patrick whatever you really be glad to hear from you honor i raise a number of issues in this case i want to concentrate on three of them but before i get into that he obviously was convicted in the eastern district of north carolina in a case arising out of what's been called a ponzi scheme that continued for several years and involved multiple charges against him he was convicted on multiple counts of money laundering wire fraud and mail fraud i want to raise three issues primarily first is this the rule twenty nine issues on the the wire fraud and money laundering and mail fraud counts that we don't find their brief the second would be on willful blindness jury three hundred twenty months in this particular case but turning first to the first issue you know we divide this in the two two of these the real twenty nine issues in the t on wire fraud and money long money laundering there was really no evidence mr mayhew involved were involved in the transactions and did anything with regard to these the transfer or the wires that constituted the substantive wire fraud counts in this case he did not control any of the monetary accounts through which any of the money will load he had there was no evidence he had a forty over those  ts to initiate anything or to receive those or to transfer any of the money in the of fivers six accounts and foaming wire fraud or the money laundering there's just no evidence that he did anything with regard to the substantive transactions that constitute those now in regard to the mail fraud that we had conceded that there were three mail fraud counts two i'm sorry there were two there were three mail fraud cans all of which involve mailing of account statements from travis cox two and frank mcgrath and there was evidence that my client had provided information to cox as to the information we put in those accounts statements  cox made up the account statements and then actually mailed them to frank mcgrath and that's the basis for the the mail fraud came out and those things but there was as we pointed out there needs to be some evidence that my client knew that or had some reasonable anticipation that mail would be used in that case and there's really no evidence of that the government pointed to the pierce case i believe and we came back in reply brief and pointed and the live pretty close to each other they have no grounds unlike peers that with hiv caused my client to have any anticipation that the account statements would actually have been mailed rather than just physically handed from travis would it be sufficient for the government to prove that the use of the mails was reasonably forseeable well that's what i'm saying what we're saying is that is not reason there's no evidence to say it was reasonably forseeable i have to concede with the p case says only reasonable for see a built in but in that case in piers the person lived far away and it was never present in only in the bingo transactions that were involved in pierce case this case cox and mcgrath so each other the jim weekley they were very close friends and there was no the facts just don't support reasonable for c it will take an on those so a pointed out there's no pinkerton charge in this case there was no charge given to the jury that would have allowed them to say well he's a conspirator were and he should have known something like this might have been happening that wasn't a basis that the jury could have convicted him on and therefore you have to fall but fall back to whether or not he did anything specifically about the specific counts and there's just no evidence and so we would ask the court  he had delivered or but is is that is that is that the test is it that one is as equally reasonable as the other or that one is more reasonable than the other i'm not sure that there's a minute test of them it's reasonable for reasonably forseeable what i'm saying is in the pierce case they talked about the fact that the it was reasonably forseeable because the the person or the recipient did not live anywhere close by to where the information was being generated and had to be had to get the information somehow and because she the recipient was a woman in that case the not live gotten close by had no greil frequent connection with the person that sending the stuff there was no that was enough that the court the court of appeals to say that was reasonably forseeable the mail could be used none of that exists in this case i'd like to turn briefly to the  charge conference the government proposed a willful blindness instruction the defendant objected to it being given and then the judge overruled that objection and gave what is more or less  standard wolf blindness instruction and for purposes of this argument i'm not talking about the content of the willful blindness instruction i'm talking about whether chitta been given a role now the general case how the fourth circuit talked about when it is appropriate to give a willful blindness instruction and really focused in that case on the fact that that there was evidence that the it was a tax case that the  had said that they denied they knew anything was wrong and secondly that there was in evidence as the court recounted that he deliberately avoided knowledge in this case there is absolutely no evidence any to liberate attempt to avoid knowledge that it was wrong so there is no if there is no evidence except in what you say is true yes then where's the harm in the charge well the question i guess really becomes is you know you've got a lot of discussion about you know his involvement in the overall conspiracy and but he's being charged with a lot of specific conspiracy is good but where you have a lot of substantive kael some which he's involved with fairly directly and some of which he is not and there's no evidence that he has any connection with them and it  almost becomes a little bit like a pinkerton substitute i mean you know fuzz is that what the requirements or to convict him of the substantive count so i think that's the danger in this particular case i'd also want to departed upward descendants i'm not at one hundred eight months which was the low would have been the low end of his guideline range but the three times that three hundred twenty months now he did that by going to argue particularly about whether that was appropriate to increase is criminal history category from one to three but then he proceeded to increase the often slovo by six mor months now the problems with that is that the things he was talking about at this misconduct they're all include in