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case number 24-3036, United States of America versus Rowena Joyce Scott at balance.

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Mr. Berman for the appellant, Mr. Hansberg for the appellate.

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Good morning, counsel.

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Mr. Berman, please proceed when you're ready.

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Good morning, Your Honor, and may it please the court.

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I want to devote my time this morning to a pure sufficiency claim, namely the government's failure to prove beyond the reasonable doubt that the defendant, Rowena Joyce Scott,

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caused interstate wire communications to execute the charge scheme to defraud.

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The wire fraud charges in this case counts one through three, alleged that on three occasions in early 2014, Ms.

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Scott withdrew cash at a Wells Fargo branch here in DC.

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And that, quote, in processing the transactions, computers at the branch connected electronically with Wells Fargo computers and servers located outside of DC.

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The government attempted to prove a connection to a server in Minnesota, but it did not do so.

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Interestingly, the government chose not to present a witness from Wells Fargo.

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The evidence that it did present was so thin that it didn't allow the jury to even draw a permissible inference that Ms.

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Scott's withdrawals triggered interstate communications.

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The jury could only engage in what this court has called in a variety of cases on this subject, near speculation, surmise, and interjection.

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Let's look at the evidence they did present.

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Appendix 2581 to 2590, they presented portions of bank statements and withdrawal slips, paper withdrawal slips, that Ms.

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Scott signed on three occasions.

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Those not- None of these withdrawal slips were for money taken off the books, off the ledger, and then later on explained.

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Is that correct?

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Yes, Your Honor.

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And we're not challenging the government's proof on the first step, that the government proved the fraud scheme.

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I'm limiting my argument to the second part, whether or not the government proved that she caused execution of the fraud scheme via interstate wire communications.

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And those paper withdrawal slips obviously do not on their face show or help prove in any way an interstate wire committee.

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The second thing the government offered was testimony from the IRS case agent who obviously had no personal knowledge of the Wells Fargo system.

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And I would say here that the AUSA asked the wrong questions and as a result got inadequate answers.

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The agent testified she'd investigated the Wells Fargo transactions and that she'd made determinations, but she didn't say what the investigation proved or what the determination was.

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At appendix 1143, do you investigate whether any of the bank transactions that we've been discussing with the Park Southern accounts involve the use of electronic communication?

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She says, yes.

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Okay, so we've established the chief investigated.

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Did you investigate whether any of those electronic communications went across state lines?

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Answer, yes.

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Again, all the data establishes is the chief investigated.

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Appendix 1148.

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Can I just ask, I'm trying to just understand exactly which part of the

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elements of proof you're focusing on here.

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So suppose in that exchange, the witness was directly asked, OK, then you investigated.

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You said you did.

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And did you find?

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And then, depending on which question, take the second one.

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Well, can you read back the second one you just?

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Sure.

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The second was, did you investigate whether any of those electronic communications went across state lines?

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Yes.

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OK, now suppose the

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interrogator, the lawyer went a step further and said, OK, and then did you find that they did?

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And then she said, yes.

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Then if that were true, and I know it isn't, but if that were true, is this argument you're making foreclosed?

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I think the government would be on much stronger footing if the answer had been that.

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And with that, let me proceed to the next question.

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Because in Appendix 748, the prosecutor asked Special Agent Reese, did you determine whether, not that, whether,

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This bank branch in Washington DC communicated with a computer anywhere else in the country to process these withdrawals.

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The answer is yes.

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I submit that simply established that she made a determination, but not what the determination was.

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But isn't it also in the record

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that there was a business record from Wells Fargo showing the DC branch, that the server was located in Shoreview, Michigan, and that the settlement method was electronic.

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And I'm looking at JA 3605, which is the exhibit introduced

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testimony at JA 1150, it seems like that would be sufficient together with the yes answer about the determination to support the jury's finding that the withdrawal is involved in interstate communication.

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So what I say about that record is two things, Your Honor.

