three issues were raised in an appeal and i like to address the issues in the order that they were argued in the brief the first issue was whether there was sufficient evidence for a conviction fair and that is whether he caused or attempted to cause the seller the dealership to file a misrepresented eighty three hundred form in a form with a missions they are three elements to that charge yawners the first element deals with knowledge the second element is whether mr give varo cause or attempted to cause and the third element is the motive the issue that we bring before the court is whether circumstantial evidence can be used to prove the second element and that is w whether the defendant caused or attempted to cause the seller the dealership to file a eighty three hundred fourteen with misstatements misrepresentations or omissions i submit to the court that under the facts of this case direct evidence was necessary to prove that element mcdowell's and dollars for each transaction that is also correct your honor and and the friend what was his name again q rohloff he testified at the trial that and that's that's also true your honor seems the best argument that you have with the limited time that you have is that the best evidence rule was violated and without evidence of those eighty three hundred forms then maybe there wasn't sufficient evidence to convict him of these crimes the problem that i see is that there was no objection to the summaries that were offered in the evidence by the government and so we apply a plain error standard to review it seems like you'd have a much stronger argument on appeal if there was an objection to the admission of summaries of the eighty three hundred forms rather than the forms themselves so how do you how do you address that issue judge i was the trial attorney in that case and the reason why there was no objection is because the summaries that were introduced into evidence were not copies or duplicate of the original eighty that's correct our position is that the government needed to introduce your original the issue here is not whether a duplicate or a copy of the original form was was introduced this is a completely think that the jurors needed to know what it is that he attempted to file i mean it's the form itself that raises the charge here and the issue is the content and the form it's not t form itself it's the information for an attempt to do is what difference does it make what the forms this well there has to be there has to be something by the defendant and you're on it that's a good point and for this reason when where you deal with eighty three hundred forms the the purchaser the individual who's paying for the property or the completely has no control over the form basically the form is under the control of the seller the person who is receiving the money that individual has fifteen days to file invests case the defendant did everything that he was supposed to do he told the dealership the seller that he was the real owner of the vehicles he was basically using his friends to put the vehicle under his friend's name secondly and more importantly he told the dealer that it was him he was paying for these for these automobiles there was nothing more for this  individual to do this for him was not in his control so well he created a scheme by which the dealership would file the form wouldn't that be an attempt on the the statute even though the form never got filed but but but we still need some evidence of that judge and that's the point here there is no evidence there is no evidence that there was a scheme between the defendant and because of the facts of this case and because how the procedure is when filing an eighty three hundred form once an actual he took his friend there and schemed with it because you know a form would be filed otherwise filed that's circumstantial evidence of his knowledge of forms will be filed and his judge will point out one one of the salesman told me correct before the whole scheme was finally executed so i got to that that's that took he took his friend in there and and it all came out to play does exactly like he had just paid well he took it and he knew the dealer was going to go along with it because otherwise the dealer would have said you're the knew exactly what was going to happen and that's what he intended judge but under the circumstances and under the facts of this case and how the eighty three hundred form is filed knowledge of the of the world with the deal or not put his name down maybe he was concerned with the defendant maybe he wasn't he didn't feel comfortable so he decided to go ahead and just user the whatever lamborghini audible be a ferrari of the that kind of an automobile in somebody else's name judge and there's nothing improper about that house's planes are all are always purchase under different names company names and so forth there was nothing illegal about bringing his friend to that dealership and having title of the cars in his friend's name the issue here is the information that was in the form you want to say  about the sentencing yes judge there was absolutely nothing in the record to support an enhancement for obstruction the obstruction that was given was based on tax returns that were filed in previous years before the charges in this case that did not impede or rail or do anything to the investigation of this case andrea hofmann on behalf of the united states morning i counsel table with me is a life but who was the trial counsel in this matter your honors i'd like to start and focus on the best evidence rule and more particularly on government's exhibit one one of the things that i think that i important to clarify that for the court is this isn't a summary in the classic sense of the word summary voluminous evidence summarized down so that just parts and parcel are in the final summary and making it easier to a now analyze this is in applicable here your honor i believe under rule nine zero one four which is self authenticating public records this is a self authenticated public record that was admissible under nine zero one four and then when you look at nine  what i was trying to focus on with the summary versus transcript is that it's every piece of you had you could prepare a separate for trial and contend that it is a public record it's it is in entirety of all the docket information that we are as i understand  in put together to put another by counsel for a trial it's not a public record it was put together by finn son your honor and certified by them as a true transcript of the records that's in their records that's all i'm saying is