the off ensconced in the pre sentence report that for example the l calculation in this case included the quantities of that occurred after the in the length of this indictment there were some additional charges that were brought against my client involving a sue transaction if they knew that he subsequently indicted them for that and the government dismissed that but in the pre sentence report there's about three hundred thousand dollars worth of losses from that later activity that was included in the two million dollar loss calculation so that the the the the options conduct is already got that in it their dismay you know when you talk about dismissed charges that's the dismissed charges the stuff that was going on in that cage on that occasion included in the last calculations and the government in part talked about what my client was doing during that  to in justifying their role in the often calculation he had a manager organizer just before role in the office but they talked and argued about the latter part of the conspiracy and what he's doing later in that was part of their justification for the i think for leveling crease that he sustained now on top of all of that the judge then goes increases it by six more levels for for this now let me let me ask tries to argue that it's on otherwise extensive and that's the way it justifies it and part of that is because you've got the cox and you've got banks in this case that are both alleged victims but then they're trying to use them as criminal must give notice to the defendant no i don't think the rule requires that and i think this may be mispronounced it is already supreme court case says says that but but i think this court as still says that you  know or for you to exercise your appellate review process the government the trial judge has to explain what he's doing and some of the many of the same principles that apply and departure would apply in a variance in this particular case he seems to had on his justification by incorrect reasons i did stuff that had already been included in the adjustments that were made either to the criminal history of the role in the office  calculations all of that is you know i don't see anything outside those things that had already been considered and really reaching that many look you know increases the level so what you want up with is  a sentence that almost three times what the odd line range why you ask what about the reference to that prior misconduct ponzi scheme in puerto rico and then that alleged misconduct while he was on pretrial release the judge seemed to focus on that as a basis for enhancing this he did but he already done that for the criminal history he used that the two thousand and three in two thousand and five to bump up the criminal history from one t three and so that he had already taken that into consideration before he even got to the six level office calculation a much or if i answered your question but it's pretty clear to me that that's good morning may please the court philip herman on behalf of the united states i have to say that this is a case of many that i've worked on that has really stuck with me even though i just handled the appeal and it has stuck with me because it's really quite an extraordinary white collar fraud case in this defendant and ron mccollough stole two million dollars from one thousand different victims they had done the same thing for two and a half million dollars a decade before and gotten away with it and then while on pretrial release rather than recognize that the law had finally caught up to him this defendant commits three hundred thousand dollars more in fraud the same thing wall disrespecting the authority of the district court in the the authority of the law and so when i think about this fraud this wasn't an ordinary white collar fraud case it was completely unrepentant it was relentless and it was very large and for those reasons this defendant earned the jury's verdict of guilty and he earned a three hundred twenty month sentence that accounts for the whole before talking about those i want to talk a little bit about count two with it now defense not challenging count two that was a fraud against brazil and to arthur he's not challenging that but if you look at it it looks an awful lot like counts three through six that he is challeng it happened at around the exact same time april may two thousand and nine in or vaal the same hitch the same scheme and it wasn't just a generic ponzi scheme they would go and they would promise very specific returns in a very short timeframe and then with the oats they said fifty thousand dollars in ten days and then sure enough it was a little more than ten days but fifty thousand dollars double to one hundred they got their money they said we want to invest again and of course the slot for fifty thousand had closed now it needed to be two hundred fifty thousand it later became three hundred all of this is under the guise of we're religious men we're here to help other christians god has chosen us to help other christians invest this money that's  responding specifically to the argument that david made you didn't have anything to do with these so from the beginning you have mccullough telling dukes and stewart and banks that he's working with his brother david may who's doing the trade with your so what you have to the jury's already hearing this and they're seeing it looking off a lot like what's going on at the same time and then after that they find out that when dukes and stuart were very unhappy about this money being taken from them they eventually tracked down defendant mccullough to their house this leads to the restaurant confrontation and who shows up there but defendant with mccullough with a gun saying the money is gone what that does what that tells me is that it confirms what those victims had been told that defendant was involved in  and so i think the evidence of defendants direct involvement and of course a trial we demonstrated that mr mayhew was the account was in mccullough's name for the money was going to mr may he was living off of that money and so he absolutely was benefiting from it so that three through six count eight i think is even more clear and i want so much time on it i think it's well said in the briefing but this was cox soliciting mcgrath to invest the money and he testified that he was getting the information on how to working with me you know who was directing him so those are the wire fraud counts and i think defendants direct involvement was proven certainly given the standard of