ok mr davis kind of split what we think are probably the two most critical arguments for the court i was going to focus on the travel act count and post and focus on the money laundering or attempted money laundering count i'm happy to answer any questions has a about the attempted money laundering count but i think mr poe has devoted some prep to that and so he might be better positioned there and i know he's intending to address that with the court this is certainly an unusual case  you know it begins with a seventeen year old eighteen year old nineteen year old kid down in south texas going to go want to joyride and pick up some money which it medically at least a couple of them thought was probably drug  substantive charges were conspiracy possess extortion proceeds a conspiracy to violate the travel act and then attempted money laundering and the key actor who were the  ringleader and really bad culprit here was mr rove who pled out cooperated with government got fourteen months sentence he was a gentleman who was in contact with a fellow poncho down in mexico trying to arrange this money pick up the relationship between cup wear a poncho was pretty long and distinguished if you look at government exhibit eight which  app messaging messages between them of course there's some evidence in the record both trial and sentencing of other things that were on cabrera's phone they have a long history of talking about drug dealing and cartel activities and things of that sort but poncho wanted cabrera to go pick up this extortion money which was a kidnapping ransom deal out of nigel my client he's finally got a car so even if you're going to run out of time in a hurry if you don't get to your legal points yes your honor and i hate to spend so much time on the backdrop but it's an unusual and bizarre case with respect to the travel lacked count here there are several problems with that you know number one there's no continuing business enterprise with respect to what my client almost post client did this not ever i thought there were text messages or e mails or other things about other activities related activities not just this one discrete transaction those all existed solely cabrera fernando cabrera who was the defendant in this case who pled out and this poncho fellow down in mexico those were all between the two of them and if you look at government exhibit eight which is pages and pages of text messages excerpted from cabrera's phone out of this whatsapp app those are strictly between the two of them and yes a lot of those talk about drug dealing and the potential for drug dealing but there never was any drug dealing that cabrera did for and mr poe did a very nice job of cross cabrera and getting him to identify only the messages in government exhibit eight that pertain to the activity in this case defense exhibit one is government's exhibit eight with only the messages pertaining to this trip to fort worth to pick up the extortion money highlight so the problem here is the district court admitted over our objection of several jackson's all these text messages that prove up this talked about drug dealing cabrera and contra no connection with that to my client no indication that they really have any or very much knowledge about that at all of course none of that ever came to fruition you know the underlying conduct here was some kids hooked up with breyer and they're going to go on basically a joyride to fort worth pick up this money and alternate times they talk about splitting it up amongst themselves five hundred dollars each one thousand dollars apiece will go on to shopping spree at the galler maybe we'll just steal all of it of them stealing money from a mexican drug cartel probably no real good idea but that was all that was going on here and so you don't have these defendants connected to much less participating in what cobra and poncho talked about with respect to any kind of drug dealing and of course this was in fact  not drug dealing anderson and good zol as in probably tourism as well just assumed that that's what they were going to do you know what else are we going to go pick up twenty thousand in cash you know home depot parking lot for you know that's you know that's that's not how my clients pay me and you know that would certainly be consistent with with that sort of activity and so  in some kind of continuing continuous business enterprise there's nothing that puts mr anderson or mr gonzalez into that and their conduct is a is a one off deal here and so you know obviously a challenging case for the government to charge because of the way it transpired but the whole point that we went to trial on is simply because we did not believe that this conduct which really was not disputed met the elements of any of these officers and with the limited time a segue into the conspiracy to possess extortion proceeds that gets to a statutory interpretation question does or does it does a defendant have to know that those proceeds that he is conspiring to possess are extortion proceeds or just illegally obtained proceeds and obviously the government's position is that well it's sufficient to show that they were just illegally obtained however they work but you know obviously for the reasons we put in the brief there  issues with that it can be fairly read to be extortion proceeds and certainly in that subchapter of the code could have been placed any number of other places so forth so that's an issue of st impression put a square peg in a round hole this money laundering count it fails for multiple reasons st there is you know this is a sixteen provision under nine hundred fifty six dollars a three so the government has to represent to the defendants that this poncho who these two defendants had no contact with and do not communicate with during this office and so the government wants to rely on the fact that well the statute says that they don't have to represent to the defendants they can represent to somebody else that flies in the face of the whole purpose of the sting provision but even if the government