[00:00:00] Speaker 05: Case number 21-3081, United States of America versus Chance Barrow of balance. [00:00:06] Speaker 05: Ms. [00:00:07] Speaker 05: Wright for the balance. [00:00:08] Speaker 05: Mr. Cahill for the appellee. [00:00:10] Speaker 04: Ms. [00:00:10] Speaker 03: Wright, good morning. [00:00:11] Speaker 04: Good morning. [00:00:12] Speaker 04: May it please the court? [00:00:14] Speaker 04: Lisa Wright for Mr. Barrow. [00:00:15] Speaker 04: I'd like to reserve three minutes for rebuttal. [00:00:18] Speaker 04: We've raised a lot of issues and I welcome questions on any of them. [00:00:22] Speaker 04: But if I may, I'd like to lay out a quick roadmap of three of the things I'm hoping [00:00:27] Speaker 04: to have a chance to address. [00:00:28] Speaker 04: First, the insufficiency of the government's money or property showing on the wire fraud and the related exclusion of the job performance evidence. [00:00:37] Speaker 04: Second, three evidentiary and instructional errors that all work together to hinder Mr. Barrow in the same way in his ability to contest criminal intent. [00:00:46] Speaker 04: Those three were number one, the government concedes that Mr. Barrow's disclosure of his unemployment in his take to interview was wrongly excluded. [00:00:53] Speaker 04: Add to that two compounding errors [00:00:57] Speaker 04: that jump out. [00:00:58] Speaker 04: One, the jury instruction that cast any reasonable expectation of care with respect to take this handling of Mr. Barrow's disclosures as quote irrelevant. [00:01:07] Speaker 04: And two, preclusion of the fact that Mr. Barrow had sought disclosure advice from a federal fraud enforcement agent. [00:01:15] Speaker 04: Um, and the big picture on this is that it's the government that bears the burden of showing the cumulative effect of these errors and others I may not get to, um, did not have an influence on the verdicts and lack of intent to conceal and thereby defraud was the key defense to all three counts. [00:01:32] Speaker 04: Most of the questions the government hung its hat on were answered correctly according to the government's own witnesses. [00:01:38] Speaker 04: So from our perspective, the case came down to Mr Barrows [00:01:41] Speaker 04: state of mind with respect to the other, the outdated resume and the SF-86C. [00:01:46] Speaker 04: And that was a hotly contested issue, which obviates any claim that the errors I'm highlighting were harmless. [00:01:53] Speaker 04: And the third thing I wanted to emphasize is that the entire case was litigated against the backdrop of the government's unfair innuendo regarding the nature and substance of the NCIS allegations. [00:02:05] Speaker 04: Mr. Barrow was precluded from answering the implications of bad character in any way [00:02:11] Speaker 04: When the court declined to tell the jury that the significant offenses were unrelated to his work, the government ran with it, implying at every turn that Mr. Barrow had abused the power bestowed upon him by his badge and his gun. [00:02:25] Speaker 04: Meanwhile, his hands were tied and the courts attempted a limiting instruction, did nothing to prevent the jury from misusing the government's one-sided information, leaving the entire proceeding infected with unfairness. [00:02:38] Speaker 04: And finally, if there's time, I'd also like to address restitution. [00:02:43] Speaker 04: As to the wire fraud insufficiency, the government failed to present evidence from which a jury could find beyond a reasonable doubt that Mr. Barrow intended to deprive or did deprive TIGTA of money or property as opposed to information that TIGTA wanted in making its hiring decision. [00:02:59] Speaker 04: Indeed, because the government believed it needed to only prove that Mr. Barrow defrauded Takeda of a job, quote unquote, the government made no effort to prove that he didn't do that job and earn his salary as well as would a person who had honestly disclosed the disputed information. [00:03:15] Speaker 04: The government's entire case hinged on the hiring itself, having been based on [00:03:20] Speaker 04: Mr. Barrow depriving TIGDA of information. [00:03:23] Speaker 04: But under Girton, employment in and of itself is not property with the meaning of the wire fraud statute. [00:03:28] Speaker 04: And under Simonelli, [00:03:30] Speaker 04: An employer isn't deprived of money or property when someone denies it the right to control its assets by depriving of information necessary to make economic decisions like hiring. [00:03:41] Speaker 04: As in Gertin, the government is trying to turn a 1001 case into a wire fart case. [00:03:46] Speaker 05: The government argues that there's a difference between obtaining and maintaining an employment and that Gertin was about the latter. [00:03:56] Speaker 05: Why isn't this different because he got the job in the first instance? [00:04:01] Speaker 04: Well, the court in Girton obviously bypassed the opportunity to make that distinction and instead went on a broader basis, the basis we're talking about. [00:04:12] Speaker 04: And, you know, the government had argued in Girton that there was no difference between maintaining and obtaining and the court [00:04:19] Speaker 04: did not go on that basis. [00:04:21] Speaker 04: I guess I don't see a difference if the lie gets you your money, your salary, but really the question is, did they get the benefit of their bargain, not, you know, whether it was before or after you employed. [00:04:37] Speaker 04: Either way, TIG does only being deprived of honesty as such in this case, just as in Girton. [00:04:46] Speaker 02: kind of a shallow reading in some ways, because you're just basically saying that as long as I'm doing my job, no one is complaining. [00:04:54] Speaker 02: I'm getting the satisfactory performance, and then the employer is paying me that that's all I need. [00:05:00] Speaker 02: But it sounds like under Gertin, you could take it to a different level. [00:05:05] Speaker 02: Now, we didn't agree with the Ninth Circuit, so I do agree with you there. [00:05:10] Speaker 02: But we're talking about the high integrity of the position. [00:05:15] Speaker 02: and that pre-employment concealment fraud in the application, but then even while they're on day one, you need a trustworthy investigator because immediately the credibility of the office is shot if one of that investigator's files is at issue in a trial, et cetera, what have you, despite the high level of performance. [00:05:38] Speaker 04: Well, a couple of answers to that. [00:05:40] Speaker 04: One, that's equally true when you already have the job. [00:05:44] Speaker 04: and you're lying. [00:05:45] Speaker 04: You've got the same problem. [00:05:46] Speaker 04: But I would also say more fundamentally, the benefit of the bargain has to be impaired not by the fact that you lied, which is what the government's arguing here, that you are a liar and therefore you lack credibility, but by the information you kept from them. [00:06:04] Speaker 04: That's what normally happens in the wire fraud case. [00:06:06] Speaker 04: You tell them something that's not true. [00:06:08] Speaker 04: And if they'd known that fact and hear that fact is the NCIS investigation. [00:06:13] Speaker 04: But the NCIS investigation was over when he was working. [00:06:17] Speaker 04: So that fact never impaired. [00:06:19] Speaker 02: But what are you admitting to earlier? [00:06:21] Speaker 02: With respect to falsifications, you said we admit certain things. [00:06:25] Speaker 02: So what are you admitting to? [00:06:26] Speaker 02: Because the government is considering all of that. [00:06:29] Speaker 02: I'm sorry, I'm not understanding. [00:06:30] Speaker 02: Earlier in your opening presentation, you said you admit or concede to certain facts with respect to, I guess, the pre-employment answers. [00:06:39] Speaker 02: So what are you admitting to? [00:06:41] Speaker 02: Because right now I hear you saying he didn't say anything that necessarily impacted his pre-employment answers or application for why they actually hired him. [00:06:53] Speaker 04: Well, I mean, we acknowledge that the government was trying to make the case that he had misrepresented the circumstances under which he resigned. [00:07:01] Speaker 02: And so you're not admitting anything with respect to pre-employment or with the circumstances as to how he resigned and how he answered those questions? [00:07:11] Speaker 02: Yeah, I'm not. [00:07:12] Speaker 02: I'm sorry. [00:07:12] Speaker 02: I'm not totally understanding. [00:07:14] Speaker 02: I guess I'm asking you, what is he admitting to? [00:07:16] Speaker 02: What is he conceding to with respect to his answers or alleged falsification? [00:07:21] Speaker 04: I don't think we're conceding anything, if I'm understanding. [00:07:25] Speaker 04: I mean, we're just saying that assuming they're correct, I guess, assuming they're correct, that there were false disclosures, that those disclosures are what has to go to the heart of the bargain. [00:07:39] Speaker 04: And the government is saying, it's the lying that went to the heart of the bargain because we can't hire a liar. [00:07:46] Speaker 04: And that would be true in every wire fraud case. [00:07:49] Speaker 04: You could criminalize, you could turn any disclosure into wire fraud because wire fraud by definition requires a false statement. [00:07:56] Speaker 04: So in any law enforcement hiring case, any 1001 violation, and even probably some things that might not rise to that level, [00:08:06] Speaker 04: Because a materiality even could be wire fraud. [00:08:12] Speaker 04: And they're just trying to turn 1,001 cases into wire fraud cases in the court. [00:08:16] Speaker 04: And Gert and