[00:00:01] Speaker 02: Good morning. [00:00:02] Speaker 02: We have six cases before us today. [00:00:07] Speaker 02: Four of them are scheduled for oral argument, and two of the cases are submitted on the briefs. [00:00:14] Speaker 02: We understand that with respect to the first three cases on the schedule, 15-30-29, 15-30-51, 15-30-63, that counsel for the appellant, Counselor Tejerina, you've requested to [00:00:31] Speaker 02: to combine your argument. [00:00:34] Speaker 02: So you're going to address all three cases with 10 minutes, and then you reserve five minutes for rebuttal. [00:00:41] Speaker 02: Is that correct? [00:00:43] Speaker 02: Yes, but I'll make every effort to stay on that schedule. [00:00:45] Speaker 02: And then also, the Council for the Government, you each are going to take five minutes to address each one of the cases. [00:00:54] Speaker 04: Yes, Your Honor, and we'll address them. [00:00:55] Speaker 02: You're going to argue in the order that I have here before me, correct? [00:00:59] Speaker 04: Yes, Your Honor. [00:01:00] Speaker 02: Okay, well let's get started then. [00:01:02] Speaker 02: Mr. Counselor, Mr. Tejerina, you may proceed. [00:01:05] Speaker 03: Thank you, Your Honor. [00:01:18] Speaker 03: Good morning. [00:01:19] Speaker 03: If it may please the Court, my name is Lorenzo Tejerina. [00:01:23] Speaker 03: I am before the panel this morning representing Petitioner Juan Carlos Ayala, Juan Medina, [00:01:29] Speaker 03: and Juan Montelongo, petitioners before the United States Court of Appeals. [00:01:39] Speaker 03: All three petitioners are before the court. [00:01:42] Speaker 02: Just a second, sir. [00:01:44] Speaker 02: We've got a little mix up here. [00:01:58] Speaker 02: OK, you may proceed. [00:01:58] Speaker 03: Thank you, Your Honor. [00:01:59] Speaker 03: All three petitioners are before the court seeking review of the United States Mayor's Assistance Protection Board's decision upholding their removal from federal service as career employees of the United States Department of Homeland Security. [00:02:14] Speaker 03: All three petitioners were law enforcement officers with the Immigration and Customs Enforcement. [00:02:22] Speaker 03: The only non-supervisor is Petitioner Ayala. [00:02:28] Speaker 02: Councilor, you can assume that we've read the briefs and we're familiar with the background and the facts of the case. [00:02:34] Speaker 02: Perhaps you can proceed to your legal arguments on the first case and then take it in order from there. [00:02:41] Speaker 03: Yes, sir. [00:02:41] Speaker 03: In Mr. Aldalla's case, Your Honor, the legal arguments are that he in particular falls within the same ambit as Mr. Montelongo. [00:02:54] Speaker 03: You have a supervisor who is an LEO and you have his [00:02:58] Speaker 03: you have a subordinate who is his subordinate is also an LEO. [00:03:02] Speaker 03: The government is trying to say that one, being a supervisor, that integrity may be more important than the other. [00:03:08] Speaker 03: One has more integrity than the other. [00:03:10] Speaker 03: You depend on one to have more integrity than the other. [00:03:13] Speaker 03: Well, this is not the case with the standard of integrity. [00:03:16] Speaker 03: As far as integrity is concerned, a rookie LEO and a 30-year veteran LEO [00:03:22] Speaker 03: I looked upon as having the same amount of integrity at the same time at the same job and doing whatever they do. [00:03:27] Speaker 02: Is it a question of integrity or is it a question of the standard that the department is holding to the different officers because of the position they occupy? [00:03:37] Speaker 02: In other words, if you're a supervisory agent, you have supervisory obligations and duties, shouldn't that person be held to a higher standard when [00:03:51] Speaker 02: comes to honesty and integrity? [00:03:53] Speaker 03: Well, I think, Your Honor, to answer it this way, what you're saying, and I'm not trying to evade the question, what you're saying is that the LEO, the rookie, is entitled to have less integrity than the 30-year veteran. [00:04:05] Speaker 03: And I don't think that's the case. [00:04:06] Speaker 03: I think that the standard of integrity comes up with the, even though you're a rookie and have less time, you're expected to have the standard of integrity of the 30-year veteran, if you're going to look at the integrity issue. [00:04:19] Speaker 03: I think the issue before us, [00:04:21] Speaker 03: is whether or not, example, Mr. Ayala