[00:00:00] Speaker 00: Case number 21-3036, United States of America versus Derek Albuquatoa, also known as Dean Adam Ebellent. [00:00:09] Speaker 00: Mr. Zapp for the ebellent, Mr. Zier for the eboli. [00:00:18] Speaker 07: Morning, council. [00:00:18] Speaker 07: Mr. Zapp, please proceed when you're ready. [00:00:21] Speaker 07: Good morning. [00:00:23] Speaker 07: I have my COVID test. [00:00:26] Speaker 08: Remove my mask. [00:00:31] Speaker 08: Good morning, and may it please the court. [00:00:33] Speaker 08: My name is Bill Zapp. [00:00:34] Speaker 08: I'm here on behalf of the appellant, Mr. Abukhatwa, with me as my client, Don Jeffers. [00:00:41] Speaker 08: I'd like to reserve three minutes for rebuttal. [00:00:46] Speaker 08: Mr. Abukhatwa's appeal boils down to one overarching question. [00:00:51] Speaker 08: Is it fair and just to try a man for things he has not been charged properly with? [00:00:59] Speaker 08: Mr. Avocato was charged with defrauding Care First, a large health insurance company. [00:01:06] Speaker 08: That's the charge the grand jury handed down. [00:01:09] Speaker 08: The false statements charges were allegedly made to Care First. [00:01:13] Speaker 08: The wire fraud and mail fraud charges were based on alleged fraud against Care First. [00:01:19] Speaker 08: And even the DC code identity theft charges were based on an intent to defraud Care First. [00:01:27] Speaker 08: But we had an indictment and a trial presentation from the government opening statements, many witnesses and a closing argument that was laser focused on putative fraud against small businesses and nonprofits, clients of Mr Abukat was business. [00:01:48] Speaker 03: Here's the, I guess, the conundrum that I'm having understanding your argument. [00:01:53] Speaker 03: What you just laid out sounds like an argument that there was a variance between the indictment and the trial evidence. [00:02:02] Speaker 03: That's not the argument that you've made in your brief. [00:02:07] Speaker 03: No. [00:02:08] Speaker 03: But that's essentially what you're arguing. [00:02:12] Speaker 03: And the other problem is that the indictment charged here first as the victim of the fraud [00:02:23] Speaker 03: It just also mentioned that your client allegedly marked up the invoices that he sent to his clients and had them pay over and above what care first was charging. [00:02:40] Speaker 08: Right, yes. [00:02:41] Speaker 08: I think there are two issues that are sort of bookends here. [00:02:44] Speaker 08: There's the convergence issue, which I think addresses just the indictment and whether convergence is a rule that should be applied and whether it was present or not. [00:02:53] Speaker 08: I recognize that there is a passage in the indictment that mentions that to obtain lower premium costs. [00:03:00] Speaker 08: But I think that the allegation that's in the indictment was based on money or property taken from the client. [00:03:09] Speaker 03: Are you saying now, as you kind of intimated in your reply brief, that the government had to prove that your client obtained money that was supposed to go to care first in order to prove up the fraud? [00:03:32] Speaker 08: I think that the issue... Because you didn't argue that below. [00:03:35] Speaker 08: The defense below was materiality. [00:03:39] Speaker 08: Really, the main defense, intent and materiality and willfulness. [00:03:44] Speaker 08: But materiality, it shows one good reason why the convergence rule should be applied. [00:03:49] Speaker 08: Because here, the bookend issue is for how much evidence was allowed in and how much focus was on at the trial on the premiums that were charged to the client. [00:04:00] Speaker 08: Whether or not it was material to care first was sort of hit on and moved on. [00:04:06] Speaker 08: We had nine witnesses talking from clients talking about the differences. [00:04:10] Speaker 08: But convergence makes sense here. [00:04:12] Speaker 08: It makes sense to hold the government to a tighter rule because it really requires causality. [00:04:19] Speaker 08: That's the main issue here in terms of why we would have a rule like that. [00:04:23] Speaker 08: It ensures that a grand jury and the jury at trial [00:04:27] Speaker 08: focuses on whether false statements to see as to one party cause that party to relinquish its property. [00:04:37] Speaker 03: But you agreed below not maybe not you, but but the defense agreed below. [00:04:43] Speaker 03: that if Care First was deceived into charging less for its services and it would have charged if it had had accurate information, that that was a legitimate theory of fraud and loss. [00:04:59] Speaker 03: That would be a convergent charge. [00:05:03] Speaker 03: And so why doesn't the indictment allege that? [00:05:06] Speaker 03: I think that's not the gravamen and the indictment at the end of the day. [00:05:09] Speaker 03: And it's, I mean, the money. [00:05:10] Speaker 03: Well, whether it's the gravamen or not, it charges that it says that doesn't it? [00:05:17] Speaker 08: It says that it's not clear to me from reading the indictment that that's what the grand jury was focused on in terms of who lost money. [00:05:25] Speaker 08: It talks about that he obtained $2 million. [00:05:27] Speaker 03: You should have filed a motion to dismiss the indictment. [00:05:30] Speaker 03: And if that was denied, then we'd be appealing that because [00:05:33] Speaker 03: then your argument is that the grand jury didn't really indict your client for the charge that he ended up being tried for. [00:05:41] Speaker 08: Well, there was a motion to dismiss. [00:05:43] Speaker 03: Well, you're not, but you're not appealing that lack of convergence. [00:05:46] Speaker 03: Okay. [00:05:47] Speaker 03: So, so convergence is your theory. [00:05:49] Speaker 03: Um, um, that's before us, but again, that's different than saying that the grand jury was kind of like hoodwink. [00:06:00] Speaker 03: into, um, indicting somebody for a crime that wasn't really presented to them. [00:06:07] Speaker 03: Um, when your convergence theory, all we have to do is look at the letters within the four corners of the indictment and see whether it's there or not. [00:06:16] Speaker 03: If we assuming we agree that convergence is required. [00:06:21] Speaker 08: No, understood. [00:06:22] Speaker 08: And I think that, you know, one of the reasons that this, you know, um, [00:06:26] Speaker 08: The defense at trial, I think, tried to come at this multiple ways, because they knew early on, just from reading the indictment, what the government's strategy was going to be, not to show that the large insurance fraud was ripped off, to show that these sympathetic clients were ripped off. [00:06:42] Speaker 08: And so that's where we get to rule 4 of 4B. [00:06:45] Speaker 08: And whether that all of that admission, whether that was proper and whether that was so prejudicial that it outweighed any probative value. [00:06:54] Speaker 08: Yes. [00:06:54] Speaker 08: No, I was going to go to four for me. [00:06:57] Speaker 05: So, oh, as you say, you don't dispute, you haven't disputed that there was sufficient evidence for the jury to convict your client of defrauding care first. [00:07:08] Speaker 08: That is correct. [00:07:09] Speaker 05: And you don't dispute that the jury instructions named care first said you must unanimously find that care first was defrauded here. [00:07:21] Speaker 08: That's correct. [00:07:22] Speaker 05: Although how would even if there were [00:07:27] Speaker 05: I guess I'm trying to figure out how your argument works, because you said, we'll get to your 404 argument. [00:07:34] Speaker 05: But apart from that, if you don't dispute that there was sufficient evidence and you don't dispute the jury instructions, so they were properly instructed and they had the evidence to find what they were told to find, and we presume juries follow their jury instructions, then [00:07:52] Speaker 05: I'm having trouble figuring out where your convergence argument gets you because that sort of assumes that the record would only support a finding of, you know, taking from one and defrauding one and taking from another. [00:08:06] Speaker 05: But you haven't raised either of those other two arguments. [00:08:09] Speaker 05: Can you have a freestanding convergence argument even if you don't dispute [00:08:13] Speaker 05: other than what the jury was told, that the jury was properly instructed as to how they had to, what they had to find to convict and that they had sufficient evidence in this record to do it. [00:08:22] Speaker 05: But you can still win on a convergence claim. [00:08:25] Speaker 08: Yes, I think the government came at that through, uh, arguing harmless error is what the idea was that the, uh, the jury instruction, um, made any error convergence harmless. [00:08:36] Speaker 08: And I think, you know, the way to address that is that, um, [00:08:42] Speaker 08: that it's presumptively prejudicial if you allow an indictment error like this. [00:08:50] Speaker 08: And that was in McKee and Milstein in the Third Circuit and the Second Circuit. [00:08:55] Speaker 05: That's an indictment argument, not an argument about what happened at trial. [00:08:59] Speaker 08: Correct. [00:09:01] Speaker 08: But our argument for convergence is about that. [00:09:07] Speaker 08: But then, you know, moving on, I think our argument for trial is 404 B. It's just one other thing. [00:09:12] Speaker 05: This this idea of convergence, is that something that's where does that come from? [00:09:18] Speaker 05: Is that settled common law? [00:09:20] Speaker 05: We had a couple of quotes from the Supreme Court in your brief, which wasn't actually deciding the convergence question, but had the language that is consistent with your vision of this. [00:09:32] Speaker 05: But it wasn't clear to me [00:09:36] Speaker 05: weather and courts have yet we know we have not yet grappled with this. [00:09:40] Speaker 05: What is the bait what is the source of this convergence. [00:09:43] Speaker 05: I think we will to begin with. [00:09:44] Speaker 08: Thank you and nice in the nice and you want to reserve a few seconds on the new in the 9th circuit. [00:09:50] Speaker 08: It