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First is that I think the court has to disregard the first three pages of that exhibit because that's merely a business record certification under rule.

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902.11.

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And so, for example, the part of that exhibit in which the government quotes from a letter from the Wells Fargo paralegal is not substantive evidence to prove the wiring.

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If it were, then we'd have a confrontation clause problem under Melendez-Diaz.

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But turning to that particular page, Your Honor, what we have is

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14 columns here, right?

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They're ranging from type of item or transaction to Wells Fargo account number all the way across to the last column, which says settlement, monetary process and location.

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And the problem was that there was nobody, you know, I think that the art, the, the record on its face, I would submit is not self-explanatory.

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The agent didn't really do any explaining.

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The agent simply said, this column says this, this column says that, this column says the other.

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And I would submit that to,

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draw a conclusion from this page that the withdrawal in D.C.

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caused a communication to Minnesota is surmised in speculation rather than an appropriate inference, absent testimony, absent some explanation.

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Again, this record, I would submit, is not self-explanatory.

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In that regard, I think it's worth noting that the last heading all the way to the right

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where the heading says Settlement Monetary Process and Location column.

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And it indicates, right in the heading, that Wells Fargo's usual process is to provide specific information about an interstate wiring.

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For example, that it's from Texas to Minneapolis, or from Minneapolis to North Carolina, and yet this column here doesn't say any such thing.

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It simply says, Settled internally via customer's demand deposit account.

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I would submit that that answer, and I have larger copies of this exhibit, of this page, if the court would like them.

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Which page are they?

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3605.

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3605, yeah.

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And I can give the clerk larger copies if the court would like them afterwards.

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But what I would submit is that this column all the way to the right, where it simply says, settled internally via customer's demand deposit accounts, that really doesn't prove anything about whether or not this withdrawal caused a communication between

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The column next to that says electronic on it, right?

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It does say electronic.

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To me, that doesn't add up to establishing that this transaction caused an electronic communication from D.C.

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to Minneapolis.

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This is part of a sufficiency argument, right?

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So what we're looking at is whether any rational jury could have taken the accumulation of

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this exhibit and the testimony that didn't get I take your point that it didn't get all the way to be brought home as definitively as it might have been but the question is whether whatever implication they might have drawn from the exchange that was made plus the documentary evidence could lead a rational jury to conclude that the wire communication

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Well, Your Honor, we've quoted from the Bethea case and the Carter cases in there.

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There's a dozen others going back to the 1940s, and as recently as a couple years ago, in which the court draws a line between mere speculation and surmise and conjecture on one side and appropriate inference on the other side.

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We would submit that all this evidence adds up only to mere speculation and conjecture.

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And with that, I'll reserve their remainder of my time.

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Thank you.

[00:08:42] Speaker 04:
Well, just a quick question.

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Are you giving up on the statute of limitations?

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We'll give you a little bit of rebuttal.

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Yes, Your Honor.

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But are you giving up on the statute of limitations issue?

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Well, we will rest on what center replied.

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Okay.

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Thank you, Mr. Herman.

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Answer.

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Good morning and may it please the court.

[00:09:01] Speaker 01:
Eric Hansford for the United States.

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Sufficient evidence supports the defendant's various convictions in this case, and the district court correctly denied the suppression motions.

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All start following counsel's lead with the interstate nature of the wire communication in this case.

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It is a sufficiency challenge, meaning that we view the evidence in the light most favorable to the government.

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And there are three pockets of evidence that I want to point to here.

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There's the testimony.

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There's the chart in exhibit 120.

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And then there is the cover letter.

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The cover letter is properly before this court in terms of a sufficiency challenge.

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It was admitted.

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This is at appendix 956.

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It was admitted without objection, without any sort of limiting instructions.

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And in a sufficiency challenge, this court does consider all evidence that is admitted at trial, whether or not it was properly admitted or erroneously admitted.

