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Case number 24-3013 et al.

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United States of America versus André de Moya, at balance.

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Mr. Coburn, for balance, André de Moya.

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Ms.

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Kelly, for diapole.

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Mr. Lacar, for balance, Anthony Maritz.

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Ms.

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Kelly, for diapole.

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Good morning.

[00:00:19] Speaker 01:
Good morning.

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May it please the court, Barry Coburn for the first appellant, André de Moya.

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I've reserved one minute with court's permission for rebuttal, and I should let the court know Mr. DeMoya is with us in the courtroom.

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May I proceed, Your Honor?

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Yes.

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We have two issues.

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From our point of view, they're both discrete and not particularly ambiguous.

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The first issue has to do with sufficiency of the evidence.

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Our submission to this court is that the government essentially, both at trial and here in this court, has relied

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on a series of communications that Mr. DeMoya was a party to.

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And the government essentially urges, urged the jury below and urges this court that these communications are sort of unsavory.

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I mean, they're certainly very colloquial.

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Mr. Demoya had a particular way of communicating, which was very informal.

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The government takes the position and took the position below that statements that Mr. Demoya made during the course of these communications, principally text communications,

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were inculpatory, tended to illustrate what the government contended was his corrupt intent.

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That is to say, his guilty knowledge and requisite-specific intent.

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We disagree.

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From our point of view, the record in this case essentially provides no evidentiary support for the proposition that Mr. DeMoya harbored the necessary guilty knowledge and specific intent

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And, you know, the government, for example, I should note, relied below, and I actually, I tried this case in the district court.

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I have a vivid recollection during the course of the arguments.

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The government refers to one particular text exchange in which, you know, Mr. Des Moines is informed that a particular concession from the OTR has been forthcoming, and he says the word boom.

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And the government suggested below, as I stand here, I can remember the way they did it in front of the jury.

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His use of that word suggested that he knew that something illegal was occurring.

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And my submission to this court is that the- What does this boom mean?

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But what do you think boom means?

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Boom is an articulation of essentially happiness, satisfaction.

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I mean, he's glad that the particular OTR concession that was being sought was granted and that the people he was working with were going to have to pay less in the way of taxes.

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To look at it, I just think this standard of review is really not favorable to you.

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Could any rational juror find this

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supportive.

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And I just think that's really hard.

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I mean, you can give me an alternative view of the evidence, but it doesn't compel a jury to see it your way.

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I thought I had a feeling that a question like that would just like that, Your Honor, was going to be posed during the course of this argument.

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And that's the reason we because we thought that was going to be sort of front and center in terms of this court's analysis.

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That's the reason why we cited the case authority right at the beginning of our

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legal of our argument, our legal discussion in the brief, the opening brief, because it's not enough.

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My submission to this court is it is not enough if the record essentially is consistent with it going either way.

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I mean, certainly, I concede.

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I mean, is it possible that an expression of glee or something like that, if you will, that he's expressing that because he has a guilty intent?

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Of course, it's possible.

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The problem the government has in this case, and the reason I think we meet that standard, and listen, and we absolutely understand,

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the nature of that standard.

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And we understand that this court... Just tell us how you meet the standard.

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I'm so sorry, Your Honor.

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Just go ahead and tell us how you meet the standard.

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Yeah.

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I mean, the issue basically from our standpoint is that there has to be actual affirmative evidence pushing the fact finder in the direction of inculpation.

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It can't be a situation in which it's essentially just neutral.

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I mean, and our submission to this court is that that's... I mean, the word boom in this context is just the perfect sort of representative.

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great allegory for the nature of the evidence below.

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That's not the sole evidence.

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Some of the evidence that was less ambiguous was in reference to the top promo transaction that Mr. DeMoya described as not proper and not an up-and-up thing, which

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More than boom seems to me to, you know, and then you take it together in context that seemed problematic to me.

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That's why we highlighted that particular contention on the part of the government in our reply brief.

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And I think actually the very beginning of our reply brief I think squarely addresses that issue.

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He didn't actually say that.

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I mean, the way the record, at least according to my understanding of the testimony, Mr. Amir Shahi never actually alleged that Mr. DeMoya said, this is improper or something to that effect.

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That's not what happened.

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But he said he made it clear that it was not proper.

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That was Mr. Amir Shahi's subjective impression as he conveyed it to the jury.

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But why isn't that enough evidence for the jury to find him guilty?

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That's not evidence.

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Under a sufficiency of the evidence.

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My submission is that's really, in terms of the substance, that's really not evidence at all.

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But that's not all I'm relying on.

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There's a lot of other evidence here.

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What about the conversation?

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This is at essay 42, where they're talking about we need a settlement in full letter to cover up the problems.

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And DeMoya says, this is killing me.

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What do you want to do?

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The guy's blowing me up for the other 10K because he wants another $10,000.

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I'll get it.

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But please tell him wiping it out gives us nothing to stand on.

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That means wiping it out is illegal, but we need to cover it up.

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It seems pretty clear.

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We need to give a check that says paid in full for part of it.

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And then DeMoya, let's get him the 10K today.

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Then I will express concerns.

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But he has already put it in the system.

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Why is that not very strong evidence that De Moye knows exactly what's going on?

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These are De Moye's own words.

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Well, he knows exactly what's going on in the sense that he has engaged an expediter, and the expediter is essentially serving as an advocate, if you will, or an intermediary with the OTR.

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You're bringing evidence in the light most favorable to Mr. De Moye, but we need to do the opposite.

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Absolutely.

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I fully understand that.

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I don't quibble in any way what the standard of the court needs to apply here.

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My suggestion to this court is that that evidence, for example, that conversation colloquy that Your Honor had just read, that is not substantive evidence of a guilty mind, of guilty intent.

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It's circumstantial evidence.

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It's just not direct evidence.

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I don't see how it's not evidence of a guilty mind.

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I don't mean to quarrel in any way, but I'm just suggesting to the court, it's my submission to this court, that it's not evidence of any kind.

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It is evidence of the following, that Mr. DeMoya knew he was dealing with an expediter, that that expediter was charged, was being paid in cash, as expediters were, and there was lots of testimony about this below, and was charged with attempting to reduce the tax bill for these individuals.

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Your Honor, I can...

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I mean, absolutely.

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If it's possible to wipe it out, then the expediter is charged with wiping it out.

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The problem is that that is not in any way per se illegal.

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There was testimony below in our affirmative case about the fact that the OTR negotiates tax bills sometimes almost to their entirety all the time.

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And there's no reason to disbelieve that.

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The government did not contend to the contrary.

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The fact that there was an attempt made to wipe out that tax bill does not connote any knowledge on Mr. DeMoya's part that the mechanism by which that was to be achieved was through bribery.

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What is your best evidence, your best evidence in the record that you can point us to that Mr. DeMore did not understand?

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the illicit nature of these transactions.

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I have to concede, Judge Millett.

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I mean, there's very little in the way of affirmative exculpatory testimony in the record that I can point to.

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My problem and my argument to this court is that there is essentially nothing on the other side of the coin either.

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There is conversation which the government, and I concede sort of successfully argued to the jury below, was unsavory.

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seemed unsavory, unpleasant, like for example, the use of that word, boom, and lots of other, you know, extremely colloquial.

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I don't know if that's unsavory or unpleasant.

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It's simply contextually how you piece all of these comments together when at least everyone else around him seemed to understand the illicit nature.

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But I get it that it's inferences from words.

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That was our principle problem below.

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In fact, Judge Walton, I thought quite properly, administered a curative instruction midway through the government's closing argument about this, about the suggestion

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that others may have had a perception.

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For example, it was in the context of Mr. Amir Shahi that he testified that he had a perception that this was, to use Judge Pan's word, improper.

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That is seriously problematic.

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And Judge Walton correctly told the jury, you can't use that.

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There has to be actual evidence of what's in Mr. Inculpating Mr. DeMoya of what's missed what's in Mr. DeMoya's mind and that evidence is absent.

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What do you mean by actual evidence?

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Circumstantial evidence count?

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Yes, absolutely.

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The reasonable inferences?

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from that circumstantial evidence count?

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They have to be actual inferences.

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In other words, it can't be just sort of a vacuum.

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There has to be an actual inference moving the fact finder in that direction.

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And with having interposed that quibble, yes.

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Sorry.

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I'm sorry, Judge Pollard.

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So I was just asking about the counter narrative that you think is consistent with the evidence that

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It is certainly lawful to negotiate.

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You have outstanding tax liabilities.

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You're not going to be able to pay them.

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You want to pay them, but you can't.

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And you go and negotiate with the office.

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And if you're busy, you have someone else

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go and negotiate, and the idea is that the expeditor wants cash to do that work and can use the cash to quickly make a deal.

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So talk us through it.

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What do you think is the available inference, in fact, that knocks out the ability of a reasonable juror who's not jumping to conclusions to convict?

[00:12:15] Speaker 01:
I think the way, Your Honor, just put it is almost perfect from my standpoint.

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I mean, basically what you have here is a situation in which there's testimony below in this case.

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Expeditors are utilized, not at all infrequently, in interacting with the DC government.

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Now, there is testimony to the effect that they're not supposed to be used in the context of interacting with the OTR.

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But there was no evidence that Mr. DeMoya knew that, or that it was, in fact, that that supposed knowledge was publicly available anywhere.

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As Your Honor just put it, I mean, an expediter is hired not just because, you know, the person hiring the expediter is busy, although certainly that's part of it, but because the expediter has some kind of expertise, you know, some sort of knowledge of the agency or maybe a success rate in the past or something to that effect.

[00:13:00] Speaker 01:
And the expediter interacts with the agency.

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The expediter has, as Your Honor correctly notes, cash.

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That cash could be utilized in order to settle a tax bill or certainly the expediter has the right to

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or at least according to Mr. DeMoya's understanding, the expeditor has a right to make a profit from this transaction as well.

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The problem that the government has in this case is that there is no evidence of record that Mr. DeMoya had any knowledge that cash is being handed in the form of a bribe to Mr. Slater.

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There's no record evidence of that at all.

[00:13:35] Speaker 05:
But there's also no evidence that anybody was asking anybody about sort of equitable arguments.

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You know, what are your tax documents?

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What's your history?

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Why should your taxes be reduced and someone else's shouldn't?

[00:13:50] Speaker 05:
There's just zero, zero focus on that.

[00:13:53] Speaker 01:
I don't disagree with that necessarily.

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I'm not sure that there is much substantive evidence in the record in terms of what the expediter was supposed to do in terms of making an argument for cutting down the tax bill.

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I take the court's point about that to a degree.

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But the problem from the perspective of the defendant, of Mr. DeMoya, is he's hiring somebody and relying on them to interact.

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That person is, you know,

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eliciting information from Mr. DeMoy, Mr. Amarshy or others, to whatever extent he thinks that information is useful.

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Could it be that, you know, in part, there's like a sort of a personal relationship that's at play here between the expediter and whoever is interacting with the OTR?

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I can't eradicate that possibility, maybe, but that's not a crime.

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And unsavory, but not a crime.

[00:14:47] Speaker 08:
All right, thank you very much and we'll give you a couple minutes on a minute on rebuttal.

[00:14:51] Speaker 01:
I'd be very grateful.

[00:14:53] Speaker 01:
I haven't touched on the jury instruction issue, but if I'm allowed to do that on rebuttal, I'd appreciate it.

[00:14:57] Speaker 08:
You probably can't do it on rebuttal if you don't do it now, so give us one minute on jury instruction.

[00:15:01] Speaker 01:
Very grateful.

[00:15:02] Speaker 01:
So the argument with respect to jury instructions, I don't think I need to take much of the court's time via oral argument on this, is that the instruction administered by Judge Walton, and I have to concede, Judge Walton is a wonderful judge, extremely careful.

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He gave us every opportunity to communicate with him about this issue.