address it and found in favor of I think it comes from the tradition of fraud and I think [00:09:54] Speaker 05: Are you saying it's deeply rooted in the common law, such that the Congress would have carried it forward in these? [00:10:00] Speaker 08: I don't recall the case, but I think that there was discussion of sort of the bedrock principles of fraud, a reserved recipe. [00:10:10] Speaker 07: We will give you a little bit of time for rebuttal, regardless. [00:10:13] Speaker 07: And I just want to give you at least a little bit of a chance to address 404B, since you've been trying to. [00:10:17] Speaker 07: But can I just start you off on 404B, as long as we're ready to shift? [00:10:23] Speaker 07: So our 404B, my question is this, and maybe this will just give you a little bit of a chance at least to say briefly what your argument is. [00:10:29] Speaker 07: 404B, typically when I think about 404B, I'm thinking about evidence of other crimes. [00:10:38] Speaker 07: And what seems confusing about this one to me is a lot of your 404B argument is about this delta point vis-a-vis the [00:10:52] Speaker 07: insurance, the policyholders, his clients. [00:10:55] Speaker 07: But all of that evidence goes towards showing that he made a profit. [00:11:02] Speaker 07: And the fact that he made a profit, at least the fact that he made a profit seems directly bound up in the crime itself. [00:11:08] Speaker 07: So why are we in 404 B land at all? [00:11:12] Speaker 07: Because we're not talking about other crimes. [00:11:13] Speaker 07: We're talking about this crime. [00:11:15] Speaker 07: and what was the conduct that went into committing this crime. [00:11:20] Speaker 07: It isn't the classic 404B situation where the idea is there's a crime that happened sometimes in the past. [00:11:25] Speaker 07: The fact that some of the person committed that crime in the past shows that she has a propensity to commit that crime again. [00:11:31] Speaker 07: That doesn't seem to be what's happening. [00:11:33] Speaker 08: Well, I think you could imagine two different frauds, right? [00:11:36] Speaker 08: You could imagine a fraud against Care First without defrauding the clients. [00:11:39] Speaker 08: Or you could say, well, there was not an effect on Care First. [00:11:44] Speaker 08: They charged the same amount. [00:11:45] Speaker 08: And he actually defrauded and deceived clients. [00:11:48] Speaker 08: That would be a different crime. [00:11:50] Speaker 08: Here, I think what would be perhaps what you're getting at is what would be intrinsic, perhaps, is although, again, as you read, this circuit has quite frowned on. [00:12:02] Speaker 08: uh, intrinsic evidence arguments. [00:12:04] Speaker 08: But the reason we're in 404 B land, I think, is that, um, that delta where the fraud against care first was the difference between the premiums they charge and what they would have charged, but for the alleged statements to care first. [00:12:19] Speaker 08: And that was never buttoned up by the government. [00:12:22] Speaker 08: It was never related at all. [00:12:24] Speaker 08: There was never an argument. [00:12:26] Speaker 08: I don't think that they that it was the same. [00:12:29] Speaker 07: So then is it logical upshot of that argument then there could never be any evidence about the fact that he profited at all. [00:12:37] Speaker 07: Because that doesn't have to do with the delta between what care first could have been charged and what care first in fact was. [00:12:43] Speaker 07: But it does goes to show why he would have committed the fraud and. [00:12:48] Speaker 07: how he benefited from it, how the crime worked, why he would have done it, which all just feels to me like it's bound up in proving the offense charged as opposed to taking some other crime and showing that that person therefore has the propensity to commit the crime that's been charged. [00:13:02] Speaker 08: And I think our response to that was that the profit, the motive for deceiving their first would be the difference between the premiums charged and that the difference in the whole delta between the clients was that [00:13:16] Speaker 08: was that there was some other delta. [00:13:18] Speaker 08: Perhaps they were alleging that the clients were defrauded, which would not be a profit motive for the actual charge. [00:13:23] Speaker 03: It makes no sense that the motive would be how much Care First would have charged had they known what the real ages of all the real employees [00:13:37] Speaker 03: It matters not to the defendant. [00:13:40] Speaker 03: What the defendant put in his pocket was the delta between the invoice and the marked up invoice. [00:13:49] Speaker 03: Um, I mean, your argument is that the jurors might be inflamed in your prejudice because they would be inflamed because these poor nonprofits and small business owners were cheated [00:14:07] Speaker 03: And so that's our prejudice. [00:14:09] Speaker 03: That was your prejudice argument below. [00:14:11] Speaker 03: That's a lot of what you make in your brief. [00:14:13] Speaker 03: The flip side of that is that if the government can't put that on, then the jury is left thinking like jury number six thought, um, Hey, maybe this guy was a Robin Hood and all he did was, you know, um, [00:14:32] Speaker 03: keep this big, bad health insurance company from, you know, charging more to these small companies. [00:14:40] Speaker 03: And who cares about these big, bad health insurance companies anyway? [00:14:44] Speaker 03: Health insurance is too expensive. [00:14:45] Speaker 03: Health care is too expensive. [00:14:48] Speaker 03: So the jury would believe that he did this for, you know, some altruistic reason. [00:14:54] Speaker 03: When indeed, evidence showed he didn't. [00:14:57] Speaker 03: He did it to line his pockets. [00:15:00] Speaker 03: Wouldn't that prejudice the government? [00:15:04] Speaker 08: Well, in this case, so now you're in 404B if we're talking about profit, right? [00:15:08] Speaker 03: Exactly. [00:15:09] Speaker 03: So even if I were to disagree with the chief judge that this isn't really other crimes evidence at all, even if it is, motive is a relevant reason to bring it in under 404B. [00:15:27] Speaker 03: The district court said common scheme [00:15:30] Speaker 03: It's really kind of the flip side of what Chief Justice questions we're getting at. [00:15:36] Speaker 03: I mean, motive is always relevant. [00:15:38] Speaker 03: You know how many times I've seen somebody acquitted because the government didn't really have a good motive theory? [00:15:43] Speaker 03: I might have used that myself once or twice back in the day. [00:15:48] Speaker 03: You know how many times I've seen someone argue that motive of somebody else had to do the crime was Brady evidence? [00:15:57] Speaker 03: I might have used that. [00:15:59] Speaker 03: once or twice, myself, back in the day. [00:16:02] Speaker 03: So why isn't motive relevant here? [00:16:07] Speaker 08: Well, I think even if you say motive is relevant, we've got a prejudice issue. [00:16:11] Speaker 08: We've got nine client witnesses that they lined up, and the testimony was cited, where they lined up the two premiums. [00:16:19] Speaker 08: They elicited testimony about how it was marked up more than 100%, right, to these client witnesses. [00:16:26] Speaker 08: And then you have Agent Albee at the end [00:16:29] Speaker 08: lining up all of the differences. [00:16:31] Speaker 08: Okay. [00:16:32] Speaker 08: To show the client and then mark up the percentage difference to illustrate. [00:16:38] Speaker 08: Yes. [00:16:41] Speaker 08: I think ultimately just the volume of evidence here, this trial was all about that. [00:16:44] Speaker 03: So what's the best case you can cite where for the proposition that we should reverse because excessive evidence of motive was introduced that [00:16:58] Speaker 03: um, was more ultimately more prejudicial and probative and therefore the error was not harmless. [00:17:20] Speaker 08: I think Wheeler would be the case. [00:17:23] Speaker 08: In that case, the government sought to invoke sympathy for the taxpayers. [00:17:32] Speaker 08: And in this case, it said that when it argued that 100% of the money for the fraudulently obtained Medicaid payments in that case came from hardworking taxpayers, [00:17:45] Speaker 07: I think it's very similar. [00:17:47] Speaker 07: Can I go back to, as a follow on to Judge Wilkins' question? [00:17:50] Speaker 07: So at the end of your response, you talked about the volume of evidence that was presented to the jury in bolstering the notion that it was prejudicial and the statistics and numbers that were presented in terms of the profit. [00:18:06] Speaker 07: But what was the profit that was being reflected? [00:18:09] Speaker 07: As I understand it, correct me if I'm wrong, because I might well be wrong. [00:18:12] Speaker 07: But as I understand it, it wasn't a comparison of [00:18:15] Speaker 07: how much the clients were defrauded because it didn't, it wasn't a comparison of if he hadn't committed a scheme, they would have only paid X, but by virtue of his scheme, they actually paid more because in fact, some of them paid less than they would have on the market. [00:18:30] Speaker 07: What the comparison was, was what was relevant to the crime itself, which is the difference between what he got from the clients and what he then paid to care first. [00:18:41] Speaker 07: So that evidence is not evidence of defrauding the clients, as I understand it. [00:18:47] Speaker 07: That evidence just shows how much he benefited from the scheme to defraud care first. [00:18:52] Speaker 08: Mathematically, we don't know. [00:18:54] Speaker 08: I mean, it's not evidence of the difference between what Care First would have charged and what it did charge. [00:19:01] Speaker 07: That's true. [00:19:01] Speaker 07: It's not that difference, but it's also not a difference that goes to the degree to which the clients were defrauded, which would be the other crime. [00:19:07] Speaker 08: Well, I mean, when we don't have either known, I mean, and the way this was presented and the way it was argued at closing, jacking up the prices on the clients, doing this on the