is right on that the representation that the that the government agent made to concho was insufficient so this court has repeatedly said  that in order for a money laundering transaction to occur the issue a specified unlawful activity has to be completed this was not an investigation that starts off as a sting operation by the f b i this starts off as an arguing that the money laundering count the evidence was insufficient that it should be acquittal for that count and one of them maybe well i also believe i mean i would have to buttress off mr davis here about count two the trouble out but i believe that's insufficient as well but he would leave at least as far as mr gonzales is concerned he would leave count one can't want me i believe that judge o'connor while i moved to dismiss that count i believe he wrote a very good opinion that frankly i was unable to articulate argue against your before you so i wasn't going to waste your time with a frivolous argument so that when i believe that counts two and three should be held as insufficient and acquittal for those two counts but going back to the the representation made by the government like they're saying and  this representation that hey this is this money is the money that we owe you for the extortion so whenever jose torres gets out of the car to try to pick up that bag of money at that home depot parking lot that pick up of the money just way so the government never made a representation as a statute calls for that says that it was the proceeds of specified unlawful activity it does not become proceeds until the money is actually picked up and that is consistent versus gate in which you know this court leave judge smith you're actually off of that opinion which said that the money in that case was drug trafficking the money did not become the proceeds of drug trafficking until the yes in that case who was the drug dealer had received it and so that without that representation therefore because there's no se where it's been completed there's no financial transaction the pick up or the attempted pick up to some of this money is not a transaction in which these defendants commit or participate in frankly when you look at the record when it got time to get out of the car to actually fish or cut bait see if they're going to pick up that the government at trial argued that the reason why they meet that element that the that they conducted or attempted to conduct this financial transaction in order to conceal a disguise the nature source of the property was because they were going to go on the spending spree with a now we get on appeal and the government is now it's changing gears and they're saying well it maybe not so much that but let's go back to the original plan which was when fernando cabrera was talking with poncho via this what's that message and he talked about how they were going to try to launder the money through some credit cards in a bank account when you compare that what's that message the actual testimony at trial fernando basically that was just the ruse in order for him to agree to lame can pick up the money the entire indian ticket from the tire moment that they left the valley to come up to fort worth was to steal the money so that they could spend it for however they want and so when you look at the cases that deal with concealment and whether or not transactions and spending is actually concealment you look at the the demick case in which this court has held that you know the concealment must be the purpose not just the effect of the transactions you know and and demit you know arguably is looking at the provision under nine hundred and fifty six dollars a one the roman and i which deals with virtually the same language that we have here but it has in front of it designed to conceal the skies we don't have the design language here but we do have the intent so it's very analogous to the situation that we have here in so in looking at the demick case you know the design requirement the court said was distinguish the purpose there is distinguishes money laundering from innocent acts of mere spending and that's all we have here we have four kids who thought they were going to steal twenty thousand dollars from some guy in mexico that might have been drug money if they were never going to come after him and could go on a shopping spree in order to buy some clothes you know that the government wants to say that well they all knew about this agreement to go longer the funds through this bank account will that argument falls flat when you look at the evidence of before they even and that text message they're saying hey of the twenty thousand dollars i'm going to keep ten percent you'll keep two thousand dollars of it well before they ever left the valley they've already agreed to divvy up greement that he was going to take three of the guys to go up to the better plax to pick up some money and lose money in the process it just it doesn't fit and so for those reasons we believe that count three is insufficient and why do you have about a minute before of my original eight minutes here i would go back to the travel act case there i would remind the court that we objected to these what that  allowed him because it was a bench trial and because he wanted to look at him later to see if there were he was going to sustain the hearsay objections that we made to him the reason why on cross i went through with fernando cabrera and had him highlight all of the messages in which were made in furtherance of this conspiracy to pick up the money that's what is emitted is different it's exhibit number one and so in the court's order it said that hey we sustain the defendant's objection to that exhibit and we have not taken into consideration any of those hearsay statements but if you look at defense exhibit number one and you compare that to the traveler there is no mention of drug trafficking in there there's no business enterprise stuff you're left with  in cash proceeds of drug trafficking and they attempted to conceal the source of that money by