review to overturn a jury's verdict where they found that he was involved on the ma accounts i think the parties agree on a lot of things we agree the standard is all it has to do is we know is be reasonably foreseeable that these account statements will be mailed and i think that absolutely was that's what the jury was instructed that they had to find and they found beyond a reasonable doubt so i think we agree that the defendant was giving these numbers to cox and cox had told them told defendant he was using these to make statements to give to mcgrath of course of the reason he needed to send them he did he used the words that he used the word send specifically and i think that's totally plausible because account statements even if i was best friends with my investment broker if i had one even if we went to the gym together i would expect my account statements to be mailed to me professionally at the very least i think that's reasonably forseeable and beyond that i don't think you can be said that if you view the evidence in the favor in the light most favorable to the government no reasonable jury it doesn't matter the sort of the nature of the relationship that you graphic this is of the parties none of that is relevant i don't know that i think it's irrelevant i think it's a jury argument i you know i think that's something that you are you to the jury that it wasn't reasonably forseeable but i think it's the kind of thing that if the jury doesn't accept it i think that's understandable when you have evidence like this i'd also know i read the pierce case a little differently i would agree you don't have the friendship relationship but i'd been less i missed it i don't see anything about there being a long geographic distance i believe that the operator at this hospital did occasionally attend games of the bingo parlor but i think it's neither here nor there because i think ultimately it's really a fact based court that juries are best at and in this case i think it was forseeable that when cox it was going to send statements to mcgrath that's exactly what he did with that info and if it was a true knowledge requirement maybe it would be a closer question but it's just reasonably  forseeable and i don't want to you know i hope i answered your question judge the as if if there's more questions on the money laundering or on the mail fraud count i would like to to answer them in that case i'll turn to the willful blindness instruction i'm mindful of the case along this that says and this is from whittington in a league all that is necessary to get a willful blindness instruction is quote evidence from which a jury could infer deliberate avoidance of knowledge and i'm what is the evidence in this case i think in this case even the appellate argument is essential ie a blindness argument because we already have the fact that you have to use the evidence in this case is the fact that in order for defendant not to have been involved particularly in counts three through six and eight he would have been generally aware of these investments going on after all the evidence he was there for count two with the oats yet he wouldn't have no evidence of will this it only needs to be in your intro when you say he's aware of is that all you need is evidence from which a jury could infer the argument was he's not even there for this he wasn't there how would he now and so in that case i think your honor i really think that this court's case log tends towards the idea that about it but was deliberately blind as to the consequences and is just as great danger when it's used in a program i hear your honor's concern i really do and what i meant to convey was that the nature of the content of th instruction itself helps to alleviate the very problems that your honour's mentioning i don't think that i can agree that a jury takes from an instruction like that that they are supposed to infer that willful blindness i think we have a lot of jury instructions that would pose a lot of probable don't like aren't they couldn't they reasonably infer it's relevant to this case i don't i don't know and i'm not prepared to say that but what i what i can say is that this instruction in this court has said that that the caution erring struction at the end the very same one given here really alleviates the concerns  is talking about because what it says is it is of course entirely up to you as to whether you find deliberate ignorance or deliberate closing of the eyes and any inferences to be drawn from any such evidence you may not conclude the defendant had knowledge however from proof of mistake negligence carelessness but then that infer that there is evidence in the record from which they could conclude willful blindness i don't i don't think so and i really worry about the implication because there are a lot of jury instructions a pinkerton instruction for understood defense counsel to essentially say there wasn't probably a lot of harm from the instruction if the court is concerned about it i would certainly are to the court to take that approach to what we do however i want to just make sure i'm clear we do think that there was a nuff evidence what they have i agree with yours i don't see the most of that in this and what i would say is i think it's easy in this to think of the government's argument as the only thing to look at but i think we have to look at the government's argument and also the way it's characterized by the defense because sure our theory absolutely we think he knew about it we think you know you asked earlier is a dating in a betting and i said yeah but it's also actual substantive offense absolutely that's our theory but that wasn't their theory and there's a chance they could convince the jury that while he's around all this stuff but his name's not on the contracts how does he know any of this is fake there is that chance in it when you look at the closing statements in this case your defense counsel saying why in the world he's part of this why is his name not on it why is he not on the wires why is it not his account there actually was and we talked of this is some page forty three of the response brief there's a footnote where we cite to this specific parts of the joint annex the district court after government counsel gave a fairly long argument about why it was otherwise extensive the district court said i think you're right the objection is overruled now of course that's not just a super long explanation but i don't think it just records required to repeat verbatim what was just said when the counsel says here