before we began i'd just like to express our gratitude for being here in this just lovely law school in this court room which is named up to our former colleague hospitable aussie we have a cork richmond court there there's also something i like to say about my warm and generous friend dennis shed i thought this is the last sitting the judge said we'll make as an active judge he has announced to the president and he is going to take senior status at the end of business today and i don't know what the end of business today south carolina and so the president will fill that vacancy but i must say we have been a very lucky court judge said sitting with us he's been on judge for over twenty seven years but i'm just not sure why he wants to quit now you would think it gets to be habit forming but over the years he's risen to become one of the really the thanks for judge shed and our prescience i'd like to just make this observation today for this the purpose of this harry you don't dedicate hearings where we're actually here to hear real court business and of course the business of the parties is our first concern but in the sense that we sit as a court as an institution it seems to me it's been that we have this one dedicated judge said all right we'll  my name is david parker i'm from harrisonburg virginia and i represent the appellant carolyn edlund in this case the honors to start off with this case revolves around charges of witness tampering obstruction of justice to completely understand our argument in this case it's important to understand the relationships of the individuals involved here as well as a little bit a of the background these to these charges the obstruction of justice and the and the witness tampering charge really stems from one major event in this case a taco tuesdays a taco tuesdays at el charro restaurant joyce who is carolyn at lynn's codefendant i think you can assume that we know the facts in the case and i don't want to stop you from the argument but i'd go to the relevant facts and then we'll go to the legal issues but that you have some of the facts because some  joy for some time since he was a little boy in middle school or in warrington virginia felix chu joy had actually followed the evidence to harrisonburg when they moved in there to harrisonburg for when he went to james madison university during his period there he he continued to have relationships with the edwin's he would bring friends over including mike with house to their house and then when he has she this justice get to the nub of it your he had her go do at least part of his bedding correct yes right ok and so she went talk going she did she look at the transcript of what they said is an argument to be made she really wasn't trying to tamper with the witness but there's an argument to be made that she was isn't that right that's correct john well if that's the case don't you live on a standard of review no your honor i think when you look at it look at the facts in the case look at the on it so nobody would know what their conversation was that's correct or that gives some context to why she was there one note you think it gives a context but she had done that many times before when they when they when they and so two wrongs make a right no search it certainly does not but why do we give it a legitimate reason why she would do this the legitimate reason is that she is she testified your honor was that she believed she believed that the government was listening in on all the cell phones in this case you have to understand she was legitimately scared in felt like she was going to be arrested her husband were going to be arrested at any time before he was that they didn't know they didn't think they'd done anything wrong they didn't think that the police or his mom had done anything wrong in this case or those people so you think that helped showcase to say she was afraid she might get arrested too so she really wanted to talk to a witness who might know something about what that app and what she was having dinner she wanted to talk to the way she wanted to talk to the witness she would just have been really she was just having dinner now she wanted him there i thought we already set set the fact that this whole conversation certainly on her part was motivated because joy who was in jail tried desperately to get this witness to talk to him and it would have had nothing to do with you joy so to joy really delegated your client to go talk to the witness that's really what happened i her in her driveway in front of her her husband mr edlund went and paid for their they have a special needs kid and paid for the special needs kids rent for three months just in case they got arrested and locked up in he did but i think the evidence is simply overwhelming here that she was not dishonest and what's in any way whatsoever she joining this meeting it at all charges she repeatedly told you know the trouble with just focusing on the meeting is it doesn't take account of the acts of the government prove that set up the meeting it seems to me that there are a lot of things that can be focused on but the  and didn't he say in the letter that he had read the government had shown him the statement the kid kosky was given in the case that his lawyer had yet had it brought to him that he got that in discovering and he read it to his client in jail and he was very upset by what was in that statement was that he yes and he wrote a letter to your client same i'm very upset he got it wrong and tell him i was just joking and asked her to go to him and do that right that's correct and then immediately after receiving that letter she sends emails to cooper tusky several times saying it's urgent i see that's correction and then she talks about that letter and then she starts to say exactly what she had to and told her to do tell him i was joking tell him i was lying he's got it wrong yes i'm now isn't that managing the evidence no y because he he has this point a sense of humor and he says the wrong thing and then sort of says i gotcha and she was trying to explain to him that everything he said basically to the government was and you misunderstood she joy i he she was basically trying to change he account ski's evanescent caskey says oh oh during the course of this conversation but she spa low in the script  the letter from prison number two her effort desperately to get and say i can't talk with you on the phone i want to talk to you and he not responding and she still saying i need to see you and then that meeting and he's wired and everything's is spoken we have a full transcript of the meeting and then she's saying put your cell phone is underneath they're listening all of that a jury could conclude from that couldn't say not if they look at the whole context of the parental advice talking about what he told the government talking about the business whether he was a manager in other words the whole issue against the two joy was whether they were pain at the restaurant whether they were paying