specifically. [00:08:18] Speaker 05: I mean, I know in the briefs here, they talk about the exceptional need for honesty and candor in law enforcement. [00:08:26] Speaker 05: Did they argue that theory to the jury? [00:08:30] Speaker 04: Um, no, well, they just pointed, they pointed out the only evidence that they're now trying to grasp onto, which was not put in for the purpose. [00:08:39] Speaker 04: They're now using it for. [00:08:40] Speaker 04: They did point out that he had to go on administrative leave because he can't be, I guess they used it to say number one, he, he [00:08:49] Speaker 04: that you can't work in law enforcement while you're under investigation. [00:08:54] Speaker 04: Of course, he didn't do that here. [00:08:55] Speaker 04: So that's all they put in. [00:08:57] Speaker 04: And they put it in for just the purpose of showing that he wouldn't have gotten the job. [00:09:01] Speaker 04: But that's not the question here. [00:09:03] Speaker 04: The question here is, did they get the benefit of the bargain? [00:09:06] Speaker 04: Did the information that allegedly wasn't disclosed affect the benefit of the bargain? [00:09:13] Speaker 04: Or are they really complaining that they were deprived of honesty [00:09:17] Speaker 04: And we would say it's clear that it's the latter. [00:09:20] Speaker 04: And just as in Girton, the indictment charged that the purpose of the wire fraud scheme was to obtain paid employment. [00:09:27] Speaker 04: Just as in Girton, Mr. Barrow allegedly lied about his, quote, suitability for that employment. [00:09:32] Speaker 04: So Girton can't be meaningfully distinguished. [00:09:35] Speaker 04: I think anything we can say about [00:09:39] Speaker 04: this factual situation as the same or worse in Girton. [00:09:45] Speaker 04: So the government had the burden of proving that they didn't receive the benefit of the bargain, and the bargain was the exchange of money for work. [00:09:54] Speaker 05: That's why I thought I was curious. [00:09:58] Speaker 05: I know it wasn't at the trial itself, but at the restitution stage, they only had a very, very small amount of money, $2,400 or something that was [00:10:07] Speaker 05: allocated to having to reinvestigate some matter, even though he'd been employed for, I guess, close to a year, 10 months, something like that. [00:10:15] Speaker 05: So it seems like this claim about that he can't do the work, you know, he couldn't do the work. [00:10:25] Speaker 05: Correct, wasn't at least shown up in the restitution stage because there's only a tiny amount that they had to. [00:10:30] Speaker 05: That's right. [00:10:31] Speaker 04: And I'm glad you brought that up because I'm assuming we could even look at that, you know, which we don't think you can, because that's out outside the record. [00:10:39] Speaker 04: That goes to what I was just. [00:10:40] Speaker 04: What's the record of the case? [00:10:41] Speaker 04: You mean outside the jury record? [00:10:42] Speaker 04: Record before the jury? [00:10:44] Speaker 04: I'm sorry. [00:10:44] Speaker 04: You mean outside the record before the jury? [00:10:46] Speaker 04: Yeah, outside the sufficiency of the evidence. [00:10:48] Speaker 04: Yeah. [00:10:49] Speaker 04: Um, yes, that's what I mean. [00:10:50] Speaker 04: Sorry. [00:10:51] Speaker 04: But because that 2500 is exactly my point. [00:10:54] Speaker 04: They didn't rework his cases because he used to be before he arrived under a cloud of a [00:11:02] Speaker 04: NCIS investigation. [00:11:03] Speaker 04: That's not. [00:11:03] Speaker 05: So he wasn't under investigation when he did his work? [00:11:06] Speaker 04: He was not under investigation. [00:11:07] Speaker 05: When he actually just started his job? [00:11:09] Speaker 05: And the timing when he started? [00:11:10] Speaker 04: Timing, I think the investigation was dismissed like August 30th. [00:11:15] Speaker 04: And he started work October 1st. [00:11:18] Speaker 04: OK. [00:11:18] Speaker 04: And so but they didn't do any work while he was under investigation. [00:11:21] Speaker 04: No. [00:11:22] Speaker 04: And they reworked the case because he was under investigation then for these offenses. [00:11:30] Speaker 04: Now he is under investigation, but that's for this offense. [00:11:34] Speaker 04: He can't bootstrap, you know, every wire fraud. [00:11:37] Speaker 04: I understand. [00:11:37] Speaker 02: Yeah. [00:11:38] Speaker 02: He was specifically asked, did you ever quit? [00:11:42] Speaker 02: You know, or being asked to force to resign, you know, words to that effect during this process. [00:11:48] Speaker 02: And that's part of the fabrication that's at issue. [00:11:51] Speaker 04: That is the allegation that he answered those yes or no questions incorrectly. [00:11:55] Speaker 04: But what we're saying is even if he did, he didn't [00:11:59] Speaker 04: do that to deprive them of property. [00:12:02] Speaker 04: He always intended to and in fact did give them full value. [00:12:06] Speaker 02: And I think there's a distinction on that and the government's argument, a very fine line argument that having a dishonest employee on your payroll does not give them the benefit of the bargain because immediately that trustworthiness that should attach to the officer [00:12:26] Speaker 02: and that could harm them later in any type of investigation or trial when you put the person up? [00:12:34] Speaker 02: Mark Fuhrman in the OJ trial. [00:12:38] Speaker 04: Well, they, I'm sorry, I lost my train of thought there. [00:12:42] Speaker 04: I have lost my train of thought. [00:12:47] Speaker 04: What you're saying is that, I guess what I would say is, in Girton, that was equally true, and that they needed his integrity. [00:12:55] Speaker 04: He has to have a security clearance. [00:12:57] Speaker 04: If anything, that's a higher standard of integrity than what's at issue here. [00:13:01] Speaker 04: So I don't see how that distinguishes Gertin in any way. [00:13:05] Speaker 04: And this is not the kind of information, the fact that he formally, that at one time he was under a cloud, but that cloud was disappeared. [00:13:14] Speaker 04: That would not be something the government would ever have to disclose to anyone in a case, in a trial. [00:13:19] Speaker 04: The fact that he had had this former problem and is now working on a case, when that case comes, [00:13:25] Speaker 04: That's not information that's going to harm the government in any way. [00:13:27] Speaker 04: It was only once they realized that he had arguably lied to them that they're like, we have to investigate this and you're under investigation. [00:13:35] Speaker 04: So now, you know, you're no use to us. [00:13:39] Speaker 04: So we're going to have you do administrative duties and then we're going to put you on investigative leave. [00:13:44] Speaker 04: So we would say that's that's what happened here. [00:13:46] Speaker 02: How do we go? [00:13:49] Speaker 02: How do what's the error that we should look at? [00:13:52] Speaker 02: How are we to our standard review here? [00:13:54] Speaker 04: Well, it's sufficiency of the evidence and we're saying that because the government didn't realize that what it was supposed to be proving it thought all it had to show was that he got a job by depriving take to of information, but it but neither the job nor the information is property within the meaning of. [00:14:13] Speaker 04: wire fraud statute under under Gertin and under Simonelli. [00:14:17] Speaker 04: So there they didn't put in what they needed to put in for a reasonable jury, rational person to find the under reasonable doubt that he intended to deprive of money or property because they didn't put in evidence that suggests they didn't get that his lies went to the heart of the bargain, which was his ability to do the job. [00:14:37] Speaker 02: So that's- But the DC Circuit also suggests that it could be plain error review because at the stage of acquittal, there was kind of the generic request for acquittal based on all the charges. [00:14:49] Speaker 02: But then once you got specific, you tipped yourself over into plain error. [00:14:53] Speaker 04: Yeah. [00:14:53] Speaker 04: Well, we disagree with that. [00:14:55] Speaker 04: As we say in our reply brief, there was a broad motion, broad motion of the type that this court has held. [00:15:02] Speaker 04: You can make the most general motion in the world, just the words everyone always says. [00:15:06] Speaker 04: We move for judgmental acquittal on all counts. [00:15:08] Speaker 04: That preserves everything. [00:15:10] Speaker 04: The fact that he then went on to say something additional doesn't waive the preservation that he's just engaged in. [00:15:19] Speaker 04: And that's particularly true here, where the judge sort of suggested that the court expected some argument. [00:15:28] Speaker 04: You know, these arguments that were made, it's pretty apparent that they were just, you know, scrambled together to say something they didn't. [00:15:37] Speaker 04: There was like zero merit to those. [00:15:39] Speaker 04: And he never, council never went back to ever try to supplement, never accepted the invitation to do that because it appears that the council didn't really intend to make specific arguments and was just trying to [00:15:52] Speaker 04: check the boxes for the court, what it wanted to hear. [00:15:55] Speaker 04: And so it would be particularly unfair to then now treat those sort of box checking statements as somehow waving the general motion. [00:16:04] Speaker 04: And I'd say that cases where this court has found that a specific motion waves [00:16:11] Speaker 04: the waves, anything else, you can't tell in those cases that I saw whether there was a