that it's a complete document you don't want us writing in opinion on that point no i want you to just understand that there is no evidence or information that was left out of the you want you're telling us that exhibit one has whatever the format it did thank you donna that's exactly what i'm telling you thank you but even if it admissible let's assume for argument purposes that it's not the best evidence of the three hundred the best evidence is the eighty three hundred form itself or a duplicate without a question your honor that the best practice or better practice in th circumstance would have been the originals of the eighty three hundred but there was no correct but they're also when you juxtapose that to the plane or rule which is intended to create the circumstance where there are contemporaneous objections so that there's an opportunity to correct anything that's wrong in a trial court was in the form of introduc so the form itself the eighty three hundred would have multiple categories it has an area for who provides the cash an area for who is the beneficiary of whatever the castors purchasing and then it has a listing of who received the cash so in this circumstance this new summary if there is no if they're not lost or destroyed your honor i don't there is not a transcript it's not a transcribed in the record of this trial and i can answer the question for the court if you'd like me to but it's not transcribed in the record but as i can tell you that sanford's employees took the fifth and at least one of those witnesses came to the courtroom to take the fifth and the documents were obtained from them there was some sort of pretrial discover counsel saumur three hundred forms i believe yes that the answer to that is yes your honor and they received the transcription for the document and so when they received the copies of the evidence that was beat to be used a trial they received the transcription and that happened all before trial so they have both forms and part of how we know the dependability and the accuracy of the documents as well your honor is if you look at government six seven eight and nine those are the two forms as the original eighty three hundred and the transcript of the eighty three hundred four the camaro purchase which was also done with cash at the one dealership where mr guevara had no business relationship with a personal relationship with anybody at the dealership and there the phone was one where the salesman correct this is what we're going to do exactly your honor and that was that dealer's first time ever having a cash deal he was on didn't know what to do and as manager explained it to him and then he turned and explained it to mr guevara we also know that mr guevara knows that this is what he's doing and what he's intending to do because mr guevara exercise control over everything to do with these deals including when this paperwork was completed for the three cars of conviction which are at government's exhibit seven b c and d all of which are in our supplemental appendix there's a letter in there informing mr e q that the eighty three hundred was sent to to the federal government  going on all of which lays out the the facts of what happened there are the three exhibits that i just mentioned that show the falsity of records that were completed all of those records there were false records submitted to the state as well as to the fed that were charging the federal documents but there's a record of those federal documents having been sent to the i r s i wonder as judge roberto said under the attempt prong of that statute you could still convict readily under the sufficiency of evidence rexx returns were used to enhance his sentence because they obstruct the justice oh ok and missed not constitute an obstruction of the investigation of the prosecution of the tax returns were brought before this incident there were three grounds which the court used for the obstruction enhanced but your honor the first was the nature of the office conduct itself and the use of the straw buyer to conceal and as this court found in tampa tampa for example efforts by the defendant to when his goal is to conceal the nature of the crime in the effort of the crime and false documents are created for the purpose of doing so even when there is evidence as there was in tampa's that the defendant may not may or may not have requested the false documents to be he said it was a significant impediment to the course of the investigation he praised the agents for being able to work past him through it but considered it a significant impediment that he also considered the lies that were said to the agents about the source of the money or the reasons for why again being an impediment to their determination of the truth which would have gone to the issues at trial prosecution grounds for if when he was interviewed yes he did well he made i mean excuse me or let me be more exact for you he made them into different traffic stops he lied about because it that when he gets stopped he's driving a vehicle that's not hurt his he has to explain that is is a vehicle he has a right to have control over and he bothered to explain in those context one officer he told he bought with one moneys for having won a lifelong lottery a five thousand dollars per week you know what would a district court relied on as a the district court relied upon the lies to the officers and the sets of lies to the officers happened in the traffic point said that wasn't ground so that's not the lies that's what i was specifying source of knowledge on the first interview once his wife was out of the picture that he had done this he acknowledged that he had done the scheme your honor but he still lied about how he paid for them and what he was doing it for and they then from that interview went on and did further investigation related to the insurance issues the therapy clinic except they did extensive more investigation about that in case there would be any trial litigated defense issue on it so it did slow down and impede the investigation your honor as to the tax returns and i didn't i didn't mean to not get to me what i was building toward that as to the tax returns there's two issues related to that one of the tax returns that the court took particular fence to was from two thousand and twelve which is a tax return that would have been filed in the spring of two thousand and thirteen in the midst of this scheme the second tax return which was never filed would have been filed in the spring of two thousand and fourteen the interview by mr of mr gove era where he the lies that we were just