back of the clients, it clearly inferred that he was doing this [00:19:22] Speaker 03: But that wasn't the government's only argument about the fraud and the only evidence. [00:19:28] Speaker 03: The government presented evidence that it appears wasn't really contested by the defense that age was really the driving factor of cost and that by lowering the average age of employee, that was going to be like the predominant factor in affecting the cost of the premium. [00:19:50] Speaker 03: And thus, that was material. [00:19:55] Speaker 03: That was a material deceit that affected the price in a material way. [00:20:03] Speaker 03: I don't think that there's any argument in your brief that the government had to prove what the delta was, but that it was material, right? [00:20:15] Speaker 03: And so, so we don't know what those numbers would have been. [00:20:19] Speaker 03: Nobody tried to like reverse engineer and figure it all out, but it doesn't appear that that was required. [00:20:29] Speaker 03: If, if, I don't know if you made the argument below that that was required, but it doesn't materiality, but they didn't bother. [00:20:36] Speaker 03: And that was that argument was, but, but, but, but the point is that, um, that, [00:20:46] Speaker 03: You're not arguing here as Judge Millett pointed out a sufficiency claim and you're not arguing here that like they didn't really prove materiality because they didn't prove what the delta what? [00:21:01] Speaker 03: Oh, it's prejudice. [00:21:02] Speaker 08: It's prejudice. [00:21:03] Speaker 08: It focused the jury on not sufficiency of the evidence. [00:21:07] Speaker 08: It's prejudice that this the way this was presented just overwhelmed the trial and caused the jury. [00:21:13] Speaker 08: It shouldn't [00:21:15] Speaker 08: You have to draw a line somewhere on 403, whether there's sufficient evidence or not. [00:21:19] Speaker 08: And we're asking you to draw the line. [00:21:20] Speaker 08: We're arguing that the government crossed the line. [00:21:23] Speaker 08: And exactly what was the prejudice? [00:21:27] Speaker 08: Prejudice was the nine witnesses that they brought up over and over and over again to make a point that they were inferring clearly. [00:21:36] Speaker 08: I mean, the testimony infers that [00:21:39] Speaker 08: you know, as much as 100%, in fact, that they marked you up, right? [00:21:44] Speaker 08: And then I believe there was at least a client or two that wondered, you know, if they were paying too much. [00:21:50] Speaker 08: And so, you know, that, and then the argument on closing. [00:21:54] Speaker 03: So is the prejudice that you believe that the jury convicted your client because they believed that that fraud [00:22:07] Speaker 03: was the fraud that was the subject of the health care fraud claim or one of the other claims, or is it your theory of prejudice that they were so inflamed by that, that they basically didn't hold the government to their burden of proving beyond the reasonable doubt that health care. [00:22:31] Speaker 08: I think it could be, but I think it, I think it's both. [00:22:34] Speaker 08: I think it's both. [00:22:35] Speaker 08: I think it overwhelmed it. [00:22:36] Speaker 08: It's certainly not harmless beyond a reasonable doubt. [00:22:39] Speaker 08: In this case, the air and abuse of discretion. [00:22:41] Speaker 08: I mean, that is our argument. [00:22:44] Speaker 07: It seems like the, and we'll let you sit down and hear from the government in a second, but it seems like the difference is the government is saying, look, he made money off Care First and he committed a fraud against Care First. [00:22:59] Speaker 07: So he got money out of it. [00:23:00] Speaker 07: Now he could have, [00:23:02] Speaker 07: Committed a crowd fraud against her first and passed on the profits he got to you also that still doesn't diminish the fact that the fraud was committed against care first. [00:23:10] Speaker 07: It's just that the beneficiary the fraud then turns out to be him instead of his clients. [00:23:15] Speaker 07: It's still not saying that the clients were defrauded. [00:23:17] Speaker 07: It's just saying that he didn't pass on the fruits of the fraud to them. [00:23:21] Speaker 07: That seems like the difference. [00:23:23] Speaker 08: I think that that's. [00:23:24] Speaker 08: an argument certainly that the government will make. [00:23:26] Speaker 08: And it's, I think it's an argument that you can make in light of it. [00:23:30] Speaker 08: It's just that, I mean, the way that it was presented and the inference that was drawn here, it was, it was prejudicial the way it was done through the client witnesses and the way it was presented with the side by side. [00:23:43] Speaker 08: Oh, in fact, you were charged more than a hundred percent. [00:23:47] Speaker 08: What, what their first charge. [00:23:49] Speaker 08: And in that case, I understand the mathematical difference and the profit motive, et cetera. [00:23:53] Speaker 08: But when you're talking about prejudice and you do it over and over again, when you have a care first witness who says, no, I didn't bother to calculate. [00:24:01] Speaker 08: And I could have, but I didn't. [00:24:03] Speaker 08: And then we're going to go through the client. [00:24:04] Speaker 08: So that's ultimately our. [00:24:07] Speaker 05: OK. [00:24:08] Speaker 05: I have one more question. [00:24:10] Speaker 05: For your 404 argument, who has the burden of proving that the evidence that's coming in is evidence of another crime? [00:24:24] Speaker 08: In this case, the government was raised and was found by the court. [00:24:30] Speaker 05: Some of these questions have been whether this evidence even was evidence of another crime. [00:24:37] Speaker 05: And I'm trying to figure out if someone's invoking 404, if someone needs to find up front that this other evidence is of another crime or bad act. [00:24:49] Speaker 08: And so that's whether it's intrinsic or not. [00:24:52] Speaker 08: I think that's an issue that the parties skipped over in terms of the burden on that. [00:24:56] Speaker 07: But usually, I could be wrong about this, but I take it it's the defendant who raises an objection to the introduction of evidence on the basis that it shouldn't be admitted. [00:25:05] Speaker 07: And typically, when the defendant raises the objection, then the burden is on the defendant to show that the rule would bar the introduction of the evidence. [00:25:10] Speaker 07: And in this case, the court overruled the objection. [00:25:14] Speaker 05: Thank you. [00:25:15] Speaker 07: Thank you. [00:25:15] Speaker 07: We'll give you a little bit of time. [00:25:32] Speaker 00: May it please the court, Anula Tessier on behalf of the United States. [00:25:36] Speaker 04: In his brief on appeal, Mr. Abukhatwa argues that the indictment should have been dismissed for lack of convergence. [00:25:43] Speaker 04: His argument in his reply brief and today is different. [00:25:47] Speaker 04: He's arguing that there was effectively a constructive amendment or a prejudicial variance. [00:25:53] Speaker 04: Of course, that argument is waived on appeal as it was raised for the first time in a reply brief and then only in a perfunctory fashion. [00:26:01] Speaker 04: But in any event, it's meritless. [00:26:04] Speaker 04: I think the court looks to three things when determining whether or not there is a constructive amendment to the indictment. [00:26:10] Speaker 04: The indictment, the jury instructions, and the evidence. [00:26:13] Speaker 04: And all three here show that Mr. Avocato was charged and convicted under a convergence theory of fraud. [00:26:20] Speaker 04: The indictment alleged that he devised a scheme to defraud Care First and to obtain money and property from Care First by fraudulently obtaining health insurance premiums from Care First. [00:26:33] Speaker 04: The jury was instructed under this convergence theory, they were instructed that a scheme to defraud involves, quote, materially false or fraudulent pretense intended to deceive others in order to obtain something of value such as money from the institution to be deceived. [00:26:50] Speaker 04: And of course, the evidence that Mr. Abukhatwa in fact defrauded Care First was overwhelming. [00:26:56] Speaker 04: Perhaps the best evidence of that was his own handwritten notes explaining how his scheme worked. [00:27:03] Speaker 04: He obtained maximum return with a lower average age by modifying dates of birth during average age below 35, creating a balanced number of employees every day, and adding dummies, young members. [00:27:16] Speaker 03: Let's suppose we agree with all of that. [00:27:20] Speaker 03: But the district court recognized, you know, prior to trial and certainly after opening statements when juror number six made known to the court that they had some concerns because they were a small business owner who had care first insurance. [00:27:40] Speaker 03: that there was this potential for prejudice. [00:27:42] Speaker 03: And so it warned the government about minimizing this evidence and not having it overwhelm the trial. [00:27:50] Speaker 03: And it seems, you know, according to the talent here, that that was just kind of, that that was basically honored in the breach. [00:28:03] Speaker 03: Why shouldn't that be a concern? [00:28:06] Speaker 04: At your honor, the district court did identify that concern and that's why the district court engaged in such a careful for three balancing analysis of the evidence. [00:28:16] Speaker 04: I think the defendant argues that all of this evidence relating to the clients was improperly came in as for the evidence. [00:28:24] Speaker 04: The court, in fact, found that it was intrinsic to the charge defense, saying, I don't understand how the jury understands the scheme without hearing that evidence, but was very conductive, very careful for three balancing analysis. [00:28:36] Speaker 02: And where did that occur? [00:28:39] Speaker 04: So that occurred pretrial and the district court, there were motions to exclude. [00:28:44] Speaker 04: So there's two parts of the client evidence. [00:28:47] Speaker 04: One was the amount of money that the clients paid to Mr. Avocato. [00:28:51] Speaker 