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But ultimately, where he settled, from my point of view, I would argue that the court was wrong in terms of the way the Supreme Court has explained, particularly via McDonald, the way the Supreme Court's explained the nature of the specificity requirement.

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Judge Walton's instructions, and this is quite deliberate.

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He thought carefully about it.

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I don't dispute any of that.

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But I mean, the notion that there has to be a specific linkage between a payment made and a specific official act as defined in McDonald and the other cases we cited, I don't think this issue has been- So why is the jury instruction inaccurate?

[00:15:57] Speaker 03:
It said the government must prove beyond a reasonable doubt that the defendant intended to influence a specific official act.

[00:16:03] Speaker 01:
Because the instruction also very specifically says a course of conduct is sufficient.

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If there's a link between a payment and sort of an extended course of conduct, that that's enough to convict.

[00:16:17] Speaker 01:
That's wrong.

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That's irreconcilable with McDonald and with the other cases we cited.

[00:16:23] Speaker 03:
So your argument is that there is a correct instruction, but there was, in addition, an incorrect instruction?

[00:16:29] Speaker 01:
I guess I would have to say that's right.

[00:16:30] Speaker 01:
I mean, that language that Your Honor just cited, I have no quarrel with it.

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But put together with a specific paragraph or a couple of paragraphs.

[00:16:41] Speaker 08:
I think that's your point.

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Course of conduct instructions specifically said the government does not need to connect the thing of value to a specific official act.

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I agree on did the specificity of the other instructions, but better than I did.

[00:16:58] Speaker 08:
Yeah, that question.

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All right.

[00:17:00] Speaker 07:
Thank you very much.

[00:17:01] Speaker 07:
I will give you an economic model.

[00:17:04] Speaker 08:
It's Kelly.

[00:17:09] Speaker 06:
Morning, Your Honors.

[00:17:10] Speaker 06:
May it please the court?

[00:17:11] Speaker 06:
Katherine Kelly on behalf of the United States.

[00:17:14] Speaker 06:
Your Honors, it's just obviously clear in regard to the sufficiency of the evidence here that circumstantial evidence is equal to direct evidence of knowledge and intent.

[00:17:26] Speaker 06:
This is not a situation where it's unclear what Mr. DeMoya knew, particularly when you look at Mr. Amashahi's testimony about their interactions at the beginning of this scheme.

[00:17:39] Speaker 06:
Mr. Mr. He's business partner was the one who said, go, go talk to about this $250,000 tax bill that top promo owed.

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He did so.

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And during their conversations, his testimony, Mr. Amashahi's testimony, was that Demoya had made clear to him that we have to pay cash and that it was not proper what they were going to do.

[00:18:07] Speaker 06:
Mr. Amashahi testified that he would not have given cash to Mr. Merritt to get the tax liability reduced for top promo if Mr. Demoya hadn't told him that he had done the same thing.

[00:18:17] Speaker 06:
In addition, his communications with Demoya

[00:18:23] Speaker 06:
He, through those communications.

[00:18:25] Speaker 08:
What that shows about intent, it just shows that there's this guy, he knows the people there.

[00:18:30] Speaker 08:
He's got good relationships.

[00:18:32] Speaker 08:
He can get the best resolution for you, but he takes cash.

[00:18:38] Speaker 08:
But it was shown so far.

[00:18:39] Speaker 06:
But Mr. DeMoy, during those conversations, Mr. DeMoy made clear to him that what they were doing was not proper.

[00:18:47] Speaker 08:
So he has to pay cash and it's not already in the evidence as to how he came to that conclusion that it wasn't proper other than you have to pay cash.

[00:18:58] Speaker 06:
It's not clear the exact wording of the conversations.

[00:19:01] Speaker 06:
He wasn't asked to verbatim say what, who said what, but that would, that was the, when, when he finished the conversation, that was the impression that he had.

[00:19:11] Speaker 08:
And he had that impression based on the record basis for that evidentiary basis for that conclusion.

[00:19:16] Speaker 08:
Other than that was his, he got to pay cash.

[00:19:20] Speaker 08:
That's what I did.

[00:19:21] Speaker 08:
And this guy.

[00:19:23] Speaker 08:
He really knows what he's doing.

[00:19:24] Speaker 08:
He knows the people there.

[00:19:25] Speaker 08:
He got my tax his way down, pay him cash and he can do the same for you.

[00:19:29] Speaker 06:
He said that DeMoya made it clear to him that they had to pay cash and that it was not proper.

[00:19:34] Speaker 08:
The guy takes cash.

[00:19:36] Speaker 08:
I'm not disputing that.

[00:19:37] Speaker 08:
I'm not sure what you got to pay cash shows about Mr. DeMoya's intent.

[00:19:46] Speaker 06:
Also, he's indicating to Amir Shahi that what they're doing is improper.

[00:19:50] Speaker 08:
I know.

[00:19:51] Speaker 08:
You said that was sort of a characterization given by Mr. Amir Shahi, but there was nothing actually in the record to explain the basis for that conclusion, to even allow the jury to make that reasonable inference.

[00:20:04] Speaker 06:
My understanding of the testimony is what Mr. Amir Shahi was saying is that Mr. Des Moines made clear to him.

[00:20:10] Speaker 05:
And the difficulty is that there wasn't testimony that Mr. Amir Shahi

[00:20:17] Speaker 05:
says to the jury before the jury, I don't remember his exact words, but I know he told me it was improper as opposed to I got the impression.

[00:20:31] Speaker 05:
So that I think is the difficulty that even if you don't remember the exact words and I'm sure he doesn't testify to

[00:20:39] Speaker 05:
Demoya's exact words, that he doesn't even testify that there was a verbal expression from Demoya that led him, that confirmed for him that this was improper.

[00:20:51] Speaker 05:
And in fact, you point to that Amishahi was more comfortable because Demoya had done it himself, but that could cut the other way.

[00:20:58] Speaker 05:
Demoya is doing something that would put himself in jeopardy, but no, he's doing it.

[00:21:02] Speaker 05:
And so Amishahi was thinking, well, this must be legit.

[00:21:07] Speaker 06:
But what we have here is not just that testimony.

[00:21:10] Speaker 06:
We also have Mr. Amir Shahi's testimony that the next step was working out a cash bribe that he paid to Demoya.

[00:21:17] Speaker 06:
There's also evidence here, and it's not just those conversations, it's also the additional testimony

[00:21:24] Speaker 06:
and the actions that you have here, you have Mr. DeMoya frequently, he actually met twice with Mr. Slater and Mr. Merritt outside the OTR office about these transactions.

[00:21:38] Speaker 06:
Is that suspicious?

[00:21:40] Speaker 06:
It is suspicious.

[00:21:41] Speaker 08:
I would meet with clients outside government buildings before or after a meeting all the time when I was practicing.

[00:21:47] Speaker 06:
But if you're

[00:21:50] Speaker 06:
if you have an OTR issue, it certainly is strange if you're taking your conversations to the Starbucks inside a Safeway grocery store, for instance, when you could just as easily be at the OTR office talking on the up-and-up.

[00:22:04] Speaker 06:
You have that, you have the fact that there's evidence of Mr. DeMoya multiple times actually

[00:22:15] Speaker 06:
Paying the bribes and obtaining bribe money from.

[00:22:19] Speaker 08:
Where's the evidence that he handed the money what you're calling bribe money over at Mr. where's that.

[00:22:29] Speaker 06:
Mr. Amarsah, he's saying he worked out a cash bribe that he paid to Des Moines.

[00:22:34] Speaker 06:
That was an essay 179.

[00:22:36] Speaker 06:
There's additional.

[00:22:38] Speaker 08:
This is your cooperating witnesses characterization of these things, but it still isn't.

[00:22:43] Speaker 08:
I mean, when asked for more details about how he got this sense of things are unpopular, he just he sort of talks in circles and then goes, I really don't know.

[00:22:52] Speaker 08:
So what we're looking for is something in the right.

[00:22:55] Speaker 08:
You've got these statements that

[00:23:00] Speaker 08:
themselves are not really impulsatory in any way from Mr. DuMoya.

[00:23:05] Speaker 08:
And then we're leaning on someone else saying, well, a cooperator saying, well, I thought it was improper.

[00:23:15] Speaker 08:
I thought I got from it all that it was clearly improper.

[00:23:18] Speaker 08:
But he doesn't have a basis that Mr. DuMoya conveyed to him that it was improper.

[00:23:27] Speaker 08:
But then when asked for any factual basis for that conclusion, that guy's just empty.

[00:23:33] Speaker 08:
You don't usually see things like that.

[00:23:36] Speaker 08:
He was winking his eyes.

[00:23:38] Speaker 08:
He was putting the money in a bag.

[00:23:41] Speaker 08:
There's just nothing like that.

[00:23:44] Speaker 08:
It's just sort of this conclusory assertion with that.

[00:23:47] Speaker 08:
It's just a very curious record in that regard.

[00:23:50] Speaker 06:
Well, we believe the way that the testimony was phrased, that the jury could make a reasonable inference that Mr. DeMoya was telling him these things.

[00:23:58] Speaker 08:
evidence about the circumstances from which the witness drew that conclusion, other than you got to pay cash.

[00:24:05] Speaker 08:
He paid cash.

[00:24:06] Speaker 08:
It worked out well for his taxes.

[00:24:08] Speaker 08:
I got to pay cash.

[00:24:09] Speaker 08:
That's just what this guy wants.

[00:24:13] Speaker 06:
But it's more than that too, Your Honor.

[00:24:14] Speaker 06:
You also have the additional testimony or the additional evidence of time and again during the course of these transactions, which lasted from

[00:24:22] Speaker 06:
2015 through, I believe, either the end of 2016 or beginning of 2017, you have time and again, in particular, Mr. Amir Shahi working out these arrangements where his company does not pay a dime of actual

[00:24:39] Speaker 06:
taxes owed to OTR and that through this system, they end up having their taxes either reduced very, very low from the first instance, $258,000 to $42,000.

[00:24:51] Speaker 06:
And then time and again, Mr. Amir Shahi is then looking for cover documentation in case it comes up later and somebody questions us about this situation.

[00:25:02] Speaker 06:
And he's asking Demoya time and again, get me something that shows that

[00:25:07] Speaker 06:
essentially that this is legitimate.

[00:25:10] Speaker 06:
Mr. Des Moines is getting him these documentation.

[00:25:12] Speaker 05:
I'm not sure that that inference is necessarily the stronger one.

[00:25:16] Speaker 05:
If I pay a lot of money for anything, I want a receipt.

[00:25:21] Speaker 05:
Right.

[00:25:21] Speaker 05:
But he knows.

[00:25:22] Speaker 05:
And so in a sense, it's like, what have I paid this money for?

[00:25:24] Speaker 05:
Legitimately or not legitimately, I want to know that the thing that I have paid and relied on reliance that something occurred, that that

[00:25:35] Speaker 05:
that I'm getting that occurrence.

[00:25:39] Speaker 05:
So what about wanting some verification adds to the illegality inference here?

[00:25:48] Speaker 06:
Because first of all, Mr. Demoya is passing these documents back and forth, these OTR statements back and forth to the owners of the businesses, including Mr. Amir Shahi, showing that one day they owe $258,000.

[00:26:00] Speaker 06:
There's another day where it comes down a little bit to $256,000.

[00:26:05] Speaker 06:
Mr. Demoya is then saying, can we get it from $90,000 to $80,000?

[00:26:12] Speaker 06:
the next thing that happens, he's passing on a document that says forty or forty-two thousand.

[00:26:17] Speaker 06:
I don't recall the exact number.

[00:26:19] Speaker 06:
Knowing that this hasn't been paid for because there's some actual tax payment being made.

[00:26:25] Speaker 06:
So, what you're getting, he knows seeing these going down that he's not getting a receipt for having paid

[00:26:31] Speaker 06:
258,000 that was owed.

[00:26:33] Speaker 06:
He's not really getting a receipt for 40,000 that's really owed after these arrangements have been made.

