decide the case until after next week to this begin with i don't want to go into what it is since it's not before the court yet but i've served opposing counsel whether and i'll be sending it in first of all i'd like when you say you don't examination and he's not been given a physical health examination found that is something wrong with his brain so i'm going to be presenting that document and try to argue with you to remain the case whether i'll get anywhere or not i don't know but i really need to try a pardon me when will we see it i just got it yesterday when i was here so it's just on my i pad but i'll send it in monday out of left electronically file on monday thank you i'd like to go to the issue of whether the double counting of the dollar amount the stating that the the money order was written yet that he got the money from social security and then he tried to pay it with government money in the  surely case which is judge thomas in this case it makes it very clear that these monies are not separate funds that they are all from the same treasury account there for the last and it's my position that the last w exactly the same thing the loss to the government would have gone from one part but to the other had that check been honored that mr cost drew up the you know the that money order that he tried to pay the two hundred twelve thousand dollars with  so under surely i believe that that is authority that there was only would have only been one victim which is the government's general fund even though these funds that pay for disability are from their from like these trust funds that are created to pay for it to disabled people or first or security or for medicaid but still it's this case states it all comes from the general fund and that is surely a page that sixty four i want to talk about just mention count two briefly because it's my opinion that come to has to be reversed on sufficiency of evidence grounds this is the two hundred fifty dollars that was just deposited in the cost his checking account where his regular disability benefits were deposited and the jury had so many questions about that the only answer that they ever got was you got your instructions that's what they are  these are documents one fifteen is that your responsibility to remember the evidence and follow the court's instructions every time the jury asked the question that's what the court said back and i believe they were confused i believe that there was not sufficient evidence to show knowledge knowledge is a requirement under six forty one and there was nothing to show that cost knew that he was getting this two hundred fifty dollars stipend no yesterday and we all got served with some supplemental authority about and can't i mean about i'm sorry plain error by the government and the government was nice enough to send me those cases since i traveled yesterday but i took a look back through the records and took a look at some of the the cost it make now cost filed some some documents that were very difficult to understand but in the generation of those documents he cited the us constitution he objects to everything he wants to preserve his liberty at sentencing he said that he filed objections to the pre sentence report but apparently they weren't received but the court said well you can talk about this anyway it it wasn't really discussed thoroughly so i don't know if he just didn't have the paper i don't know if what he was referring to was his bill of peace i'm not sure it's not clear on the record but on the record mr alford says well a page seven of the sentencing he says well he didn't object to the effect of the guidelines in any way but it's my position that he did he didn't do it specifically because he's not a lawyer and he wouldn't let his lawyers represent him but he did object and he used the constitution he used the fifth amendment and and then on page ten of sentencing he said even though he fired mr could charge that he never he never waived his right to counsel mr cox had a difficult time getting along with his lawyers he was filing these sovereign citizen documents i got along with mr cost just fine but you know it's just he didn't get along with the people that represented him and therefore he wound up representing himself and it was a disaster at page seventeen of sentencing he did object to the upward variance and after the judge stated what his reasons for sentencing and what he was going to do at page twenty four the judge asked the government is there anything you want to say and he said no and mr castable i want to say something and he said no you won't be allowed to say anything so i don't know if he was going to object or not but he was basically cut off so not to say well this is all plain error and you can't meet these grounds and you can't show that the sentence below was it you were prejudiced by it is unfair i believe i'd like to go to the handwriting this was a real problem for me this handwriting i mean first of all he gave six of twenty exemplars he started giving the exemplars and for some reason after six he didn't want to give any more but he never denied any of the handwriting was his he always admitted to the never the less that was a court order he served eight months in jail on civil contempt from september fourteenth two thousand and eleven to may seventh two thousand and twelve the sentence began and may seventh two thousand and twelve so  that but the handwriting comes up in the contempt and he gets obstructed two levels for the handwriting then there's a jury instruction which instruction twenty one really is ok but but when you couple it with instruction eight where you know i find that i've made the decision and it's my personal i mean the judge gives his personal opinion so the cost of handwriting and at that point that modifies instruction twenty one which would have been  fine because it left them to consider authorship but authorship was never contested and the judges personal opinion didn't have any place in that instruction the jury was not about to disagree with the judge in my opinion i think that it it it's started while it didn't charge an inference of guilt it i believe conceptually i believe that the inference of guilt was there if i had been a juror i believe that that's what i would have thought i believe we have to look at that together and when a personal opinion by a court will impact and issue that the jury has to decide then that becomes a problem in a case and that that old four shake case that i cited to you and as far as the double counting