good morning may it please the court my name is michael la hammer i appear on behalf of beth galloway the appellant in this action and in this action we are appealing her conviction from trial of counts one two and three but specifically the denial of the motion for judgment of acquittal by the district court judge in this case as well as the denial of the motion for new trial a little bit of background in this case involved a deputy sheriff from jones county who  started a fire in a house he owned in martel iowa and it was destroyed he subsequently collected insurance on this house at the time he was living with my client in olan iowa and the second house that she was running her own and insurance money was collected and it was spent on various things my client was convicted of mail fraud in count one use of fire and aiding and abetting the is a fire to commit a felony in count two that felony being the mail fraud from count one and then count three a conspiracy to commit money laundering the district court erred in the denial of the motion for judgment of acquittal on counts all  pacifically counts one and two as there was no evidence from which the jury could have inferred by proof beyond a reasonable doubt that beth galloway had knowledge the house was insured knowledge that  deputy plower intended to make the insurance claim knowledge power of other to make misrepresentations in this claim and knowledge that the mails would be used or that it was reasonably foreseeable as to count three the district court erred in finding that my client beth galloway engaged in a financial transaction which is one of the requirements for count three conspiracy to commit money laundering that financial transaction being the withdrawal of ten thousand dollars from wells fargo bank what the court relied upon which we submit is in error are some of the facts from trial first that  jim plower had money problems and they had discussions about the money problems the court did ignore testimony from jim plower himself that beth galloway had earned fifty two thousand dollars in two thousand and thirteen the or the trial not only did she collect unemployment but she also cashed out a four hundred one k the court disregarded this and relied solely on jim plowers testimony that they had money problems there was no other evidence in the record to that effect well as cashing out a four a one k evidence of some financial stress generally i mean unless you're you're breaking some kind of qualified movement because you expose yourself to the tax liabilities that is correct judge she had gotten laid off from her job at the hospital and that led to the cashing the four a one k but fifty two thousand dollars and then is pretty substantial yeah i get that but they're having trouble paying bills that's the magic phrase right according to jim plower they were having trouble paying bills there's no other testimony other than jim's to show that that is correct and he has both of us nearer that paying bills right  he has the phrase above quote both of us very near the quote paying bills and quote that's correct in the same kind of context and i don't necessarily dispute that they were both paying bills we dispute that they both had money problems jim power also testified that he was supporting his second mother he was giving money to his daughters he was keeping up the bills on two houses  two or three things you should address one is she previously tried to set this house on fire twice that's favre you know we take the evidence at this point of the day ok and she made statements to him subsequently took the ten thousand dollars not necessarily the bank i believe at the courthouse and put it in a drawer in her office but that's after the fact that doesn't make her guilty of conducting a financial transaction or aiding and abetting a financial transaction as required by count three if you look at the elements of offense for count three knew a transaction designed to conceal or i'm sorry agreed to go talked to his union wrap after he had confessed to this crime and agreed on a plan to withdraw money because he knew he was his accounts were going to freeze it doesn't say he sat down with beth galloway and they discussed this and they agreed to do this he had already talked to his union rep about that and that's in the transcript of page fifty and fifty one but the court asked about also the two attempts and this was with her son her seventeen year old son at the time isaac willey williams driving him over to the house but those were unsuccessful attempts and there further there's no evidence that my client knew there was any insurance and i believe those are the speculative inferences that the court used to deny our motion for judgment of acquittal in this case despite the fact she did drive the son over on two occasions what the courts will take away from this you know well those fires were unsuccessful number one and number two is there there's no evidence they were done for any purpose other than to get rid of the house did they discussed not using excel around so they wouldn't be caught according to jim plower they had two conversations prior to that and i cross examined the supplier about that and asked him about jokingly the first time that they had this quote unquote conversation about starting a fire but second time he did testify he was at work they did it over the phone and discussed the possibility of starting a fire and not using excel or and so they would not be it would not be detected by us would you burn down if i house go there twice to do it if not for the insurance when it has a big mortgage right there's no evidence he knew there was a big mortgage on there or insurance i don't know that the more let's stop paying the bills right go ahead the paying the bill that's question   he was getting a lot of pressure from bath to fix it up or sell it and not to burn it down to conversations that he testified that beth yellow a had with him number one joking about it number two over the phone talking about accelerant but going back to the isaac williams we would submit that because those fires were unsuccessful because of the speculative inferences made by the court that she knew broke down quote it could happen unquote it was their testimony about what the it was that could happen i think that was a conversation mr power again during that time had with beth galloway and be galloway made that comment according to jim plower during his testimony and she made that comment in response to some sort of comment by power that is life easier for the house burned down right yes her responses it could happen that's correct your honor and that's what the record reflects we're submitting that the court the