[00:26:42] Speaker 06:
He's just getting a piece of documentation to cover it, to make it look like it was a legitimate receipt or a legitimate payment plan in the first instance with top promo.

[00:26:54] Speaker 05:
But the document comes as

[00:26:56] Speaker 05:
pretty good cover because it comes as an offer and compromise, which suggests we accepted, we, the office of tax revenue, accepted less money than was due as a kind of settlement.

[00:27:09] Speaker 05:
And here's the payment plan, you know, acting as if it was given in installments.

[00:27:14] Speaker 05:
over six months.

[00:27:15] Speaker 05:
Right, right.

[00:27:17] Speaker 06:
It is that but as obviously as Mr. Demoya can tell, he he's as the documents show, particularly the summary charge that the FBI agent testified about, there are just never ending communications with Mr. Demoya to Merritt, Merritt speaking to Slater, and then back down the chain where these arrangements are being discussed.

[00:27:39] Speaker 06:
So, this is this isn't a situation where it's just a matter of Mr. Demoya

[00:27:43] Speaker 06:
pops into the scenario at certain points and just transfers a document or so forth.

[00:27:51] Speaker 08:
And it's, again- That's a pretty strange thing is everybody else in that chain, one, Mr. DeMoya is just unnecessary in that chain.

[00:27:58] Speaker 08:
Mr. Amashai and the others can talk directly to Mr. Merritt.

[00:28:02] Speaker 08:
He's just introducing him to the guy who was really helpful to him.

[00:28:07] Speaker 08:
But he was necessary.

[00:28:08] Speaker 08:
Mr. DeMoya make a penny off any of these himself?

[00:28:12] Speaker 06:
I don't recall there being testimony that he was making money.

[00:28:15] Speaker 08:
Why would he engage in this criminality?

[00:28:18] Speaker 06:
He's helping his friends.

[00:28:20] Speaker 08:
That's exactly the point.

[00:28:21] Speaker 08:
That sounds like a much more innocent motive.

[00:28:24] Speaker 08:
This guy did good work for me.

[00:28:26] Speaker 08:
I don't know.

[00:28:27] Speaker 08:
I had to pay cash.

[00:28:27] Speaker 08:
That's how he wants to do things.

[00:28:29] Speaker 08:
There are people who want to do businesses that way.

[00:28:31] Speaker 06:
His motive, frankly, doesn't matter, Your Honor.

[00:28:35] Speaker 08:
His motive is not an issue.

[00:28:36] Speaker 06:
That's not an element.

[00:28:37] Speaker 08:
But I'm just sort of saying that if we understand, it seems almost illogical to me that someone would be engaging in knowing criminal behavior.

[00:28:51] Speaker 08:
Everyone else is making money around them right and left.

[00:28:55] Speaker 08:
Lots of money.

[00:28:57] Speaker 08:
He made money too in his own way.

[00:29:00] Speaker 08:
Well, he got his taxes reduced.

[00:29:02] Speaker 06:
For his own business, the Echo events, he got a clean hand certificate on one occasion.

[00:29:07] Speaker 06:
He got his taxes reduced from $69,000 to zero.

[00:29:12] Speaker 06:
So A, he's helping himself and he is making money in that manner.

[00:29:15] Speaker 06:
Also, it was testimony of Mr. Slater during that first meeting where Mr. Amishari had been

[00:29:21] Speaker 06:
apparently.

[00:29:22] Speaker 08:
I'm just saying he wasn't making any money from this go-between.

[00:29:25] Speaker 08:
You listed this chain up and down and this Pearson chain.

[00:29:28] Speaker 08:
But whether he's making money doesn't matter on that.

[00:29:34] Speaker 06:
Because he's passing the bribe money along.

[00:29:36] Speaker 06:
He is getting money.

[00:29:38] Speaker 06:
He's literally telling Mr. Amir Shahi during the barcode transaction, let's get him $10,000 today.

[00:29:45] Speaker 08:
Lots of conspiracies like this where there's one person who's

[00:29:49] Speaker 08:
sort of an important go-between in your view and get involved and getting and getting day after day.

[00:29:56] Speaker 08:
Doesn't ask for a penny, doesn't get a penny.

[00:30:00] Speaker 06:
I don't know, but, Your Honor, that's neither an element of conspiracy or necessary to bribery.

[00:30:05] Speaker 06:
Where is that an element?

[00:30:06] Speaker 08:
I'm talking about how a jury's going to look at this.

[00:30:10] Speaker 06:
The jury looked at it as, in fact, Mr. DeMoya having intent and having knowledge of what was going on.

[00:30:16] Speaker 06:
Mr. DeMoya advised Mr. Amirshahi, for instance, when- The reason we're here is decided whether there was a reasonable evidentiary basis for that.

[00:30:24] Speaker 06:
And given the fact that you're looking at the evidence in the light most favorable to the government and that circumstantial evidence is the equivalent of direct evidence of intent, given the meetings, the conversations, Mr. Amir Shahi saying to, or Mr. DeMoya telling Mr. Amir Shahi, let's get him $10,000 today and we'll deal with cover paper later.

[00:30:46] Speaker 08:
What do you think is the most inculpatory, your best piece of inculpatory evidence

[00:30:56] Speaker 08:
Is it just Mr. Amir Shahi saying he conveyed to me that it was improper?

[00:31:01] Speaker 06:
I would say that is number one, but also combined.

[00:31:05] Speaker 06:
And I don't think that there's one that balances out the other.

[00:31:08] Speaker 06:
Mr. Demoya continuing to tell Mr. Amir Shahi.

[00:31:13] Speaker 06:
Let's get them the money today because he's already done the deal.

[00:31:17] Speaker 06:
He's already put this in the system and you can get your cover documentation later.

[00:31:24] Speaker 06:
I'll talk to them later about that, but let's move this along.

[00:31:27] Speaker 06:
He knows there's something wrong with that.

[00:31:30] Speaker 05:
I know it wasn't charged this way here, but is it bribery if there's a legitimate negotiating process, but you pay to get

[00:31:40] Speaker 05:
jumped to the head of the line to actually work something out for your business with the Office of Tax Revenue.

[00:31:50] Speaker 06:
I don't think so, Your Honor, because the question with the bribery is whether or not this payment that you're making is going to influence the official act itself or cause the person to... To put you higher up in the queue, some people may never actually get

[00:32:10] Speaker 05:
a chance to work with someone like, to have their representative work with someone like Slater.

[00:32:15] Speaker 05:
That's not part of the case.

[00:32:19] Speaker 06:
It certainly wasn't a theory here.

[00:32:21] Speaker 06:
The official act here was about the payment of taxes that were owed to DC.

[00:32:27] Speaker 06:
And the official duty that we asserted that Mr. Slater had breached was his duty to properly collect those taxes.

[00:32:36] Speaker 06:
I'm not paraphrasing, obviously.

[00:32:40] Speaker 06:
But paying money to jump the line would not

[00:32:43] Speaker 06:
change either of those two, either the act or the duty.

[00:32:49] Speaker 06:
It would get him there quicker, but it would not, in this instance, have affected the official act or the official duty.

[00:33:00] Speaker 06:
If you understand no further questions on that, I would just say briefly in regard to the jury instructions that

[00:33:08] Speaker 06:
The McDonald case does not touch on course of conduct bribery at all.

[00:33:12] Speaker 06:
It doesn't rule on it, and it does not rule out course of conduct as a proper theory.

[00:33:19] Speaker 08:
But it's very clear that there has to be identifications of specific official acts or duties in that situation.

[00:33:28] Speaker 08:
Specific, and it underscores this use of the word specificity.

[00:33:33] Speaker 08:
I get this course of conduct instruction says the government does not need to connect.

[00:33:39] Speaker 08:
The thing is value to specific official act or violation of official duty.

[00:33:44] Speaker 08:
Right and it goes on to say they can just to this course of conduct in which.

[00:33:49] Speaker 08:
An exchange for Mr. Slater's pattern of being influence.

[00:33:54] Speaker 08:
Right money is given, but that sounds like the retainer theory.

[00:33:58] Speaker 08:
Like, we're giving him money.

[00:34:00] Speaker 08:
And at some point he'll do some good stuff for us.

[00:34:04] Speaker 08:
And I believe a number of circuit courts have said post-McDonald that retainer theory no longer works.

[00:34:12] Speaker 08:
And I'm quite concerned about the instruction here elsewhere.

[00:34:17] Speaker 08:
As Mr. Coburn acknowledged, the judge was quite clear that you have to have a specific acts identified and can't just sort of generally

[00:34:27] Speaker 08:
say they're going to do something in their government job for you.

[00:34:31] Speaker 08:
But here, it's all unraveled.

[00:34:34] Speaker 08:
It's just that you don't need the very specificity that, you know, there's an entire paragraph in McDonald's where they get out the thesaurus and use every version, every form of a synonym for specificity that you can think of that has to be part of the instructions.

[00:34:50] Speaker 06:
So what do we do with it?

[00:34:51] Speaker 06:
But McDonald is talking about the definition of official act.

[00:34:55] Speaker 06:
And it can't just be in McDonald making a phone call for somebody who's a business criminal.

[00:35:01] Speaker 08:
With specificity, what is an official act?

[00:35:05] Speaker 06:
The court actually defined official act in this case, not only just as a general term in language that- So when they used specificity multiple times, the McDonald decision, they were just kidding?

[00:35:17] Speaker 06:
No, they said you have to have a specific act, which they did here.

[00:35:20] Speaker 08:
The court instructed... Jury has to find a specific act, correct?

[00:35:25] Speaker 08:
Right.

[00:35:25] Speaker 08:
That is a violation of an official duty as properly defined.

[00:35:30] Speaker 06:
It has to find either an official act that the person undertook or a violation of an official duty.

[00:35:38] Speaker 08:
Specific official act or specific duty.

[00:35:40] Speaker 06:
Right.

[00:35:41] Speaker 08:
OK, but right.

[00:35:41] Speaker 08:
We're in agreement on that.

[00:35:43] Speaker 06:
Right.

[00:35:43] Speaker 06:
We have to find the specific official act.

[00:35:45] Speaker 06:
And then?

[00:35:45] Speaker 06:
And the court actually defined the official act that was an issue in this case.

[00:35:50] Speaker 06:
At A524, the court said that in this case, the government alleges that the question matter

[00:35:57] Speaker 06:
cause, suit, proceeding, or controversy is whether a specific business must pay tax and tax-related liabilities owed to the District of Columbia government.

[00:36:07] Speaker 06:
That follows the language.

[00:36:08] Speaker 08:
I'm not disagreeing with you there.

[00:36:09] Speaker 06:
Right.

[00:36:10] Speaker 08:
I'm talking about the course of conduct.

[00:36:11] Speaker 08:
Course of conduct only.

[00:36:13] Speaker 08:
I'm sorry, Your Honor.

[00:36:16] Speaker 08:
Which unravels all that.

[00:36:17] Speaker 08:
The government does not need to connect each thing of value to a specific official act or violation of duty.

[00:36:26] Speaker 08:
That's my concern.

[00:36:28] Speaker 08:
And this sounds like, well, if you were just paying him and at some point in his job he was gonna do some helpful thing or things for you, that's the retainer theory that's been rejected post-McDonald.

[00:36:41] Speaker 08:
We don't believe so, Your Honor.

[00:36:42] Speaker 08:
I don't know what it's essentially saying.

[00:36:47] Speaker 08:
I want to know what it's literally saying, which is you don't need a specific official act or violation.

[00:36:53] Speaker 08:
You don't need, if you use this course of conduct theory, you don't need to find a specific act or official act or violation of a duty.

[00:37:05] Speaker 06:
I do not believe that's what McDonald's says, Your Honor, and I don't believe that's what the instruction said.

[00:37:10] Speaker 08:
That's exactly what the instruction says.

[00:37:13] Speaker 08:
Page 28 of the transcript.