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A couple of sites for that, McDaniel v. Brown from the Supreme Court, 558 U.S.

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120 at 130 to 131.

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And then this court's decision in United States v. Moore, 651 F third, 30 at 84.

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And so I think the cover lever alone kind of forecloses this challenge.

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The cover letter says these are the physical locations of the servers that process the transaction.

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That's a 951 you said?

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It's at A956 where, oh sorry, the cover letter is at A3602.

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Council did submit a couple weeks ago a cleaner copy of this exhibit to the clerk's office so we can submit that again if the court does not have it because the copy in the appendix is a little bit unclear.

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But the cover letter is certainly legible here.

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And so the fact that the servers that process the transactions were located, we can see at A3605, the chart in Minnesota, that establishes on its own an interstate wire transfer.

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And the confrontation type issues are not properly presented here.

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They were not objected to.

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There were not limitations on the admission below.

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Even if we were to set aside the cover letter, we do agree that in context, the full exchange between the special agent's testimony and the chart that's admitted as part of that testimony together, viewing the evidence in the light most favorable to the government.

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Take Mr. Berman to be saying that if this is being admitted for the truth of the matter that's bolded in the letter,

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then there's a confrontation clause problem with letting that in without, I guess, defendant being able to cross-examine Mr. Lindquist.

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So I guess whether or not there's a confrontation issue with that, it is before this court in a sufficiency challenge.

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So for a sufficiency challenge, that doesn't matter whether there's a confrontation issue.

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Of course, the defendant didn't raise a confrontation objection below or on appeal.

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That's not coming out until the reply brief.

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But what this court and the Supreme Court have said is when you're looking at a sufficiency challenge, you look at all the evidence that is before the jury.

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whether it should have been admitted or not right so i mean the way you you that conceptually is it's a historical fact about the world that this document was before the jury correct the jury it's a historical possibility based on this historical fact that the jury could have taken account of this and when we're looking at it on appeal we're not supposed to scrutinize whether there could have been an objection made that would have prevented that evidence from coming before

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Exactly.

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And there's good reason for that, which is that the government relies on the evidence that's admitted, even though it may always have alternative forms of evidence that it could otherwise submit.

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And so the government here admitted this evidence, maybe should have asked another follow up question, had there been an objection to this evidence, have this evidence been excluded, those sorts of

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Certainly, everyone seems to acknowledge, in terms of what is true in the world, there was an interstate wire transfer here.

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And so the government could have offered alternative proof of that, or could have put on the custodian, if necessary, to establish that in this case.

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The government, because there wasn't an objection below, because that fully came in, that was before the trial court.

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And the government was permitted to rely on that.

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in terms of establishing the interstate nature of the wire transfer.

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I think I interrupted you and you said you had three points you wanted to make and I gather this was one.

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Sure well so and then I think the other is that the testimony so even if we were setting aside the cover letter the cover letter alone is sufficient but even if we were setting aside the cover letter we think the exhibit

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In in conjunction with the testimony also would independently establish that I do think on appendix 1148 that exchange with the agent.

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The question is special agent Reese, did you determine whether this bank branch in Washington DC.

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communicated with computers anywhere else in the country to process these withdrawals.

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The answer is yes.

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And you can understand that yes, either as yes, I made that determination or as yes, it did.

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It's ambiguous, but viewing the evidence in the light most favorable to the government, a reasonable fact finder could infer that

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what the agent meant was yes it did, especially in conjunction with the chart that's in government exhibit 120 that's admitted immediately after that where the agent walks through and in particular notes that the server was in Minnesota.

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I have a question about, if you're done with that.

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Sure.

[00:15:00] Speaker 03:
I have a question about the tax fraud.

[00:15:03] Speaker 03:
Of course.

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You argue that Scott's underreporting of income in her 2013 tax return was willful, because although she reported more income than her annual salary from Park Southern, she failed to report her illegal income from her embezzlement.

