a third circuit case construing a federal embezzlement statute that all use

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language like personal property and read that to include funds.

[00:25:09] Speaker 00:
So again, because the court is looking at this through the lens of ineffective assistance of counsel and asking whether a reasonable lawyer, a competent lawyer looking at this case back in 2017 with a very limited body of case law could have concluded that clause two reaches this and that he shouldn't raise the objection, I think the answer is yes.

[00:25:28] Speaker 00:
And that's the framework we think you should look at it.

[00:25:29] Speaker 00:
The court doesn't have to decide here.

[00:25:31] Speaker 00:
It doesn't have to authoritatively construe clause two

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to find that counsel was not ineffective for taking the statute on his face, looking at dictionary definitions like the one in black and adopting a plain language construction of clause two that is supported, we think, by the case law that does exist on it.

[00:25:50] Speaker 02:
Can I ask a different question about clause two and how the three clauses relate?

[00:25:58] Speaker 02:
At the end of clause three, there is this language

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which is connected with or related to prosecution of the war.

[00:26:08] Speaker 02:
Does that clause modify just clause three or all three clauses?

[00:26:15] Speaker 00:
Yes.

[00:26:15] Speaker 00:
The government's position, your honor, is that it modifies only clause three.

[00:26:18] Speaker 00:
Some of that drafting history I just met, I think supports that.

[00:26:21] Speaker 00:
And I should be honest, your honor, the district court decision in Nishi out of Hawaii, cited by Mr. Dose reached the opposite result.

[00:26:28] Speaker 00:
The government has appealed that decision and it's being argued in the ninth circuit in January.

[00:26:32] Speaker 02:
So I mean, that reading seems perhaps grammatically more plausible, but it would produce some seemingly astounding results.

[00:26:45] Speaker 02:
I mean, you would have to say that take clause one, any offense involving fraud against the United States, you would have to say there's been no statute of limitations in

[00:26:59] Speaker 02:
False Claims Act Medicare claims since the AUMF.

[00:27:04] Speaker 02:
That's pretty implausible.

[00:27:08] Speaker 00:
Yes.

[00:27:09] Speaker 00:
Well, a couple of points.

[00:27:10] Speaker 00:
It is broad.

[00:27:11] Speaker 00:
I don't think it's perhaps as broad as your suggestion because in the Kellogg-Brown and Root case, the Supreme Court decided in 2015, it held that the WSLA applies only to criminal offenses and not civil offenses.

[00:27:24] Speaker 00:
So in terms of civil liability under the False Claims Act,

[00:27:27] Speaker 00:
that's not gonna be a problem, I think, for defendants.

[00:27:30] Speaker 02:
A criminal prosecution of a doctor for fraudulent billing of Medicare has no statute of limitations since the AUMF was enacted.

[00:27:42] Speaker 00:
That's your question.

[00:27:44] Speaker 00:
Yes, I mean, so the short answer is, I haven't thought through that statute, but the government's position is that the directly connected to language at the end of clause three applies only to clause three under the last antecedent canon.

[00:27:56] Speaker 02:
Assuming I disagree with that, then the clause two issue raises the same issue we've been talking about in connection with clause three, which is, is this kind of development project related to prosecution of the war, which may be a fairly litigable issue.

[00:28:23] Speaker 00:
Yes, I think if you rejected our view of the statute, then the language would apply across clauses one and two, ostensibly, if the court adopted the niche view.

[00:28:32] Speaker 00:
I would say, of course, that hasn't been briefed here.

[00:28:35] Speaker 00:
And if the court is concerned about that in any way, then I think that's all the more reason to look at this on prong one.

[00:28:41] Speaker 00:
Could a reasonable lawyer back in 2017

[00:28:45] Speaker 02:
It just goes to that.

[00:28:46] Speaker 02:
That's the thought that I perhaps clumsily expressed at the beginning when I said I thought the clauses were similar.

[00:28:55] Speaker 02:
If the nub of the defendant's argument is that this case is not something connected to prosecution of the war,

[00:29:08] Speaker 02:
there's at least an argument that that concern covers clause two no less than clause three when we're assessing the lawyer's competence.

[00:29:18] Speaker 00:
Right, I'm not going to disagree with your honor on that given the decision initially in the pending appeal on the Ninth Circuit there, but I guess I would suggest that the defendant has conceded here and of course the district court itself has applied a construction of clause one that would reach the major frauds and wire fraud counts here without asking whether those are directly connected to the war.