[00:37:15] Speaker 08:
That's not the same transcript.

[00:37:18] Speaker 08:
That's exactly what it says.

[00:37:19] Speaker 06:
McDonald left the same quid pro quo

[00:37:23] Speaker 06:
definition as has been used in in cases all along and such as in sun diamond.

[00:37:29] Speaker 06:
They said that the quid pro quo or section 201, the bribery statute prohibits quid pro quo corruption, the exchange of a thing of value for an official act.

[00:37:38] Speaker 06:
The course of conduct theory leaves room for that as

[00:37:41] Speaker 06:
a number of courts have said since McDonald.

[00:37:45] Speaker 06:
Uh the Fourth Circuit has said it in McCabe.

[00:37:47] Speaker 06:
It says that there's uh that their prior course of conduct language in their Jennings case and McDonald can be applied harmoniously.

[00:37:57] Speaker 06:
The First Circuit in Woodward said that the court was confident that a stream of benefits theory remains valid post McDonald.

[00:38:05] Speaker 06:
Um in addition, the silver

[00:38:09] Speaker 08:
Have other circuit courts rejected the retainer theory post-McDonald?

[00:38:16] Speaker 06:
We were not relying on retainer theory, Your Honor.

[00:38:19] Speaker 06:
It's possible, and I'm not familiar enough with retainer theory to argue.

[00:38:23] Speaker 08:
So if we're concerned about going into conflict with other circuits, and they've rejected a retainer theory, and yet we have a portion of conduct instruction that says you don't need the specificity that Supreme Court talked about

[00:38:39] Speaker 08:
Again and again.

[00:38:40] Speaker 08:
Is there a difference between course of conduct and retainer?

[00:38:46] Speaker 06:
I'm not honestly familiar with the retainer theory and I just don't know.

[00:38:51] Speaker 06:
It wasn't something that came up in our research.

[00:38:53] Speaker 06:
This was charged as a course of conduct and I don't even assume that it was.

[00:38:59] Speaker 03:
erroneous to include this course of conduct instruction because it conflicts with McDonald.

[00:39:04] Speaker 03:
Was the error harmless?

[00:39:05] Speaker 03:
Because it seems to me that all the evidence in this case was specific payments for specific actions.

[00:39:12] Speaker 03:
The way this worked seemed very much focused on a particular tax liability they wanted reduced and the payments were to reduce a particular

[00:39:22] Speaker 06:
That's correct.

[00:39:22] Speaker 06:
There isn't any question about what type of action they're seeking in making these bribe payments.

[00:39:28] Speaker 06:
They want their business taxes reduced.

[00:39:31] Speaker 06:
or reduced to zero in some instances.

[00:39:34] Speaker 06:
And so there really isn't a question about what they want to done and whether or not, and you could also, you could call that a breach of an official duty on Mr. Slater's part.

[00:39:42] Speaker 06:
You can call that an official act that Mr. Slater took both ways.

[00:39:49] Speaker 06:
You have a pattern of official actions.

[00:39:51] Speaker 03:
Is there any way based on this evidence that the jury could have convicted based on a course of conduct theory versus a specific act

[00:39:59] Speaker 03:
for a specific payment theory.

[00:40:02] Speaker 06:
I think so.

[00:40:03] Speaker 06:
I mean, there's not that much daylight here.

[00:40:05] Speaker 06:
I have viewed course of conduct theory as saying that if a payment is made, you don't always have to link that specific payment to the very specific act

[00:40:18] Speaker 06:
at that moment.

[00:40:19] Speaker 06:
However, that's not to say that you don't overall have to show that a bribe was paid for an official act.

[00:40:25] Speaker 03:
It's just a matter of- That's not completely contradictory, what you just said.

[00:40:29] Speaker 06:
No, I'm thinking back to the Petzl case, Your Honor, and obviously they didn't decide the issue on course of conduct because nobody argued against it.

[00:40:36] Speaker 08:
It's not an issue at all in that case.

[00:40:38] Speaker 06:
Right, right, but it was a matter of- It's argued here.

[00:40:44] Speaker 06:
Not linking

[00:40:46] Speaker 06:
every dime that was paid to the agent in that case to a particular provision by that agent of contact information for them.

[00:40:59] Speaker 08:
Do you agree that McDonald's held that the definition of official act must also be something specific and focused

[00:41:12] Speaker 08:
that is pending or made by law be brought for a public official has to be, this is part of their definition of official act, must also be something specific and focused, right?

[00:41:22] Speaker 06:
Right, I don't quibble with the definition of official act in McDonald's.

[00:41:26] Speaker 08:
Do you disagree that the course of conduct construction here said the government does not need to connect a thing of value to a specific official act?

[00:41:35] Speaker 08:
Do you disagree that that's what the course of conduct construction said?

[00:41:38] Speaker 06:
I don't disagree with the language that was used in the course of conduct.

[00:41:42] Speaker 06:
I am just saying that you're not having to show that this particular dollar was paid for, example, reducing top promos tax liability from $258,000 to $40,000 because you made a certain payment on a certain date.

[00:42:02] Speaker 06:
In this case, I don't think that there's really, frankly, much daylight between the proof because you're not talking about a whole stream of payments that were consistently and constantly being made so that you could, over time, keep getting the same person to do the official act.

[00:42:17] Speaker 03:
So as far as- That argument does help you, does it, Ms.

[00:42:18] Speaker 03:
Kelly?

[00:42:19] Speaker 03:
Because if we wanted to say this is harmless because there was no evidence that the jury could rely on the course of conduct requirement, then it could be harmless because they could only rely on the correct

[00:42:32] Speaker 03:
direct quid pro quo type evidence.

[00:42:34] Speaker 03:
But you saying that there's no daylight between the two that could have relied on course of conduct would mean it's not harmless in the event that the course of conduct is incorrect.

[00:42:47] Speaker 03:
So I don't know that it helps your position to say that these are the same thing and they could have relied on course of conduct if course of conduct is erroneous.

[00:42:55] Speaker 06:
But we have no law saying that course of conduct is erroneous after the decision in McDonald.

[00:43:04] Speaker 03:
Yeah, I do have an issue preservation question about that, because I don't know that that argument was ever made in that form.

[00:43:12] Speaker 03:
And I don't even see a very clear articulation challenging the course of conduct argument in the blue brief in this case.

[00:43:21] Speaker 03:
So it's just not clear to me that this issue is properly

[00:43:25] Speaker 03:
raised before us, because I think it would be, I guess, a big deal for the court to hold that post-McDonald, our prior case law in Ring that said course of conduct is an appropriate theory has been overruled.

[00:43:42] Speaker 03:
I just don't think it's really been teed up here in that fashion or teed up in an appropriate way.

[00:43:49] Speaker 03:
So I have procedural questions about issue preservation and also harmlessness.

[00:43:53] Speaker 06:
I did see, I believe that there was a request before the jury instructions were read that the court remove the course conduct instruction.

[00:44:05] Speaker 06:
It's in our brief in the procedural history for that issue.

[00:44:08] Speaker 06:
So it was our position that it had been teed up.

[00:44:10] Speaker 06:
So I don't want to, I don't want to just leave the court in that regard.

[00:44:14] Speaker 08:
Redlining the whole thing out.

[00:44:16] Speaker 08:
Right.

[00:44:16] Speaker 08:
They just wanted to redline it out.

[00:44:18] Speaker 08:
The whole course of conduct.

[00:44:19] Speaker 06:
Right.

[00:44:20] Speaker 08:
Right.

[00:44:22] Speaker 06:
But anyway, again, though, there still is not law that shows that

[00:44:27] Speaker 06:
Post-McDonald, particularly in the Fourth Circuit, all these other circuits that we cited in our brief, they're not saying that the course of conduct instruction was undercut by McDonald.

[00:44:40] Speaker 06:
They're saying, particularly in the Fourth Circuit, that the McDonald's could be applied harmoniously with the course of conduct theory, or a stream of benefits theory, as it's called in some courts.

[00:44:51] Speaker 05:
Just to help me put this in context, can you explain what

[00:44:59] Speaker 05:
What the difference is in your understanding of the two ways that George Walton instructed that the bribery statute could be violated.

[00:45:07] Speaker 05:
I'm looking at the jury instructions in JA 523.

[00:45:10] Speaker 05:
It's page 26 of the actual jury instructions.

[00:45:15] Speaker 05:
He talks about a first way the defendant intended to influence a specific act or official acts.

[00:45:24] Speaker 05:
And

[00:45:26] Speaker 05:
That's all very specific.

[00:45:28] Speaker 05:
And I gather the difficulty that the defendants are raising is the second way, which is bribing to try to cause Vincent Slater to violate an official duty.

[00:45:42] Speaker 05:
And then on page 525, lines 8 to 11, it's not necessary that the government prove an official act was influenced or that Vincent Slater actually was induced, motivated, or encouraged.

[00:45:55] Speaker 05:
And then at the bottom of that page, the government does not need to connect each thing of value to a specific official act.

[00:46:03] Speaker 05:
So, but then on, so then on page 526, lines 5 to 6,

[00:46:15] Speaker 05:
Judge Walton says with respect to the second theory, the government must show that the things of value were given to Vincent Slater with the intent or accepted with the understanding that in return, an official act would be influenced or that Slater would be motivated or encouraged to violate an official duty.

[00:46:35] Speaker 05:
And I guess the, sorry, I just, I'm not sure what your understanding is of these two different theories.

[00:46:45] Speaker 06:
My understanding is you can you in some cases, somebody could have an official duty to do something or to not do something where they wouldn't necessarily be in a position to take an official act on behalf of an agency, for instance, here.

[00:47:01] Speaker 06:
I mean, that was the situation in the case that we cited in our brief here.

[00:47:08] Speaker 06:
It works both ways for Mr. Slater.

[00:47:09] Speaker 06:
He is somebody who has taken an official act on behalf of OTR, the reduction of the taxes, and he had an official duty, essentially, and I don't recall exactly the wording that official duty was defined.

[00:47:26] Speaker 06:
as a duty to enforce the District of Columbia tax laws.

[00:47:30] Speaker 06:
So, he was violating his official duty also.

[00:47:34] Speaker 06:
The court or the jury could have decided on either of those grounds that Mr. DeMoya was engaged in bribery and it did.

[00:47:42] Speaker 06:
I don't know which one they chose, but

[00:47:47] Speaker 06:
We're just saying that the course of conduct is literally, you just don't have to take this $5 and say that affected this particular moment in time or this particular act by Mr. Slater.

[00:48:04] Speaker 06:
Or if, for instance, that came three days later.

[00:48:07] Speaker 03:
The evidence doesn't really support that in this case, does it?

[00:48:12] Speaker 03:
I would say to me that they were asking for specific reductions of specific tax bills and making specific payments to get those reductions.

[00:48:21] Speaker 06:
Right.

[00:48:21] Speaker 06:
I think in this case, they probably could have done without the course of conduct instruction and just because it was clearer in this case than I've seen in others where there was a payment made and it went through and everything, whether it was right before or right after.

[00:48:37] Speaker 03:
or we're considering holding that the course of conduct instruction is now erroneous post-McDonald, should we order supplemental briefing?

[00:48:47] Speaker 03:
Because I just don't think that this has been briefed in that way to say that our prior case law, like in Ring, for example, has been obviated by McDonald, et cetera.

[00:48:59] Speaker 03:
And it's not clear from the party's arguments at the podium what other circuits have done in this regard.

[00:49:06] Speaker 03:
And what the differences between a course of conduct instruction and a retainer theory.

[00:49:12] Speaker 06:
The government would be happy to provide additional briefing if the court wanted it on that topic.

[00:49:23] Speaker 06:
But in this case, we really do believe that there was really, as I was saying earlier, there wasn't a situation where it was very questionable about what payments went to affect what transactions.

[00:49:36] Speaker 08:
What's the point?

[00:49:37] Speaker 08:
Like, what work was the course of conduct instruction doing in this case?