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And I guess my question is,

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Is the underreporting actually properly characterized as willful if this defendant honestly believed that there was no legal obligation to report illegally gained income?

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I mean, there is something kind of counterintuitive about that unless you followed the fate of Al Capone and others.

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Sure.

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So I think there's a cleaner way to address the 2013 income, which is that this is again a sufficiency challenge.

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So her permissible annual salary was $60,000 in that year.

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She reported slightly over that.

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I think 61,897 but this is on 34 to 35 in our brief and that has the appendix sites in fact that just the direct deposits and this the checks that were written out to her totaled 68,000.

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So in other words, even though her stated annual salary was $60,000, just the clear payroll transactions were $68,000.

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And then beyond that, the total earnings were $83,000.

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But this was an issue that was fully aired before the jury.

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There's no challenge to the jury instructions as to willfulness.

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And so this is, I think, completely a permissible jury argument that she wasn't acting willfully.

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She made an honest mistake.

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She did testify.

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But in this case, the jury was also permitted to not credit that testimony and instead to find her actions to be willful.

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I'm sure that I'm following how the 68,000, 61,897, 83,000, how that goes to the willfulness points.

[00:17:16] Speaker 01:
Well, so I think it goes to the, she reported to the IRS approximately 62,000 in earnings per just the, even if you are not looking at credit card transactions on herself, the spa weekends and whatnot, even if you're just looking at just payroll transactions, it was in fact 68,000.

[00:17:36] Speaker 03:
So what you're saying is, even if she honestly, if mistakenly, thought that her illegal gains were not subject to reporting as income, even her lawful income exceeded what she reported.

[00:17:52] Speaker 01:
I'm not sure I would characterize it as lawful, but her kind of clear payroll transactions, the transactions that did not require any sort of looking at how she was using her credit card

[00:18:06] Speaker 03:
I guess that is not entirely responsive to my question, which is really if she thinks what I'm doing illegally, I could get in trouble under criminal law, but surely I'm not going to get in trouble under tax law because it doesn't make any sense that people would have to report illegal.

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I mean, you know, because this is a subjective task.

[00:18:23] Speaker 01:
That's what I'm asking.

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I think that is an argument she could have made to the jury.

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In fact, I think it's notable that she testified in this case and her defense on the 2013 charges was not that, but was instead that she had consulted with a tax preparer.

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And so she was offering a tax preparer defense based on that.

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There was a special jury instruction that was given on the tax preparer defense.

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And the jury rejected that in this case.

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And so these are proper jury questions in terms of a defendant's intent, a defendant's mens rea.

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And so these are

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These are the sorts of questions where we do have to defer to the fact-finders' findings.

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I think it's notable that also the district court very much reached the same conclusion and characterized the defendant's defense as essentially the dog ate my homework.

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And for these purposes, there's no dispute that the jury got the right instruction on how it was supposed to think through the mens rea issue.

[00:19:29] Speaker 02:
Exactly, Your Honor.

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The question is whether they had sufficient evidence before them to reach the conclusion that they did.

[00:19:34] Speaker 02:
That's correct, Your Honor.

[00:19:35] Speaker 04:
And she challenges the voluntariness of her statements with respect to the agents going over to her home.

[00:19:41] Speaker 04:
Yes, Your Honor.

[00:19:42] Speaker 04:
But then she lets them in.

[00:19:45] Speaker 04:
She kind of goes about her routine at home, answers a few questions, and then eventually cuts them off.

[00:19:53] Speaker 04:
At the time that she's cutting them off, it seems to be questioning more zoned in on her, more investigatory as to her.

[00:20:02] Speaker 04:
So was there any duty for the agents at that time to then at least inform her you have a right to counsel at this point?

[00:20:09] Speaker 01:
Well, so the Miranda question is going to be whether, in terms of whether she is in custody, is whether a reasonable person would have felt free to terminate the interview at that point, which is exactly what she does.