and Mr. Montelongo, whether they were treated similar. [00:04:30] Speaker 03: And this is important because we have a case. [00:04:32] Speaker 02: On that issue, you're talking that, rather you're arguing that they were treated differently, correct? [00:04:38] Speaker 02: That Mr. Ayala received a different penalty from other officers. [00:04:44] Speaker 03: Mr. Ayala received a different penalty, but he was charged differently than the other officers. [00:04:48] Speaker 02: Could you make that argument before the board? [00:04:51] Speaker 02: Yes, sir, I believe we did. [00:04:53] Speaker 02: We did it on our Rule 28 motion. [00:04:55] Speaker 02: I don't see in the record that this argument, the disparate penalty argument, was made before the board. [00:05:03] Speaker 02: And if you don't make it before the board, then we can't hear the argument here today. [00:05:07] Speaker 03: Well, the issue that we had, example, we have a case that came down after Mr. Ayala, Mr. Montelongo, [00:05:18] Speaker 03: Mr. Medina had their cases, which is ARISPA versus DHS. [00:05:23] Speaker 03: That came down after all the hearings were held. [00:05:26] Speaker 03: And that came down in April of 2014, or 15, rather. [00:05:29] Speaker 03: I can't recall right now. [00:05:33] Speaker 03: But that's when it came down. [00:05:34] Speaker 03: And the other agents, the other LEOs, had already had their hearings. [00:05:40] Speaker 03: So for them, for their government to argue that they're going to be treated [00:05:46] Speaker 03: the same or differently than Mr. Arizbe. [00:05:49] Speaker 03: There's an issue there that needs to be addressed by the court. [00:05:52] Speaker 02: Well, I think you did make the argument with respect to Mr. Medina or Telongo, but I didn't see that you made that argument for Mr. Ayala. [00:06:03] Speaker 03: We thought we had, Your Honor, especially with Mr. Ayala, because in his case, he was denied his calcifying privileges or his rights. [00:06:11] Speaker 03: That's been mandated by not only the agency, [00:06:14] Speaker 03: that the special agents are supposed to give an interviewee employee his calcined rights. [00:06:22] Speaker 03: It was completely ignored. [00:06:24] Speaker 03: And on the stand, the special agent could not articulate as to why he did not give Mr. Ayala his calcined right. [00:06:35] Speaker 05: Sorry, go ahead. [00:06:36] Speaker 05: Okay, was there a letter or some kind of notification letter sent to Mr. Ayala? [00:06:42] Speaker 05: about eight days before the interview? [00:06:45] Speaker 03: It was sent. [00:06:46] Speaker 05: That had the Kalkine's warning? [00:06:49] Speaker 03: Yes, sir. [00:06:49] Speaker 03: It was no such document in the record. [00:06:52] Speaker 03: What they referred to was a general notice that says that if the case or the interview is based on a criminal subject or a criminal crime, something criminal, that he has the right to remain silent. [00:07:06] Speaker 03: That would be more in line with Garrity. [00:07:11] Speaker 03: OK? [00:07:12] Speaker 03: This was not the case here. [00:07:13] Speaker 03: This was strictly an administrative matter. [00:07:17] Speaker 03: And in an administrative matter, he should have been noticed as to Kalkine's. [00:07:22] Speaker 03: Garrity speaks to criminal. [00:07:26] Speaker 05: Kalkine's is about the right for an employee to refuse to answer questions out of concern of criminal prosecution, right? [00:07:39] Speaker 05: That's the heart of why we have the Kalkine's warning. [00:07:43] Speaker 05: Your reliance on Kalkine's is more about, I don't see a good fit since your client willingly spoke with the investigators. [00:07:58] Speaker 03: My reliance on Kalkine is that the agency did not treat Mr. Ayala as he did all the rest of the agents. [00:08:05] Speaker 03: All the rest of the, this whole process that we're going through [00:08:09] Speaker 03: There are 11 cases that came out because the individual LEOs went to a company called BizTax to have their tax prepared. [00:08:18] Speaker 03: All right? [00:08:19] Speaker 03: And so all other 10 were given their calcines rights, not Mr. Ayala. [00:08:26] Speaker 03: That's a disparate treatment. [00:08:29] Speaker 03: When the agency's regulations and procedures mandate that a special agent provide certain documents and certain rights to the interviewee, [00:08:39] Speaker 03: There's no question. [00:08:40] Speaker 03: They have to do it. [00:08:41] Speaker 02: My understanding is that Kalkine applies in order