[00:49:42] Speaker 08:
Government asked for it, so.

[00:49:44] Speaker 06:
It covers a situation where.

[00:49:46] Speaker 08:
They asked for it in this case.

[00:49:47] Speaker 08:
So what was it covering in this case?

[00:49:49] Speaker 08:
Not a generic situation.

[00:49:50] Speaker 08:
Right, right.

[00:49:51] Speaker 08:
It was somehow allowing evidence to come together in a way.

[00:49:57] Speaker 08:
I guess we don't have evidence of exactly what was said in some of these cases from Mr. Merritt to Mr. Slater.

[00:50:06] Speaker 06:
Right and when you have the you have the actual payments being made, you don't know exactly when the money got to Mr. Slater for instance and so if there's any question about the timing of whether or not he was really doing something before he was getting paid, I think the course of conduct instruction could help aid the jury there because they don't have to say that on Tuesday,

[00:50:31] Speaker 06:
Mr. DeMoya got the money, and then it made it to Mr. Slater by Thursday.

[00:50:37] Speaker 06:
And then Friday morning, he made the changes, for instance.

[00:50:40] Speaker 06:
You don't need that specificity.

[00:50:42] Speaker 06:
And that's really what the course of conduct instruction in our mind goes to about.

[00:50:48] Speaker 08:
It wasn't clear to me from this case, but you know it better than I do.

[00:50:53] Speaker 08:
Some people were getting their taxes wiped out all the way.

[00:50:55] Speaker 08:
Some were getting reductions.

[00:50:57] Speaker 08:
Some wanted paperwork.

[00:50:58] Speaker 08:
Some didn't.

[00:51:00] Speaker 08:
Um, and so it was sort of more a, uh, would allow the jury not have to figure out, well, exactly what official duty it was, it was, or, or act, what official act was procured or even asked for in this particular case, or duty was card as long as, you know, this money's coming in and then this output is coming out from Mr. Slater, whether it's a reduction or a complete erasure.

[00:51:28] Speaker 08:
Um,

[00:51:29] Speaker 06:
Well, the way the official duty was defined was that he had an official duty to apply the tax laws correctly.

[00:51:38] Speaker 06:
So I don't know that it necessarily mattered whether you're talking about getting the false coverage letter versus actually doing the tax reduction.

[00:51:48] Speaker 08:
How he might have.

[00:51:51] Speaker 08:
applied the line correctly.

[00:51:52] Speaker 08:
This kind of helps bridge the theory to that.

[00:51:54] Speaker 08:
They see the income, they see the output and the result.

[00:51:58] Speaker 08:
Right.

[00:51:59] Speaker 08:
And what he was doing in the middle, this bridges over that.

[00:52:04] Speaker 06:
Right.

[00:52:07] Speaker 06:
And so, for all those reasons, your honor, we'd respectfully request that Mr. DeMoya's convictions are affirmed.

[00:52:12] Speaker 08:
Thank you.

[00:52:13] Speaker 06:
Thank you.

[00:52:13] Speaker 06:
And actually, Mr. Merritts, because he also argued, he joined the argument on the general instructions.

[00:52:21] Speaker 08:
Thank you.

[00:52:26] Speaker 08:
Okay, now we'll hear from Mr. is it Likar?

[00:52:29] Speaker 08:
I'm sorry, I did promise you so you wanted a minute for rebuttal.

[00:52:33] Speaker 01:
I apologize.

[00:52:34] Speaker 01:
No, no, no, your honor.

[00:52:35] Speaker 01:
Very kind of you.

[00:52:36] Speaker 01:
And I don't think I even need a minute.

[00:52:39] Speaker 01:
I just wanted to to address very quickly.

[00:52:42] Speaker 01:
Judge Pan's question about preservation, which is, and here my memory is imperfect, but I think we actually made a written submission below on this issue.

[00:52:53] Speaker 01:
And I appreciate the government's concession about it that they just articulated, and I think they're right.

[00:52:59] Speaker 01:
But I tend to always be worried whenever I'm trying

[00:53:04] Speaker 01:
a jury case about federal rule of criminal procedure 30, which is very restrictive in terms of preserving objections to instructions.

[00:53:13] Speaker 08:
I will tell you that you asked to have the whole thing, course of conduct one, deleted.

[00:53:19] Speaker 01:
I did.

[00:53:20] Speaker 01:
And I'm pretty sure we referred to Caldwell and some of the case authority in terms of why.

[00:53:25] Speaker 03:
But in your blue brief also, do you think that you've properly raised the argument?

[00:53:30] Speaker 03:
Because I don't see your blue brief making these arguments that specifically targeting the course of conduct instruction.

[00:53:37] Speaker 03:
I thought that it did that.

[00:53:39] Speaker 03:
I just see block quotes and no analysis.

[00:53:42] Speaker 01:
Yeah, I appreciate that.

[00:53:43] Speaker 01:
I thought we did.

[00:53:44] Speaker 01:
I thought we referred specifically to the specificity requirement in Caldwell.

[00:53:49] Speaker 01:
But I mean, I'm highly imperfect.

[00:53:53] Speaker 01:
I don't recall it verbatim, but I think we did.

[00:53:58] Speaker 01:
I believe that's all I have.

[00:53:59] Speaker 08:
All right.

[00:54:00] Speaker 08:
Mr. Coburn, you were appointed by the court to represent Mr. DeMoy in this case, and the court thanks you for your assistance.

[00:54:06] Speaker 01:
It was my pleasure.

[00:54:06] Speaker 01:
Thank you, Your Honor.

[00:54:14] Speaker 02:
Good morning, Your Honor.

[00:54:15] Speaker 02:
May I please record Steve LaCar for the Mr. Merritt.

[00:54:18] Speaker 02:
I've reserved a minute and a half for rebuttal.

[00:54:21] Speaker 02:
Perhaps I can distill our argument into four basic points.

[00:54:27] Speaker 02:
The government and Mr. Merritt have signed the same two appellate cases for the Simple Proposition Bill when it comes to the lost table.

[00:54:35] Speaker 02:
I'm talking about the Seventh Circuit case in Moose, Second Circuit case in Al-Gahyan, a sua sponte decision out of the Second Circuit to address the flaws in the lost table, that these two circuits both say that

[00:54:51] Speaker 02:
Trial judges are allowed to consider policy reasons to give variances from the fairly significant sentences or what otherwise be recommended under the loss guideline.

[00:55:02] Speaker 02:
Now, there's no dispute between the government to its credit and with Mr. Merritt that we've identified arguments that could have been raised below if it weren't.

[00:55:11] Speaker 02:
of our briefs.

[00:55:12] Speaker 08:
I think that's how I'm confused about that argument.

[00:55:17] Speaker 08:
Mr. Walton, Judge Walton asked for

[00:55:22] Speaker 08:
and got comparator evidence, learned that most judges in this district or a lot of judges were departing downward from the loss table.

[00:55:30] Speaker 08:
He asked for comparator information.

[00:55:32] Speaker 08:
He made an extraordinary downward variance.

[00:55:37] Speaker 08:
The loss calculation on the table was 1.5 million, 3.5 million.

[00:55:43] Speaker 08:
His variance went down so far that it was the equivalent of knocking the value down to 150,000 to 250,000.

[00:55:49] Speaker 08:
That's going from millions to 100,000.

[00:55:56] Speaker 08:
Now, where have you argued in your brief that that downward variance was not commensurate?

[00:56:03] Speaker 08:
with the other downward variances that you discussed in your brief?

[00:56:06] Speaker 08:
Or was not commensurate with whether district court judges have done here?

[00:56:09] Speaker 02:
I think, Your Honor, we refer to Vidal case out of the Second, Seventh Circuit and a previous court circuit.

[00:56:15] Speaker 08:
Where have you shown that the variance granted in that case by a district court was more than the variance and was so starkly more than the variance that was granted in this case

[00:56:30] Speaker 02:
It's impossible to find out, because there's no evidence.

[00:56:33] Speaker 08:
Well, then how do we know?

[00:56:34] Speaker 08:
I mean, the judge departed dramatically from the loss table, precisely because that's how other district court judges were doing it, because of its overstatement.

[00:56:46] Speaker 08:
I mean, 10 times lower value amount, right?

[00:56:51] Speaker 08:
You look at the volume.

[00:56:52] Speaker 08:
You haven't challenged the finding of the amounts themselves, actually.

[00:56:59] Speaker 08:
No, we did not.

[00:57:00] Speaker 08:
Okay, and so instead of getting sentenced for 1.5 to 3.5 million, he got a sentence that was equivalent to 150,000.

[00:57:09] Speaker 08:
That's a 10-time reduction.

[00:57:12] Speaker 02:
What I'm saying to you, Your Honor, you're saying because he got a sentence of less, significantly less than the normal guidelines, the recommended guidelines range, that the inquiry should end there.

[00:57:22] Speaker 08:
No, because he got a variant.

[00:57:24] Speaker 08:
No, what I'm saying is you need to show us.

[00:57:26] Speaker 08:
Your whole argument here is that had someone argued to him that the loss table overstates culpability, that's what you spend a lot of pages on.

[00:57:36] Speaker 08:
talking abstractly about courts and other circuits, he would have had a downward variance and not credited the law stable.

[00:57:46] Speaker 08:
And that's exactly what Judge Walton already did.

[00:57:50] Speaker 08:
And you haven't shown that what he did was not in line with other judges.

[00:57:56] Speaker 02:
It's impossible to show that, Your Honor, because you don't know.

[00:57:59] Speaker 08:
Do you dispute the significant downward variance that he made?

[00:58:04] Speaker 08:
I give it credit, Your Honor, but- But do you dispute that it took him down to a much, much, much lower dollar range, the equivalent of much lower dollar range on the table?

[00:58:16] Speaker 02:
It's an artificially inflated- It's an artificially inflated lawsuit.

[00:58:20] Speaker 08:
He deflated it.

[00:58:21] Speaker 08:
I mean, if you want to show-

[00:58:23] Speaker 08:
that this argument, somehow, the absence of all the law review article citations, somehow prejudiced him.

[00:58:33] Speaker 08:
Yes, but he already did it.

[00:58:36] Speaker 08:
Let me ask you this.

[00:58:38] Speaker 08:
You know how many months down he varied?

[00:58:40] Speaker 02:
He went down.

[00:58:42] Speaker 08:
Was that out of line with what other district courts, judges in this district have done?

[00:58:49] Speaker 02:
If we had a database, we could study that.

[00:58:51] Speaker 02:
We don't know that.

[00:58:52] Speaker 02:
That's another argument.

[00:58:53] Speaker 08:
You just spent a lot of time.

[00:58:56] Speaker 08:
telling us what other courts have done.

[00:58:58] Speaker 08:
So you have found other decisions.

[00:59:00] Speaker 02:
That's a problem.

[00:59:01] Speaker 02:
Look at Judge Westport.

[00:59:02] Speaker 08:
And the district court in this case had evidence of what other district court judges in this district were doing.

[00:59:09] Speaker 08:
He asked for it and got it.

[00:59:11] Speaker 08:
So apparently it can be obtained in this district.

[00:59:14] Speaker 02:
he got some from the government.

[00:59:15] Speaker 02:
What he got from the defense counsel was lackluster and was destroyed by the government.

[00:59:21] Speaker 08:
Did you challenge the accuracy of what the government provided?

[00:59:25] Speaker 02:
No, I didn't challenge the accuracy of that.

[00:59:29] Speaker 08:
What I'm saying is... If it's accurate and if what Judge Walton did was commensurate, I just don't even understand what the point of your argument is.

[00:59:39] Speaker 08:
Judge Walton did

[00:59:41] Speaker 08:
I'm not saying he had to or not, but he did exactly what you're arguing for.

[00:59:45] Speaker 08:
And you haven't argued at all that it was out of line with what the sentence should be.

[00:59:51] Speaker 02:
We have, in fact, said this, Judge.