general and then specific, or if it was very clear that I'm only arguing this. [00:16:23] Speaker 04: And we would say it was not clear here that that's what was, that the argument was limited to it. [00:16:28] Speaker 04: Why would council do that? [00:16:30] Speaker 04: That would be a crazy thing to do. [00:16:32] Speaker 04: So I don't think we should read the record to suggest that council would just undermine his own motion for judgment of acquittal like that. [00:16:41] Speaker 05: On this honesty or special need for honesty theory, I'm trying to figure out how that works with, because even half truths can trigger fraud charges, right? [00:16:55] Speaker 05: That counts as deception, a half truth. [00:16:59] Speaker 05: And so is the theory that, and I know it's hard because they didn't try the case on this theory, but, [00:17:08] Speaker 05: Is the theory that you have to have special honesty and officers mean that sort of any half truth or puffery on, on a resume is suddenly going to become a federal case? [00:17:18] Speaker 04: I mean, I think it seems like under their theory, any mistake, certainly in a law enforcement case, they would be claiming that any mistake, any, anything on your resume that's not a hundred percent right. [00:17:33] Speaker 04: is a false statement or is half true, then your credibility is in trouble. [00:17:38] Speaker 04: And because they've tried to bootstrap this honesty thing in, and that's not what the Gertin court was thinking when they were talking about what it is that has to impair the bargain. [00:17:52] Speaker 04: If the court has no questions on that, moving on to the intent errors, the government has conceded [00:18:00] Speaker 04: that it was error to exclude that Mr. Barrow told the interview panel that he had left Army CID. [00:18:07] Speaker 04: And the government tries to show that that was harmless, but it can't meet its burden. [00:18:13] Speaker 04: It argued that the government argues that he wasn't charged with concealing that he had left. [00:18:22] Speaker 04: But its theory was that he had intentionally misstated his employment status as a critical foundation for the scheme and that it was one of the five lies that work together to create the plan. [00:18:33] Speaker 04: The government says that the disclosure to the interview panel would have been cumulative of other disclosures of the same information, but [00:18:41] Speaker 04: The timing is important here because his initial application had conflicting information about his employment status in May. [00:18:55] Speaker 04: The excluded disclosure happened shortly thereafter in mid-June, where at the in-person interview with the three TIGDA agents sitting across from him who were going to decide whether to give him the job, he told them that he was unemployed. [00:19:08] Speaker 03: Yes. [00:19:09] Speaker 03: You have a bunch of evidentiary issues. [00:19:14] Speaker 03: And unless my colleagues have questions about specific, we do know what your argument is. [00:19:20] Speaker 03: OK. [00:19:21] Speaker 05: I had one question at least. [00:19:23] Speaker 05: So if you are right on the wire fraud convictions, which evidentiary objections remain that would have to be addressed? [00:19:35] Speaker 05: All of them. [00:19:37] Speaker 04: I don't think there's anything that's unique to the wire. [00:19:40] Speaker 05: It also went to the 1,001 charge, all of it. [00:19:42] Speaker 04: Yes, yes, because I think the intent to conceal and the intent to defraud, I mean, it's the same intent and it's being impaired equally as to both, because both involve false statements and both involve you have to intend it. [00:19:56] Speaker 04: And one thing I did forget to say on the wire fraud is that if the court were to think that somehow the government accidentally proved [00:20:07] Speaker 04: you know, had enough evidence sufficient to prove that the benefit of the bargain had been impaired, we would still get a new trial on wire fraud. [00:20:18] Speaker 04: because our job performance evidence was excluded. [00:20:22] Speaker 04: So no matter what, we would need a new trial on the wire fraud. [00:20:26] Speaker 04: And then of course, we also have all our new trial arguments that go to all the counts. [00:20:31] Speaker 04: But I'm happy to take whatever questions. [00:20:34] Speaker 03: I'm not challenging the count three, concealment of a material fact, right? [00:20:39] Speaker 04: Well, we're asking for a new trial on that count because of all the procedural errors. [00:20:44] Speaker 04: But we're not saying it's insufficient. [00:20:47] Speaker 04: We're not saying it's insufficient. [00:20:48] Speaker 03: Do you know offhand what he faces for that count alone? [00:20:51] Speaker 04: I'm not sure what the guidelines would be. [00:20:57] Speaker 04: It would be, you know, [00:20:59] Speaker 04: The same or less, I don't know, but- Hasn't he already completed his sentence? [00:21:02] Speaker 04: Yes, but we're not, I mean, the issue here is really just getting him to acquittal because- He's already served his full sentence. [00:21:08] Speaker 04: Yes, he has. [00:21:10] Speaker 04: Well, except for the not- I'm sorry, the incarceration sentence. [00:21:13] Speaker 04: Yes, yes. [00:21:14] Speaker 04: So I haven't focused on how the guidelines would change. [00:21:17] Speaker 04: Is that it? [00:21:21] Speaker 03: Okay, we'll give you a couple of minutes and we'll reply. [00:21:22] Speaker 03: Thank you. [00:21:23] Speaker 03: Okay, Mr. Cahill. [00:21:37] Speaker 01: May it please the court, Timothy Cahill for the United States. [00:21:41] Speaker 01: The evidence was sufficient to support the wire fraud conviction because a rational juror could have found that Barrow's fraud deprived TIGTA of the benefit of its employment bargain when it hired him to be a criminal investigator. [00:21:52] Speaker 01: Unlike honest services fraud, Ticta was not merely deprived of honesty as such. [00:21:56] Speaker 01: There is evidence in the record and at trial that Barrow's fraud directly undermined the value of his services as a criminal investigator. [00:22:03] Speaker 01: A job that included duties such as gathering evidence to be admissible at trial. [00:22:07] Speaker 05: Where was that in the job application that was posted? [00:22:10] Speaker 05: The need for a special honesty. [00:22:14] Speaker 01: The job application, I don't think specifically said the need for it. [00:22:17] Speaker 05: Didn't say a word about it. [00:22:18] Speaker 05: Who, during the interview, asked him a question? [00:22:21] Speaker 05: When did this come up during the interview about the exceptional need for honesty? [00:22:25] Speaker 01: So, Your Honor, I can point to that. [00:22:27] Speaker 01: I don't know that it was. [00:22:28] Speaker 01: I don't think there was testimony about the interview. [00:22:30] Speaker 01: I would point to Shanda Jones' testimony, the TIGDIS personal security specialist who evaluated his application, who specifically did testify that it was necessary to have a higher standard of integrity. [00:22:40] Speaker 01: And there was other testimony as to why that was, [00:22:42] Speaker 01: The danger of criminal investigators cases getting thrown out in court, their integrity was subject to attack about the fact that criminal investigators needed to do things like gather evidence that would be admissible at trial needed to do things like testify at trials if their cases went to criminal prosecution. [00:22:57] Speaker 05: This isn't the theory on which the case was tried. [00:22:59] Speaker 05: It's not the theory on which it was tried is that you got [00:23:03] Speaker 05: He didn't get the benefit of the bargain. [00:23:05] Speaker 05: The government kept objecting every time defense tried to put in evidence to show that you got the services you asked for. [00:23:14] Speaker 05: And the court was quite clear in Seminelli that we cannot, after the fact, pick out little pieces of evidence here and there. [00:23:25] Speaker 05: One witness is one statement in a different context. [00:23:30] Speaker 05: and try to cobble it together to come up with a whole new theory of the fraud and substitute ourselves for the jury and convict somebody. [00:23:41] Speaker 05: I didn't even see this in your brief. [00:23:43] Speaker 05: You argued that it wasn't plain error. [00:23:46] Speaker 05: But I didn't see that a whole argument section that lays out for me the wealth of evidence [00:23:54] Speaker 05: evidence showing that this was put before the jury, that it was argued to the jury by the government. [00:24:00] Speaker 05: And if it was argued, how could the court possibly have precluded the defense from putting in its evidence that in fact you did get the benefit of the bargain? [00:24:09] Speaker 01: So I think that question encompasses a few issues. [00:24:10] Speaker 01: On your honor, I'll try to address all of them. [00:24:12] Speaker 01: First of all, while we do argue that plain error applies here, I want to emphasize that we don't view that as determined. [00:24:17] Speaker 01: We indicated in our brief that even under the highly differential sufficiency review that traditionally applies to sufficiency review, the government should prevail here. [00:24:26] Speaker 01: I just want to quickly address Your Honor's reference to Simonelli. [00:24:28] Speaker 01: That wasn't a sufficiency case. [00:24:29] Speaker 01: That was a case where there was a jury instruction that specifically instructed the jury that they could convict based on intangible rights. [00:24:36] Speaker 01: This jury was properly instructed that it could only convict on deprivation of money or property. [00:24:41] Speaker 01: There's no jury instruction claim on that