to protect an employee from being removed from a position as a result of the employee asserting the right to remain silent. [00:08:57] Speaker 02: But in this situation, Mr. Ayala did not remain silent. [00:09:02] Speaker 03: Mr. Ayala was not given his Kalkine right, John. [00:09:05] Speaker 02: That's my point. [00:09:06] Speaker 02: Well, it doesn't apply here because he spoke anyway. [00:09:09] Speaker 02: He didn't invoke his right to remain silent. [00:09:13] Speaker 03: No, Mr. Ayala was not told in administrative matters you can remain silent. [00:09:18] Speaker 03: They did give him the garrity warning and say, if you feel that you will be criminally prosecuted, you can invoke your Fifth Amendment rights. [00:09:27] Speaker 02: Now, wasn't he given the calcline warnings in substance with the AWA form? [00:09:34] Speaker 03: No, sir. [00:09:35] Speaker 03: I don't believe that that's the case. [00:09:37] Speaker 03: The regulation or the procedure from the agency specifically says you will calc lines. [00:09:43] Speaker 03: When Mr. Morse, the special agent, was put on the witness stand and he was asked why he did not provide Mr. Ayala with a calc line's rights as he did all the others, his response is, I don't know why. [00:09:58] Speaker 03: He did not articulate a legitimate reason as to denying Mr. [00:10:02] Speaker 03: Ayala that particular document. [00:10:05] Speaker 02: You may want to move on to Mr. Medina and Mr. Montelongo. [00:10:10] Speaker 03: Mr. Medina falls squarely within Arispe. [00:10:15] Speaker 03: You have Mr. Medina and Mr. Arispe. [00:10:19] Speaker 03: Excuse me. [00:10:26] Speaker 03: The charge was conduct unbecoming and it was considering the same tax issues. [00:10:33] Speaker 03: However, Mr. Arispe, when we represented Mr. Arispe and he went before the board, the board rescinded the removal and moved it to a 14-day suspension. [00:10:44] Speaker 03: It was the same set of facts. [00:10:45] Speaker 03: The only difference between these two individuals is that one is a supervisor, which is Mr. Medina, and one is not a supervisor, which is Mr. Arispe. [00:10:55] Speaker 02: Perhaps the other difference is that, and again, the record shows that Mr. Medina [00:11:00] Speaker 02: unlike the other officers, he was found to have acted willfully. [00:11:05] Speaker 03: I don't believe that's the case, Your Honor. [00:11:07] Speaker 03: I think in this particular case, Mr. Medina and his wife was the one who's in charge of finances. [00:11:17] Speaker 03: That's been consistent all the way through. [00:11:20] Speaker 03: She's the one who's in charge of all his finances. [00:11:23] Speaker 03: She's the one who does the tax returns. [00:11:24] Speaker 03: She's the one who selects her. [00:11:26] Speaker 03: All he does is go to work and provide his check. [00:11:29] Speaker 03: In all reality, his wife is the more sophisticated individual between the two. [00:11:35] Speaker 03: She works as a college administrator. [00:11:39] Speaker 03: And she has her degree. [00:11:41] Speaker 03: Mr. Ayala has a high school education. [00:11:44] Speaker 03: And whatever his wife says, he goes along with it. [00:11:47] Speaker 03: He loves her. [00:11:48] Speaker 03: There's no question about it. [00:11:49] Speaker 03: He loves her. [00:11:51] Speaker 03: So she provided an affidavit, which was presented at the pre-hearing stages. [00:11:56] Speaker 03: And it was accepted. [00:11:58] Speaker 03: It's part of the record. [00:12:00] Speaker 03: where she says, it was my responsibility. [00:12:02] Speaker 03: I'm the one that's in charge of these things. [00:12:04] Speaker 03: He basically went in, signed his tax return, which is what he's supposed to do, according to the marriage, and he walks back out and takes care of his children. [00:12:15] Speaker 03: So there's no intent on Mr. Ayanna's part. [00:12:19] Speaker 03: Now, the way the special agents frame the question is, did you read the signature block? [00:12:25] Speaker 03: He says, no. [00:12:26] Speaker 03: Well, here's what it says. [00:12:27] Speaker 03: says that you're signing this particular document under penalty of perjury. [00:12:30] Speaker 03: Did you sign it? [00:12:31] Speaker 03: He says yes. [00:12:32] Speaker 03: Then you committed perjury. [00:12:34] Speaker 03: He tried to say no. [00:12:35] Speaker 03: They said yes, you did, because you signed it. [00:12:39] Speaker 02: You're well into your rebuttal time. [00:12:41] Speaker 02: Do you want to continue and save your rebuttal