04: The second part was whether or not the clients received the insurance benefits that they paid for. [00:28:57] Speaker 04: And the district court excluded any evidence that the clients did not receive the insurance benefits that they paid for. [00:29:05] Speaker 04: So what the jury heard was that these clients received much cheaper, that is a direct quote from the file record, much cheaper premiums than they had obtained from other insurance brokers. [00:29:17] Speaker 04: So as far as the jury was concerned, the evidence was not that the clients were harmed in any way. [00:29:23] Speaker 04: The evidence was that the clients received cheap insurance premiums and the jury never heard [00:29:29] Speaker 04: the follow-on fact of the that the clients did not receive the full benefits that they believed they were getting from care first. [00:29:38] Speaker 04: That's exactly the kind of 403 balancing that is left to the discretion of district courts. [00:29:44] Speaker 04: This court in Douglas said that you disturb a 403 determination by district court only where there is a grave abuse of discretion. [00:29:52] Speaker 04: And I think the district court's very careful analysis here is far from a grave abuse of discretion. [00:29:57] Speaker 04: I think the district court did a very good job in ensuring that there was sufficient evidence that the jury could understand the fraud without being worried that the clients were harmed in any way. [00:30:08] Speaker 05: They could understand the fraud and the motive if you simply showed this differential for 2013. [00:30:15] Speaker 05: For example, but you had charts that were from the difference between what was premiums paid by the client and what the premium sent from care first was 2010 to 2013 and we're sort of meeting this point to death. [00:30:32] Speaker 05: during the trial in very, very large volume. [00:30:35] Speaker 05: And so it just reports balancing up front is one thing, but policing the evidentiary presentation during the trial is another thing altogether. [00:30:43] Speaker 05: And their concern is with what the train went off the tracks during trial. [00:30:48] Speaker 05: What on earth reason was there for putting in these large long exhibits and testimony about [00:30:56] Speaker 05: this delta in charges between the difference that he was pocketing for 2010, 2011, 2012, all that time. [00:31:07] Speaker 05: Why did you need that volume of evidence? [00:31:10] Speaker 04: Well, Your Honor, there's two separate questions embedded in that. [00:31:15] Speaker 04: One is whether the evidence of the premiums paid by the clients was relevant. [00:31:19] Speaker 05: And the second question is... I said the difference is relevant to show motive. [00:31:26] Speaker 05: You could have done that with evidence from 2013. [00:31:28] Speaker 05: The jury would have gotten the point. [00:31:31] Speaker 05: But instead, the government proved evidence for 2010, 2011, 2012, and kept hitting the point over and over and over and over. [00:31:40] Speaker 05: Why did you have to engage in such? [00:31:44] Speaker 05: What was the point of 2010-2011 on just this issue? [00:31:48] Speaker 04: Well, this was the scope of the scheme charged in the mail fraud and wire fraud counts. [00:31:54] Speaker 04: The scheme began in 2010. [00:31:55] Speaker 04: And so all of that was still intrinsic to the charge defense. [00:31:59] Speaker 04: It was part of the same scheme. [00:32:02] Speaker 04: The district court did several things to limit any potential prejudice. [00:32:07] Speaker 04: And really, on the time frame, the defendant's argument really only related to count one. [00:32:12] Speaker 04: That was the only [00:32:13] Speaker 04: count that arguably had a statute of limitations issue. [00:32:17] Speaker 04: The district court made the point, look, even if this evidence doesn't come in on count one, it comes in on the remaining counts, because that was the time period in which the defendant executed his scheme to defraud care first. [00:32:30] Speaker 04: And the government is entitled to put in evidence of the entire scheme that the defendant engaged in. [00:32:37] Speaker 04: the government is not limited to the minimum amount of evidence necessary to prove the elements of the offense, but can in fact prove the entire crime. [00:32:48] Speaker 04: Now, I agree that a district court might limit evidence in certain ways if it's worried about undue prejudice. [00:32:55] Speaker 04: I think the district court took several steps here to limit any concerns about undue prejudice, one of which was segregating the evidence by time period. [00:33:05] Speaker 04: Another was, and this was fairly significant, excluding any evidence [00:33:09] Speaker 04: that the clients were harmed in any way by the fraud. [00:33:14] Speaker 04: I don't think the fact that Mr. Abukhatwa made a lot of money on his fraud. [00:33:19] Speaker 04: I don't think that's unfair prejudice. [00:33:22] Speaker 04: I think that is the natural result of the crime that he committed. [00:33:26] Speaker 04: And I would go back to, it may be that a different judge would make a different assessment of what is the right balance on 403. [00:33:35] Speaker 04: That is exactly the kind of decision that is put squarely within the hands of trial judges. [00:33:40] Speaker 04: And that's why this court has said that 403 assessments. [00:33:44] Speaker 04: And that's really what defendant's argument is. [00:33:45] Speaker 04: It's a 403 argument. [00:33:47] Speaker 03: But after the opening statement in the brouhaha over juror number six, district court said, you know, [00:33:55] Speaker 03: government, you can't argue that, um, the clients were deceived in light to think that those were kind of paraphrasing almost the district court's exact word. [00:34:11] Speaker 03: And then in closing the argument, the government argued that the clients were deceived in light. [00:34:18] Speaker 03: Um, well, so I personally true that that's essentially what happened. [00:34:22] Speaker 04: So the government did argue that the clients were lied to in closing. [00:34:26] Speaker 04: I think briefly, I don't think it was the main force of the government's closing argument. [00:34:30] Speaker 04: I would note the defendant hasn't raised a challenge to the closing argument as problematic in this case. [00:34:35] Speaker 04: And so that argument would be waived on appeal. [00:34:38] Speaker 04: I also apologize because I don't remember exactly the court's language. [00:34:42] Speaker 04: But I'm not sure the court said that the government could not introduce any evidence that the clients were deceived. [00:34:49] Speaker 04: but rather that could not argue that the clients were defrauded. [00:34:52] Speaker 04: And there is a difference between the two. [00:34:54] Speaker 04: Because, of course, the clients were deceived as part of this fraud because the government had to show that the clients did not agree to have their birth dates changed. [00:35:04] Speaker 04: They weren't the ones giving Mr. Abhupatwa the false birth dates, but he was the one changing the birth dates without permission, which is, of course, a deceit on his clients. [00:35:14] Speaker 04: But that's not a fraud on his clients because [00:35:17] Speaker 04: or at least the government did not argue and prove that that was a fraud on the clients. [00:35:22] Speaker 04: I can imagine a universe in which that could be part of the case showing fraud. [00:35:27] Speaker 03: The district court said at JA 190 to 191, I am not going to let you stand up in front of the jury and say, look how he lied to these clients. [00:35:38] Speaker 03: Look how he deceived. [00:35:41] Speaker 03: That's an exact quote. [00:35:44] Speaker 04: And I apologize, Your Honor, for misremembering the exact record. [00:35:49] Speaker 04: Again, Mr. Abukhatwa has not argued that there was any misconduct during the closing argument. [00:35:57] Speaker 04: And I do think that one statement is also part of the greater ruling by the court that in order to explain to the jury how this fraud worked, it was necessary to show that Mr. Abukhatwa [00:36:14] Speaker 04: in fact, made money off the fraud. [00:36:17] Speaker 04: And I think juror number six's question exactly explains why that was necessary for the government to prove. [00:36:24] Speaker 04: Juror number six argued that what he said was, I'm listening to the opening statements, and I'm wondering if my broker had done this, would I have paid a lower [00:36:34] Speaker 04: And so immediately, the question that the jury asks is, is Mr. Abukhatwa lying to Care First in order to pass on the savings to his clients? [00:36:46] Speaker 04: And so the government was entitled to show that, in fact, no, he had a motive to do this, which was to profit himself by charging the clients more than he paid to Care First. [00:36:58] Speaker 04: And also the jury could reasonably infer from the fact that the multiple witnesses testified that the premiums that they paid to Mr. Abukhatwa were much cheaper than those available on the open market for similar insurance coverage. [00:37:15] Speaker 04: And so the jury could infer from the fact that the amount paid to Care First was even lower than that, that Care First would have charged more if it had had accurate information, because that's what the going rate on the market was so much higher. [00:37:32] Speaker 03: So that goes to material. [00:37:34] Speaker 04: That certainly goes to materiality. [00:37:36] Speaker 04: And also, of course, to motive, which is always relevant. [00:37:40] Speaker 03: So we didn't cover this in appellant's time. [00:37:43] Speaker 03: I have a question about the summary witnesses, if we can transition to that. [00:37:49] Speaker 03: So why is it appropriate for a summary witness to testify about conclusions that they have reached from going through the documents that have been introduced at trial, which is what Agent Henson did. [00:38:10] Speaker 03: in testifying that, well, all of these people were dummy employees. [00:38:15] Speaker 03: And I can tell that based on, I can conclude that based on looking at all of these facts. [00:38:23] Speaker 03: Why isn't that something that the prosecutor