element. [00:24:43] Speaker 01: This is only being reviewed for sufficiency. [00:24:45] Speaker 01: What a rational juror could find. [00:24:47] Speaker 01: In terms of the evidence in the record, Your Honor, I would submit that we did outline it in the brief. [00:24:51] Speaker 01: I would point to testimony on the appendix A 1880 to 81, A 1931 to 32, A 2384 to 85. [00:25:01] Speaker 01: All of those are testimony about pages. [00:25:05] Speaker 01: So your honor, I guess so. [00:25:07] Speaker 05: When I look at your opening argument, your closing argument, all the arguments as to why the benefit of the bargain evidence that they wanted to put in was irrelevant in the district court's words. [00:25:19] Speaker 05: And the government was objecting that it was irrelevant because it didn't matter, in the government's words and the court's words, if they got the benefit of the bargain. [00:25:29] Speaker 05: It was about whether he lied to obtain a salary, whether he lied, in the government's words, to get his job back, to have a gun back, to be an investigator again. [00:25:39] Speaker 05: That's what was said and again. [00:25:41] Speaker 05: So I'm not sure how these three little pieces aren't exactly what Simonelli said we can't do. [00:25:47] Speaker 05: We can't piece it together. [00:25:49] Speaker 05: Afterwards on a different thing. [00:25:51] Speaker 01: So again, I want to try to respond again to all of the pieces there for your honor. [00:25:55] Speaker 01: One is that this, I would acknowledge this was not the emphasis of the government's argument. [00:26:00] Speaker 01: This was not a case that was, this was a case tried after GERD, not before, excuse me, before GERD, not after GERD. [00:26:06] Speaker 01: That said, this is sufficiency review. [00:26:07] Speaker 01: The question is whether the evidence was sufficient, using the light most favorable to the government, granting all reasonable inferences. [00:26:13] Speaker 01: And the evidence that was there was sufficient that a jury could credit. [00:26:16] Speaker 05: Do you acknowledge that the government objected when the defense tried to put in evidence about benefit of the bargain that it was irrelevant? [00:26:24] Speaker 01: So Your Honor, and I do want to address the take to work performance reviews as well. [00:26:29] Speaker 01: The government's objection there was that that didn't go to an issue that was in dispute. [00:26:33] Speaker 01: And we maintain that. [00:26:34] Speaker 01: The government's theory, even now as we're arguing, that the deprivation of the benefit of the bargain was a criminal investigator whose integrity could be attacked, not a criminal investigator who lacked the ability to perform the individual tasks of completing an investigation. [00:26:48] Speaker 05: There's nothing that granular in the case. [00:26:49] Speaker 05: The government said and the court said it's irrelevant whether you got the benefit of the bargain. [00:26:54] Speaker 01: I think they'd say it was irrelevant whether he did the tasks performing the job well, because that wasn't an issue that was... Did the actual tasks... Well, did them well. [00:27:03] Speaker 05: Well, yes, Your Honor. [00:27:04] Speaker 05: If he didn't do them in a way, it wouldn't... I assume the government's position would be that if you investigated something well, but your character was so impugned, you couldn't be trusted and your evidence you gathered wasn't worth anything, that he didn't do the job [00:27:18] Speaker 01: Well, I think this is actually a very good point, Your Honor, and I want to follow up on it because I think what Your Honor is striking at actually helps draw a distinction between an honest services fraud case and this case. [00:27:28] Speaker 01: In an honest services fraud case, the only harm is that the employer has employed someone who is a dishonest employee. [00:27:35] Speaker 01: someone who they can't trust, who might not be performing the services with loyalty and with honesty. [00:27:41] Speaker 01: And this court and other courts have held that if that's the only deprivation, then that can't sustain the deprivation for wire fraud. [00:27:49] Speaker 01: But here, but I'm so sorry, Your Honor, if I could just. [00:27:51] Speaker 05: Please, no, no, no. [00:27:52] Speaker 01: Because I guess I'm trying to finish the thought of seeing what Your Honor's question was. [00:27:55] Speaker 01: I do want to answer Your Honor's concern here, which is that here, the harm wasn't [00:28:01] Speaker 01: That the perspective harm wasn't that he wouldn't be doing the investigations. [00:28:05] Speaker 01: Well, there was no there was no dispute that there was no argument that he wasn't doing the investigations. [00:28:10] Speaker 01: Well, it's that those investigations wouldn't have had the value to tick to as a law enforcement agency that they bargained for. [00:28:17] Speaker 01: that any evidence that was gathered would be impaired from being used in a criminal prosecution. [00:28:21] Speaker 01: That if Mr. Barrow needed to testify in a criminal prosecution on a case that he investigated, he would be impaired from being able to do so because his integrity could be so subject to attack. [00:28:31] Speaker 01: And that's the bargain they were paying him for. [00:28:33] Speaker 05: So one correction, Simonelli was a sufficiency of evidence case. [00:28:39] Speaker 05: And that's where the Supreme Court refused to allow courts to pick and choose [00:28:43] Speaker 05: were three-sided pages of transcript evidence, and then the nuances about performing well and performing in a way that's going to hold together in court. [00:28:54] Speaker 05: And given, again, that the defense tried again and again and again to put in evidence about the ability to perform, about his performance of the job, [00:29:05] Speaker 05: his ability to perform the job, get the benefit of the bargain, and his intent, which is really what we're talking about here, did he intend not to give you the benefit of the bargain? [00:29:14] Speaker 05: I don't understand how we could pick these few pieces of evidence and accept that it was somehow undisputed when we don't have the defense evidence in. [00:29:24] Speaker 05: I'm assuming when your friend gets up on rebuttal, she'll say there was a lot of dispute about all of these things. [00:29:31] Speaker 01: Well, I don't think there's, frankly, Your Honor, any dispute, again, about the fact that he had experience performing the tasks of doing investigations. [00:29:39] Speaker 01: And that's all that his work performances would have shown. [00:29:42] Speaker 01: At worst, the exclusion of the work performances was harmless error. [00:29:45] Speaker 01: Because the government, and I do want to go back to another question Your Honor posed, which is whether this was. [00:29:50] Speaker 05: It's true that the government never redid any of his work in this case, because even after he found out he'd been under investigation at the time, at least, [00:30:01] Speaker 01: I believe at the Senate scene there was evidence that there was one investigation that was done. [00:30:05] Speaker 05: So defense counsel just, that's like the $2,400, but defense counsel said that was work that he had done that was at the time they discovered the lie and started their own investigation. [00:30:18] Speaker 05: Is what record evidence was there before the jury, which is really the only thing that matters right now, what record evidence was there before the jury that he intended [00:30:31] Speaker 05: You can do it either from the intent side or that you actually lost the property that in fact the government did not receive the performance that it needed and that it had to throw out his work redo his work. [00:30:45] Speaker 01: So there's a few things there, Your Honor. [00:30:47] Speaker 01: One, I just want to do quickly correct that the work that was redone was done because it could not be relied upon to be used in a criminal prosecution, I believe. [00:30:56] Speaker 05: I'm not disputing that. [00:30:58] Speaker 05: The question is, which investigation was the problem there? [00:31:01] Speaker 05: And defense counsel said the investigation that was the problem there was TIGTA's investigation, not the CID investigation. [00:31:09] Speaker 01: You know, I don't think it's in the record, which what's what it is. [00:31:12] Speaker 01: But the fact was that it had to be redone because he had committed committed the fraud in this case. [00:31:16] Speaker 05: But to circle back, they said it was redone because he was under investigation by TIGTA. [00:31:23] Speaker 05: So they had not yet actually made a conclusion. [00:31:26] Speaker 01: That I think is actually not correct, Your Honor. [00:31:28] Speaker 01: I actually did not, and I don't mean to say Pellants Council misrepresented. [00:31:32] Speaker 01: I don't think that actually, at least to my recollection, is how it was framed. [00:31:36] Speaker 01: It wasn't because he was under investigation by TIGTA. [00:31:38] Speaker 01: Once he was under investigation by TIGTA, he was placed on administrative duties. [00:31:41] Speaker 01: He wasn't doing investigations at that point. [00:31:43] Speaker 01: It was based on his earlier fraudulent representations. [00:31:47] Speaker 01: I think my Pellants Council's argument, which we... He wasn't under investigation at the time he did any work. [00:31:53] Speaker 01: Well, he was an individual he he had done the work after he had committed fraudulent misrepresentations to get employment, which made that him somebody who think it would not want to sponsor his work as a government as a witness. [00:32:04] Speaker 05: So the argument here isn't that he had he had you had to redo it because of the