[00:20:25] Speaker 01:
And so the fact that she is herself terminating the interview at that point is an awfully strong indication that she was not in custody.

[00:20:34] Speaker 01:
Also, just going through this court's Cooper factors,

[00:20:37] Speaker 01:
all of them strongly point against custody.

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Maybe most importantly, the district court credited the agent's testimony that when they came in, they told her that the interview was voluntary and the defendant could end it at any time.

[00:20:50] Speaker 01:
So they gave that warning at the outset to her.

[00:20:54] Speaker 04:
You would take the position that Miranda deals with custody, not with the types of questions that might go to your criminality.

[00:21:02] Speaker 01:
Correct.

[00:21:03] Speaker 01:
Well, so Miranda requires both.

[00:21:05] Speaker 01:
Miranda requires both the interrogation by the agents and the custody.

[00:21:11] Speaker 01:
And so the interrogation we are not fighting on, we're not disputing that there was evidence of interrogation in this case.

[00:21:18] Speaker 01:
We're just saying that she wasn't in custody, and therefore Miranda didn't kick in.

[00:21:24] Speaker 01:
Yes?

[00:21:24] Speaker 03:
I just have one super quick question.

[00:21:26] Speaker 03:
Sure.

[00:21:27] Speaker 03:
On the computer search and the denial of suppression, you briefed

[00:21:31] Speaker 03:
Four different, I think, grounds.

[00:21:32] Speaker 03:
No expectation of privacy.

[00:21:34] Speaker 03:
Vesta consented.

[00:21:35] Speaker 03:
There was a warrant based on probable cause.

[00:21:37] Speaker 03:
Officers relied on it in good faith.

[00:21:39] Speaker 03:
Yes.

[00:21:40] Speaker 03:
In the district court thought that the reasonable expectation of privacy in the computers, that that breaks new ground in our circuit.

[00:21:52] Speaker 03:
Do you think that's right?

[00:21:54] Speaker 03:
I guess I'm asking more broadly, selecting between all the grounds you offer.

[00:21:59] Speaker 03:
which is the one that we should rely on in your view?

[00:22:02] Speaker 01:
Yeah, so I think the good faith is the easiest ground in this case.

[00:22:06] Speaker 01:
As we go through, there's no basis for questioning the probable cause finding.

[00:22:13] Speaker 01:
But certainly, there's no basis once the officers, once the agents in this case, did secure a warrant, went to the magistrate, got approval for what they're doing.

[00:22:22] Speaker 01:
There's no basis for second guessing that, given that the Leon good faith standard, which protects

[00:22:28] Speaker 01:
with the warrant from suppression after that.

[00:22:32] Speaker 01:
We do think that's the cleanest ground in this case.

[00:22:37] Speaker 01:
One other note, there's a note in our brief about a pending appeal as to the contractual dispute between the two parties pending before this court.

[00:22:48] Speaker 01:
This court did recently affirm and therefore that's been settled against Ms.

[00:22:54] Speaker 01:
Scott.

[00:22:55] Speaker 03:
And that's the Vesta.

[00:22:59] Speaker 01:
Yes, exactly.

[00:22:59] Speaker 01:
And that goes to the consent issue.

[00:23:02] Speaker 01:
Yes.

[00:23:03] Speaker 01:
If there are no further questions, we'd ask this court to affirm.

[00:23:06] Speaker 01:
Thank you, counsel.

[00:23:07] Speaker 02:
Mr. Berman will give you two minutes for rebuttal.

[00:23:13] Speaker 00:
Thank you.

[00:23:13] Speaker 00:
Let me briefly address a couple of the points that counsel made regarding the issue that I focused on, the wire communications

[00:23:21] Speaker 00:
Assuming for the sake of argument that the cover letter is deemed to be properly admitted and that any confrontation clause issue is waived by its admission, I think it's important to note that the letter itself doesn't really prove very much because it refers to, and this is the Appendix 3602, records pertaining to the physical locations of the ATMs and the SEVRs

[00:23:45] Speaker 00:
the process, the transactions.