essence of the court's decision finding that the jury could have inferred defendant's knowledge that the house was insured power intended to make an insurance claim and it was foreseeable that the mail would be used was an error because there's no evidence in the record she had actual knowledge of insurance prior to the fire she certainly had the conversation with the person she gave the money afterwards but that's not what the elements require for conviction it's prior knowledge or during the actual transaction in your theory on her interest in starting the house on fire it's what the time the  money the the fact that it was rid of the expenditures that they were having to make on the house and things like that not only that but to to save jim power from having to fix it up and sell it or the time that he was spending over our motion for a new trial because there was more than sufficient evidence as the district court laid out thoroughly and its denial of the defendant's motion and a couple of the points that this court has already landed on in  prior argument judge benton i believe you asked about this conversation that the defendant had with jean macpherson is her name who worked at the sir city clerk's office who was a friend of ms galloway's it was actually a few days after the fire so before there were any payments had been issued from the insurance company and this testimony was i at page two hundred or two hundred in one of the trial transcript the beth galloway went into the city clerk's office to pay a bill and talked about the fire with ms macpherson and said we're going to be getting insurance money so this is not as the defendant tried to make it sound after the checks had received how many days after ms macpherson was not cannot recall specifically her testimony is after i heard about the fire which was a few days after the fire taken place i believe beth was in my office that's the best a few days yes your honor and evidence is that the fire occurred on july twenty fifth the insurance payments were received sometime in the middle of august august thirteenth i believe is when they were mailed so this conversation would have occurred before the actual mailings that or the third element of mail fraud so this is during the scheme this  during the transaction is the defendant called in which she acknowledged we are getting insurance money beyond that there is other evidence in the record as the court has already noted they're paying bills together they're maintaining two houses even if but you had no proof of insurance bills right just bills generally and correct statements he was not asked pacifically did you share insurance bills but they did talk about both paying on both houses as the friend of mentioned she was a homeowner a home renter she has insurance on that house so it's common knowledge it's common sense we ask our juries to apply common sense and as i believe it was judge benton again mentioned why else would you burn down this house and so it's a void have to go there and work  on it i don't believe there was any testimony that he was really going to work on it she may have been telling him to go do so but as i recall mr plowers testimony he said yeah i had a saw there and i went over once in a while but i wasn't really doing anything with it and besides which if you look at the photos of what this house looked like after the fire there was still a whole heck of a lot of work that had to be done on it because it didn't burn to the ground it's not like this fire burned it to the concrete foundation it burned in the end there were no there were no accelerant as they had discussed and that is one of the two factors that shows that ms galloway knew what she was doing was in a scheme to defraud or to get insurance money because she wanted to avoid detection as shown by the discussion about not using accelerant but she also wanted to avoid detection as shown by the fact that she drove her teenage son over there at approximately two o'clock in the morning to light the house on fire if what you're trying to do is get rid of a public nuisance you don't go do that at two o'clock in the morning you do that a normal time here she's doing that because that's surely not evidence of the record is it as to how when and how arsonists think you know your idea but i think it's common sense that if this is the countryside right it's a small town  the as to count three the money laundering defendant in his brief and in argument said there's no evidence the defendant conducted during gauged i think was the language of financial transaction that's not what the evidence had to show to support the guilty verdict on count three had to show that the defendant agreed that a financial transaction would be conducted that was designed to conceal disguise hide the money and here we have the discussion  an engaged in the federal statute i don't know if it's in the statute certainly somebody had to engage in a financial transaction for the substantive offense of money laundering here she's charged with conspiracy to ok money laundering  there was a conversation that mr plummer testified about that occurred in the car when the defendant was giving him a ride home after he'd been confronted by law enforcement that conversation was her assets are going to be frozen i'm a cop i know how this works we need to protect our money we need to have something to live in and it was a conversation between the defendant and mr plow or shortly after the crime was discovered but before law enforcement knew about her involvement because m cooperation so they did they agreed specifically to do this transaction and mr plower testified it was from the bank account that the insurance proceeds had gone into that they were going to take ten thousand from that give it to ms macpherson so that they could have some money to live on in case law enforcement took their money that's clearly an agreement a conspiracy to attempt to hide this money from law enforcement to disguise who had control of it who owned it where it was so the evidence was more than sufficient on count three regarding count two this defendant aided and abetted two people in the use of fire she drove her teenage son there for the express purpose of using fire on the house and it was twice right know they and each time was very similar they got in the car at two o'clock or sometime in the middle of the night discussed we're going to go there we're going try to light it on fire they drove over matter of miles at thirteen fourteen miles i think difference between the two towns she parked in the abandoned school parking lot he walked into the house was gone came back and she asked did you get a going i believe the first time he said no the