goes the lariam you are objecting to the taking of judicial notice of what fact in particular of the what are you speaking of the in jury instructions or contested but everybody keeps talking to the jury about about this handwriting as though this is something that the government has to prove that this is something that causes denying and causes not denying it i accept as pro the cost never denied it and for that and i never denied the handwriting was his but that's not what the judge even noticed is that i thought the judge just noticed that refused to comply with the  refused to comply with the order and he wrote the documents but by refusing to comply with the order do you object to the judge taking judicial notice that costs refused to comply with the orders i object to him chair yes yes i i don't know if i object to the same way that you're saying that but i find this is what i find but i find it a personal opinion that impacted the jury somehow in thinking that there was something wrong that there was something that the judge is finding never denied that he wrote those things and there was no need to call attention to that this handwriting has been used and used and used he got he got the contempt time he got the obstruction of justice because he didn't provide the example or as part of the sophisticated means the variance he got a lot of time because of the handwriting which he never denied him because he wouldn't didn't finish those fourteen other example ours and nobody ever said i understand that it's a violation of a court order and i understand that when you have a court order you must obey it but about on the other hand when you've partially complied and in this instance since you never denied it's almost a substantial compliance with a court order it if i believe that it biased the jury that is the way i see it and that's the way the cases that i cited i believe somewhat support me so are you objecting to the judicial notice or you object to the admission of any evidence about his refusal to comply i'm objecting to the way it was done i believe that what i'm objecting to is the  inference of guilt will suppose the government had put on evidence that he refused to comply by putting on an f b i agent who says the guy wouldn't give a jaguar's they did put eyes out which are objecting to yes i object to the whole thing being made such a big deal law when it was not a big deal in the first place i think that it prejudiced him i think it prejudiced him substantially and every single thing that they that the court did to enhance his sentence had something to do with his handwriting so he wound up being biased by him something whether he was biased by it in the trial or not the handwriting wound up being everything in this case his failure to provide the handwriting sample i would like to reserve a little bit of time for rebuttal if that is ok good morning and please the court i'm special assistant united states attorney trey offered and i represent the united states in this matter i'd like to begin by just going through the issues that were raised by the a power as they were raised in the appellate brief the first is the issue of sufficiency of evidence and whether or not the united states presented sufficient evidence at trial to establish the mens rea for the five counts of conviction obviously the standard of review for sufficiency of evidence is whether viewing the evidence in the light most favorable to the verdicts of guilty a reasonable jury could have concluded defendant was guilty in this case the united states presented an abundance of evidence that the defendant charles kos who had been on disability security administration about what he was actually doing by concealing the fact by having income from the company go to his wife so security number instead of his own by identifying his wife as the president of the company when numerous employees and people familiar with the work that mr cox was doing testified that he was the president he was the one managing embassy mortgage clearly all of that evidence the united states presented as evidence that the jury could have considered when determining whether or not the intent had the where the defendant had the intent to defraud the social security administration moreover he made numerous admissions he even told the agents i can see on paper how this is a criminal case well obviously a jury could consider that is pretty good evidence of the defendant's intent to defraud the social security administration the united states presented numerous title logs and individuals from first american title company they indicated that the defendant had approximately five hundred closings where he was the lead closing agent dealing with his customer the united states presented evidence from the defendants landlord that said he was there every day in the they were co located landlord dr goldsworthy was colocated with him it was a chiropractor and saw him on a daily basis the united states also presented evidence that this defendant who supposedly was suffering from a do ability that was so severe he was unable to work had a very active lifestyle he was going to the beach house down at the ozarks he was gambling significant sums of money with his wife he was playing with horseshoes he was gone off again you know he had a very active lifestyle he was hunting he had an arsenal of firearms that he used to hunt with all of this evidence was immaterial to whether or not he was disabled yet it wasn't until two thousand and six when the so security administration had evidence that he was running this embassy mortgage business that he made any admissions about that activity and even then he minimized his conduct what about count two the two hundred fifty dollars stimulus package check what evidence was there in the record to show that he did know  payment from the united states treasury and that was the evidence the united states used to establish is now it and that based off of the standard of review that the jury determined that was enough to find beyond a reasonable doubt that he knew he received that money and they convicted him on that count and now based on the standard view the united states believes that sufficient evidence to to affirm the conviction which it was just the one document with respect to his knowledge that he received that two hundred fifty dollars yes with respect to counsel four and five the united states also prevent present ample evidence that the defendant intended to defraud and this relates to this false negotiable instrument that