[00:59:55] Speaker 02:
There is no database in this district that gives you an ability to understand, no transparency.

[01:00:01] Speaker 02:
This is a data-driven process.

[01:00:03] Speaker 02:
No ability to understand what similar sentences were.

[01:00:07] Speaker 02:
There are very few written decisions.

[01:00:11] Speaker 08:
You want transparency.

[01:00:12] Speaker 08:
Decisions in this court, in our district court, are matters of public record.

[01:00:17] Speaker 08:
The fact that somebody hasn't compiled them is not an excuse for not showing if you want to win on an ineffective assistance of counsel claim for showing prejudice by looking at those public records.

[01:00:30] Speaker 02:
This isn't an effective assistance of counsel claim for showing prejudice in judgment.

[01:00:33] Speaker 02:
Let me assure you it is.

[01:00:35] Speaker 08:
It is.

[01:00:36] Speaker 08:
Your whole argument here is an ineffective assistance of counsel claim.

[01:00:39] Speaker 08:
That's correct.

[01:00:40] Speaker 08:
OK.

[01:00:40] Speaker 08:
And you have to show prejudice.

[01:00:43] Speaker 02:
The issue of prejudice is addressed by Taylor and is addressed by Dow.

[01:00:47] Speaker 02:
Just because Judge Walton gave a certain number, gave a sentence, and a sentence influenced by the hydraulic effect of a recommended guidelines range, just because he gave a sentence and varied down, that doesn't mean you couldn't do more.

[01:01:00] Speaker 02:
We don't know.

[01:01:00] Speaker 08:
Of course we could do more.

[01:01:02] Speaker 02:
You don't know.

[01:01:03] Speaker 08:
But you have to show that's not prejudice.

[01:01:05] Speaker 08:
Your whole argument here

[01:01:08] Speaker 08:
as I understand it, is that he should have been informed about the problems with the loss table.

[01:01:18] Speaker 08:
He should have been informed that other courts have identified those problems and, as a result, have varied downward from the loss table.

[01:01:26] Speaker 02:
Correct?

[01:01:28] Speaker 02:
Based on some or all the reasons that we've identified?

[01:01:30] Speaker 02:
Yes.

[01:01:31] Speaker 08:
OK.

[01:01:31] Speaker 08:
Well, I don't know.

[01:01:33] Speaker 08:
All right.

[01:01:33] Speaker 08:
And in this case, he was informed that

[01:01:38] Speaker 08:
There were lots of judges in this circuit on the district court that would vary downward from the law's table because it was viewed as overstating culpability.

[01:01:50] Speaker 08:
Correct?

[01:01:52] Speaker 02:
I don't think it was quite like that, Judge.

[01:01:54] Speaker 08:
I was close enough because your client got an extraordinary downward variance.

[01:02:00] Speaker 02:
The end result, as Dowell and Taylor say, doesn't mean that an informed judge might not have done more.

[01:02:08] Speaker 02:
Consider what the... Is that sufficient?

[01:02:10] Speaker 08:
So just tell me how the rather strict standard, the strict Strickland standard for ineffective assistance of counsel works in this context.

[01:02:22] Speaker 08:
Is it enough?

[01:02:24] Speaker 08:
For someone to come up and say, yes, he acknowledged this problem, he came in saying he was planning to give a much higher sentence.

[01:02:31] Speaker 08:
And then he came and said, he acknowledged his problem.

[01:02:34] Speaker 08:
He got information.

[01:02:35] Speaker 08:
You haven't challenged the quality of the information he got.

[01:02:39] Speaker 08:
You haven't suggested the council should challenge the quality of the information he got from the government.

[01:02:44] Speaker 08:
And he made a very, very significant downward variance.

[01:02:51] Speaker 08:
And you haven't shown that that was not as much as other people would do.

[01:02:56] Speaker 08:
Is it enough to prejudice say, well,

[01:02:58] Speaker 08:
He could have done more.

[01:02:59] Speaker 08:
What is your best case that that is sufficient to establish prejudice in this context?

[01:03:05] Speaker 02:
In this context, I think Algarheim would be the best case.

[01:03:08] Speaker 02:
That was a Suez-Ponte decision by the Second Circuit.

[01:03:11] Speaker 08:
Was that a finding of ineffective assistance to counsel?

[01:03:13] Speaker 02:
No.

[01:03:14] Speaker 08:
No, but it's not helpful in helping me to figure out how I analyze prejudice under Strickland.

[01:03:20] Speaker 08:
an ineffective assistance in counsel claims.

[01:03:22] Speaker 08:
So what's your best ineffective assistance of counsel claim in a sentencing context that says, well, the chance that the judge could have gone lower is enough.

[01:03:34] Speaker 08:
That's all I have to show for prejudice.

[01:03:35] Speaker 02:
Taylor, this circuit, look at Dowell from the seventh circuit.

[01:03:38] Speaker 02:
It's the same analysis.

[01:03:39] Speaker 08:
Well, quote to me where we said, what was said in those cases, that as long as a judge could have gone lower, went really low already, but could have gone lower,

[01:03:51] Speaker 08:
then the council was ineffective?

[01:03:56] Speaker 02:
Yes, in Taylor, Your Honor.

[01:04:03] Speaker 02:
Taylor, which is 139 Fed 3rd at 924, the jump site is on page, looks like it's page 930.

[01:04:20] Speaker 02:
924, and the jump site looks like it's on page 933.

[01:04:25] Speaker 02:
Taylor's allegation that trial counsel had failed to inform him of his defense due to his conflict of interest presents a valid Kyler claim.

[01:04:36] Speaker 02:
Even a trial counsel succeeded in obtaining for Taylor what appears in fact to be a favorable plea agreement.

[01:04:41] Speaker 08:
That was a conflict of interest case.

[01:04:43] Speaker 08:
We have a different prejudice test for conflict of interest cases.

[01:04:47] Speaker 02:
But you asked me specifically.

[01:04:49] Speaker 08:
I'm telling you, that's not on point because we have a different prejudice test in conflict of interest cases.

[01:04:54] Speaker 08:
We just simply assume the existence of prejudice.

[01:04:58] Speaker 02:
I believe in Dow, Your Honor.

[01:04:59] Speaker 02:
That's a 694 Fed 3rd, 898, 7th Circuit case.

[01:05:05] Speaker 02:
Are these in your brief?

[01:05:08] Speaker 02:
Yes, of course.

[01:05:10] Speaker 08:
I don't see Taylor in your brief.

[01:05:12] Speaker 02:
I cited Dow twice in our reply brief because the government raised that issue.

[01:05:17] Speaker 08:
Oh, they're not in your opening brief.

[01:05:27] Speaker 08:
Okay.

[01:05:27] Speaker 08:
Go ahead.

[01:05:29] Speaker 08:
Was that—that was ineffective assistance to counsel?

[01:05:31] Speaker 02:
Yes, they're both ineffective assistance to counsel.

[01:05:33] Speaker 08:
Again, I've told you the conflict cases are different, though.

[01:06:06] Speaker 02:
Do you want me to leave you to court, Your Honor?

[01:06:08] Speaker 08:
What was the error in that case?

[01:06:11] Speaker 02:
Dow versus the United States.

[01:06:13] Speaker 08:
You asked for... Yes, what was the error that counsel committed in that case?

[01:06:16] Speaker 02:
The error was about the inquiry about the merits of an appeal.

[01:06:20] Speaker 02:
Should it do an appeal or not?

[01:06:22] Speaker 02:
Let me read this short sentence into the record.

[01:06:26] Speaker 02:
While we know that it is true that the district court imposed a below-guidelines sentence, it might have imposed an even lower one if Dow were not a queer offender.

[01:06:34] Speaker 02:
Without queer offenders' status, its criminal history would have been no higher than three.

[01:06:39] Speaker 02:
The resulting guidelines range would have been much less than it ultimately was.

[01:06:43] Speaker 08:
Had that argued?

[01:06:44] Speaker 08:
Error in calculating the sentence guidelines range been brought to the attention of the district court in that case.

[01:06:51] Speaker 08:
I assume not.

[01:06:53] Speaker 08:
That's what I keep telling you is a difference in this case.

[01:06:55] Speaker 08:
The problems with the lost table were brought to the attention of Judge Walton.

[01:07:00] Speaker 08:
He obtained information and he dealt with it.

[01:07:03] Speaker 08:
So what you have to show is not that he wasn't aware of this problem.

[01:07:08] Speaker 08:
That would be a different argument.

[01:07:09] Speaker 08:
He was aware.

[01:07:10] Speaker 08:
He asked for information and he responded.

[01:07:13] Speaker 08:
So then what you have to show is if he had been given more arguments,

[01:07:19] Speaker 08:
about it.

[01:07:20] Speaker 08:
More arguments, he would have done more.

[01:07:22] Speaker 08:
That's my point to you, that you need to show prejudice and just saying, well, maybe.

[01:07:28] Speaker 02:
What I'm saying to you is that this guideline suffers from a number of deficits.

[01:07:33] Speaker 02:
These recommended ranges are extremely high.

[01:07:36] Speaker 02:
They are based on an empirically invalid set of data.

[01:07:41] Speaker 02:
That's by excluding probationary sentences, for one thing.

[01:07:44] Speaker 02:
They skewed higher.

[01:07:45] Speaker 02:
They started off saying, we're going to have a

[01:07:48] Speaker 02:
uh we're going to sentence people to short but certain sent prison sentences.

[01:07:53] Speaker 02:
There was no requirement for that in the SRA.

[01:07:56] Speaker 02:
Over time, these guidelines of the law terms have gotten highly inflated and as a result, you're seeing much longer sentences than was the case prior to nineteen in the early eighties.

[01:08:07] Speaker 02:
In addition, you're dealing with the guidelines inflated due to political pressure.

[01:08:11] Speaker 02:
It was dealing it's it the numbers cannot possibly be validated as I try to explain in our brief.

[01:08:18] Speaker 02:
Peace.

[01:08:20] Speaker 02:
When I try to explain in our brief, Your Honor, I'm not a statistician.

[01:08:24] Speaker 02:
I don't play one on TV or in a courtroom.

[01:08:26] Speaker 02:
But these numbers, they start at the increments.

[01:08:30] Speaker 02:
They're just artificial.

[01:08:31] Speaker 02:
They're just plucking numbers.

[01:08:32] Speaker 02:
And there are arguments that should have been presented.

[01:08:34] Speaker 02:
Some or all were available and should have been presented as Judge Walton's.

[01:08:38] Speaker 02:
We don't know what he would have done.

[01:08:40] Speaker 02:
But we do know.

[01:08:41] Speaker 08:
I also noticed that his trial counsel, Mr. Merritt's trial counsel's, I think, principal argument at sentencing,

[01:08:48] Speaker 08:
A lot of these losses weren't even foreseeable or reasonably foreseeable to Mr. Merritt.

[01:08:57] Speaker 08:
Did Ms.

[01:08:57] Speaker 08:
King object to the PSR on that basis?

[01:08:59] Speaker 08:
Is what, Your Honor?

[01:09:00] Speaker 08:
Did she object to the PSR on that basis?

[01:09:03] Speaker 08:
No, she didn't.

[01:09:04] Speaker 08:
Did she?

[01:09:05] Speaker 02:
She was late without argument and it didn't make sense.

[01:09:08] Speaker 08:
Did she?

[01:09:08] Speaker 08:
Well, it makes a lot of sense to say something's not recently foreseeable.

[01:09:11] Speaker 08:
In fact, I think Judge Walton said he would have benefited from briefing on the issue.

[01:09:16] Speaker 08:
But she didn't, but she didn't provide that.

[01:09:19] Speaker 08:
Okay.

[01:09:19] Speaker 08:
But you haven't raised that as an effective assistance council.

[01:09:23] Speaker 08:
Yeah.

[01:09:23] Speaker 08:
Okay.