[00:29:37] Speaker 02:
Yeah, clause one is out of the case on different grounds, on the strong elements test, but clause two may or may not.

[00:29:46] Speaker 02:
Right.

[00:29:47] Speaker 02:
Okay.

[00:29:47] Speaker 04:
Mr. Reiser, just to be clear, the clause that you think applies only to the, starting with which is connected, you're saying applies only to clause three, does that also include the following clause or with any disposition of termination inventory?

[00:30:04] Speaker 04:
You're saying that whole thing applies only to clause three?

[00:30:09] Speaker 00:
Let me just look at the statute.

[00:30:10] Speaker 00:
You're gonna give me one moment.

[00:30:11] Speaker 00:
I'm sorry.

[00:30:12] Speaker 04:
I think grammatically, it would have to all apply only to clause three or all apply to clauses one, two and three.

[00:30:26] Speaker 00:
You know, your honor, I haven't looked back candidly at the government's breach in the Nishi case to see how it handles that.

[00:30:34] Speaker 00:
And so with that appeal pending, I don't want to

[00:30:36] Speaker 00:
misspeak and misrepresent the government's position on that issue.

[00:30:41] Speaker 00:
I can certainly get the court a letter or I can refer the court to the Nishi case, which is 1910405.

[00:30:48] Speaker 00:
And again, I think because part of our argument there depends on the enactment history of the statute, I actually just don't recall, Your Honor, whether that piece of the statute was part of the original version or was added in the order I mentioned in the 1948 codification.

[00:31:05] Speaker 00:
The court has no further questions.

[00:31:06] Speaker 00:
We would ask that the judgment below be affirmed.

[00:31:17] Speaker 06:
Where we're talking about multiplicity in the false statement counts, and you're discussing Mangiere.

[00:31:30] Speaker 06:
but you're saying by analogy, this is quoting your brief, that makes the unit of prosecution in a section 2197 end case such as this one, quote, the induced illegal transaction, not the made falsehood, end of quote.

[00:31:54] Speaker 06:
What does the phrase such as this one mean?

[00:32:01] Speaker 06:
In other words, the basic question is, what is the limitation?

[00:32:05] Speaker 06:
And that seems to be the limitation you're suggesting.

[00:32:10] Speaker 06:
And I'm not sure I know what that means.

[00:32:12] Speaker 00:
Your Honor, I think what, if I'm remembering correctly, Your Honor, I think I was just trying to capture the notion there, Your Honor, that Mangieri had, Mangieri itself had announced kind of a general rule in the duplicity context for

[00:32:28] Speaker 00:
false statements under 10-14, under 18 USC 10-14, and then said it didn't foreclose the possibility that under some circumstances.

[00:32:36] Speaker 06:
I know.

[00:32:36] Speaker 00:
Multiple.

[00:32:37] Speaker 06:
How about this one?

[00:32:39] Speaker 06:
All right.

[00:32:40] Speaker 06:
What I'm getting at is the district court followed the 10th Circuit, yet we have a series of cases where we looked at the language of the indictment.

[00:32:54] Speaker 06:
All right.

[00:32:55] Speaker 06:
And the district court really didn't discuss that in addressing the multiplicity argument.

[00:33:05] Speaker 06:
Rather, he looked to the terms of the loan.

[00:33:16] Speaker 06:
And you don't pick that up in your brief.

[00:33:18] Speaker 06:
And that's why I'm trying to understand, what does the government think is the limitation here?

[00:33:27] Speaker 00:
Sorry, on the limitation on.

[00:33:30] Speaker 06:
Multiplicity.

[00:33:32] Speaker 00:
Right.

[00:33:33] Speaker 00:
So I think, Your Honor, our view is that this is a different case than Mongeri because each of the fraudulent representations, even though they were in the same disbursement request on the loan, triggered a payment in a different amount to a different payee in a different country.

[00:33:52] Speaker 00:
So we think that.

[00:33:54] Speaker 06:
I'm just, I want to be clear.

[00:34:00] Speaker 06:
That could mean every dollar, you know, in every hundred dollars dispersed to different vendors.

[00:34:09] Speaker 06:
But I thought your reference on page 41 was trying to draw some way of limiting what was going on here.

[00:34:20] Speaker 06:
And I thought maybe it was a reference to the terms of the loan itself.

[00:34:29] Speaker 06:
I don't know.

[00:34:30] Speaker 06:
That's why I'm trying to understand.