time? [00:12:45] Speaker 02: I mean, do you want to continue, or do you want to save your rebuttal time? [00:12:47] Speaker 02: I'll save my rebuttal time. [00:12:49] Speaker 02: OK. [00:12:49] Speaker 02: We'll restore you to four minutes. [00:12:51] Speaker 02: Thank you, Your Honor. [00:12:58] Speaker 02: Councillor Sweet, you're addressing, I take it, the Ayala case? [00:13:02] Speaker 04: Yes, Your Honor. [00:13:09] Speaker 04: May it please the Court, the Department of Homeland Security did not violate Calcons. [00:13:14] Speaker 04: Under Calcons, all it requires is that before an agency can remove an employee for refusing to answer questions, it must warn him that he has the right to remain, [00:13:26] Speaker 04: he can be removed for refusing to answer questions and that any answers he gives and their fruits cannot be used against him. [00:13:33] Speaker 04: As Your Honors have noted, that does not apply here because Mr. Ayala was not removed for refusing to answer questions. [00:13:40] Speaker 06: Here's what I guess I'm trying to figure out. [00:13:45] Speaker 06: It seems to me that the combination of the two notices you gave, gave him the two notices that Kalkins requires. [00:13:54] Speaker 06: And so to me, [00:13:56] Speaker 06: I think the Kalkine's issue goes away. [00:13:58] Speaker 06: It said, we can't fire you for claiming your Fifth Amendment privilege. [00:14:04] Speaker 06: That was the first notice. [00:14:05] Speaker 06: And the second one said, anything you say here can't be used against you in the Grimadol case. [00:14:09] Speaker 06: That was the second notice. [00:14:11] Speaker 06: Now, suppose for a minute that those were not given to him. [00:14:17] Speaker 06: And he's just thinking, I better cooperate. [00:14:22] Speaker 06: So he has got a choice. [00:14:23] Speaker 06: Either he's silent. [00:14:25] Speaker 06: Or he speaks and he speaks. [00:14:29] Speaker 06: Now, isn't that a problem? [00:14:32] Speaker 06: Because he, it's not strictly within calcines because calcines is about firing for the refusal, but this is the other option he had. [00:14:43] Speaker 06: He spoke instead of being silent, but that was a coerced speaking because he knew this was a subject on which he could be criminally prosecuted perhaps. [00:14:51] Speaker 04: Your Honor, before I answer, I just want to clarify in your predicate. [00:14:55] Speaker 04: Actually, both those warnings were provided on the same administrative acknowledgement warning form. [00:15:00] Speaker 04: They weren't separate forms. [00:15:01] Speaker 04: The one that was given eight days earlier warned him of his right to remain silent. [00:15:06] Speaker 04: That's supplemental A, one and two are the same day? [00:15:09] Speaker 04: Supplemental two was given him on the same day as his confession, and that contains both the CalKings warnings. [00:15:15] Speaker 04: Supplemental one was given to him eight days earlier, and that warned him that he had the right to remain silent. [00:15:21] Speaker 04: which Calkins does not require. [00:15:25] Speaker 04: I just wanted to clarify that. [00:15:27] Speaker 04: But getting to the answer to your question. [00:15:29] Speaker 06: In the absence of those warnings, could it really be the case that the underlying Fifth Amendment problem of coercion doesn't apply because feeling the coercion, he chose option A rather than B? [00:15:43] Speaker 04: Your Honor, it's important to remember we're dealing here with prophylactic rules to protect the right against self-incrimination. [00:15:50] Speaker 04: They're only implicated when you're trying to exclude evidence from criminal cases. [00:15:55] Speaker 04: So there's no risk here. [00:15:57] Speaker 04: As long as the agency isn't using any compelled statement against him in a criminal proceeding, then there is no Fifth Amendment self-incrimination issue. [00:16:06] Speaker 04: He is not being compelled to provide testimony against himself in a criminal case. [00:16:11] Speaker 02: But was Mr. Ayala aware or was there a reason for him to believe that this was a criminal proceeding or just a civil proceeding? [00:16:19] Speaker 04: I mean, there was nothing that would suggest this was criminal. [00:16:22] Speaker 02: The IRS had already determined that they were not going to pursue criminal proceeding, right? [00:16:27] Speaker 04: Correct. [00:16:29] Speaker 04: And in any event, this warned him that they couldn't use any statements here against him in a criminal proceeding. [00:16:35] Speaker 04: Essentially, that provided use immunity to him, and any issue about self-incrimination at that point evaporated because he'd been warned, or this gave him immunity from using his confession against him in a criminal proceeding. [00:16:50] Speaker 04: Turning to the disparate penalty argument, Mr. Ayala waived that, as Your Honor noted. [00:16:59] Speaker 04: It wasn't raised below. [00:17:00] Speaker 04: While the risk-paid decision was issued in April, that was before the final decision by the board in this case. [00:17:09] Speaker 04: So he could have raised it below. [00:17:10] Speaker 04: That decision was on September 5, 2014, which was after the April risk-paid decision. [00:17:16] Speaker 05: When you say he could have, I guess, briefing and closed, [00:17:20] Speaker 04: And the oral hearing had already happened? [00:17:24] Speaker 04: He could have, yes, but he could have raised it as a motion based on new evidence. [00:17:29] Speaker 04: But it's important to note that that was a decision by the board. [00:17:33] Speaker 04: The agency originally had removed Mr. Rispe. [00:17:38] Speaker 04: So they treated him the same as they treated Mr. Oyala. [00:17:42] Speaker 04: They removed both of them. [00:17:43] Speaker 04: The board ultimately reduced that penalty, especially distinguishing Mr. Oyala's case [00:17:50] Speaker 04: on the grounds that Mr. Ayala, because there was evidence that he paid his tax preparer to file false returns, had filed his returns intentionally. [00:17:58] Speaker 04: Therefore, the two were not similarly situated, even if he reached the issue. [00:18:02] Speaker 04: Okay. [00:18:02] Speaker 04: Thank you, Your Honor. [00:18:03] Speaker 02: Thank you. [00:18:06] Speaker 02: Ms. [00:18:06] Speaker 02: Schorfield? [00:18:11] Speaker 02: And you're addressing Montalongo. [00:18:15] Speaker 00: Yes, Your Honor. [00:18:24] Speaker 00: Mr. Montalongo has raised four challenges to the board's decision of holding his removal. [00:18:31] Speaker 00: Since we have limited time here today, I'm going to jump to the fourth issue, the disparate treatment issue, since that is what counsel has talked about most. [00:18:42] Speaker 00: But I certainly am happy to address anything else the court is concerned about. [00:18:48] Speaker 06: Can I ask one question? [00:18:50] Speaker 06: I probably should know this. [00:18:54] Speaker 06: On the question of intent to file the false tax returns, did the board, either the full board or the administrative judge, apply a standard that equated recklessness with intent? [00:19:17] Speaker 00: I don't think so. [00:19:19] Speaker 00: Well, I think the administrative judge made [00:19:23] Speaker 00: There is one sentence in her decision about recklessness, but I think there's an earlier sentence where she's basically finding intent. [00:19:36] Speaker 00: Let me see if I put my fingers on that. [00:19:47] Speaker 06: So I guess I'm looking at the, I don't know, [00:19:53] Speaker 06: the page 5 of the February 14th decision? [00:19:57] Speaker 06: Is that what you're looking at? [00:20:08] Speaker 00: Yes, Your Honor. [00:20:09] Speaker 00: Okay, so what are the two passages that you... So page 13 of that decision, she states... [00:20:17] Speaker 00: I find that- Roughly where are you? [00:20:19] Speaker 00: I'm sorry, I'm towards the very bottom of the page. [00:20:22] Speaker 00: Not the very bottom. [00:20:23] Speaker 00: Maybe one sentence and a parenthetical above. [00:20:27] Speaker 00: This is page 13 in her numbering or in the- Page 13 in the administrative judge's numbering. [00:20:33] Speaker 06: Thank you. [00:20:36] Speaker 06: Okay, got it. [00:20:37] Speaker 00: And she states, I find that the appellant's testimony regarding his assertion that he did not intentionally file a false tax return [00:20:45] Speaker 00: or provide false information on his 2007 tax return with the intention of defrauding, deceiving, or misleading is not credible. [00:20:54] Speaker 00: So I think that's a finding that he filed his tax return with the intention of defrauding, deceiving, and misleading. [00:21:02] Speaker 06: And it cites Hillen. [00:21:03] Speaker 06: Do you know what that page of Hillen says is the standard? [00:21:09] Speaker 00: Off the top of my head, no, not beyond what's in the parental book. [00:21:13] Speaker 06: You said there was a reference to recklessness. [00:21:15] Speaker 06: Where is that? [00:21:15] Speaker 00: I believe that's on the next page, page 14. [00:21:23] Speaker 00: She states, as