could argue in closing, but that a summary witness shouldn't be testifying to that trial? [00:38:34] Speaker 04: That's certainly your honor. [00:38:34] Speaker 04: Well, this court said in Lemire and found no error in Lemire [00:38:40] Speaker 04: that summary witnesses should avoid controversial inferences, but didn't say that summary witnesses can make no inferences at all. [00:38:48] Speaker 04: And in fact, you know, inferences are often a part and parcel of the kinds of population. [00:38:54] Speaker 03: How do we know what a controversial inference is? [00:38:57] Speaker 04: And oftentimes an inference is controversial. [00:38:59] Speaker 04: You can identify that from the fact that the witness was cross-examined as to that inference and to the basis for that inference. [00:39:08] Speaker 04: Mitchell is a great... Isn't a critical fact. [00:39:11] Speaker 05: Like whether these were fraudulent names or they were dummies. [00:39:18] Speaker 05: Surely that counts as controversial. [00:39:20] Speaker 05: It's a controversy before the jury. [00:39:23] Speaker 05: So Mr. Can't be that just because they can infer anything they want as long as they don't get cross-examined. [00:39:28] Speaker 05: That can't be the test. [00:39:30] Speaker 04: No, certainly it's not the test that they can infer anything they want so long as they're not cross-examined. [00:39:35] Speaker 04: Right. [00:39:35] Speaker 05: So inferring that these were dummies was not summarizing evidence. [00:39:40] Speaker 05: That was testifying. [00:39:42] Speaker 05: And we agree that that was not summarizing evidence. [00:39:44] Speaker 05: It was making a factual inference on a disputed question. [00:39:51] Speaker 04: Well, so. [00:39:53] Speaker 04: I think there is, she labeled them as dummies, but she explained why she made the list that she did. [00:40:00] Speaker 04: And she said, I made this list based on the fact that they had the middle initial D. That is a summary of the exhibit. [00:40:08] Speaker 05: Right, and she could stop there. [00:40:09] Speaker 05: And then the prosecution can make, as Judge Wilkins said, the prosecution can make the argument. [00:40:14] Speaker 05: The jury's told arguments aren't evidence. [00:40:16] Speaker 05: But instead, she gets up as a witness and stops summarizing and starts inferring [00:40:23] Speaker 05: I'm telling the jury that they all had the middle initial D because that was a signal that they were the dummies in this case. [00:40:30] Speaker 05: I don't mean they were individually dummies, but they were fakes. [00:40:32] Speaker 05: They were fakes in this case. [00:40:35] Speaker 05: And that's just not summarizing evidence. [00:40:38] Speaker 05: Help me understand on what possible theory that is summarizing in a non-controversial, objective way, evidence. [00:40:49] Speaker 04: Well, there was already evidence, documentary evidence in the record regarding the use of the term dummy. [00:40:56] Speaker 04: I understand that. [00:40:56] Speaker 05: That would be a harmless error argument. [00:40:58] Speaker 05: I'm just asking you, but can you explain to me, or is your argument just a harmless error when that was an oops, but it didn't make a difference at the end of the day? [00:41:07] Speaker 04: So so I think it's a few different parts. [00:41:10] Speaker 04: I do think that that goes to whether it is an inference because there is she is looking at the documents and saying I looked at the documents and he wasn't summarizing evidence about in the record about references to dummies. [00:41:28] Speaker 05: That wasn't what she was summarizing. [00:41:29] Speaker 05: So it's not that she was pulling that evidence together and there would be no, I can't imagine the showing that that would be needed for the jury, that it was so voluminous. [00:41:38] Speaker 05: references to dummy during the trial were civil limits, she had to pull them together. [00:41:41] Speaker 05: She could have said, I pulled these folks together because they all have the middle initial D and they all have some problem somewhere with their identifying information and stops there. [00:41:52] Speaker 04: Certainly. [00:41:53] Speaker 04: And to be sure, if the defendant had specifically objected to that testimony, the district court may have excluded that specific testimony because the district court did repeatedly say, I don't want [00:42:07] Speaker 04: the witnesses here to make any or inferences. [00:42:11] Speaker 03: Well, the district court, the defense objected to these witnesses before they took the stand. [00:42:17] Speaker 03: The government made a proffer of what they were willing to testify to. [00:42:21] Speaker 03: That's correct. [00:42:22] Speaker 03: My understanding is that that proffer did not include, oh, yeah, and she's going to testify that these people were dummies. [00:42:31] Speaker 04: Based on her inference. [00:42:33] Speaker 04: I believe that the defense counsel was able to look at the charts and summaries before the defendant, before the witness testified. [00:42:42] Speaker 04: That's not the problem. [00:42:44] Speaker 05: The problem is what she said, what her inference was. [00:42:49] Speaker 04: And she took that to mean. [00:42:51] Speaker 04: And yes, and the judge allowed the fact that the judge allows the summary witness to testify doesn't, I think, excuse the defendant from objecting to testimony that it believes it exceeds the scope of what the district court has allowed. [00:43:08] Speaker 05: But even if my question to you was, [00:43:11] Speaker 05: Do you believe that her statement about inferring, that the middle initial D signaled that these were all dummies as in fakes? [00:43:22] Speaker 05: Was that proper summarization? [00:43:26] Speaker 04: I think that this court has not precluded. [00:43:29] Speaker 05: I'm asking you whether that, yes or no, was that proper summarization? [00:43:34] Speaker 04: I think that was an inference that [00:43:39] Speaker 04: I think that this court has said that summary witnesses can make some inferences. [00:43:44] Speaker 05: Could they make that type of this? [00:43:46] Speaker 05: I'm not talking about our general law, really. [00:43:48] Speaker 05: I'm really asking a specific question. [00:43:51] Speaker 05: And that is, does the government think that what she said in this case about the inference that she drew from those middle initials, that that specific [00:44:03] Speaker 05: statement was proper summarization. [00:44:06] Speaker 05: Is that the position of the government or not? [00:44:10] Speaker 05: You can have a harmless error argument. [00:44:12] Speaker 05: You can have anything else you want. [00:44:13] Speaker 05: They didn't object. [00:44:14] Speaker 05: I'm just asking how you understand summarization. [00:44:23] Speaker 04: I'm afraid you won't like my answer. [00:44:26] Speaker 04: Is that like or not? [00:44:27] Speaker 04: I just want to know. [00:44:29] Speaker 04: I think that is the closest call to whether that is okay. [00:44:35] Speaker 04: That is the piece of evidence in the record that is closest to a controversial inference. [00:44:40] Speaker 04: I am trying, I am leaning from this court. [00:44:44] Speaker 04: What this court has said is controversial inferences are disfavored. [00:44:48] Speaker 04: I think that is the closest thing to a controversial inference. [00:44:51] Speaker 02: When has this court said that non-controversial inferences are okay? [00:44:57] Speaker 04: This court has not expressly stated that controversial, non-controversial inferences are okay. [00:45:04] Speaker 03: But I'm not aware of any- Okay, so I guess just to kind of follow up on Judge Millett's point. [00:45:11] Speaker 03: Putting aside whether the error is harmless or not. [00:45:16] Speaker 03: We have to, you know, if we're writing an opinion and we have to say what is going to be the rule in this about what summary witnesses can do and can't do, give me your best argument about why it's okay for a summary witness to give any inferences. [00:45:39] Speaker 03: about what the evidence means or shows. [00:45:44] Speaker 04: I think some amount of inference is often inherent in the summary itself. [00:45:50] Speaker 04: It is often very difficult to summarize the evidence without having any inferences at all. [00:45:56] Speaker 07: So I take it from the way I think about this is that an inference sometimes is just [00:46:04] Speaker 07: absolute natural byproduct of something that someone has already said. [00:46:08] Speaker 07: So summary witness has to be summarizing something else. [00:46:11] Speaker 07: They can't be testifying to new things on their own or otherwise it's not summarizing. [00:46:15] Speaker 07: And sometimes you can just say well that person didn't exactly say that but that's the only thing that you could infer them to have been saying. [00:46:23] Speaker 07: That's is what they were saying. [00:46:25] Speaker 07: But I don't think there's any other witness who testified, not that there weren't dummies. [00:46:32] Speaker 07: And I think it's OK to call them dummies because they're all fake people, right? [00:46:35] Speaker 07: The people we're talking about. [00:46:37] Speaker 04: So they're not fake people. [00:46:39] Speaker 04: They were often real people. [00:46:41] Speaker 04: whose names were altered. [00:46:44] Speaker 07: Right, so as altered, they're not a real person. [00:46:47] Speaker 07: Yes, that's correct. [00:46:48] Speaker 07: Yeah, okay, so I just closed in one loop. [00:46:51] Speaker 07: So instead of just saying fake, instead of telling the other, just make us a little more comfortable with the vernacular here. [00:46:57] Speaker 07: But nobody, I think, testified, other than the summary witness, that the initial D was the demarker of somebody who was a fake person. [00:47:07] Speaker 07: That only comes from the summary witness. [00:47:10] Speaker 04: That's correct, Your Honor. [00:47:11] Speaker 07: And then it's hard to see how that's an inference then, because that's not a natural byproduct of something that somebody else said. [00:47:20] Speaker 07: That's a new fact that's injected into the case by the summary witness who's not summarizing what somebody else said. [00:47:26] Speaker 