[00:23:47] Speaker 00:
Well, this wasn't an ATM transaction in the first place.

[00:23:49] Speaker 00:
It was a paper withdrawal.

[00:23:51] Speaker 00:
And I think that the court should give, if it chooses to consider the cover letter, should choose to give that very little weight in light of the mistake that appears in Wells Fargo's own letter.

[00:24:03] Speaker 00:
Second is common.

[00:24:03] Speaker 03:
Can you say it was a paper withdrawal?

[00:24:04] Speaker 03:
You mean going into the bank branch?

[00:24:06] Speaker 00:
We're right.

[00:24:07] Speaker 00:
I mean, I think I give the appendix sites earlier.

[00:24:10] Speaker 00:
I'm there at the 2583 2587 and 2590 or the paper withdraw slips.

[00:24:18] Speaker 00:
Miss Scott did things the old fashioned way here.

[00:24:22] Speaker 00:
Second is is council's comment concerning the colloquy with

[00:24:25] Speaker 00:
Special Agent Reese at Appendix 1148, where he characterized it as ambiguous.

[00:24:32] Speaker 00:
It seems to me that's a significant concession.

[00:24:34] Speaker 00:
I mean, if the agent's evidence is ambiguous, I would submit that per se, that does not constitute proof beyond a reasonable doubt.

[00:24:43] Speaker 00:
And with that, let me just close on kind of a big picture thought, which is obviously, we're in a court of limited jurisdiction.

[00:24:49] Speaker 00:
Doesn't matter what court you're in in Maryland where I spent most of my career, South Carolina or DC, AUSAs are taught from day one.

[00:24:56] Speaker 00:
You have to prove the jurisdictional elements.

[00:24:58] Speaker 00:
That's what I was taught.

[00:24:59] Speaker 00:
That's what I taught.

[00:25:00] Speaker 00:
The government doesn't call the right witnesses.

[00:25:02] Speaker 00:
That's their problem.

[00:25:03] Speaker 00:
If they ask the wrong questions, that's their problem.

[00:25:05] Speaker 00:
If the record is confusing, that's their problem.

[00:25:08] Speaker 00:
If the government doesn't meet its burden, she shouldn't be found guilty beyond a reasonable doubt, and the court should not affirm a conviction on those three wire fraud counts.

[00:25:16] Speaker 00:
And there is some practical significance here.

[00:25:19] Speaker 00:
If I could have just a few seconds to wrap up.

[00:25:22] Speaker 00:
There's a two-part forfeiture in this case.

[00:25:24] Speaker 00:
And there's tax forfeiture, and there's a wire fraud forfeiture.

[00:25:27] Speaker 00:
And what remains outstanding from counts one through three is $153,434.04 in wire fraud forfeiture.

[00:25:36] Speaker 00:
If the government didn't prove wire fraud beyond a reasonable doubt as to all elements, she shouldn't have to pay that forfeiture, and she shouldn't have to pay the special assessments.

[00:25:44] Speaker 00:
She's pretty much done with her sentence.

[00:25:46] Speaker 00:
Everything, if the court affirms on the other accounts, it's not going to make any difference on her sentence.

[00:25:51] Speaker 00:
But she shouldn't have to pay that forfeiture and restitution if she's not guilty of those crimes.

[00:25:56] Speaker 00:
Thank you.

[00:25:57] Speaker 02:
Thank you, counsel.

[00:25:58] Speaker 02:
Thank you to both counsel.

[00:25:59] Speaker 02:
We'll take this case under submission.

[00:26:01] Speaker 02:
Mr. Berman, you were appointed by the court to represent the appellant in this matter and the court thanks you for your assistance.

[00:26:07] Speaker 02:
Thank you, Your Honor.

[00:26:08] Speaker 02:
Good day.