agreeing to launder it through a cell phone store let me begin where council began with the travel act st of all the evidence was unambiguous that a continuing drug trafficking enterprise existed cabrera testified that he had known poncho for years he knew poncho to be a drug dealer poncho has repeatedly tried to live rope cabrera into his drug dealing although cabrera never had an opportunity to participate that doesn't mean that there wasn't a continuing business enterprise that poncho was running further cabrera testified that consolidates had actually met poncho in person in mexico and knew punctual at least as an acquaintance so the evidence is clear knew what ponchos business was i do want to clarify one point both defendant's counsel stated on a couple of occasions that these whatsapp messages are quote unquote text messages but they weren't they were voice messages and in fact  testified that when he was exchanging messages next to get his all as when they were having the initial conversation with poncho those messages were all the a voice so cabrera was speaking them into his phone and when he received messages from poncho he played them on speaker phone so in fact overheard all of those messages they were just typed so there's plenty of evidence that can sell it was aware of ponchos drug dealing further with respect to emerson as we argue in our brief anderson was a knowing and willing participant throughout the scheme from almost the beginning when he volunteered his car to drive the four of them to collect the money and to find that at least by the time they were in the car it was unambiguous lead clear to all four of them that what they were on their way to collect was drug money and in fact cabrera testified that he had specifically represented to the other occupants of the car that they were on their way to get drug money you know you need a special car forest when when was the on lawful activity completed and when did the money laundering scheme began so with respect to the money on during count the specified a lawful activity that law enforcement represented  created these proceeds was extorting so law enforcement represented the victim of the kidnapping to the kidnapper that they were satisfying the extortion to demand by leaving these twenty thousand dollars in a parking lot the specified unlawful activity that anderson and gonzalez believed they were helping to conceal was the drug trafficking because they believed that as they were on their way to collect the money the money was proceeds of drug trafficking a act statute requires the government to prove that there was the use of this facility to promote or facilitate the promotion of a business enterprise involving narcotics and the evidence here show that i'm talking about monitoring of course i apologize your o of monitoring so with respect to the money laundering conviction to government will follow to prove that the defendants attempted to conduct a financial transaction involving property that was represented by law enforcement to be proceeds of specified  intended to conceal the money by spending it or if they intended to conceal the money as reflected in this plan that cabrera and poncho discussed the longer it through zuniga cell phone store and argument on appeal is that that  to be clear what is your argument to that argument today is that the action he intended to engage in that was that reflected their intent to conceal was putting the money on cards on prepaid cards  substantial step they discussed the plan and this court can infer although of course this is a circumstantial case that anderson gonzalez shared in that intent and had discussed the plan on numerous occasions so st of all the initial i think by the time they were in the car cabrera testified that he had discussed with anderson and sol as this plan to go buy clothes to go buy and then left home first went down to houston towards laundering this morning and what is that don't tell us about the plan or tell us about the conversation unless you're saying that is a substantial step just don't tell us anything else but what substantial step was taken t think this substantial step here was after they had planned to execute this this transaction through zuniga cell phone store they were on their way to collect the money in order to execute the plan now i mett that once they were in the car actually driving that they had this conversation that corpora testified about that oh never mind we're not going to give poncho his cut we'll just keep it all for ourselves but the fact meaning the plan getting the money is implementing the overall plan of laundering it wants to get to where the are do i would i agree with that your honor i think that's a fair characterization may not be a good statement over the long term but i think this is somewhat similar to barnes out of the th circuit which we discussed at a page nineteen of our brief where the defendant had made a plan to engage in a financial transaction where the defendant didn't possess the drug proceeds but was going to i think sell property in exchange for drug proceeds and he was out the door on the way to execute that transaction and the circuit in that case held that that was enough to show a substantial step toward money laundering so here again it's a close case it's a difficult case but anderson and gonzalez shared in this plan and they were on their way out the door to go execute it at some point when they were in the car the plan did change but the fact that they had this intent that they shared with me get into prayer and we're going to go execute the plan is enough let me return for just a moment to the t ravel act because i do want to put a finer point on kerri anne which is the case from this court that we discussed in our brief a twenty seven that the defendants and their briefs cite this case as involving three separate transactions but we and i think the district court site carrion because a codefendant defendant sole moore was only involved in aiding and abetting a single transaction the evidence in this case