second time he was more equivocal it as i recall but in any event it's clear that she knew the purpose was for him to try unlike the house on fire and then she also aided and abetted mr plow or in his use of fire that he also tried tried on occasions to light it on fire successfully the second time and in both occasions he testified that he got up told her where he was going again it was in the middle of the night and when she came when he came back both times they listen to the dispatch radio ambulance driver and a cop so he has the radio that can hear when the fire call goes out and they laid in bed early in the morning to listen to the radio hoping to hear that the house had been caught on fire the second time it did so she had plenty of opportunity to stop him to withdraw to participate in the scheme and in this use of fire and she chose not to i want to go back to count three for just a moment because i want to focus on what the what the exact  agreement was right because you know if you think about conspiracy we need agreement with an unlawful and in this case it's a money laundering conspiracy so the unlawful end is most related to some financial transaction there are two kind of separate financial transactions that are floating around inside the case the one is the claim for the insurance proceeds and then the deposit of the proceeds and i'd call that transaction is that there is then there's the withdrawal from the  bank the second time and then the the taking of the withdrawal proceeds and depositing them so to speak in the city clerk's office there's irony there by the way in any event the question goes more to the mail fraud specifically for the money laundering count the transaction she agreed to that is important for that cow is the withdrawal of the ten thousand dollars from the bank account you have to have a federally insured institution involved right agree to is that you real bottom line yesterday that they and that specifically what they discussed in that car was we need to get money out of our bank account before it gets frozen and that's what mr powers did within the next couple of days and then they took the money to misunderstood yes your honor they were both present at the time was ms both flowers and mr ms macpherson's testimony and then both mr plower but primarily ms galloway would go get money to get cash out of this a brown paper sack when they needed to pay bills so she clearly knew what they were doing and agreed that they needed to hide this money from law enforcement and get it out of the bank  regardless of the reason there's no appeal in the case correct thank you told mr galloway prior to going over both occasions to start the fire we believe when i cross examine him on page sixteen sixty one of the transcript he acknowledged well maybe i didn't so there was no unequivocal testimony from mr plow or that miss galloway knew in advance he was going over to start the fires and i just wanted to point that at that in that they didn't listen to the radio together right after the fact if they did listen to the radio that's correct  a couple other things we don't deny that testimony from mr macpherson came out that miss galloway was over there a few days after were stating that perhaps a factor the court could look at and making an inference of knowledge of insurance but the there is also the fact that this is after the fire had occurred after the structure had burned down and we don't know the conversations because of lack of evidence between mr plower and mr galloway at that time  we take issue with common knowledge that houses are insured i don't know that that meets the standard i believe we have the dail case in the in the mac cases i believe judge members on the mac case back in two thousand and five the da judge arnold dissented in that case as related to one of the multiple defendants in a murder conspiracy specifically talking about inferences and he said unless the inference drawn is sufficiently strong to support verdict beyond a reasonable doubt a verdict should be reversed that's a high standard as this court certainly knows we also the government mentioned the drive home after he confessed well page fifty and fifty one also talks about mr power testifying he immediately after his confession met with his union rep and they discussed various options what was going to happen and at that point mr power said  the union rep advised him to take money out because of his accounts were going to be frozen he had already made that decision while meeting with his union rep there was no decision or acquiescence or agreement by m galloway during the drive home at least not in accordance with mr plowers testimony the union rep as a law enforcement officer to that's correct thank you on the jones county sheriff's department that's correct as for of voiding detection  again the i think williams facts that she drove him over the house on two occasions is irrelevant because without showing beyond a reasonable doubt she knew what was insured further those fires were unsuccessful so it didn't lead to any mail fraud it did not lead to any money laundering or any of the other things that she was charged with we would submit that the financial transaction that's a basis for count three must be based on the ten thousand dollars withdrawn from wells fargo that's the only financial transaction that meets the federal standard and because mr power had already decided to do that after meeting with his union rep she can't be found guilty of that because there's nothing in the evidence showing that they talked about it and she agreed with it or or that they came to that decision together there's a number of things i'd like to use in the remainder of my time that shows why why the court's speculating when it talks about all of the things  box jim pollard got the five thousand debit card immediately was a method of paying the bills i know the paying the bills is a big thing was the method of paying bills in the record it was not your i could go to the government did not establish how those records were paid for the nationwide insurgents rep said most transactions these days are done electronically again that goes to whether the mail use of the mail was foreseeable which i believe  court can take a look at that agent's testimony in and make that determination for the court never made a fine if he qualified the most you said most was at his testimony or did he do better on numbers than that he did know he said most of it but that's correct  all right i just asked the court to consider the record in grant our appeal thank you thank you thank you can also for the argument case number eighteen dash eighteen and ninety four is submitted for decision by the court