CID investigation. [00:32:11] Speaker 05: It's that [00:32:14] Speaker 05: If you had to redo it because he made a fraudulent misrepresentation on his application form, you would have had to redo 100% of his work. [00:32:25] Speaker 05: Not a teeny tiny little percentage. [00:32:27] Speaker 01: So this also ties in with one of your other honors questions, because I think that's actually not also correct. [00:32:32] Speaker 01: Because the point is that the work would need to be redone if it was going to be used in a criminal prosecution. [00:32:36] Speaker 01: Not every investigation leads to a criminal prosecution. [00:32:39] Speaker 05: Mr. Barrow was only there for- Is there any evidence about all this on the record that you're telling me? [00:32:43] Speaker 01: Sorry, Your Honor. [00:32:44] Speaker 05: What is the evidence on the record about why this particular? [00:32:48] Speaker 01: There's very little, Your Honor, and that's why I don't mean to delve into it. [00:32:52] Speaker 01: I'm trying my best to respond to Your Honor's questions about it. [00:32:55] Speaker 01: But I also want to take a step back and point out that for a wire fraud conviction, it isn't required to prove actual loss. [00:33:02] Speaker 01: It's required as a scheme to defraud. [00:33:05] Speaker 01: So the fraud was committed at the moment that he made it. [00:33:09] Speaker 05: You have to have an intent to defraud of property. [00:33:14] Speaker 05: And if you want to say the property is a law enforcement investigator who didn't shade anything on his job application, you have to show that it was his intent. [00:33:27] Speaker 05: And yet the fact that you just said 99% of what he did, the government got the benefit of because [00:33:36] Speaker 05: He said there was only this tiny amount that maybe pertained to a court case, but everything else you didn't have to redo. [00:33:41] Speaker 05: And that, in fact, is what the district court found at the restitution stage, that you got the benefit of the bargain for all the months he worked. [00:33:49] Speaker 05: The only thing the district court gave you, and you haven't cross-appealed, is the time when he was on non-work leave. [00:33:58] Speaker 01: So, Your Honor, first of all, there's no minimal amount of damage here that needs to be proved. [00:34:02] Speaker 01: In fact, there doesn't need to be any actual loss at all. [00:34:04] Speaker 01: The district court here found actual loss, and at least the actual loss that Your Honor is referring to, the investigation that had to be redone, that actual loss isn't in dispute. [00:34:12] Speaker 01: But that isn't an element of the wire fraud. [00:34:14] Speaker 01: The wire fraud was committed when, if the fraud had been discovered on day one when he showed up, this still would have been the same case. [00:34:20] Speaker 01: He still would have committed the same crime. [00:34:23] Speaker 01: So in terms of, I did also want to address something before it gets lost in the shuffle that Your Honor had questioned earlier, but whether the government had made any arguments along these lines. [00:34:32] Speaker 01: A trial, I know a point, this is on A-28-41-42, where during closing the government argued why the fraud mattered to TICTA and said, TICTA is a law enforcement agency just like Army CID that cannot take risks that its criminal investigators outside issues would put its agency work in jeopardy. [00:34:49] Speaker 01: It didn't use the phrase benefit of the bargain, but I would submit that that means exactly the same thing. [00:34:54] Speaker 01: That's why TIGTA did not get the employee that they hired, the employee that they agreed to pay a salary to, because they didn't get an employee. [00:35:01] Speaker 05: But now you're arguing that we had a loss, which you said doesn't matter. [00:35:04] Speaker 05: What I'm trying to show is, where is the evidence that he intended to deprive you of that? [00:35:11] Speaker 05: As opposed to he had whatever his views were about the explanation at CID, which [00:35:19] Speaker 01: I would submit that there is extensive evidence about that. [00:35:24] Speaker 05: Intended to give you an investigator whose work wouldn't hold up. [00:35:30] Speaker 05: That's your argument here. [00:35:31] Speaker 05: The property you lost was an investigator whose work would hold up with the reliability levels needed for a law enforcement. [00:35:40] Speaker 01: So given that Mr. Barrow had worked as a criminal investigator that knew that an investigator who committed significant criminal offenses was under investigation for offenses or committed fraud, that [00:35:51] Speaker 01: that work would be put into question. [00:35:53] Speaker 01: In fact, that actually happened at CID long before he ever applied to TIGTA. [00:35:57] Speaker 01: At CID, he was placed on administrative duties because he had to be able to be taken away from all of his case files. [00:36:02] Speaker 01: They couldn't risk the danger that anything he worked on on his case files could be jeopardized. [00:36:07] Speaker 01: So certainly he had the knowledge that that would happen if he was hired at TIGTA for the same job with these major integrity concerns. [00:36:14] Speaker 01: So there was, and the jury found, necessarily found that he had the intent to defraud, that he had the intent to conceal these things. [00:36:20] Speaker 05: Where is all this argument about how there is sufficient evidence on this particular theory in your brief? [00:36:30] Speaker 05: Because the only sufficiency argument you have is didn't do plain error. [00:36:35] Speaker 05: And then you argued about the obtain maintain distinction. [00:36:39] Speaker 05: So if you can tell me where in your briefs you laid out how there was sufficient evidence and how the government actually indicted and proved his intent, you do this. [00:36:49] Speaker 05: Not that there's a little piece of evidence here and there, because that's what was exactly the argument in the Seminelli and it's exactly what the Supreme Court rejected. [00:36:57] Speaker 01: So Your Honor, I would note that we indicate on page 20, note 14, that we believe that either standard of review for a sufficiency claim is sufficient for the government to. [00:37:06] Speaker 05: OK, that one sentence. [00:37:07] Speaker 05: Barrow's claim would also fail under the highly differential standard of review for a preserved sufficiency claim. [00:37:12] Speaker 01: That's it. [00:37:13] Speaker 01: And Your Honor, except for the one argument that we make with respect to whether the court could consider evidence outside of the trial record, which is a relatively small part of the sufficiency argument, [00:37:23] Speaker 01: The rest of the sufficiency arguments are the same. [00:37:25] Speaker 01: I mean, the standard of review might affect what the court's doing with it, but the arguments as to why it was sufficient are the same. [00:37:34] Speaker 05: It's not in your brief. [00:37:36] Speaker 05: You've made a lot of, and I appreciate it, and I appreciate your careful knowledge and review of the record and your efforts to answer my questions. [00:37:43] Speaker 05: I 100% appreciate that. [00:37:47] Speaker 05: But this is not the argument that's in the brief. [00:37:49] Speaker 05: This is not the, I mean, you told me you have a one sentence footnote, but of course that's not enough to preserve an argument in this court. [00:37:55] Speaker 01: Your honor, frankly, respectfully, the one sentence footnote was about the standard of review saying that we prevail under either standard of review. [00:38:01] Speaker 01: My point is that the substantive arguments are the same under either standard of review. [00:38:04] Speaker 01: I would point to pages 23 and 24 where we say, Gertin does not support Barrow's plain [00:38:10] Speaker 01: error sufficiency claim. [00:38:11] Speaker 01: There was evidence at trial that Barrow's fraud deprived Tic-Tac of the benefit of the bargain when it hired him as a criminal investigator, which is, I think, exactly the argument Your Honor is referencing. [00:38:20] Speaker 01: And what follows, I understand Your Honor may not agree with our position on that evidence, but it certainly is in the brave. [00:38:29] Speaker 05: No, I'm sorry. [00:38:31] Speaker 05: What I'm trying to get to is that that's what the case was about. [00:38:35] Speaker 05: That the bargain you were deprived of [00:38:40] Speaker 05: was this higher standard of integrity that didn't show up anywhere in the application process that I could see. [00:38:45] Speaker 05: You can correct me if I'm wrong. [00:38:47] Speaker 05: And that someone described that they have to collect evidence. [00:38:55] Speaker 05: And sometimes, where Warren affidavits testify oath in court, there's just really no evidence that you lost anything that was before the jury, that you didn't get from him. [00:39:06] Speaker 05: Now, maybe it was because [00:39:08] Speaker 05: was only 10 months or something, less than a year that he was there. [00:39:11] Speaker 05: But there's no evidence before the jury that I saw, because these things were in a very different context. [00:39:18] Speaker 05: And to be fair to you guys, it was pretty great. [00:39:20] Speaker 05: And to be fair to you, it was pretty great. [00:39:22] Speaker 05: You were doing it under a different state of law, but it just wasn't the theory of this case. [00:39:31] Speaker 01: And Your Honor, I want to emphasize that on sufficiency review, what we're looking at is whether a rational juror could have found that this was satisfied. [00:39:37] Speaker 01: And again, we submit that a rational juror, from reviewing all of the evidence in the light most favorable to the government, drawing reasonable inferences