are reasons and a judge says i think you're right i think the court's adopting those reasons and so i think that's a there are enough explanation of the otherwise extensive prong and we have argued on appeal that it was both otherwise extensive and that it involved five or more participants and i think that's actually true for both of them some of this comes down to the fact that some of these participants may have started out as victims and eventually became aware of what was going on and were essentially working for defendant mccollough and sort of a parsing between at what point where they have victim at what point do they have to sit and i think that's what the commission put the otherwise extensive language in for is to avoid us having to really decide at what moment did travis cox become a criminal participant i'm switching gears on this or there's something question we were grow district judge to give notice that is a historical artifact pre book or you had case law that said there's a due process interest in being aware because everyone had an expectation they'd be sentenced within the guidelines range and suited due process interest in knowing that that might not happen in your case rule thirty two each kind of embodies that in the federal rules of criminal procedure and it requires that for a variance which back then was all that existed so then you had booker and eventually you had yours already which said there's no longer any due process expectation prosecutors defense attorneys when you go into  sentencing you would hope for guidelines on it's maybe but you can't predict you're definitely going to get one you know and yes it did in this case it provided it in rule thirty two h accounts for that i think rule thirty two h is essentially left over it's it is we don't the rule rule thirty two each requires that notice and i think that's why for a departure you must either give an explicit notice or notice in the p s r as we had in this case but for a variance after errors ari go back to the enhancement issue so it's your position that any time a government lawyer makes an argument that contravenes the defense lawyers argument that a judge can simply say i agree with you and that's good enough i think when government counsel makes a detailed our or either case it could be defense counsel is nothing about the government  when an attorney makes a detailed argument or i mean by detail what that he or she say that suggests that the result was or i think i think what the government counsel below walks through the whole scheme about who all was involved in there are a lot of people involved  walkthrough who all was involved the evidence at trial i mean it was it was a lengthy and i know i know i don't have the whole sentencing transcript i do but without being going through every word of it i think it was a pretty lengthy colloquy and when a judge says i think you're right you know here if i made an argument in the courts that i think you're right i would take that as meaning that you agree with my reasons well i suppose you could say i think the enhancement is proper but generally we require a little bit more the judges and we actually think there'd be a slight difference between i think the enhancements proper and i think your right because i think the enhancements proper might mean i agree with the outcome but not for the reasons you think i think you're right especially when we're we're debating on the new point a very specific was this otherwise extensive and government counsel respon directly to defense counsel in the government says i think your right thank you saying your argument is the one that i accept and i adopt and i think i think that fits here and i also think that the evidence of it being otherwise extensive or involving more than five participants was quite strong and so i  also think that judge is also another answer to your question is it might depend on how close a question it is might depend on how extensive here you had the defendant you had run mccollough clearly criminal participants you had banks you had cox i think they were both victims  became participants you had chad mccullough who not only had money during the pretrial release activity but he also was there with a gun at the restaurant incidents that's five or five already there's other individuals corey maxwell jay sue thomas  it's not in this case it's not hard to get to that five number and if you if you were to wonder whether any of those should count as criminal participants i think it easily falls and otherwise expenses and so i think what the district court was saying is that it was a pretty clear decision and he was agreeing with government coun i think that's ok i think that you could have a case where the arguments are less precise and they get the district court statement about who agrees with those less clear but i think in this case on these facts i think it was sufficient particularly turning to the sentence a variance the district court's explanation for why it gave the sentence this was a carefully calculated sentence by the district court based on very specific things and the district court identified early on that it was a departure and a variance i don't think anyone disputes and the that approach that's not what happened here here i actually think the court was giving the expressly in both paths if you look at the statement of reasons the court checked the box for departure under forty one point three five k two point two one but on the other page check the box for variance and check dismissed on charged conduct in the court sentencing explanation part of it was about guidelines that now it rings in the language of a departure but then the court also said that the upward the upward move the departure and variance was for likelihood the defendant will commit other crimes the nature and circumstances of the instant offense and the history and characteristics of the defendant that's thirty five fifty three factors that's the language of a variance and so i think very a guess what i'm asking you what i'm asking you is this is not a case is that where the judge got to  a certain sentencing level by virtue of a departure and then said oh and by the way i'm going higher because of the area that can't be right now i think i think he reached the same sentencing conclusion through two different routes he got there is a departure and he got there is a variance and this court has said in cases like riviera santana and others that if you have two routes to the same sentencing conclusion this court will affirm even if