[01:09:24] Speaker 08:
She also argued that you shouldn't get the four point leader organizer leader enhancement, right?

[01:09:30] Speaker 02:
That was, yes.

[01:09:31] Speaker 08:
She didn't object to the PSR.

[01:09:33] Speaker 02:
There was a pretty weak argument.

[01:09:35] Speaker 08:
Right.

[01:09:36] Speaker 08:
She didn't point to evidence.

[01:09:39] Speaker 08:
She didn't argue it really in her sentencing memo.

[01:09:43] Speaker 08:
And so why wasn't that raised as an ineffective assistance of counsel argument here?

[01:09:49] Speaker 02:
I have put it in my brief.

[01:09:51] Speaker 02:
Where's it in your blue brief?

[01:09:54] Speaker 02:
What I put in a brief and in a reply brief was— You can't raise new issues in your reply brief.

[01:09:59] Speaker 08:
Where in your blue brief did you say she was ineffective because she did not effectively argue, challenge the organizer leader enhancement, which requires some demonstration that Mr. Merrick controlled somebody?

[01:10:13] Speaker 08:
That would have been a frivolous argument, Judge.

[01:10:15] Speaker 02:
What?

[01:10:16] Speaker 02:
Are you kidding me?

[01:10:18] Speaker 02:
Judge, in this particular case, there's five or more people who always judge.

[01:10:24] Speaker 08:
I'm sorry for frivolousness.

[01:10:25] Speaker 08:
So show me what evidence in the record there was that Mr. Merritt controlled.

[01:10:31] Speaker 08:
The argument is organizing.

[01:10:35] Speaker 08:
Organizer requires evidence of control.

[01:10:37] Speaker 08:
Organizer leader requires evidence of control.

[01:10:39] Speaker 02:
Structuring, Your Honor, structuring.

[01:10:42] Speaker 02:
The argument would be.

[01:10:43] Speaker 08:
OK, we're just disagreeing on this.

[01:10:47] Speaker 08:
I don't have any more questions on it.

[01:10:52] Speaker 02:
Hours are on brief.

[01:10:53] Speaker 02:
Thank you.

[01:10:54] Speaker 02:
Okay, we'll give you a minute or so.

[01:10:55] Speaker 02:
Thank you.

[01:10:56] Speaker 06:
Good morning again, Your Honours.

[01:11:08] Speaker 06:
In this case,

[01:11:10] Speaker 06:
The argument regarding the loss table that Mr. Merritt's counsel has placed in his opening brief, not arguing that does not show a colorable ineffective assistance claim, particularly as Your Honors have pointed out, because he has not shown that there is

[01:11:31] Speaker 06:
any hope of a different, more favorable outcome.

[01:11:34] Speaker 06:
In order to show stricter prejudice, the likelihood of a different result has to be substantial, not just conceivable.

[01:11:41] Speaker 06:
In his opening brief, Mr. Merritt's counsel has simply said that it's impossible to say how the trial judge would have reacted had this lost table argument been presented at sentencing.

[01:11:54] Speaker 06:
Here, as your honors have pointed out, too, Judge Walton had clearly already significantly varied downward a total of 78 months from the low end of the guidelines range.

[01:12:07] Speaker 06:
Based on cases that the parties had presented that were similar in this jurisdiction, a series of those cases was presented by Mr. Merritt's counsel at the sentencing hearing.

[01:12:21] Speaker 06:
In addition, there's no basis here to require the United States Attorney's Office to create a database of cases that involve the loss table.

[01:12:36] Speaker 08:
I don't think there's much to that argument, personally, my colleagues.

[01:12:40] Speaker 06:
Thank you, Your Honor.

[01:12:43] Speaker 06:
Ultimately, he has not shown the color bill claim that's necessary for a remand to the district court here.

[01:12:50] Speaker 08:
And you may not know.

[01:12:54] Speaker 08:
So the government was able to provide Judge Walton with some comparator sentences showing how other judges in this district had regarded or varied based on the lost table.

[01:13:10] Speaker 08:
How did the government have those in hand, or how is it aware of them?

[01:13:15] Speaker 06:
I frankly don't know, Your Honor.

[01:13:17] Speaker 06:
I don't have any information that there's some sort of giant database lurking in our office that's probably the best thing I could say about it.

[01:13:31] Speaker 06:
Good job for a law professor.

[01:13:34] Speaker 06:
Um and it it really ultimately here the test for ineffectiveness is not whether or not a council could have done more and and that's really what's been asked of here is that um defense council that sentencing presents something that's it's at this point.

[01:13:50] Speaker 06:
an academic argument.

[01:13:53] Speaker 06:
This court has not said that the lost table is so flawed that it should not be used.

[01:13:59] Speaker 06:
And certainly there isn't any indication in the record at all that there would be a likelihood of a substantial lowering of Mr. Merritt's sentence if the lost table was not used at all in this case.

[01:14:16] Speaker 08:
Is that the test?

[01:14:20] Speaker 08:
Substantial lowering?

[01:14:21] Speaker 06:
I meant to say substantial likelihood of more favorables, a lower sentence.

[01:14:28] Speaker 06:
I was referring to the Harrington B. Richter test for prejudice.

[01:14:32] Speaker 08:
I'm not quite sure how someone would show this, but if I guess if they looked at all the comparators and found out he would have gotten one day less in prison, and there was substantial evidence that he would get one day less in prison, then I assume that would count as prejudice?

[01:14:49] Speaker 06:
That would count as prejudice.

[01:14:51] Speaker 06:
I was not trying to say that it would have to be a large amount of time.

[01:14:56] Speaker 08:
Any loss of liberty?

[01:14:58] Speaker 06:
I think it would be prejudice, yes, your honor.

[01:15:02] Speaker 06:
But it has to be shown by substantial evidence that that would occur.

[01:15:05] Speaker 06:
Right, right.

[01:15:06] Speaker 06:
And Mr. Merritt has not shown that in this case.

[01:15:10] Speaker 06:
And so for those reasons, we respectfully request that the judgment be affirmed.

[01:15:14] Speaker 08:
Can I ask you about the penalty trial one?

[01:15:17] Speaker 08:
Certainly, Your Honor.

[01:15:18] Speaker 08:
It just struck me as different than a lot of others.

[01:15:21] Speaker 08:
Sorry.

[01:15:25] Speaker 08:
Because Mr. Merritt was going to be guilty.

[01:15:28] Speaker 08:
And then during the colloquy, said, protested sort of his lack of knowledge or compliments, right?

[01:15:37] Speaker 08:
Lack of criminal mind for what he was doing.

[01:15:40] Speaker 08:
He didn't mean to be.

[01:15:42] Speaker 08:
with the requisite intent, at least need to be doing something unlawful.

[01:15:47] Speaker 08:
And so Judge Walton said, well, and you can't plead guilty.

[01:15:51] Speaker 08:
You got to go to trial.

[01:15:53] Speaker 08:
So then he gets to trial and he continues with the same decision that he didn't understand that what he was doing was resulting in

[01:16:07] Speaker 08:
illegal actions as opposed to helping someone to get a good result from the OTR.

[01:16:16] Speaker 08:
And so then he gets hit with a much larger sentence or failure to acknowledge guilt.

[01:16:31] Speaker 08:
It was the very same thing that Judge Walton said you have to go to trial on.

[01:16:35] Speaker 08:
I haven't seen a case like that where it seems like he can't win.

[01:16:39] Speaker 08:
He wanted to plead, but he wanted to speak honestly to the court under oath.

[01:16:46] Speaker 08:
We want people to speak honestly to the court under oath of his understanding of what he did.

[01:16:49] Speaker 08:
You know, this is, this is a complicated system here.

[01:16:53] Speaker 08:
And then when he goes to trial and is consistent, he gets hit for that.

[01:17:00] Speaker 08:
It just feels like he sort of was trapped between.

[01:17:02] Speaker 08:
He couldn't, he couldn't, he couldn't win by stating his understanding of his mindset under oath.

[01:17:11] Speaker 06:
What happened here is, Your Honor, he did actually plead guilty in this case.

[01:17:16] Speaker 06:
And when he got to sentencing... Well, one of the cases here, not the... He went to trial.

[01:17:23] Speaker 06:
He did go to trial in this case, but he had actually entered a guilty plea beforehand.

[01:17:26] Speaker 06:
And then when it came time for his sentencing in November of 2022, that's when his attorney made statements indicating that he did not believe he was culpable.

[01:17:36] Speaker 03:
And for that reason... So during the plea colloquy, did he admit that he knew?

[01:17:40] Speaker 06:
He did.

[01:17:41] Speaker 06:
I don't recall all the language, but that plea did go through, Your Honor.

[01:17:45] Speaker 06:
And it was at the sentencing then when his counsel.

[01:17:48] Speaker 08:
Which plea are you talking about?

[01:17:49] Speaker 08:
Oh, it was at the sentencing.

[01:17:49] Speaker 08:
You're right.

[01:17:50] Speaker 08:
I'm sorry.

[01:17:50] Speaker 08:
You're right.

[01:17:51] Speaker 06:
Yes.

[01:17:51] Speaker 06:
So he did enter the plea.

[01:17:52] Speaker 06:
It was unwound without his objection based on what his attorney represented at his sentencing.

[01:17:57] Speaker 06:
He went to trial in this case.

[01:17:59] Speaker 06:
And I think what's important here is it wasn't a penalty for him standing trial.

[01:18:03] Speaker 06:
He, as Judge Walton found, lied during trial.

[01:18:08] Speaker 06:
He perjured himself.

[01:18:09] Speaker 06:
And he ended up receiving an obstruction enhancement for that, ultimately, at his sentencing.

[01:18:14] Speaker 06:
So this wasn't a situation where somebody just wanted to have their day in court.

[01:18:20] Speaker 06:
And the jury rejected his theory that he didn't know what was going on, as shown by their verdict.

[01:18:28] Speaker 06:
And nor did he testify.

[01:18:30] Speaker 06:
He did testify at trial.

[01:18:32] Speaker 06:
And you don't.

[01:18:35] Speaker 06:
As far as the leader enhancement goes, if you voluntarily choose to withdraw from a plea, you don't keep the right to the sentence that you have rejected by doing so.

[01:18:49] Speaker 06:
So there wasn't a trial penalty.

[01:18:52] Speaker 06:
He got to say what he wanted at trial.

[01:18:54] Speaker 06:
He was again allowed to speak at the sentencing hearing.

[01:18:57] Speaker 06:
And again, the judge found that he really wasn't helping himself because again, he was

[01:19:01] Speaker 06:
trying to act as if he hadn't done anything wrong.

[01:19:04] Speaker 06:
Thank you very much.

[01:19:05] Speaker 06:
Thank you, Your Honor.

[01:19:07] Speaker 08:
All right.

[01:19:09] Speaker 08:
Mr. Lecker, we'll give you, you said you wanted one and a half minutes.

[01:19:14] Speaker 02:
How much time did you give me, Your Honor?

[01:19:16] Speaker 08:
You said you wanted one and a half minutes.

[01:19:18] Speaker 08:
That's fine.

[01:19:19] Speaker 02:
Let me talk about the trial penalty argument briefly.

[01:19:23] Speaker 02:
I'm sorry, what?

[01:19:24] Speaker 02:
Trial penalty argument.

[01:19:26] Speaker 02:
The trial penalty argument.

[01:19:28] Speaker 02:
First of all, it's not plain error because Mr. Merritt was sentenced before Mr. Slater was.

[01:19:36] Speaker 02:
So Mr. Merritt would have had no way to assess to compare his sentence versus Mr. Slater.

[01:19:40] Speaker 02:
Mr. Slater got 27 months to cooperate.

[01:19:44] Speaker 02:
Mr. Merritt got 110 months.

[01:19:46] Speaker 02:
That's over fourfold.

[01:19:49] Speaker 02:
That's a significant jump.

[01:19:51] Speaker 02:
Now, I don't, we don't challenge the obstruction adjustment.