from this testimony, from this evidence about the higher standard of integrity that is necessary and the consequences when it's not satisfied, predicted did not receive the benefit of this party. [00:39:55] Speaker 05: Why did the government keep objecting when the defense tried to put in the other side of the story? [00:40:01] Speaker 01: And so again, Your Honor, I would push back on the other side of the story because the defense wasn't trying to admit evidence that would push back on the theory that a criminal investigator with integrity concerns was of less value to TIGTA. [00:40:14] Speaker 01: That wasn't what the work performance reviews would have shown at all. [00:40:16] Speaker 01: Those work performance reviews were completed before the fraud was ever discovered. [00:40:19] Speaker 05: That was their theory of why the government... You can disagree and argue to the jury, but that was their theory and their evidence [00:40:28] Speaker 05: of why he didn't intend to deny the government of the work it was looking for. [00:40:37] Speaker 05: And the government didn't lose anything. [00:40:42] Speaker 05: And I understand you say it wouldn't have [00:40:46] Speaker 05: persuaded the jury because of your arguments, but that's not how trials work. [00:40:51] Speaker 05: The difficulty with this case is, and the reason I think the district court kept saying this is irrelevant, this is irrelevant, because the government had, pre-Garrett and understandably, a different theory of what the property injury was. [00:41:06] Speaker 05: And the argument was that he lied in order to get the property of a salary. [00:41:15] Speaker 05: in order to get the property of a position. [00:41:19] Speaker 05: That's really, that's at least how I have read his case. [00:41:24] Speaker 05: So I want to address 99% of what was about. [00:41:28] Speaker 05: Maybe there were a couple of little references here, but they were all to the end of. [00:41:33] Speaker 05: See, he wouldn't have gotten had he told us the truth, he wouldn't have gotten the salary. [00:41:39] Speaker 05: He wouldn't have gotten the job, the [00:41:42] Speaker 05: the gun, the badge, he wouldn't have gotten those if he had told us because we can't have people under investigation working for us. [00:41:51] Speaker 05: That had to be the argument, because it can't be if he hadn't lied to us. [00:41:56] Speaker 05: If he had told us, then he wouldn't have lied to you. [00:41:57] Speaker 05: You wouldn't have had that. [00:41:58] Speaker 05: The whole argument has to be had he told us he was under investigation, which he wasn't when he started working. [00:42:04] Speaker 05: And so that's how the evidence came in. [00:42:07] Speaker 01: And so, Your Honor, I want to address at least two things encompassed there. [00:42:10] Speaker 01: One is, to the extent, again, the government objections to the take to war performances and the trial court's ruling that they didn't go to an issue in dispute, even if the court finds that that was an erroneous ruling, we would submit that on this record that was harmless error. [00:42:23] Speaker 01: Because that wasn't an argument the government ever made was that he was incapable of the tasks of performing an investigation. [00:42:30] Speaker 01: The other thing I do want to address, though, Your Honor. [00:42:31] Speaker 05: I'm sorry. [00:42:33] Speaker 05: I just want to make sure I understand that. [00:42:35] Speaker 05: What you just said again, say that again. [00:42:37] Speaker 05: It wasn't relevant because it wasn't what you were arguing. [00:42:42] Speaker 01: It was in terms of the sufficiency of the evidence on being deprived of the benefit of the bargain, even now on appeal, Your Honor, we're not arguing that they were deprived of the benefit of the bargain because of the actual tasks day to day, moment to moment to perform an investigation that he wasn't capable of doing that. [00:42:58] Speaker 01: It was that the work that he did was of less value to them because it couldn't be used in a criminal prosecution if any one of his investigations ended up having to go to a criminal prosecution. [00:43:07] Speaker 01: Which he was fired. [00:43:09] Speaker 01: I mean, he ended up being fired 10 months or being removed from his criminal investigative duties 10 months in. [00:43:13] Speaker 01: Investigations can take a long time. [00:43:15] Speaker 01: If they were hiring an investigator, though, part of the bargain was to get somebody whose work could be used in prosecutions. [00:43:22] Speaker 05: That means that the property he took [00:43:28] Speaker 05: was the salary. [00:43:30] Speaker 01: Absolutely, Your Honor. [00:43:31] Speaker 01: And I want to emphasize. [00:43:32] Speaker 05: As Gertin says, it's not enough. [00:43:33] Speaker 01: I strongly disagree, Your Honor. [00:43:35] Speaker 01: Neither Gertin nor any court has ever held that salary can't be the property. [00:43:38] Speaker 01: In fact, Gertin contemplates scenarios where the salary can be the property. [00:43:42] Speaker 01: What Gertin says is that the salary can be the property, but the government needs to show that there was a deprivation of the salary so that if they got entirely their benefit of the bargain, then the salary wasn't deprived. [00:43:54] Speaker 01: But if they didn't get the benefit of the bargain, if they got something less than the benefit of the bargain, then the salary was deprived. [00:44:01] Speaker 01: I point on page 451 for Gertin. [00:44:03] Speaker 01: It says, when employees' deceits don't deprive the employer of money or property, but it says then unless, there's a showing that the employer would have paid less for a dishonest employee's work. [00:44:14] Speaker 01: So here we have evidence that they wouldn't have paid anything for it. [00:44:17] Speaker 05: You have to, it's insufficient if you allege that there was a state department was deprived of something more [00:44:24] Speaker 05: And where it was honest and that's exactly the deprivation here was honesty, not not while he was working on like written but honesty in the job application. [00:44:35] Speaker 05: That's what you were deprived of yet. [00:44:36] Speaker 05: Yes, you were deprived of honesty in the job application. [00:44:40] Speaker 01: They were deprived of a lot more than that, Your Honor. [00:44:42] Speaker 01: They were deprived of a criminal investigator whose work could be used in criminal prosecutions, which is an essential qualification to have someone conducting criminal investigations, is that the work they do could be used if there's a prosecution based on that investigation. [00:44:55] Speaker 01: And they were deprived of that. [00:44:57] Speaker 05: Where is the evidence that all his work was thrown out because it couldn't be used? [00:45:01] Speaker 01: That isn't the standard, Your Honor. [00:45:02] Speaker 01: It doesn't exist, but that doesn't resolve the question. [00:45:09] Speaker 01: The question is whether or not they were deprived of the employee that they paid to hire, and they were. [00:45:16] Speaker 05: But if the, first again, this benefit of the bargain goes to intent, yes? [00:45:29] Speaker 01: I think, I would say first and foremost, the benefit of the bargain goes to the question of the deprivation of money or property. [00:45:36] Speaker 01: Now there is also a requirement that there's an intent to deprive of money or property, but I would say first and foremost, it applies to the element of deprivation of money or property, the scheme. [00:45:45] Speaker 05: Not first and foremost. [00:45:47] Speaker 05: We have to define the property that's being deprived in terms of benefit of the bargain, just as a shorthand from Garton. [00:45:55] Speaker 01: I would frame it a little bit differently, Your Honor, because the property is still the tangible property interest of the salary. [00:46:00] Speaker 01: The question of whether that salary was deprived is contingent on whether or not the benefit of the bargain wasn't satisfied. [00:46:08] Speaker 01: If you paid the money, you were deprived of the money. [00:46:10] Speaker 01: If you didn't get back in return what you paid the money for, then you were deprived of at least some of that money. [00:46:15] Speaker 01: You were deprived of the value of what you were paying. [00:46:19] Speaker 01: And we submit that a rational juror could have found the evidence here that that's what was. [00:46:22] Speaker 05: I thought we were saying the same thing. [00:46:24] Speaker 05: Perhaps we were in different wording. [00:46:27] Speaker 05: And then, but you still also have to show that he had the intent. [00:46:31] Speaker 05: He had the intent to, when he fudged on his forms, lied on his forms, [00:46:41] Speaker 05: And again, your honor, we would submit that the evidence. [00:46:44] Speaker 05: When he lied on his farms, he had the, sorry. [00:46:46] Speaker 01: I apologize. [00:46:47] Speaker 05: My brain is going a lot slower than yours this morning. [00:46:50] Speaker 01: I apologize. [00:46:51] Speaker 05: No, no, it's my slow brain. [00:46:52] Speaker 05: So he had the intent to deprive you not of the position, not of the salary, not of the badge, not of the position. [00:47:01] Speaker 05: But he had the intent to deny you [00:47:08] Speaker 05: a reliable investigator. [00:47:09] Speaker 05: That was the goal. [00:47:10] Speaker 05: That was the intent of his line, was to deny you an investigator whose evidence and work you could use. [00:47:21] Speaker 01: So Your Honor, I don't think he had to. [00:47:23] Speaker 01: Oops, I'm sorry. [00:47:23] Speaker 05: I thought Your Honor was. [00:47:25] Speaker 05: So I don't know if you're right to talk about recording these. [00:47:28] Speaker 05: Am I