[00:34:31] Speaker 00:
No, I take your point, Your Honor.

[00:34:34] Speaker 00:
I would distinguish the two different multiplicity arguments.

[00:34:38] Speaker 00:
I do think on the first multiplicity argument regarding the major fraud counts, that the terms of the loan itself is very important.

[00:34:44] Speaker 00:
The district court itself focused on that.

[00:34:46] Speaker 00:
And the indictment did, too.

[00:34:48] Speaker 00:
And I would point, Your Honor, to paragraph page 8 of the appellant's appendix, paragraph 4a.

[00:34:55] Speaker 00:
Mr. Dost highlights that.

[00:34:57] Speaker 06:
I'm looking at the indictment on my copy, appendix 14.

[00:35:07] Speaker 06:
This is appellant's appendix.

[00:35:09] Speaker 00:
Yes.

[00:35:15] Speaker 00:
So at page 14 of the version I'm looking at, Your Honor, it addresses the money laundering counts, which I think are not part of the, as I understood, is not part of the multiplicity challenge.

[00:35:27] Speaker 00:
The multiple state challenge concerns the accounts above that.

[00:35:30] Speaker 06:
False statements.

[00:35:32] Speaker 00:
Exactly, Your Honor.

[00:35:33] Speaker 00:
For me, that is, at least for me, that's on page, I guess that's on top of page 13.

[00:35:39] Speaker 06:
On page 13.

[00:35:40] Speaker 00:
Yes, exactly.

[00:35:41] Speaker 06:
On page 13 and 15.

[00:35:44] Speaker 00:
Right.

[00:35:44] Speaker 00:
And so our view on those is, yes, they are within the same disbursement requests.

[00:35:48] Speaker 00:
And so under Mangieri,

[00:35:50] Speaker 00:
um, right, those could potentially under Mongeri, those could be properly included in a single count.

[00:35:57] Speaker 00:
Now that would raise the question, right, of whether the defendant would be entitled to a specific unanimity instruction to ensure that, uh, this is obviously in the hypothetical world where this is in one count to ensure that jurors unanimously agreed on which false statement they found Mr. Dose to have knowingly made.

[00:36:13] Speaker 06:
In other words, my underlying point of my question is it seems to me that this circuit

[00:36:18] Speaker 06:
and the 10th circuit have taken somewhat different approaches toward this question.

[00:36:25] Speaker 06:
And in Bruce, we cited cases that suggest that the way the 10th circuit is viewing this is not the way we would view it.

[00:36:38] Speaker 06:
And I'm trying to understand, and I know the district court applied the 10th circuit approach is how this

[00:36:48] Speaker 06:
argument fits within our circuit's view.

[00:36:53] Speaker 06:
And of course, as you point out, everybody's arguing by analogy to a banking statute, but still.

[00:37:02] Speaker 00:
Right.

[00:37:02] Speaker 00:
So I think, Your Honor, I tried to say this earlier, and I'm not sure if I was clear about it, but I want to distinguish between the false statements count that Your Honor's just looking at in the indictment there.

[00:37:11] Speaker 00:
That is a case where I think the court did apply Mangieri directly, right?

[00:37:15] Speaker 00:
In footnote 12 of Mangieri, the court, when it said,

[00:37:17] Speaker 00:
we're leading up to open the possibility that in some cases, two false statements in a single document can be two counts cited to a Fifth Circuit case.

[00:37:25] Speaker 00:
I think that it's this way.

[00:37:25] Speaker 06:
Round and round and round.

[00:37:27] Speaker 06:
My question is, what does the government mean when it says such as this one?

[00:37:31] Speaker 00:
Right.

[00:37:31] Speaker 06:
No mangiere left it open.

[00:37:33] Speaker 06:
But what is it?

[00:37:35] Speaker 00:
Yeah.

[00:37:35] Speaker 00:
I think I was just trying to say, Your Honor, that just like this court mangiere, we're not suggesting that there is necessarily an across the board rule that multiple false statements in a single disbursement request

[00:37:47] Speaker 00:
can be always be or can never be.

[00:37:49] Speaker 00:
That's what we understood Mungieri to say.

[00:37:51] Speaker 00:
We think the district court reasonably resolved that.

[00:37:53] Speaker 00:
I don't want to lead your honor confused about this.

[00:37:56] Speaker 00:
The 10 circuit issue.