that's very similar to the evidence introduced with respect to sol more discussed and carry on because  there was evidence that these defendants were only participants in a single transaction but there had been other transactions and they knew the source behind the transaction they knew poncho and certainly there's ample evidence from which to infer that they understood that ponchos occupation was a drug dealer let me also touch on section eight which counsel for andersen mentioned this is we agree an issue of st impression the government is not aware of a case interpretating the knowing  requirement under section eighty it doesn't seem to be applied very often but although it's an issue of st impression it's not a difficult issue congress made it very plain the mens rea requirement is knowing the same to have been unlawfully obtained if congress had intended to require the government to prove knowledge of extortion that would have been a trivially easy requirement to add to the statute but the knowledge requirement is simply knowledge that the property was unlawfully obtained and we have that here the defendants believe that the commission of the crime although conspirators must pursue the same criminal objective and not agree to commit a fitted to take each individual part of the fence but if in a must reach an agreement with a specific intent th conspiracy you must show that this conspirator that you're trying to commit to convict knew of the underlying objective of the conspiracy even if we didn't know each individual participant each individual act regarding it i'd certainly agree with your honor that th so they did as the fundamental characteristic of a conspiracy is a joint commitment to an endeavor which have completed which satisfy all the elements of the underlying substantive criminal offense and the would look to me to be specific language of what crime is being talked about he says talking about if you applying it to this particular fence there did needed to be some sort of legal or illegal activity and i don't know if most a fair reading but i think it's a fair reading of the statute and i think if they had completed the objective of the conspiracy that is to say if they had possessed the money that they thought they were on their way to possess then they would have completed the offense under section eighty dollars they would have received or possessed money that was in fact proceeds of extortion but that they believed was unlawfully obtained and the statute doesn't impose a more specific mens rea requirement than that so how they completed the conspiracy had they gotten the money that they believed they were on their way to pick up they thank you got to the point as well let me mention one thing at st here there's some confusion about what what's that messages are it is an app that you can install on your smartphone  you can send voice mails through it but it also functions as a text application and so i want to make clear to the court that while there are some voice mails it works change between cabrera and poncho through the what's app message or what's app system not everything in fact the majority of those messages between them were actually a text type message yes there were some voice mails exchanged between the two of them and yes some were played where others could hear them but we don't know which ones those were or how many there were so that is one gonzalez is closer to this there's no evidence that anderson had any knowledge about anything between cabrera and poncho or even knew that poncho existed and then of course there's the question about is it really continuing business enterprise involving cabrera if they never did any mexico where are they going to pick up this money i don't enough well because number one a one off occurrence doesn't fit the travel light to a single activity is not what the travel act is designed for and there's a question did they even know that there is that  between you know poncho and and maybe arguably rarer and of course that's not what really happened in this case this was not a drug activity this was extortion and i thought it would be necessary one pertaining to going to pick up this money is what was highlighted they are in defense exhibit one and so if if nigel anderson robbins always knew that there was a bigger activity and knew that they were participating in it then then that's problematic for us but but this appears to be a one off joyride to go around make some money maybe steal some money maybe buy some clothes and we think we're picking up drug money paid was to satisfy the ransom if it satisfying that ransom therefore it doesn't meet the requirement of being represented to be the proceeds of specified unlawful activity because it can't become proceed to go back to their argument about this claim and to go to the cell phone store when you look at the what's up messages whether it's text messages or voice messages that are being translated here you can see and you compare that to the testimony of fernando cabre that look the reason why i told poncho in mexico that the guy going with me was a fourteen year old kid because whenever i stole the money i didn't want to come in looking for anybody else he was he would think it was just me and some kid the plan from the very beginning that are to kill a good on trial was we're going to steal this money we're not going to put it to a cell phone store it steal the money and so  for those reasons i mean they have improved the concealment here and then i guess to to go back real briefly about this travelex stuff gonzales there was testimony that gonzales did meet poncho one time seven months before this that and so when you have to you have to look back at just the messages that are highlighted in government defense exhibit number one as the communications and the evidence that are used for the term without there was a business in a prize proving for the travel  you and mr davis our appointed counsel we appreciate your willingness to take the appointment and for your good work on behalf of your clients