right in saying that's what the intent is? [00:47:30] Speaker 01: I don't think that's quite right. [00:47:33] Speaker 01: I think the intent has to be to have deprived them of the money or property. [00:47:36] Speaker 01: So if he sought a salaried position for which they were going to pay him, knowing full well that he was not going to be the caliber of employee because of his integrity issues that they thought they were hiring, then that satisfies the intent requirement. [00:47:53] Speaker 01: And the goal doesn't need. [00:47:55] Speaker 05: Because you want to put the benefit of the bargain in deprive, not [00:47:59] Speaker 05: Property, I think, is what you said before. [00:48:00] Speaker 01: The benefit of the bargain is an analysis of whether there was any deprivation. [00:48:05] Speaker 01: Deprivation. [00:48:05] Speaker 01: Because the whole idea in Gert and in. [00:48:08] Speaker 01: No, no, no, no. [00:48:09] Speaker 05: It can't be whether there was deprivation, because you don't have to. [00:48:11] Speaker 05: You've told me many times, we don't have to show that. [00:48:13] Speaker 05: So it has to be whether he intended to deprive you of that investigate, use, what shall we call it, the useful investigator. [00:48:26] Speaker 01: Yes, you're right. [00:48:26] Speaker 01: But I guess this goes to. [00:48:29] Speaker 01: His ultimate goal doesn't need to be somebody sitting around twirling his mustache saying, I'm going to really mess up Tigda's work. [00:48:36] Speaker 01: That doesn't need to have been his overarching goal. [00:48:39] Speaker 01: But if his goal was, under false pretenses, to get a job lying to Tigda about the caliber of employee he would be, about the qualifications he had by hiding his integrity issues that was going to ultimately undermine that work, he was knowingly and intentionally depriving them of the benefit of their part. [00:48:55] Speaker 05: You're just arguing inferences a jury could make to find intent. [00:48:57] Speaker 05: Are you saying that the intent requirements rate doesn't apply to deprivation? [00:49:03] Speaker 01: No, not at all, Your Honor. [00:49:05] Speaker 05: It applies to deprivation of this particular form of property. [00:49:10] Speaker 05: Okay, you're shaking your head. [00:49:11] Speaker 01: I'm sorry. [00:49:12] Speaker 01: I'm trying to clear my head, Your Honor. [00:49:14] Speaker 01: I apologize. [00:49:16] Speaker 05: I'm trying to follow. [00:49:17] Speaker 05: But it is an intent [00:49:21] Speaker 05: required finding for this offense. [00:49:24] Speaker 05: And the intent has to be the fraud, which is the deprivation of some property beyond justice salary post-groom, okay? [00:49:35] Speaker 05: And beyond just the position post-groom. [00:49:38] Speaker 01: And again, Your Honor. [00:49:39] Speaker 05: I don't know how you can say what you lost, that you lost, your whole theory now is that there was this super special investigator thing that we were deprived of. [00:49:52] Speaker 05: And it can't be that you can make that argument without him having to show that he intended to deprive you of that thing if that thing is the linchpin to having a viable fraud claim post-Gwerton. [00:50:09] Speaker 05: It just can't be. [00:50:10] Speaker 05: If that's your linchpin for a viable fraud claim post-Gwerton, you have to show he intended to do that. [00:50:17] Speaker 01: And so I would just point again, Your Honor, to if that were true, then some parts of the Gerton decision would frankly make no sense. [00:50:27] Speaker 01: The fact that Gerton contemplates the fact that there could be a showing that an honest employee, that an employer would have paid less for a dishonest employee's work, that it would have valued it less, wouldn't be a viable fraud claim. [00:50:37] Speaker 01: But Gerton suggests that it is. [00:50:38] Speaker 01: Gerton just says in Gerton that the government didn't make that showing. [00:50:42] Speaker 01: The government's position in Gertin was it didn't have to make that showing. [00:50:45] Speaker 01: So it didn't attempt to make that showing. [00:50:47] Speaker 01: But Gertin never says that that showing wouldn't be sufficient for wire fraud. [00:50:51] Speaker 01: In fact, it indicates that if that showing is made, that it would be sufficient for wire fraud. [00:50:56] Speaker 01: I see that I'm well over time. [00:50:58] Speaker 01: If there are any further questions. [00:51:02] Speaker 02: Just more of a limiting principle, because earlier we started out talking about if you had fraud essentially in the application, [00:51:12] Speaker 02: This case is brought about because you later learn about it. [00:51:16] Speaker 02: So that's why you have differences on the restitution charts. [00:51:21] Speaker 02: But what about on any instance that an employee has fraud in the application? [00:51:27] Speaker 02: Are you telling me that immediately there's a criminal charge against that employee? [00:51:34] Speaker 02: And I think that's kind of where we're going about that. [00:51:37] Speaker 02: you could find out 20 years later, none of the investigations were affected. [00:51:42] Speaker 02: And then all of a sudden, you want somebody to charge this particular employee with a riot fraud crime, crime, even though none of the investigations have been challenged, but you [00:51:54] Speaker 02: find somehow that there was something wrong on the resume or something wrong in any part of the application process. [00:52:00] Speaker 02: So I'm just trying to think. [00:52:01] Speaker 01: So if Your Honor is imagining the exact same scenario, but it's not discovered until after everything is closed, I would actually submit that that doesn't affect the evaluation of whether the crime was committed. [00:52:12] Speaker 01: Because again, the actual loss doesn't need to be proven. [00:52:14] Speaker 01: So given that the intent and the [00:52:17] Speaker 01: Deceit and the misrepresentations all happened at the moment of the application. [00:52:22] Speaker 01: At that point, he is seeking to be hired for a job, knowing full well that the integrity challenges that could be raised against him could jeopardize any work that he did for TIGTA. [00:52:32] Speaker 01: Now, if by some series of events, it doesn't end up happening, that actually doesn't, that might affect a restitution evaluation, but it wouldn't affect whether the crime of wire fraud was committed. [00:52:42] Speaker 02: So you say on day one, anybody in any of these agencies who has got some falsification is eligible to be? [00:52:52] Speaker 01: Well, Your Honor, all of the other elements still have to be met. [00:52:55] Speaker 01: It has to be shown that it was a material misrepresentation. [00:52:57] Speaker 01: It has to be shown that they were deprived of the benefit of who they thought they were hiring, depending on the job that may or may not be applied. [00:53:05] Speaker 02: And despite that, you just talked about your words that you could close out all these files, nothing happened during that time. [00:53:12] Speaker 01: The distinction I'm drawing, Your Honor, and that I thought Your Honor was driving at is the distinction between whether or not his integrity concerns were hiring somebody who's [00:53:24] Speaker 01: Deficiencies could impair, and I would suggest very likely would impair, criminal investigations. [00:53:30] Speaker 01: Or your honor is hypothesizing some scenario where it's so far in the future that we know that as a factual matter, they did not end up impairing a particular or any particular investigation. [00:53:40] Speaker 01: And with that, I don't think that distinction actually would affect whether the individual committed the crime. [00:53:44] Speaker 01: Because again, if this had been discovered the day before he went to TIGTA, he still would have committed the crime. [00:53:52] Speaker ?: OK. [00:53:53] Speaker 02: You agree that this higher standard of integrity that you're talking about is really intangible. [00:54:00] Speaker 01: No, Your Honor, I wouldn't not as it not as a requirement. [00:54:03] Speaker 02: In fact, I would say intangible and intangible type of alleged property as opposed to money or property that we're, you know, specifically speaking about here. [00:54:14] Speaker 01: So if the only deprivation is honesty or is integrity, I would agree that the concepts, I guess, writ large of honesty and integrity are intangible concepts. [00:54:24] Speaker 01: But again, the deprivation of property here was the deprivation of the salary for having hired somebody you had. [00:54:29] Speaker 01: And it wasn't just intangible problems with integrity that somebody might not trust him. [00:54:34] Speaker 01: It was something that someone could bring up in a court criminal proceeding to have his work thrown out. [00:54:40] Speaker 01: That's that's that's the tangible effect. [00:54:42] Speaker 02: Okay, and then you as the government, you'll have your theory of the case, and let's say your theory of the cases, everything that we've been discussing here this high standard of integrity that could somehow affect investigations later, then a judge will actually instruct the jury about the benefit of the bargain. [00:54:59] Speaker 02: and then the jury then looks at all the evidence that you've had in the case and determines whether or not you've met that definition beyond a reasonable doubt. [00:55:10] Speaker 02: So back to Judge Millett's questions, essentially on the benefit of the bargain piece, how is this not a jury issue factually? [00:55:22] Speaker 02: In other words, that's your theory. [00:55:24] Speaker 02: But the jury, after the judge instructs, has to feel that the evidence was actually sufficient in the record to meet that