people below rates these were aliens who were working there for no wages below legal wages and the government was conducting an investigation of the restaurant and  say that if she says that multiple times in the record your honor that was in the transcript i'm i thought she was just correcting things a second that wasn't true he was line this type of then i don't know if she ever  you think that if you don't really believe that you want him to tell the truth yes you know what i've been trying to corroboration is somebody who's tampering with the witness can say to that witness among other things tell the truth you could still be convicted goody yes you honor if you don't mean it is your argument that she was trying to persuade him but she wasn't corruptly trying to persuade him yes yes so you say she could persuade but it wasn't the corrupt and needed none of the thought you were just talking about your own issues sufficiency the evidence right yes and so you're saying that they hear your challenges to the sufficiency of the evidence or the aspect that is corruptly that's correct that's and so if there's evidence to support the jury we have to give the government the documents you do have to give them to enjoy that's a having standard and it's a very heavy stand on it is that i think that's met the here in this in this case this is the very same situation as an author anderson that they stated the guy in that case where you have a situation where a mother gives a son advice not to take the fifth the not to testify that that is not corrupt persuasion that doesn't fall under witness tampering but how do you how do you characterize what it is she's trying to persuade him to do with how do you characterize your persuasion if it's not corrupt she's trying to persuade him to tell the truth to go to to go to the trial as a subpoena has set out she tells him how to do that does that imply that he didn't tell the truth the first time when he told the officers what he told them i think it is it  imply and i'm not sure there's no evidence that she knew exactly what he told him that was the mr choo choo i'm not exactly but it to joy said that he said young things in that statement he was very upset and he says if they i under this court's idler decision when there are differing interpretations of the evidence the evidence the jury decides that and here the jury decided for conviction after hearing all the facts of the case well of course the jury standard but as the appellant has just conceded there were several facts in this case that the jury could hear and they could interpret for guilt or for innocence and here the jury interpreted it why don't you tell us a thank you said you heard what he said he you think there was persuasion he says and by the way there is no force or threat right there was no force and threaten this case that's correct and so he his argument focuses on whether or not her conduct was corrupt he said she tried to persuade him what evidence is there and how do we see a jury could find her persuasion being corrupt here's how you know that carolyn i don't have a consciousness of wrongdoing as required by author in or stand in the supreme court and supreme court's this one let's step back even further than the facts judge me my mention a second ago there was a march two thousand and fifteen meeting that the jury heard evidence about that was in the privacy of miss evelyn's home and during that meeting she did not allow the witness to bring his cell phone into her house because as we later learned she's concerned that the government would be listening to what's being said she wants to conceal her behavior from law enforcement and during that dinner she tells the witness if you're asked by law enforcement you know nothing so we'll start at the mark's dinner as the first evidence of consciousness of wrongdoing is that when she told them if they asked you to come down to ask questions you don't have to go she that this statement is along the lines of you know nothing if you're asked by law enforcement is all that's another part of the other question was so you don't have to go to that happens at the left the dinner three months later not ok ok anything in the illegal in her telling him not talk to the office is your anything illegal in there don't go talk to the police the do you think i'm amazed and you think that's illegal in and of itself and make you case or do you think this context for you ok i we believe there's a consciousness of wrongdoing that's guilt within itself when you're asking someone not to tell law enforcement information or facts you may have with that statement invoke any type of privilege that he may have that that's you think the cases where somebody is allowed to say don't talk it really isn't somehow involved with the folks you know a privilege that person may have spousal privilege privilege that's what you think other circuits definitely make that distinction your honor but i'll draw the court's attention to the united states be davis decision out of the eleventh circuit last year where the facts of that case are that a father  testify against him because he could go to jail for a long time he simply asking her not to say anything which is similar to here don't say anything and the eleventh circuit in evaluating witness tampering under fifteen twelve says that that attempt to hallway to reach out to michael pitofsky it's almost obsessive behavior over the phone over and over again and the jury heard all of that evidence and when he wouldn't come  to see him when the witness wouldn't go see the defendant who was incarcerated too i reached up by letter to carolyn allen that letter stated june third and asked her to go speak with the witness because what he is going to say is going to get the defendant in a bunch of trouble the content of that letter is important and that she she why i asked evelyn to tell the witness to change the nature of the relationship you think the jury could take from the impassioned effort and desire on the part of mr to hole to hole who's in jail his impassioned effort to get to this witness you think they could take from that that he wanted to get to him to influence him on what he said yes because the jury also heard in this case that after mr chu i was originally charged and arrested charged by the grand jury and that rested in december of two thousand and fourteen he was ordered not to contact witnesses in this case and the jury heard evidence that that he potentially use the cell phones of his friends including michael pitofsky the witness here to contact some of those witness of evidence that the jury is is seeing and hearing during trial especially because there the jury heard no evidence of chu who are you trying to reach out to any other witness other than michael you've been the jury for th consciousness for that crop persuasion that's very high it's it's higher than any of the other courts if you look to some of the other cases from other circuits it's a it's a pretty stringent requirement and