[01:19:54] Speaker 02:
That's not in play, but the managerial role is in play because what the government said at the time the plea negotiations was Mr. Merritt and Mr. Slater were co-partners, co-equal.

[01:20:07] Speaker 02:
Suddenly, after trial, Mr. Merritt became the most culpable.

[01:20:11] Speaker 02:
The government did not seek a role adjustment prior.

[01:20:14] Speaker 02:
They sought a role adjustment afterwards.

[01:20:16] Speaker 02:
They basically saw a penalty for going to trial, and Judge Walton looted at the trial outside the sentencing process to Mr. Merritt's having rejected the plea and going to trial.

[01:20:29] Speaker 02:
You're looking at a number that's four times what the cooperator got.

[01:20:33] Speaker 02:
cooperate at a higher guidelines level with a public official and emerge with one-fourth of what Mr. Merritt received.

[01:20:42] Speaker 05:
Mr. O'Connor, how should we think about if the government gives, and I'm not saying this happened in this case, I just haven't practiced criminal law myself, if the

[01:20:56] Speaker 05:
government gives a particularly sweet deal by doing something like characterizing someone as not having a leadership role in order to make available a better sentence, induce them to, is that, does that then set up the objection that you're making?

[01:21:16] Speaker 05:
Like they're necessarily, if they revert back and say, well, we really think it's

[01:21:20] Speaker 05:
is that he played a leading role and we're going to go there at trial.

[01:21:24] Speaker 05:
Is that just impermissible?

[01:21:29] Speaker 02:
It's not impermissible for them to make an inducement for somebody to plead.

[01:21:32] Speaker 02:
The problem is when you end up with a result like this, a four-fold.

[01:21:35] Speaker 02:
The ABA looks at four-fold as evidence of a trial penalty after factoring in facts not known before trial, which is not what's at issue here.

[01:21:44] Speaker 05:
It's an issue on the leadership role, but very much an issue on obstruction and responsibility.

[01:21:50] Speaker 02:
They could take that into account, but that's two points.

[01:21:53] Speaker 02:
We're talking four points on the leadership.

[01:21:55] Speaker 02:
So no, I don't have any problem.

[01:21:57] Speaker 02:
This is plea bargaining.

[01:21:58] Speaker 02:
We understand that.

[01:21:59] Speaker 02:
The system works on plea bargaining, Judge Pollard.

[01:22:02] Speaker 05:
But then it seems like all you're saying is that if the sweetener was something that's substantial, in other words, if the prosecution says,

[01:22:13] Speaker 05:
we think the facts would support a leadership role enhancement, but at the plea stage, we're actually willing to set that aside, then it does seem like your theory is that they cannot then, at trial, bring that back into play because it would create that multiplied degree of enhancement.

[01:22:37] Speaker 02:
If it does, if it plays a role, no pun intended, and I think it clearly did play a role here, then that's a signal that there's a trial penalty that's attached to it.

[01:22:46] Speaker 05:
The fourfold is not only flowing from the role enhancement.

[01:22:50] Speaker 05:
It's flowing from the combination of no acceptance of responsibility role enhancement and, or am I wrong?

[01:22:56] Speaker 02:
No, there was four points extra for it.

[01:22:59] Speaker 02:
He was 30, then he got 30 was his guidelines, then he got two for the obstruction, 32 and four for the manager, for the organizer leader rather, and he came up with 36.

[01:23:11] Speaker 02:
That's a significant jump.

[01:23:12] Speaker 05:
Right, but if we set aside the obstruction, which wasn't known and therefore isn't in play in assessing whether there was a crowd panel, so then what is the difference just attributable to the role enhancement?

[01:23:27] Speaker 02:
I think the difference is a significant portion.

[01:23:30] Speaker 05:
But it's not fourfold.

[01:23:31] Speaker 02:
Not what?

[01:23:32] Speaker 02:
No, no.

[01:23:32] Speaker 02:
Fourfold.

[01:23:33] Speaker 02:
No.

[01:23:33] Speaker 02:
But it certainly could have been part of a threefold.

[01:23:36] Speaker 02:
This threefold has also been identified by the NACDL with data backing it up as a suggestion of a trial penalty.

[01:23:43] Speaker 08:
Was it a threefold?

[01:23:44] Speaker 08:
Do you know?

[01:23:44] Speaker 08:
I'm sorry.

[01:23:45] Speaker 08:
Was it a threefold?

[01:23:46] Speaker 08:
Did you do the calculation?

[01:23:48] Speaker 02:
Yes.

[01:23:48] Speaker 02:
It's in my brief, both my opening and my replies.

[01:23:50] Speaker 05:
It was threefold without the?

[01:23:52] Speaker 05:
Without the acceptance of responsibility and obstruction.

[01:23:56] Speaker 05:
I thought you combined them all and looked at the sentencing range at the police station, the sentencing range post-conviction, post-trial.

[01:24:09] Speaker 05:
And I guess to me, given that you're focusing on the role enhancement as the one that's impermissible, that a different calculation would actually be the relevant.

[01:24:19] Speaker 02:
I mean, if you're going to have supplemental briefing from them on your first issue, I'll be happy to file a supplemental brief on this as well.

[01:24:27] Speaker 02:
But it's clear that four points is a large number in a guidelines calculation.

[01:24:32] Speaker 02:
So I think it's important.

[01:24:33] Speaker 03:
But basically, you're asking for a whole different kind of sentencing than what we traditionally do.

[01:24:37] Speaker 03:
You're saying that now district courts should have to look at cooperators and compare how many times more is this one versus that one within a case, even though

[01:24:49] Speaker 03:
each of the individual characteristics is taken into account by the guideline range.

[01:24:54] Speaker 03:
Slater got acceptance of responsibility and substantial assistance.

[01:24:59] Speaker 03:
Your guy got, you know, instruction of justice and leader enhancement.

[01:25:04] Speaker 03:
I mean, this is just not the way sentencing is done and you're asking for a revolution in sentencing.

[01:25:10] Speaker 02:
No.

[01:25:10] Speaker 03:
Yes.

[01:25:11] Speaker 03:
Because you're basically saying that when there's plea bargaining and government says when they offer you the plea, we're not going to ask for the leader enhancement.

[01:25:21] Speaker 03:
They can't later ask for it if you turn down the plea.

[01:25:24] Speaker 03:
You're asking for a revolution in sentencing.

[01:25:27] Speaker 02:
I'm not, Judge.

[01:25:28] Speaker 02:
Let me explain what I'm saying to be as succinct as possible.

[01:25:32] Speaker 02:
When you have numbers like this, four times

[01:25:37] Speaker 02:
what the cooperator got.

[01:25:39] Speaker 02:
That should give the court some thoughts.

[01:25:40] Speaker 03:
How uncommon is that?

[01:25:42] Speaker 02:
I'm sorry?

[01:25:43] Speaker 03:
How uncommon is that?

[01:25:45] Speaker 03:
How uncommon is that?

[01:25:48] Speaker 03:
For you to come here and say that's an extraordinary thing, you should be able to back that up.

[01:25:52] Speaker 02:
Does that not happen?

[01:25:53] Speaker 02:
I think my opening brief referred to data from NACDL studies and the ABA studies, both of them.

[01:25:59] Speaker 03:
So within cases, when somebody's a cooperator and somebody is not,

[01:26:03] Speaker 03:
The cooperator gets a much less sentence.

[01:26:07] Speaker 03:
It's highly unusual for the cooperator to get a sentence that's whatever, a quarter of what a, I don't know that that's true.

[01:26:15] Speaker 03:
Just anecdotally.

[01:26:17] Speaker 03:
I mean, it doesn't strike me as extraordinary or surprising as I sit here, but I'm just wondering if you have the data on that.

[01:26:24] Speaker 02:
Well, I think the ABA and the NACL did talk about how cooperators get significantly less, but not like this.

[01:26:32] Speaker 02:
We're talking fourfold.

[01:26:34] Speaker 02:
That's a big number.

[01:26:36] Speaker 03:
So you're saying that in every

[01:26:38] Speaker 03:
case where there are cooperators, district courts should be looking and doing this mathematical calculation, and if it's fourfold, they what?

[01:26:44] Speaker 03:
They're not allowed to assess a four-level enhancement?

[01:26:48] Speaker 03:
What is the rule you're asking for here?

[01:26:51] Speaker 02:
What I'm asking for is a court, and it's a district court, and it's measured discretion to ask itself, am I imposing a number?

[01:26:58] Speaker 03:
No, you're asking us to require the district court to make a calculation that something is fourfold, and therefore they cannot

[01:27:06] Speaker 03:
assess a four-point enhancement to prevent the four-fold sentence.

[01:27:10] Speaker 03:
I don't understand how this would work.

[01:27:12] Speaker 02:
What I'm asking you to do is say to the district court, we normally defer to your decisions.

[01:27:17] Speaker 02:
We respect your role as a person who's got the most command of the facts on the ground.

[01:27:22] Speaker 02:
But when you give a sentence, you should consider, among other things, how large is the difference between what you're sentencing, cooperating.

[01:27:33] Speaker 03:
And if it's fourfold, you're not allowed to do that.

[01:27:35] Speaker 03:
That's what you're saying.

[01:27:36] Speaker 02:
You should take that into consideration.

[01:27:38] Speaker 03:
You should think about that.

[01:27:40] Speaker 03:
I don't understand.

[01:27:41] Speaker 03:
So you want a reversal because he didn't do this.

[01:27:44] Speaker 03:
So you're basically saying he has to do this.

[01:27:47] Speaker 02:
I'm saying a district court should be encouraged to consider this.

[01:27:52] Speaker 02:
And where you come up with a number like this, Judge Pan, where you've come up with four times what the cooperator got for a couple of... Mr. Locard, I understand what you're saying, but you're asking us to make a ruling in a case that will have a presidential effect.

[01:28:06] Speaker 03:
And you're saying that we should put in an opinion that if it's a fourfold sentence over what a different cooperator got, the district court is not allowed

[01:28:15] Speaker 03:
to give a four-point enhancement because it's too high?

[01:28:19] Speaker 02:
I think what I would like your opinion to say is this.

[01:28:23] Speaker 02:
Let's start with the government's role.

[01:28:25] Speaker 02:
The government did not in any way seek a role enhancement of Mr. Slater or Mr. Merritt originally, and suddenly it reversed and decided Mr. Merritt.

[01:28:34] Speaker 03:
Happens all the time.

[01:28:36] Speaker 03:
So this is the revolution in sentencing.

[01:28:38] Speaker 03:
Like you're saying that they get the benefit of a plea deal that they turned down if they go to trial.

[01:28:44] Speaker 08:
That's why plea deals are deals.

[01:28:46] Speaker 08:
We'll not do this if you do that.

[01:28:49] Speaker 08:
And then when they don't do that, then they go, fine, we're going to do what we're going to do.

[01:28:54] Speaker 02:
What I want the justice judges to be able to do is to be encouraged not to beat up sentences that are based on facts that were known before trial, facts that ultimately, and depend on the exit, suddenly depend on the existence of those facts, like the managerial role.

[01:29:12] Speaker 03:
The facts are the facts, but the government can give a plea bargain that says, we won't ask for that enhancement.

[01:29:17] Speaker 03:
It happens all the time.

[01:29:18] Speaker 03:
That's plea bargaining.

[01:29:20] Speaker 03:
The facts didn't change.

[01:29:21] Speaker 02:
I'm not suggesting that it should.

[01:29:23] Speaker 02:
I'm suggesting that the desperate result here, fourfold, should be taken into consideration.

[01:29:28] Speaker 08:
I think I understand your argument.

[01:29:29] Speaker 08:
Okay.

[01:29:30] Speaker 08:
Thank you.

[01:29:31] Speaker 08:
Mr. Leckler, you were appointed by this court to represent Mr. Merritt in this case, and we thank you for your assistance.

[01:29:38] Speaker 08:
The case is submitted.