definition. [00:55:32] Speaker 02: And right now we're talking about, under your wire fraud indictment, that it says devised and intended to devise the scheme of fraud and to obtain money and property. [00:55:44] Speaker 02: That's what you're going off of in your theory. [00:55:47] Speaker 01: And again, so first and foremost, Your Honor, I would say is because there's no jury instructional claim raised here. [00:55:51] Speaker 01: It's not before the court with respect to this element. [00:55:53] Speaker 01: I understand there are other jury instructional claims. [00:55:55] Speaker 01: So the claim here is raised only in the context of sufficiency of the evidence. [00:55:59] Speaker 01: There's no challenge that the judge's instructions with respect to this element were deficient or that they affected the verdict. [00:56:06] Speaker 01: So I mean, I think in this case, it's simply not before the court that the question of how the jury was constructed. [00:56:11] Speaker 01: On this element, again, I understand there are other instructions. [00:56:14] Speaker 02: Well, and I guess what I'm going to is that, [00:56:15] Speaker 02: I'm not challenging that the jury was instructed wrongly, but that you have a theory, the judge instructs the jury, and then the jury makes this determination. [00:56:27] Speaker 02: When I was referring to Judge Millett, I'm sorry, I didn't finish my thought. [00:56:30] Speaker 02: The defense does not get the opportunity to bring forward its side of the theory of your case when you don't allow the issues with respect to the defendant's performance so that they could challenge how the jury was instructed to the extent of that's your theory of what benefit of the bargain mean, but they have a different theory of what benefit of the bargain means. [00:56:54] Speaker 02: They present all of that in front of the jury and the jury chooses. [00:56:58] Speaker 01: I understand, Your Honor. [00:56:58] Speaker 01: And so I would say again that viewing the [00:57:02] Speaker 01: Admission of that evidence, I assume Your Honor is referring to the work performance evidence that was attempted to get in. [00:57:07] Speaker 01: Viewing that evidence in that light, if this court decides that the exclusion of it was error, I would reiterate that our view is that that would be harmless error. [00:57:16] Speaker 01: I believe there's no danger here that the jury convicted Mr. Barrow on the theory that he was not capable of performing the tasks of being an investigator. [00:57:25] Speaker 01: All of the evidence showed that the duties of actual investigative work [00:57:30] Speaker 01: between his job at CID and at TIGTA were the same. [00:57:33] Speaker 01: And so if anything, this evidence would have been redundant of that. [00:57:37] Speaker 01: I understand, Your Honors and Judge Malath, points that maybe the defense would have found it beneficial to have argued that it was, you know, to have more affirmatively argued it rather than it simply being an issue, not dispute. [00:57:47] Speaker 01: But to the extent that that was error, we would submit it was harmless error for the reasons I've outlined here. [00:57:51] Speaker 03: All right. [00:57:51] Speaker 03: Thank you. [00:57:52] Speaker 03: Thank you, Your Honor. [00:57:53] Speaker 03: Does Ms. [00:57:54] Speaker 03: Wright have any time? [00:57:56] Speaker 03: All right. [00:57:56] Speaker 03: Why don't you take two minutes? [00:57:57] Speaker 04: Thank you. [00:58:02] Speaker 04: First, I think the government's attempt to pass this as a plain error claim suggests that the government recognizes that Gertin is indistinguishable. [00:58:13] Speaker 04: I'm hearing the government concede that Mr. Barrow did do the job properly. [00:58:19] Speaker 04: They are saying that his work had no value because they couldn't use it, but they could use it. [00:58:27] Speaker 04: It was only, it wasn't until he was under investigation and once the [00:58:32] Speaker 04: It wasn't under investigation for the, so we've discussed earlier. [00:58:36] Speaker 04: It was only once it was discovered that they suddenly could use it. [00:58:40] Speaker 04: And that would be true in every case, no matter how small the misrepresentation or the little omission on the resume, that would always be true. [00:58:52] Speaker 04: The government suggests that there's some doubt as to why his work became problematic and that it's not, and I would point to in the sentencing exhibits, [00:59:02] Speaker 04: that was said three times by TIGTA. [00:59:05] Speaker 04: They explained in their memoranda, putting him on administrative leave, they said that the reason he was going administrative leave was allegations of false statements, and that's 936. [00:59:13] Speaker 04: In 934, when they put him on investigative leave, they said potential false statements are calling into question the employee's character. [00:59:21] Speaker 04: And when they suspended him, [00:59:23] Speaker 04: I am 932. [00:59:24] Speaker 04: They said allegations of falseness leading states in the application for employment go to credibility. [00:59:29] Speaker 04: So it's very clear. [00:59:30] Speaker 04: That's why there's a problem. [00:59:32] Speaker 04: That's why they have to put him on leave. [00:59:34] Speaker 04: It's not because he used to be under investigation by NCIS. [00:59:40] Speaker 04: And to be clear, just to sum up, we can prevail under any standard of review. [00:59:45] Speaker 04: If there's insufficient evidence, that is a miscarriage of justice. [00:59:50] Speaker 04: I want to also be clear that all our arguments are reasons for a new trial. [00:59:55] Speaker 04: Obviously, we rely on our briefs as to all of those. [00:59:58] Speaker 04: And I think I failed to state that everything goes to the concealment count and the wire fraud count, but we also do have one argument, the duty to disclose instruction that goes [01:00:10] Speaker 04: just to the concealment. [01:00:12] Speaker 04: And that would require, if we're correct about that, that would require a new trial on that. [01:00:16] Speaker 05: And then you have a response to their argument that it was undisputed that he knew he wasn't given them because of his experience as a CID investigator, that he knew if he got the job, he wouldn't be able to give them the benefit of their bargain. [01:00:32] Speaker 05: That is an investigator whose work they could use. [01:00:36] Speaker 04: I think if you're asking about, you know, they seem to be saying that they didn't dispute it. [01:00:42] Speaker 05: So they're disputed in the case, which would mean you didn't dispute it either. [01:00:46] Speaker 05: And that is that your client, that your client, they say knew, although the test is intent, but knew that if he got the job, he would not be providing the government the investigator they were looking for because he knew he had lied on his forms. [01:01:04] Speaker 05: And so he knew [01:01:05] Speaker 05: He wouldn't, his integrity wouldn't be able to stand up in court. [01:01:09] Speaker 04: I mean, obviously we disagree with the whole premise that he's lying. [01:01:12] Speaker 04: We also disagree with any suggestion that he thought the investigation was going to be ongoing, even if he knows there's this investigation. [01:01:21] Speaker 05: I think there are getting the sub point about lying on the employment forms. [01:01:25] Speaker 05: About lying on the employment. [01:01:27] Speaker 05: I mean, it gets confusing which one they're arguing about, but are they lying on the employment forms about the prior investigation? [01:01:33] Speaker 05: So sort of hooking the two together. [01:01:36] Speaker 05: Yeah. [01:01:39] Speaker 04: I mean, I'm really not understanding honestly what the argument is. [01:01:47] Speaker 05: Is there any dispute that your client knew if he got the job, he wouldn't be giving TIGTA [01:01:59] Speaker 05: what it was looking for. [01:02:00] Speaker 05: That is a reliable investigator whose work could be submitted to courts. [01:02:05] Speaker 04: Not at all. [01:02:07] Speaker 04: And because he doesn't, he's not thinking he's going to be working for them while under this cloud. [01:02:13] Speaker 04: He thinks the, you know, you know, the investigation is going to be over. [01:02:18] Speaker 04: I mean, it's unclear that he ever knew the investigation was still pending until, you know, August, perhaps. [01:02:24] Speaker 04: So I don't know. [01:02:26] Speaker 04: At the time, he's not at all intending [01:02:29] Speaker 04: to work there under the cloud. [01:02:31] Speaker 04: Not at all. [01:02:36] Speaker 04: What they say about that they've conceded that he could do the job, and therefore the exclusion of the performance evidence was harmless. [01:02:45] Speaker 04: I mean, they may have conceded that in their mind, but the jury certainly wasn't told that. [01:02:49] Speaker 04: That whole argument was ruled off base and out of balance. [01:02:52] Speaker 04: So finally, I would just say that [01:02:57] Speaker 04: we're relying on everything in our brief, which, you know, the government tries to pick apart in their brief all the ways that he was Mr. Barrow was prevented from defending himself and sort of justify and say they're all that not important. [01:03:08] Speaker 04: But the case was close and all the errors compounded on each other such that you can't really read this record as a whole and come away with the conclusion that this trial was fair on any of the counts. [01:03:19] Speaker 04: And so we asked for dismissal of the wire fraud count in a new trial on the concealment count and alternatively a new trial on all counts. [01:03:25] Speaker 04: and in any event, reversal of the $74,000 of restitution. [01:03:31] Speaker 04: Thank you.