in addition he took up the burden shifting for the defense and he placed it with the government  the evidence is overlapping yes your honor we're both proving guilt and disproving the defense at the same time by introducing evidence of consciousness of wrongdoing yes or so some of that going back to the question of consciousness evident consciousness of wrongdoing evidence as the judge has laid out as the court has laid out q i directed at one to reach out to the witness and then three days later after he sent that letter carolyn evelyn went to the jail jail visits are not monitored met with the fan and shoe hallway and two hours later texted my quick tusky the witness and said she wanted to meet with him and when the witness asked to have that conversation by text message or cell phone she refused saying you know why the phones are bought so she's again trying to conceal her behavior from others and the others being lunch and also in those texts she emphasized that this is very important stuff yes your honor she no says it's very not just a greeting it's it was clearly it was a mission and she intended to kill the understand that she had something important to talk with him  honor in addition she references in those text messages that if if they don't want to meet that's fine she'll just tell children to felix to her that it's ok again emphasizing that she's doing this at the direction of felix to boy who's not supposed to be talking to wit and she then follows those orders and parrots that language about telling what we what are we to make of the fact she did at one point tell him to tell the truth didn't she yes she did your honor so we have her saying to him of well when you look at the statement she's saying that she has met with felix two boys lawyer and that her lawyer has told the advice the lawyer has passed along is to tell the truth and the defense counsel will fix  improper behavior there but that statement that's part of one sentence if you look at that transcript that's part of one sentence half it's a half a sentence out of a whole hour long transcript that the jury that was introduced until she said it but didn't really mean it that the jury was left to to interpret that you said judges have to decide how how much of that conversation really was aimed at getting him to tell the truth and how much that was a throwaway line or used in some way to maybe describe what she was suggesting that he do because maybe she was suggesting she really knew what the truth was is that you know that's that's correct because that half a sentence in an hour long conversation after two conversations is important that we put that in context because also during that hour long conversation she instructs the witness not to do anything or say anything she instructs them that twice at one time telling him not to do or say anything because the government is watching again trying to conceal information from the government she tries to change the witnesses story about that restaurant in those workers to a story that codefendant she corrects him to try to to try to say more favorable facts about her codefendant she said he was a volunteer he wasn't a manager that's right i think he's totally surprised i mean he she said how could he evelyn herself when she took the stand at trial in this case she concedes that she was trying to correct and change the witness's testimony so really the only issue is is this consciousness of guilt and the jury was also permitted to understand that there was a consciousness of guilt during that june i dinner because she also carrots the language from chew i remember he's joking he has a terrible sense of humor she says it over and over and also that chew who is a liar and those may seem like minor points but it's a big point because as you saw in the transcript the witness parroted that to the jury in this case he went from saying the workers are illegal to saying what carolyn allen and felix to he wanted him to say which was the workers are legal but to who i was always joking the jury itself got to witness the witness tampering in this case and when you look at all of those facts in the light most favorable to the government with all inferences conviction you will find that there is more than sufficient evidence of evelyn's corrupt intent and therefore we asked that her fiction convictions for conspiracy to witness tamper witness tampering and obstruction of justice be affirm choices relationship to the restaurant and she says in the indictment the original indictment said that she and felix trafficked people from peru to work in the restaurant paid them way below minimum wage and therefore profited  from that from that and then she says to him how could he profit he wasn't on the deed and here koski says he was the manager and she's oh he was just a falling tear and he says he didn't know that isn't that trying to change his understanding because clearly he understood chu joy to be the manager of the restaurant and to be paying these  proven employees below minimum wage and it looks to me like evelyn is just trying to get him to change understand how do you answer that the jury heard that they did go on and she was trying to change his understanding of the some people he knew felix way better than anybody here in what was going she did with this at the direction of true joy who told her go talk to the witness he's got it wrong he didn't understand i was joking and she then goes to visit him and then sets up these meetings and says it's very important i talk to him and they finally get a meeting together week or so later and this is the meeting we're talking about but is she trying to he managed as a volunteer or not isn't a plate employee and that's what i told them at home and she's telling what she told a homeland security officers and that and then she says you didn't name names did you you didn't name names did you in other words she's just going after the very substance of the whole other losses that trafficking in the peruvian workers at that restaurant and she's trying to get him to have a new understanding based on her assumption that he toppled he said he told me he's got all these broken people he makes a profit that way own her understanding of the truth he's she's trying to get him to correct his statement in regards to what the truth of the matter is here witnesses or anything nobody had instructed her not to do that is my understanding they were she really saying to you i was not supposed to write not necessarily on he was he was locked up at this point he wasn't under pretrial conditions he wasn't out on bond where he was instructed not to talk with witnesses when he was out on bond but he was locked up at this point witnesses contacted him miss miss evelyn had a subpoena for this upcoming trial also did ms atlanta understand why he was rearrested yes your honor and why was that why he was rearrested because because he was using her cell phone other people's cell phones and so forth to contact witnesses that's what the federal