i was just discussing with such a brain occurred was in may of two thousand and fourteen the investigation was well in its midst when mr good era did not file his two thousand and thirteen tax return he had he bought six hundred thirty seven thousand dollars worth of cars from sam for a loan that's not counting the nearly fifty thousand dollars camaro just from sam for a loan in ten months using at least two hundred eighty thousand dollars with cash that cash was undisclosed income unsourced income to the government in any form in which his custody and control and access would have been no shown or known to the government f filing of these false returns and the filing of the false two thousand and twelve tax return and no tax return at all in two thousand and thirteen or into clearly inextricably intertwined components of concealing his custody and control of this unknown justifiable based on his employment history which is evidence that when the trial record he had no basis to have this kind of cash or custody of or control over this kind of money and so both pieces are  thousand dollars worth of cars and i don't believe that he has been your honor it's not a maverick matter of this trial record i can tell you was not indicted or discussed if being charged in this trial i can tell you plenty e q was given immunity  that also is not in the record your honor but he was not i don't have a reason to believe that he was given any kind of formal immunity but i know he was not charged your honor three prongs or whether he has conduct  related to the investigation russia q should or sentencing so you are relying on investigation and prosecution your honor because the lies about the source of the monies and the reasons for why he's doing this the government you know necessarily had to debunk those explanations in preparation for any presented defense theories that would go on during the trial mr garrett didn't chose not to take the story and this is right you rest right so we debunk them beforehand so that we were ready and be prepared for whatever he might do with the various the four sets of lies about lotteries about therapy clinics about marital troubles about injury make the state better way they made an opening statement your honor in which he specifically said i was the true owner and i told them that i was sure to honor and i hired a well i hired a straw buyer that was in the opening statements your honor your honors if you have would have not been any conviction had the eighty three hundred forms or the summaries been introduced the government is incorrect by stating that they could approve in this case by using the testimony of e q was not present in any meetings e q between the defendant and the dealership he was not there when the money was transferred urged handed over to the dealership and the charge in this case is what the information in the forms itself so it isn't correct to say that the government could have proven this case circumstantially without the summaries or the forms the forms is the best evidence rule the forums should have been introduced they had the forms in their possession they had the ability to of to try to introduce the forms through the personnel of the dealership the government could have given those individuals immunity and of subpoenaed them to testify and introduce the forms to through them so they did have the ability and i go back to my original argument we're not dealing here with copies or duplicate we're dealing here with a summary that was prepared by some cork who got the information from a database  forms themselves have different parts to it and the more important port is the one that it's signed by the individual who is receiving the cash and it's dated and that is critical evidence for the jurors to determine whether of the defendant's assume that you mediately prior to the individual signing the form  was arrested would that constitute an attempt by the defendant to have the form file a lawful no judge for this reason once once the defendant and this is in this is in the in the record it came out it's evidence that he told the dealership that he was the owner and he was the cash once he hands over the cash he has no control over that bor that for him is in the sole control of the dealership they have fifteen days to do whatever they want with after more put whatever information that they want they would take the form has to be file in order for the crime to be complete yes yes i do yes i do there's a fifteen day window and i think that once the form is filed if it's filed in correctly with misrepresentation that completes the crime in regards to the comma comments made as to the enhancement for the obstruction government government argues that the obstruction was with the lies of the tax returns that happened years before this case and and that what they they had the ability to  motive with those tax returns so how can they come and say now that it somehow impeded their investigation of the statements made by the defendant to the police officer and to do in the course of the investigation that proved not to be correct would wouldn't do it again your honor there are two statements made the first statement was when they initially knocked on the door of his residence and his wife was want to cite two minutes and it happen immediately two minutes after that they take him to the side by himself he comes clean he does tell the investigators and the agents in the case yes it is true these corps are mind i basically used my friend just so i could put the title on the cars in his name and it was my money i paid for then and the dealership knows about it what's interesting is that during that interview the agents never raised the issue or the questions regarding the eighty three hundred they never confronted the defendant as to the eight hundred eighty three hundred forms which is what he was charged with evidence is that he came clean he told the agent it is my car on the true owner of these vehicles or if we go through the record go through the record is there any anything you're telling me there's no evidence at all were he mentions the eighty three hundred forms or all during the interview of the defendant journey that the defendant is never confronted with the eighty three hundred form he's never asked why did you have anything to do with this did you did you ask them to put the information of your friend in the eighty three hundred four he's never confronted the only questions and the only thing he's interviewed about is whether the coup owns the course and who paid for the course and he came clean he told them it was him