07: Summarizing sometimes would require some degree of inference, but it wouldn't require the introduction of some new fact. [00:47:32] Speaker 04: So yes, that's correct. [00:47:36] Speaker 04: But there were multiple witnesses who testified that they did not have the middle initial D. And so that was the middle initial that was repeatedly used. [00:47:51] Speaker 07: And so I think the inference that she made is- But none of those witnesses, first of all, the people who [00:47:57] Speaker 07: whose names were altered by the introduction of the medallational deed would have no reason to know what the deed stood for. [00:48:02] Speaker 07: And then the witness who testified would have to make what seems to me a new factual point about it, which is that not only was there the initial deed, not their actual middle initial, but the initial deed was an indicator that the person is a dummy person, meaning a fake person. [00:48:22] Speaker 07: That seems like a new thing. [00:48:23] Speaker 04: So the inference that the initial D referred to a dummy. [00:48:29] Speaker 04: And I apologize if I'm wrong about this, but my memory of the trial transcript is not that she said that the initial D references a dummy. [00:48:39] Speaker 04: She says, this is the list of dummies. [00:48:41] Speaker 04: Why is that the list that you came up with? [00:48:43] Speaker 04: Because it was all people who had the middle initial D. Because this was all people who didn't appear elsewhere on the roster as working for benefits. [00:48:52] Speaker 04: consulting client at the point at that time. [00:48:56] Speaker 04: But it is an inference. [00:48:58] Speaker 04: And I think we can maybe parse hairs on how much of an inference is acceptable. [00:49:05] Speaker 04: I think, for example, one of the things that the district court said was, you can testify this is related to Joe Albee, you can testify that money came into this account, that money went out of that [00:49:17] Speaker 04: But I don't want you to come to the conclusion that the defendant was paid money by care first. [00:49:23] Speaker 04: And of course, that's the most the natural inference that one would draw from money being paid into an account. [00:49:31] Speaker 04: from care first into benefits consulting account is that that is the money that came from care first. [00:49:38] Speaker 04: That's the kind of non-controversial inference that courts allow in all the time in when we're talking about rule thousand and six summary charts. [00:49:47] Speaker 04: Those are normal and natural inferences. [00:49:50] Speaker 04: They're not controversial. [00:49:52] Speaker 04: That's why I think this court has said that when you have a summary witness, and this was in Lemire, which wasn't a 1006th witness, it was a witness who was summarizing testimony, which is different, and the witness here didn't summarize testimony, she summarized documents. [00:50:08] Speaker 04: But that's why the court said that you should avoid finding, having controversial inference. [00:50:12] Speaker 04: But I'll note, in Lemire, there were controversial inferences made by the witness, and this court still found no error. [00:50:20] Speaker 04: And so while this court has not expressly said that inferences are okay in those words, the fact that this court has found no error where even controversial inferences were made, I'd point the court to Mitchell. [00:50:34] Speaker 04: Mitchell is a case where, on cross-examination... When you say no error, you mean harmless error? [00:50:39] Speaker 05: Whatever happened was harmless? [00:50:41] Speaker 04: No, Your Honor. [00:50:42] Speaker 04: I agree that it is harmless error, but the court in Mitchell found no error at all. [00:50:47] Speaker 04: The court in Lemire found no error at all. [00:50:50] Speaker 04: They didn't just find that the any error was harmless. [00:50:52] Speaker 04: They found no error. [00:50:54] Speaker 04: And so that's why. [00:50:56] Speaker 03: Was that under plain error or harmless error? [00:50:58] Speaker 04: I believe under both Lemire and Mitchell, it was it was under it was a harmlessness review. [00:51:04] Speaker 04: I think it was in Weaver that it was plain error. [00:51:08] Speaker 04: But I think that, and maybe now I am making an inference, but I am inferring from the court's lack of a finding of error in Lumiere [00:51:18] Speaker 04: and Mitchell, that there was similarly no error here. [00:51:22] Speaker 07: And you're not making a plain error argument here on this issue, right? [00:51:25] Speaker 07: As I recall. [00:51:26] Speaker 04: So I'm not making a plain error as to the introduction of the evidence as a whole, because the defendant, in fact, objected. [00:51:35] Speaker 04: The defendant in his opening brief did not throw a bunch of evidence at the wall, but didn't really make specific arguments from any particular pieces of evidence. [00:51:47] Speaker 04: We addressed the dummies piece in our response brief. [00:51:53] Speaker 04: recognizing that that is perhaps the closest to a controversial inference. [00:51:58] Speaker 04: I don't recall from the record that the defendant specifically objected to that piece of testimony. [00:52:04] Speaker 04: Certainly, the defendant didn't take the opportunity to cross-examine. [00:52:07] Speaker 04: And that's what the court said in Lemire and Mitchell repeatedly, that the way that you limit the risk of undue prejudice when you have a summary witness who is making some inferences [00:52:19] Speaker 04: is you allow full cross-examination by defense counsel. [00:52:23] Speaker 04: And the defendant here chose not to cross-examine the witness. [00:52:26] Speaker 04: So if the defendant wanted to [00:52:29] Speaker 04: reduce any potential prejudice from that particular piece of evidence, he could have done so by cross-examining, but chose not to. [00:52:36] Speaker 04: Right. [00:52:37] Speaker 05: But none of that gets to whether this was proper summarization. [00:52:39] Speaker 05: What she said was the court sister, when you say dummy, what do you mean by dummies? [00:52:45] Speaker 05: She says a person who doesn't work for the company. [00:52:47] Speaker 05: She defines it. [00:52:48] Speaker 05: And then right before that, she says, I think this is a counsel asking. [00:52:58] Speaker 05: Tell us what your summary of these exhibits show with respect to these dummies. [00:53:01] Speaker 05: From looking at the history of her answer, from looking at the history of changes, the dummies almost always have the middle initial D. That's correct. [00:53:10] Speaker 04: And I agree with you that this would be certainly an easier case if she had not used the word dummy. [00:53:18] Speaker 04: If the summary witness had simply said, I put together a chart of individuals that were not listed as [00:53:26] Speaker 04: benefits consulting clients anywhere in the record, but nonetheless were billed to care first. [00:53:33] Speaker 04: And she said a lot of those individuals have the middle initial D. If that had simply been her testimony, I think there's no question that that would be a problem. [00:53:42] Speaker 04: The addition of the word dummy to characterize it, I agree with the court. [00:53:47] Speaker 04: That is the most controversial inference that she possibly made. [00:53:52] Speaker 05: But again, this court. [00:53:53] Speaker 05: No, it's not just that she called them that. [00:53:56] Speaker 05: She discerned what was in her view a pattern. [00:54:02] Speaker 05: From looking at the history of changes, the dummies almost always have the middle initial D. That's a factual statement. [00:54:11] Speaker 05: that she has made and no one else has made. [00:54:13] Speaker 05: Other witnesses didn't know that other people had Ds as middle initials. [00:54:17] Speaker 04: I think if she had said, I put together a list of the individuals. [00:54:21] Speaker 04: who were being billed to care first, but didn't show up as a benefits consulting employee and said, and I observe that in my summary exhibit that lists all these individuals, most of them have the middle initial D. I don't think anyone would view that as a controversial inference. [00:54:36] Speaker 03: She's just stating what is A. What did she testify about why she put this list together? [00:54:48] Speaker 04: I don't recall if she was asked why she particularly put this list together. [00:54:53] Speaker 04: I think the judge was careful about not having the summary witnesses explain sort of the investigation. [00:55:02] Speaker 04: But I'm not sure she has to explain why. [00:55:06] Speaker 03: Here's what I'm getting at. [00:55:13] Speaker 03: Suppose for the sake of argument, [00:55:18] Speaker 03: that I am concerned about summary witnesses, essentially being, um, kind of prelude for junior, junior varsity, um, prosecutors, um, making the prelude to the closing argument. [00:55:37] Speaker 03: So the government puts on their whole case and then they call a summary witness to wrap it up. [00:55:43] Speaker 03: Basically summarize the evidence by telling the jurors what they should infer from all of the evidence. [00:55:52] Speaker 03: Suppose I think that that's not the way to run the railroad in that we should have a rule that just says that doesn't happen. [00:56:02] Speaker 03: That's error. [00:56:06] Speaker 03: What would be wrong with us doing that in this case? [00:56:12] Speaker 03: Why shouldn't we do that from the government's perspective? [00:56:16] Speaker 04: I certainly don't think this is the case to do that because it has no, I don't think it has any impact on the outcome of this case because the evidence was so overwhelming. [00:56:25] Speaker 04: I don't think that any error affected the defendants, prejudiced the defendant in any way as to the verdict. [00:56:33] Speaker 04: I think this court is careful not to tell district courts how they should be running their trials in every case. [00:56:41] Speaker 04: I think this court's [00:56:43] Speaker 04: deferential review of evidentiary determinations, particularly deferential as to 403, is a reflection that the rulings need to meet the case and that it is the district court who has the case in front of it who is best able to determine what the