a result, I find, and this is right before the subheading, as a result, I find that the appellant filed a false tax return and intended to defraud the government through his reckless disregard for the truth, preponderant evidence supports the agency's charge that appellant filed a false tax return. [00:21:42] Speaker 06: Are those really the same standard intent and reckless disregard? [00:21:48] Speaker 00: Well, I think... I mean, I think her earlier statement... Might make that unimportant, and I'm not sure that this has been squarely presented to us, but... So, intent and reckless disregard [00:22:13] Speaker 00: I mean, I think reckless disregard for the truth could meet the standard for falsification. [00:22:22] Speaker 02: I think that is actually, just to see if I have... Isn't this a situation here where Mr. Montalongo paid his tax $200 or $250, additional dollars in cash, [00:22:39] Speaker 02: So that the tax preparer would include the donation on his taxes? [00:22:46] Speaker 00: Is it the case that he did that? [00:22:48] Speaker 00: Yes, Your Honor. [00:22:51] Speaker 02: So when the administrative law judge says that he does not find Mr. Montalongo's testimony to be credible because of the fact that he admits that he paid the $200 for a deduction, isn't that what we're talking about? [00:23:10] Speaker 02: Isn't that the intent to file a false tax return? [00:23:17] Speaker 00: Yes, Your Honor. [00:23:18] Speaker 00: I believe that earlier statement in the decision does find intent. [00:23:27] Speaker 00: I see that I'm out of time. [00:23:28] Speaker 02: Do you have any questions? [00:23:31] Speaker 02: No. [00:23:31] Speaker 02: Okay. [00:23:31] Speaker 02: Thank you very much. [00:23:32] Speaker 02: Thank you, Your Honor. [00:23:38] Speaker 02: Mr. Rodriguez? [00:23:41] Speaker 02: And you're addressing the Medina case. [00:23:43] Speaker 01: That's correct, Your Honor. [00:23:45] Speaker 01: May I please the court? [00:23:47] Speaker 01: Of the three cases currently before the court, Mr. Medina's conduct was by far the most serious. [00:23:52] Speaker 01: In four separate tax years, he falsely claimed over $70,000 in charitable contributions that he did not make. [00:23:57] Speaker 01: On appeal before this court, Mr. Medina raises four arguments. [00:24:02] Speaker 01: His first argument, and I'll jump right to it, is the disparate penalty argument where he points to the case of Jose Arispe and says that these two men, Mr. Medina and Mr. Arispe, [00:24:11] Speaker 01: were similarly situated and therefore Mr. Abdina should also have received a fortune day suspension rather than removal. [00:24:18] Speaker 01: The fact of the matter is that that's untrue for two different reasons. [00:24:21] Speaker 01: One, Mr. Abdina was a supervisor. [00:24:23] Speaker 01: He was held to a higher level of trust. [00:24:26] Speaker 01: He was in charge of six employees below him. [00:24:29] Speaker 01: Mr. Arisbe was not a supervisor. [00:24:31] Speaker 01: Two, their conduct was extremely different. [00:24:34] Speaker 01: For one, Mr. Arisbe never admitted to fraud and was found by the administrative judge to only have reasonably relied [00:24:40] Speaker 01: upon the advice of BizTax, the tax preparation company that both men used. [00:24:45] Speaker 01: Mr. Medina, on the other hand, did admit to fraud on multiple occasions. [00:24:49] Speaker 01: And again, his conduct was much more serious in that the amounts claimed were $72,109. [00:24:53] Speaker 05: I guess Mr. Medina is arguing that he is like Mr. Arispe in the sense that both of them were quite cavalier about the tax returns. [00:25:03] Speaker 05: They didn't really know anything about the contents of the tax returns. [00:25:06] Speaker 05: And so they weren't paying attention. [00:25:08] Speaker 05: And given that the AJ and [00:25:10] Speaker 05: The Arisbe case accredited Mr. Arisbe with that, knocked down the penalty to a suspension. [00:25:20] Speaker 05: Whereas here, for Mr. Medina, who likewise didn't really know what was going on with the tax returns and was just relying on his wife, is being knocked out of his job. [00:25:34] Speaker 01: Well, Your Honor, I think that there are other differences. [00:25:37] Speaker 01: For one, Mr. Medina knew that his wife had told him [00:25:40] Speaker 01: that they were playing with the numbers so that they could achieve a higher tax return. [00:25:44] Speaker 01: Beyond that, Mr. Medina admitted, and the administrative judge noted this in the initial