it finds a problem with one of those routes as long as the other one's ok and so i think the easiest approach the most straightforward one would be to look at the v and to say that and this was thoroughly explained and i want to make sure that i respond my colleague said that he doesn't see anything in the pretrial release conduct that wasn't accounted for in the guidelines range and i would suggest that basically everything in the pretrial release conduct was not accounted for in the guideline range so yes three hundred thousand dollars that he stole was included in the last calculation it didn't change the last category he was already over one and a half million with a real out the three hundred thousand and so it didn't change his guidelines range there  on top of that it didn't change his offense level in any way that conduct being considered relevant conduct and so i think there's a real danger here that what would have happened is he would have bought eighteen counts and gotten for free and the thing that absolutely more than anything was not accounted for in this guidelines range was the fact that this defendant engaged in this criminal conduct while he was out on pretrial release nothing accounted for that and so you have the conduct in two thousand and three in two thousand and five which i don't think is disputed and didn't account for anything in his guidelines range and then you have this very egregious we don't see this much we don't see white collar cases where people commit these kinds of serious crimes while on pretrial release this is quite extraordinary and that in the two thousand and three two thousand and five conduct under his guidelines range inadequate i think the district court you know crafted a very thorough explanation and those were definitely it's reasons it was very clear about it and so for that reason i think this crime and its seriousness and i i see my time's expired my briefly just wrap  up i think this crime and its seriousness are in twenty months as a serious sentence we see these in drug cases all the time and i cannot say that this crime is any less serious than even mid level drug dealers moving a lot of weight and so for these reasons we asked you a firm this let me touch briefly on the question of aiding and abetting i mean on the destruction of the government gives to aiding abetting is that if you're around the conspiracy about the same time that's a myth to prove aiding and abetting to now that  pinkerton kind of approach to this but hating and abetting a subset of offense requires that you actually do something about that particular transaction and there's really no evidence that as to the stickler transactions that we challenged that this defendant did anything about those particular transactions on willful blindness blindness we have conceded that maybe there's no prejudice as the conspiracy count in this but again the government has pointed to absolutely no reason that they needed a willful blindness instruction in this case that you know in what it does is it creates a very dangerous instruction for the jury and it allows them probably may have allowed them on the subject of accounts in this case to kind of flows the requirements again again you know fuzzing we maybe what they thought they did aiding and abetting was whatever but there was absolutely no reason to have that kind of dangerous instruction skase on sentencing you know this is a very handsome and a departure case but as i've read what the district judge reasons the thing that you mention about the prior conduct he already took the two thousand and three in two thousand and five conduct in the consideration in the in the criminal history part of it the fact that he had and part of and then on top of that he creases the levels to get from about one hundred sixty or so months to three hundred twenty seven months on the the inveigle creasing the office level six now there's some analogs that you can look at and whether that degree of increase i'm not here to argue that because he did something on pretrial release that the judge should not have taken that into consideration and s what the judge does would increase it almost double the god line range in this case by looking at those factors and if you look at the analogs on what you know what the guidelines tell us about how much those increases should be a contraction of justice is something that pops up in a lot of cases where somebody does something during the course after they've been indicted they do something to obstruct justice they talk to a witness or do something else have somebody talk to a witness that's a two level increase the in there most of the those kinds of things are a one or two level increases not six level increases and i'm part of i think what is remarkable in this case is the extreme departure variants that occurs after he's taken into consideration all of the factors that they're just not justified by the particulars that he's looking at is not just the  don't think he then looked at any analogs and talked about any analogues that were out there and he could've thought about and the other thing is the way this was done while it may be under the rule and under is array and under variance situation that you don't have to give notice of the variance but i think the recommendation to you still let the counsel and the defendant comment about what you're talking about how you're talking about varying and really if you read the transcript what happened here was they had the full colloquy they had all of the discussion and then really right at the end he says i'm varying and i'm departing upward to three hundred twenty months and he it pronounces the sentence there is no discussion and no opportunity to counsel discuss while maybe you've got that wrong maybe these things don't justify the degree of departure for the degree of variance in this case that procedurally is a really troublesome thing about how this sentencing occurred in this case so what's that the what that the government requests in terms of a sentence because they did not ask for anything above the guideline in this case they weren't asking for any kind of increase of of the god line this is all the district judge and so i can see that when that was the nails if i would had not heard anything from my from the prosecution i would have been florida's trial counsel for the defendant all of a sudden i have a three times god wants and it's being imposed in this situation and that's pretty much that if you read the transcript what happened here in terms of how the sentencing wen