[00:37:57] Speaker 06:
Is the argument of the government that where the loan itself calls for transactions that are discrete, that is not

[00:38:17] Speaker 06:
volatile of the multiplicity approach?

[00:38:22] Speaker 06:
In other words, in Bruce, we cited a case where somebody owed taxes over a 12-year period.

[00:38:28] Speaker 06:
So every year, he didn't pay his taxes.

[00:38:31] Speaker 06:
We said, well, that's just a course of conduct.

[00:38:34] Speaker 06:
So the argument here is that he took out this loan, and he didn't pay it back.

[00:38:43] Speaker 00:
So I think that is an area, Your Honor, where I think the district court did follow Bruce.

[00:38:48] Speaker 00:
Yes, it looked to the 10th Circuit as an, I think, a helpful summary of what kind of factors the courts have looked at in the bank fraud context, analogizing to major frauds cases.

[00:38:57] Speaker 00:
But what did Bruce say?

[00:38:58] Speaker 00:
Bruce said, like you said, Your Honor, look at the indictment.

[00:39:01] Speaker 00:
And I was trying to point, Your Honor, to a couple of pages ahead of where you were looking.

[00:39:04] Speaker 00:
Because I think a couple of pages ahead of there, you'll look, and this is on page, for me, this is page eight of the appendix.

[00:39:10] Speaker 00:
under manner and means of the scheme and artifice.

[00:39:14] Speaker 00:
It's paragraph 4A, where it says, DOST and others would obtain a $15.8 million loan from OPIC.

[00:39:21] Speaker 00:
That's a single loan, right, for development and maintenance of the marble mine.

[00:39:25] Speaker 00:
Thereafter, DOST and others would submit requests for disbursement of loan funds to cover alleged reimbursable costs of the marble mine.

[00:39:33] Speaker 00:
So I think the way the indictment describes the scheme is not as this single act of fraud and the inducement.

[00:39:40] Speaker 00:
continued fraud, not just a course of conduct.

[00:39:43] Speaker 06:
Bruce was concerned about notice to the defendant.

[00:39:46] Speaker 06:
That's why I'm on page 13, as opposed to this general statement, which could simply be this was a single transaction, a single loan from OPIC.

[00:39:58] Speaker 00:
Right.

[00:39:58] Speaker 00:
And I think, Your Honor, and before we get to page 13 on page 10, the box at the top sets forth these counts, right, in enumerated counts one, two, and three, different dates, different

[00:40:10] Speaker 00:
amounts of money, and right above that says, to wit, Deust and his consultants submitted to OPIC via email or in person three disbursement requests.

[00:40:18] Speaker 00:
So if you could give you a look at the way the indictment is structured, both in the allegations and in the actual enumeration of counts, and of course, other factors the district court considered, right, that Mr. Deust is signing a new promissory note for each disbursement request.

[00:40:33] Speaker 00:
He therefore has a new and different obligation to be truthful.

[00:40:37] Speaker 00:
And to take one step back, Your Honor,

[00:40:39] Speaker 00:
I think this is quite different than a case.

[00:40:40] Speaker 00:
You can imagine a case in which Mr. Dose lied to OPIC in his loan application and said, you know, he misrepresented the collateral or his ability to raise matching capital contributions, which was a condition of the loan.

[00:40:53] Speaker 00:
But then when it came time to submit the reimbursement requests, he was scrupulously honest on in April, July, December, scrupulously honest.

[00:41:01] Speaker 00:
That would be a one count case because

[00:41:04] Speaker 00:
He had another occasions to be dishonest.

[00:41:06] Speaker 00:
The actual financial risk and flow of money out of OPEX coffers occurred in three different stages.

[00:41:12] Speaker 00:
Multiplicity is, I think in these scheme cases, very fact specific.

[00:41:16] Speaker 00:
We think the district court correctly applied kind of consensus principles from Bruce and other circuits law.

[00:41:22] Speaker 00:
And again, because we're looking at this through the lens of ineffective assistance of counsel, you also have to ask, was counsel unreasonable, objectively unreasonable, would no competent lawyer have think this claim would have failed?

[00:41:33] Speaker 00:
That's the test for Primo versus Moore.

[00:41:42] Speaker 06:
Anything further, my colleagues?

[00:41:45] Speaker 04:
No, thank you.

[00:41:46] Speaker 06:
Thank you, Council.

[00:41:46] Speaker 04:
Thank you.

[00:41:48] Speaker 06:
Council for Appellant, we'll give you two minutes.