decision, that before signing his 2012 tax returns, wherein he claimed over $10,000 that year in charitable contributions, he asked his wife, did we actually make this charitable contribution? [00:26:02] Speaker 01: Because he questioned whether or not they could. [00:26:04] Speaker 01: He admitted in his affidavit they could not afford those charitable contribution amounts. [00:26:08] Speaker 06: I'm sorry, you were, I think, about to say he asked his wife, did we actually, and then you changed course because I'm not sure the record says that he asked her and she said no, as opposed to we could never afford $10,000 in care of the chair. [00:26:25] Speaker 01: Sure, Your Honor. [00:26:26] Speaker 01: Let me just go to Petitioner's appendix in the initial decision. [00:26:32] Speaker 06: Is there that question in answer? [00:26:36] Speaker 01: Well, Your Honor, it's not on the record for this court, but because there was a difference of opinion with regard to the transcripts from the hearings, the court, the administrative judge, actually listened to the investigative hearing testimony. [00:26:54] Speaker 01: And so beyond the affidavit, we also have the statements that Mr. Medina made. [00:27:00] Speaker 01: And in those statements, and I would hate to paraphrase to be wrong, so I want to find the initial decision, and I will in a second. [00:27:06] Speaker 01: But my understanding of it was that he did question his wife, and despite his misgivings about whether or not they could actually make that dollar amount of charitable contribution, he nonetheless signed it. [00:27:18] Speaker 01: Moreover, Mr. Medina admitted that he reviewed or glanced at or looked over all four of the tax returns in question before signing them under penalty of perjury. [00:27:28] Speaker 01: And then beyond that, there's also the fact that in 2009, or rather for tax year 2009, [00:27:35] Speaker 01: When he noticed that some of his colleagues were being audited, Mr. Medina and his wife then switched from Biz Tax to H&R Block. [00:27:43] Speaker 01: That particular tax year, the charitable contributions went from $30,000 the year before to $1,900 the year after. [00:27:49] Speaker 01: Now, the following two years, when it appeared that Mr. Medina was not going to be audited, again, the charitable contribution amounts jumped to over $10,000 per year. [00:27:58] Speaker 01: So the conduct, getting back to disparate penalty, was much more serious in that there was both direct and circumstantial evidence that Mr. [00:28:05] Speaker 01: Medina intentionally defrauded the government on his taxes. [00:28:09] Speaker 01: For that reason, we believe this argument is meritless. [00:28:12] Speaker 01: Now, I'm running out of time, so I'll quickly get to the other remaining three arguments. [00:28:16] Speaker 01: The next one is about intent. [00:28:19] Speaker 01: Mr. Medina supplies 14 pages of his deposition transcript to assert the idea that the agency failed to prove intent. [00:28:28] Speaker 01: That's simply not true. [00:28:29] Speaker 01: He fails to address the fact that there's direct evidence of intent in the form of two different affidavits wherein, in multiple occasions, [00:28:36] Speaker 01: Mr. Medina squarely admits to committing fraud. [00:28:39] Speaker 01: Next, Mr. Medina paints himself as the victim of his wife's actions. [00:28:43] Speaker 01: But as I've just mentioned, there's substantial evidence that indicates that he knew exactly what his wife was doing. [00:28:48] Speaker 01: He reviewed the taxes before filing them, and he signed them under perjury. [00:28:54] Speaker 01: My final argument relates to whether or not certain, quote, weight, according to Mr. Medina, should be given to the fact that the IRS did not take exception to the taxes in question [00:29:05] Speaker 01: And for that, we simply say that we have no idea whether or not the IRS ever conducted an investigation. [00:29:11] Speaker 01: Whether or not they did is irrelevant for this particular purpose, because DHS did conduct its own investigation. [00:29:17] Speaker 01: We've got a lot of time. [00:29:20] Speaker 01: All right. [00:29:20] Speaker 01: Thank you very much. [00:29:25] Speaker 02: Mr. Chihedina, we've restored your rebuttal time to four minutes. [00:29:29] Speaker 03: Thank you, Your Honor. [00:29:31] Speaker 03: Let's go to Mr. Medina. [00:29:33] Speaker 03: Mr. Medina's affidavits that you have before you, the two that are at issue, are the ones that the special agents are the ones who produce these from