best presentation of evidence is in terms of ensuring the government can [00:57:08] Speaker 04: Admit probative evidence and then that for any particular piece of evidence, the potential for unfair prejudice is not substantially outweigh the prejudicial value. [00:57:20] Speaker 04: Do you think the rules already provide that courts can exclude evidence under Rule 403? [00:57:27] Speaker 04: This court has already told district courts [00:57:30] Speaker 04: to ensure that there is full-cross examination to allow defense counsel to review summary exhibits before they are presented to the jury and to limit controversial inferences. [00:57:46] Speaker 04: I think the district court made an effort to do that here, whether the district court did that perfectly or not. [00:57:52] Speaker 03: Well, here's the other rub on that is that if a prosecutor [00:57:58] Speaker 03: argues what the inferences are enclosed. [00:58:03] Speaker 03: The jurors might be convinced by it. [00:58:06] Speaker 03: They may not be, but they're also told that prosecutors closing just like the defense closing isn't evident. [00:58:16] Speaker 03: The jurors, you know, the jurors can, you know, take it or leave it. [00:58:23] Speaker 03: We've said that summary charts [00:58:28] Speaker 03: um, aren't evidence. [00:58:30] Speaker 03: The evidence are the documents that the charts are based on, but the charts themselves aren't evidence. [00:58:39] Speaker 03: Or we've said that in some cases, but here the opposite was set. [00:58:46] Speaker 03: But here's here's my point is if if we have a rule that says that a summary witness says testimony is evidence the same as anybody else's testimony. [00:58:59] Speaker 03: And if the summary witness can testify to their inferences and conclusions, then we're basically saying that a witness for the prosecution can make an argument or an inference about the evidence from the witness stand under oath. [00:59:17] Speaker 03: And that is evidence. [00:59:19] Speaker 03: Whereas if the prosecutor made that same inference and argument in their closing argument, that wouldn't be evidence. [00:59:26] Speaker 03: Why isn't that a problem? [00:59:29] Speaker 04: It's not a problem for several reasons. [00:59:31] Speaker 04: So first of all, the reason why this is why cross examination is so important. [00:59:36] Speaker 04: Prosecutors aren't subject to cross examination. [00:59:39] Speaker 04: Summary witnesses are and the defense counsel can cross examine on that inference. [00:59:44] Speaker 04: Many witnesses make inferences in their testimony. [00:59:47] Speaker 04: In fact, there's inferences are natural part of testimony and that is treated as evidence before the jury. [00:59:53] Speaker 03: Their experts. [00:59:55] Speaker 04: No, your honor. [00:59:56] Speaker 03: Or fact witnesses, yeah, they can make an inference that it snowed last night. [01:00:06] Speaker 03: If they went to bed and there was no snow on the ground and they woke up and there's snow on the ground, they could make an inference from that. [01:00:12] Speaker 03: But that's different than saying, oh, I looked at all of these five different pieces of evidence and I can infer that this occurred from all of those various facts. [01:00:24] Speaker 04: I don't believe that is different, Your Honor. [01:00:27] Speaker 04: Every witness is allowed to make inference. [01:00:29] Speaker 04: A Rule 1006 witness is making inferences from particular documents that are themselves admissible. [01:00:37] Speaker 04: There are any number of witnesses that can make inferences [01:00:42] Speaker 04: from evidence that they review, such as the fact that it's raining outside. [01:00:46] Speaker 04: That's a piece of evidence where the fact that a bunch of people have umbrellas is a piece of evidence from which someone infers that it is raining outside. [01:00:54] Speaker 04: Those are the kind of inferences that Rule 1006 witnesses make. [01:00:59] Speaker 04: But I would also note, Your Honor, this court said in Weaver [01:01:02] Speaker 04: that a Rule 1006 chart is itself evidence. [01:01:07] Speaker 04: Rule 1006 is not a rule that allows you to have demonstratives. [01:01:12] Speaker 04: Demonstratives are something that the government might have in its closing argument. [01:01:17] Speaker 04: That's not evidence. [01:01:18] Speaker 04: But a Rule 1006 chart is itself evidence. [01:01:21] Speaker 04: And that's what this court said in Weaver. [01:01:24] Speaker 04: It said it was not plain error to fail to give. [01:01:26] Speaker 05: So we're talking about the summary witness testimony here, not the chart. [01:01:29] Speaker 05: We're talking about the testimony here. [01:01:30] Speaker 04: So this court has said in multiple cases that the proper way to get a rule 1006 chart into evidence is through the witness who prepared it. [01:01:41] Speaker 05: We're not here arguing about that. [01:01:45] Speaker 05: We're not raising questions about that. [01:01:48] Speaker 05: We're really raising questions. [01:01:50] Speaker 05: at least I am, about what the proper scope of testimony is and saying the government can do anything it wants as long as the government or as long as the defense can do cross-examination seems to be an insufficient answer. [01:02:01] Speaker 05: They can have their witnesses say anything and make any inferences they want because the protection is district courts and cross-examination. [01:02:10] Speaker 05: I think I was asking my question, at least, because I was hoping that the government had a sense of where the line was. [01:02:18] Speaker 05: But it sounded from your answer like the government doesn't have a sense where the line is here. [01:02:22] Speaker 05: Or if not, please tell me what she could have said that would have crossed that line. [01:02:26] Speaker 04: No, Your Honor. [01:02:27] Speaker 04: And I apologize, because I did not mean to imply that there's no line at all. [01:02:31] Speaker 05: So what more would she have had to say to cross the line into an impermissible inference in the government's view? [01:02:37] Speaker 04: Certainly, if she said that I infer from this that the defendant defrauded care first, or I inferred from this that the defendant lied to care first, [01:02:45] Speaker 04: certainly that would have crossed the line. [01:02:47] Speaker 04: That's the kind of conclusion that a summary witness can never make. [01:02:50] Speaker 04: And so certainly, we agree that they're absolutely, that is a very- I infer from this that the defendant was engaged in falsehoods. [01:02:59] Speaker 05: I think if- Would that cross the line? [01:03:03] Speaker 05: Yes. [01:03:03] Speaker 05: Okay, that's what saying, I infer from this, these people were dummies, can cross the line. [01:03:09] Speaker 05: That's falsehoods. [01:03:12] Speaker 05: Anyhow, I'm done with this line. [01:03:14] Speaker 07: Can I just summarize, so to speak? [01:03:18] Speaker 07: Because I think, in my mind at least, the issue here is not whether the summary witnesses can testify to things in the same way that other people testify to in terms of creating evidence. [01:03:32] Speaker 07: It seems like they can. [01:03:33] Speaker 07: The question is whether they're summarizing. [01:03:35] Speaker 07: That seems to me to be the issue. [01:03:37] Speaker 07: And so, suppose you had two people [01:03:39] Speaker 07: each of whom testifies and says, yeah, I'm a person who is a beneficiary of a policy. [01:03:45] Speaker 07: But when I gave my name, I gave my actual middle initial. [01:03:48] Speaker 07: And now I see from the records that actually my middle initial has been transposed to D. That's person A. And then person B comes along and says the same thing. [01:03:55] Speaker 07: Yeah, I gave my name, but turns out my middle initial was transferred to D. That's not my middle initial. [01:04:02] Speaker 07: And then the summary witness comes up and says, I'm summarizing the evidence given by the two people. [01:04:06] Speaker 07: I've made a chart. [01:04:07] Speaker 07: Here's the two lines. [01:04:09] Speaker 07: And then gets asked, well, why do you think they use the middle initial D? [01:04:13] Speaker 07: I think it's probably because they meant to signify that they're dummies. [01:04:16] Speaker 07: That seems to me to be not summarizing the testimony that's already been given, but that's injecting a new fact that says the D stands for dummy. [01:04:27] Speaker 07: To me, that's the rub here. [01:04:29] Speaker 07: And harmless error is a place, obviously you can go and you've said that a couple of times, but in terms of whether that's summarizing, it's hard to see how it's summarizing when neither of the witnesses in the hypothetical who testified knew anything about why the middle initial D was used. [01:04:43] Speaker 07: And then the summary witness says, I think the middle initial D was used because that signifies dummy. [01:04:48] Speaker 04: And I understand the court's concern. [01:04:50] Speaker 04: I do want to clarify one thing because I think it was a little confusing in the defense brief and it may be irrelevant, but the witnesses here were not summarizing previous testimony because they in fact weren't allowed in. [01:05:00] Speaker 04: They were summarizing records. [01:05:02] Speaker 04: And so they were purely making [01:05:04] Speaker 04: explaining what they did with the records and how they put the records together. [01:05:09] Speaker 04: I agree with your honor that with the court that the most difficult aspect here of the case is the use of the word dummy. [01:05:16] Speaker 04: I do think it is easy to resolve that on a harmlessness grounds. [01:05:21] Speaker 04: because the evidence was so overwhelming. [01:05:24] Speaker 04: I think the reason why I am reluctant to agree that the district court aired here is because of the deferential standard of review and because this court has in the past found no error where, for example, [01:05:38] Speaker 04: a witness testified based on admitted that the testimony was based in part on an external investigation unrelated to the evidence produced a trial and the court found no error in that instance that was in the Mitchell case and so I'm reluctant to. [01:05:56] Speaker 04: concede error in light of this court's precedent in Mitchell. [01:05:59] Speaker 04: But I do understand that that is the piece of evidence that the court is most concerned about. [01:06:03] Speaker 04: And the easiest way to dispose of that particular problem is by finding that any error, if there was any, was harmless. [01:06:13] Speaker 07: OK. [01:06:13] Speaker 07: Let me ask my colleagues if they have additional questions. [01:06:15] Speaker 05: I just have one more thing. [01:06:18] Speaker 05: And if you have the government's supplemental appendix, it's page 438 and 439. [01:06:24] Speaker 05: I apologize, your honor. [01:06:26] Speaker 05: I do not have the entire number. [01:06:28] Speaker 05: Oh, OK. [01:06:29] Speaker 05: All right. [01:06:29] Speaker 05: And upfront, this is not something they've raised. [01:06:32] Speaker 05: It's just something that, actually, for me was profoundly troubling in this case. [01:06:36] Speaker 05: And so I just want to communicate it to you, not in your personal capacity, but to the United States government, because I found this deeply disturbing. [01:06:44] Speaker 05: And this goes to the execution of the search warrant at his house. [01:06:49] Speaker 05: And what the FBI agent testified was, and this is the bottom of 438 to 439 is, you know, we're going to have to do a forced entry because no one was answering the door. [01:06:58] Speaker 05: They were going to do a forced entry because nobody was answering the knock at the door. [01:07:02] Speaker 05: So it's 438 and 439. [01:07:03] Speaker 05: The decision, quote, the decision was made since it was an affluent neighborhood. [01:07:10] Speaker 05: We knew we had to make a forcible entry at that point. [01:07:15] Speaker 05: But due to the aesthetics of the neighborhood, we decided to use a rear entrance so as to maintain the integrity of the front of the residence. [01:07:28] Speaker 05: Are you aware that the FBI has a policy of deciding not to break down the front doors in rich neighborhoods? [01:07:37] Speaker 05: No, Governor, I was not aware. [01:07:38] Speaker 04: And I apologize. [01:07:39] Speaker 04: There was not a suppression ruling. [01:07:41] Speaker 05: No, no, I said up front, they haven't raised it. [01:07:44] Speaker 05: I don't mean to blindside you, but this is such outrageous behavior by the FBI. [01:07:49] Speaker 05: I mean, if there really is a policy out there that in non-influent neighborhoods will break down the front door, but for the rich people will go in quietly in the back door, that's deeply troubling. [01:08:03] Speaker 05: It's shocking to me that it didn't. [01:08:04] Speaker 05: get more attention. [01:08:06] Speaker 05: So that's why I call it to your attention. [01:08:07] Speaker 05: That's why I don't expect you to respond. [01:08:09] Speaker 04: I appreciate your honor. [01:08:10] Speaker 04: And I will pass that on to my management. [01:08:12] Speaker 04: Thank you. [01:08:13] Speaker 03: Thank you for raising that. [01:08:16] Speaker 03: I was a public defender here for 10 years. [01:08:20] Speaker 03: Can't tell you how many times my clients had their front doors. [01:08:26] Speaker 03: Um, I remember a single time for any agent or police officer. [01:08:33] Speaker 03: was worried about the aesthetics of what their house would look like after they executed the search for arrest. [01:08:44] Speaker 05: I understand the court's... And I'm not holding you responsible for it. [01:08:46] Speaker 05: You personally, obviously. [01:08:49] Speaker 04: I understand why it's upsetting to the court. [01:08:54] Speaker 07: Thank you, Ms. [01:08:54] Speaker 07: Tessier. [01:08:58] Speaker 07: Mr. Zap? [01:09:00] Speaker 07: Mr. Zap, we'll give you two minutes. [01:09:01] Speaker 07: We'll give you two minutes for your rebuttal. [01:09:09] Speaker 08: The mask is quite tight. [01:09:13] Speaker 08: I'll try to be quick on just a couple of points. [01:09:15] Speaker 08: Not all the points, obviously, that came up. [01:09:18] Speaker 08: On summary witnesses, there was a lot of talk about deference to the lower court. [01:09:24] Speaker 08: And I just want to point out, in Lemire, [01:09:27] Speaker 08: the court said that there are obvious dangers posed by the summarization of evidence. [01:09:33] Speaker 08: Although we usually defer, this is a quote, quote, although we usually defer to the district court's assessment of whether the probative value of evidence outweighs the possibility of prejudice, the pervasiveness of these dangers [01:09:50] Speaker 08: requires that we review the use of summary witnesses. [01:09:54] Speaker 08: So it is a different standard of review than forth in Lemire. [01:10:00] Speaker 08: Another part of summary witnesses, another part of the government's argument was that cross-examination could have cured all of them. [01:10:10] Speaker 08: And that is one issue that Lemire raised. [01:10:16] Speaker 08: But in this case, like with the dummies, [01:10:19] Speaker 08: It was a fact that was established. [01:10:22] Speaker 08: You can't cross-examine someone for making an improper inference. [01:10:28] Speaker 05: That's a rule. [01:10:28] Speaker 05: You could have objected. [01:10:29] Speaker 05: I don't mean you personally, but counsel could have objected when Agent Hinson made that statement. [01:10:41] Speaker 08: Yes, sir. [01:10:42] Speaker 08: A lot of objections to the summary witnesses, including during a lot was based on personal knowledge, which I think dummies also falls into. [01:10:51] Speaker 08: And council was not making any headway there. [01:10:55] Speaker 08: And so I think. [01:10:57] Speaker 08: You know, he made, this was discussed, and I think those sites are in there probably more than any other issue numerous times throughout the trial leading up to the summary witness testimony coming back every time the jury left. [01:11:10] Speaker 08: And counsel was very persistent, I think, just in terms of the general nature. [01:11:16] Speaker 08: And I think it's the same kind of, if it wasn't an objection right at the dummies, [01:11:21] Speaker 08: It was done during testimony, as far as at least personal knowledge, I know. [01:11:26] Speaker 08: And that was a lot of what Ensign was doing, was going through care-first documents, not a care-first employee, and saying, this is what this means, this is what that means, this is what this means. [01:11:40] Speaker 08: And so cross-examination, I don't think, is a sufficient way to cure that. [01:11:45] Speaker 08: The way, what Lemire said, when you have a summary witness, it said that you need [01:11:51] Speaker 08: caution, you need a guarding instruction. [01:11:54] Speaker 08: And in this case, there was not only not a guarding instruction, there was the opposite instruction, which is rather than say, [01:12:03] Speaker 08: that the summary witness testimony and exhibits are not themselves evidence. [01:12:08] Speaker 08: And so, you know, don't consider them as evidence. [01:12:12] Speaker 08: Instead, the court actually instructed, this is evidence like any other evidence. [01:12:16] Speaker 03: Just consider it. [01:12:16] Speaker 03: The district court asked counsel to opine on that proposed instruction and counsel said fine, whatever. [01:12:28] Speaker 08: I think that I think counsel was more concerned with the expert issue. [01:12:32] Speaker 03: At that point, I think he said, but you can't come up here and say that there's a problem with the limiting instruction. [01:12:42] Speaker 03: When in and not mention the fact that the district court said, well, this is the instruction I intend to give. [01:12:50] Speaker 03: And defense counsel didn't object, didn't propose something different. [01:12:56] Speaker 03: Didn't note any sort of a problem at all. [01:13:01] Speaker 03: and said, yeah, fine. [01:13:04] Speaker 08: We agree that it's a plain error now. [01:13:06] Speaker 08: I don't believe it's a waiver. [01:13:08] Speaker 08: I don't believe it was a conscientious decision to waive that point. [01:13:16] Speaker 03: You don't have to reach that level for it to be considered an invited error. [01:13:23] Speaker 03: To be considered uninvited? [01:13:24] Speaker 08: An invited error. [01:13:27] Speaker 08: Well, I think that [01:13:29] Speaker 08: I think that in reading the colloquy, I don't think that this could be read as fanbagging for an appeal issue. [01:13:35] Speaker 08: I think it was simply an oversight, if anything, because of the concentration on the expert. [01:13:41] Speaker 08: But even under a plane air, I think it's more appropriate to fall in the plane air world on that. [01:13:49] Speaker 08: And undoubtedly, there is a higher standard of review there. [01:13:52] Speaker 08: a more, you know, we're fighting a little bit of ill on that. [01:13:57] Speaker 08: But when you have and the district court recognized that these were summary witness, she said that this particularly are dangerous. [01:14:04] Speaker 08: It's pretty clear that she was aware of the issues of summary witnesses. [01:14:10] Speaker 08: And, you know, it's not something that was just out of the blue that the district court wouldn't have been aware that guarding instruction might be appropriate here. [01:14:19] Speaker 08: But then actually gave the opposite. [01:14:21] Speaker 08: And so that's why I think we're, that's why we argue that it's plain, plain error. [01:14:27] Speaker 07: Okay. [01:14:27] Speaker 07: Let me make sure my colleagues don't have additional questions for you. [01:14:30] Speaker 05: Ms. [01:14:32] Speaker 05: Tessier, I want to make crystal clear. [01:14:34] Speaker 05: I wasn't blaming you or holding you responsible at all. [01:14:37] Speaker 05: I'm sorry if it upset you. [01:14:38] Speaker 05: It just felt very important for me to communicate that point. [01:14:41] Speaker 05: So I, I apologize. [01:14:46] Speaker 05: Yes. [01:14:46] Speaker 05: Okay. [01:14:46] Speaker 05: But, um, it's not, I'm not holding you responsible for it. [01:14:50] Speaker 07: Okay. [01:14:51] Speaker 07: Thank you. [01:14:52] Speaker 07: Thank you, counsel. [01:14:53] Speaker 07: Thank you to both counsel for your arguments this morning. [01:14:55] Speaker 07: We'll take this case under submission.