[00:41:52] Speaker 01:
Thank you.

[00:41:52] Speaker 01:
Thank you very much.

[00:41:53] Speaker 01:
So quickly, I would just like to point court to what I believe the correct standard of prejudice to apply in this case out of the Mohammed case, USB Mohammed.

[00:42:09] Speaker 01:
And that is, in assessing the prejudice, the ultimate question is whether the defendant has shown a reasonable probability

[00:42:18] Speaker 01:
And then adequate investigation in this case, it was case law.

[00:42:24] Speaker 01:
bringing to the attention of the time bar charges could have enabled trial counsel to so sufficient doubt to sway one juror.

[00:42:34] Speaker 01:
So it's not collectively what a jury would have done.

[00:42:37] Speaker 01:
Does the evidence sway one juror?

[00:42:40] Speaker 04:
And I think that's extremely- Mr. Schwartz, your brief on the timeliness point focuses primarily on the prejudice prong, but can you speak to the deficient performance to the first prong of Strickland with respect to timeliness?

[00:42:54] Speaker 01:
Just the timeliness.

[00:42:58] Speaker 01:
I think I talked about it a little bit in Abney.

[00:43:03] Speaker 01:
You know, looking at a statute that has reasonable interpretations going either way and failing to raise that statute, that would fall underneath the Abney case, which of course found deficient performance.

[00:43:18] Speaker 01:
And I think the exact wording in that case was the failure to act on a reasonable probability and probable interpretation of a statute that could benefit the client.

[00:43:29] Speaker 01:
Again, and Mohammed expands on that and says, you know, only when such a reasonable investigation in this case, case law research at all,

[00:43:42] Speaker 01:
you have to inform yourself in order to make a strategic decision.

[00:43:45] Speaker 01:
So that, again, goes to the deficient performance.

[00:43:49] Speaker 01:
And I think the US Supreme Court talked about it versus Alabama, 571 US 274.

[00:43:57] Speaker 01:
And that's an attorney's ignorance on a point of law, which is fundamental to his case, combined with failure to perform basic research.

[00:44:06] Speaker 01:
But that's actually the exact wording in that case, is unreasonable performance under Strickland.

[00:44:13] Speaker 01:
And I guess very quickly, I'll touch on the multiplicity issues, which I guess are prevalent in both the false statement and obviously the major fraud counts.

[00:44:30] Speaker 01:
The Bruce case

[00:44:32] Speaker 01:
was obviously correctly stated.

[00:44:33] Speaker 01:
And I believe that's the binding case here.

[00:44:38] Speaker 01:
There was a single scheme to defraud.

[00:44:40] Speaker 01:
It was the same victim, the same bank, and the same methods were used.

[00:44:44] Speaker 01:
And that's exactly what has happened in this case.

[00:44:48] Speaker 01:
And we talked about the 10th Circuit briefly.

[00:44:54] Speaker 01:
The Reitmeier case, I think, is also controlling, even though they have a different standard.

[00:44:59] Speaker 01:
What happened in that case is there was a,

[00:45:01] Speaker 01:
a claim for false payment initially made.

[00:45:05] Speaker 01:
And then there was a subsequent meeting where they made the same misrepresentations to garner the same amount of funds.

[00:45:13] Speaker 01:
So the financial risk was not new and there wasn't a separate set of funds.

[00:45:21] Speaker 01:
And that's exactly what happened here.

[00:45:22] Speaker 01:
The loan was approved and there were

[00:45:26] Speaker 01:
the alleged shell companies in this case had been created prior to the approval of the loan in our case.

[00:45:32] Speaker 01:
And he had alleged to have already received loans from other government agencies to fund the same equipment that he got from the OPIC loan.

[00:45:43] Speaker 01:
So, you know,

[00:45:46] Speaker 01:
The scheme was when the loan funds were approved.

[00:45:49] Speaker 01:
That is when the funds could no longer be used for any other loan applicant.

[00:45:56] Speaker 01:
And this circuit holds that that is when it is executed.

[00:46:00] Speaker 01:
And the disbursement requests were plainly just in furtherance of the scheme.

[00:46:08] Speaker 01:
So with that, I would ask the court to dismiss the time bar counts, dismiss the multiplicitous counts, and award a new trial based on ineffective assistance of counsel.

[00:46:20] Speaker 01:
Thank you very much.

[00:46:21] Speaker 06:
Thank you.

[00:46:21] Speaker 06:
We'll take the case under advisement.