the so-called recordings. [00:29:44] Speaker 03: And I think we've already gone into that in our arguments, in our briefs, that we have like an hour and 50 minutes or an hour and a half of tapes of recordings when he was in there for over eight hours. [00:29:58] Speaker 03: So we feel that [00:30:01] Speaker 03: Not only he didn't receive the full scope of what was actually said at these so-called interviews or interrogations, but the fact is the agency did not produce them. [00:30:16] Speaker 06: Was there evidence of a declaration, this is Mr. Medina, right, from Mr. Medina or other evidence, asserting that the entirety was taped [00:30:28] Speaker 03: Well, when that was done at the pre-hearing stages, Your Honor. [00:30:33] Speaker 06: Do we know from the record whether a tape was originally made of the entirety of the interview? [00:30:39] Speaker 03: I only was able to go by what the other attorneys have decided is we have what's before us. [00:30:45] Speaker 03: Even though I requested it in writing that they produce the entire record, all we got was like an hour and a half. [00:30:52] Speaker 06: Let me just see. [00:30:54] Speaker 06: Is there evidence, I know what was produced, [00:30:57] Speaker 06: I know that there's evidence that the interview was much longer than what was produced. [00:31:02] Speaker 06: The specific question is, is there evidence that the entirety was taped? [00:31:09] Speaker 06: Or are we talking about a real possibility that they gave you all that tape they ever had? [00:31:16] Speaker 03: When I asked, Your Honor, when we had Mr. Morse in deposition, we asked him, where is the entire, you had him for over eight hours. [00:31:26] Speaker 03: If you combine all the interviews that he went to, and all that was produced was about an hour and a half, two hours. [00:31:33] Speaker 03: We asked him about the disparity, and he didn't address it. [00:31:35] Speaker 03: He just couldn't articulate an answer. [00:31:38] Speaker 03: It came out to the same thing that when he was asked as to why he didn't provide Mr. Ayala with calcines, he didn't know why. [00:31:46] Speaker 03: The calcines issue, Your Honor, now going to Mr. Ayala, [00:31:52] Speaker 03: is such that the agency didn't follow its own promulgated rules. [00:31:58] Speaker 03: And that in itself is a violation. [00:32:00] Speaker 03: I mean, they violated their own procedures, their own regulations, period. [00:32:07] Speaker 03: And that should be enough to withstand the attack by the agency. [00:32:12] Speaker 03: Mr. Montelongo, both Mr. Montelongo and Mr. Ayala were charged with a so-called civil, and I put it in quotation marks, type charge. [00:32:23] Speaker 03: DHS does not have that authority. [00:32:25] Speaker 03: They didn't charge them with conduct and becoming. [00:32:27] Speaker 03: They charged them with filing a false tax return after the Internal Revenue Service had cleared them of such conduct. [00:32:34] Speaker 03: So now they come back and they say, oh, we're going to charge you with filing a false tax return. [00:32:39] Speaker 03: They don't have that authority. [00:32:40] Speaker 03: They don't have the education. [00:32:41] Speaker 03: They don't have the experience. [00:32:43] Speaker 03: They don't have the knowledge to be able to make that kind of charge against the employee. [00:32:49] Speaker 03: Now, if IRS did it, I would understand it. [00:32:53] Speaker 03: But here, DHS went beyond its authority, charging him with conduct unbecoming. [00:32:59] Speaker 03: OK. [00:33:00] Speaker 03: But not with filing a false tax return. [00:33:02] Speaker 03: They don't have that knowledge. [00:33:04] Speaker 03: I don't think Congress has given it to them. [00:33:08] Speaker 03: And Mr. Motelongo, again, I ask the court to consider, do we give? [00:33:14] Speaker 03: Because he is a supervisor. [00:33:17] Speaker 03: And I understand he has more responsibility as far as his job is concerned. [00:33:21] Speaker 03: And yes. [00:33:24] Speaker 03: The integrity should rise to the level of the 30-year veteran as far as you're going to look at integrity. [00:33:29] Speaker 03: There should be no difference between the 30-year veteran or the supervisor or the looking on the beat. [00:33:35] Speaker 03: Now, as far as the amount of time, Your Honor. [00:33:41] Speaker 02: Okay. [00:33:41] Speaker 02: All right. [00:33:42] Speaker 02: We thank you very much. [00:33:43] Speaker 02: We thank all counsel for their arguments and we'll take the case under consideration.