the defendant mailed to the sole security administration on its face this document looks like a real negotiable instrument the jury had an opportunity to look at it and it was false i mean the united states presented expert testimony from matthew johnson who explained there are no private accounts with the u s treasury but there were  evidence indicia on the face of it that would make it look like a real document and that evinces his mindset that causes mindset of trying to defraud the treasury also the united states notes go into the  issues with respect to the judicial notice of the contempt orders it's clear case law the individuals that were fused orders to provide handwriting samples that that is a negative inference that a jury can draw from that and that's why we asked the court food judicial notice of those contempt orders just speaking briefly about that issue you know the defendants and the pellets argument in this case i can't imagine any scenario where you could ever have judicial notice because whenever you have  judicial notice the judge has to say i'm judicially noticing something and the defendant's argument in this case appears to be that well the judge can never input himself into this process yet we have an eight circuit pattern jury instruction that was used in this case this matter is whether the fact of refusal to comply is a proper subject of judicial notice or whether that something well i mean you have to prove through evidence i think  judicial notice was that i held him in contempt now it says i have decided to accept as proof of the fact the defendant refused to comply with court orders i think your honor does not refer to orders that are the contempt orders and instruction those exhibits eighty eighty one and one no not right but those are the orders compelling reprove by the exemplars i think they are but they also found him in contempt which is why it's in the content but they did they also find him in contempt if you look at those exhibits are you mean the same order that ordered him to comply also held him in contempt or no i believe that a my belief is that at least one of those orders is a finding that he was held in contempt that he was ordered to comply and he failed  comply and so he's being held in civil contempt it was a bit basically memorializing what happened now it's not the way the instruction reads but in any event my my question still is why that's a proper subject of judicial notice the the refusal to comply well it's it's an order that i had that the court judge that i mean that the united states also presented evidence and other ways through federal agents but i think that i six and around my memory could be flawed around two thousand and ten was when the defendant created this also negotiable instrument and mailed it to the soul security administration in philadelphia and at that time because that on its face was attempting to draw an account from the treasury the treasury inspector general for tax administration opened up a case and so it was really a total investigation as almost six i'm sorry about five years almost total with tween both both investigations going back into that to the issues with respect to the double counting issue the united states  believes that were so with respect to both the obstruction of justice and hansen and the double counting that the standard view for both of those are plain air and the reason is that at sentencing judge wines point blank asked mr cox after relaying what his computations were do you have any objections to these computations a very specific question and mr cost said no therefore he did not preserve his objections to the complications for both the double counting and he did not preserve it with respect to the obstruction of justice and handsome and therefore when we look at plain error law specifically the perine case which i gave notice to the court in my twenty eight j letter the defendant must show a reasonable probability based on the appellate record as a whole that but for the air he would have received a more favorable sentence but when you review judge wyness the basis for sentencing in the sense in factors it's very clear that judge why i'm well let's put it this way there's no evidence to say that there would be a different sentence and that's what the defendant has to show the appellant must show but based on the appellate record that there would be a different sentence if the if the guidelines computations were changed as a result of the power of you and that if the parent simply cannot meet that burden based off the record moreover the sense is very reasonable you know the judge once made it very clear the sentencing factors that he considered he considered the nature of the fence the fact it was such a long standing fraudulent scheme month after month year after year this defendant was stealing from the disability fine he made it very clear that you know that he found it particularly egregious that he was stealing from the disability fun that there were  you know individuals who are sort of so suppose there are so disabled there are unable to work in this money is meant for then and we have an individual out here who's raiding that he also made it very clear that throughout the case that he felt like this particular defendant needed specific deterrence and also that there was a need for general deterrence there was evidence presented that the defendant was working in concert with at least another person and that he that the judge wives felt like a sentence with this severe punishment was necessary to send both an appropriate message to the defendant as well as general deterrence also along those lines he made it very clear that there was a need to have respect for the law and you know it's very detailed in my brief in judge larsen and numerous orders detail the obstructive nature that this defendant had throughout all the pretrial proceedings yelling at the court non responsive refusing to answer questions and going also to the obstruction of justice in my learned opponent it indicated that the obstruction and handsome it was applied simply because the defendant refused to provide handwriting samples but that's not actually correct it was also if you read the p s are expressed identified that one of the issues that the court considered from probation was that there were frivolous filings in retaliation against federal employees and the united states cited the good i case which was a two thousand eleven case that this court considered and in that case another sovereign citizen who filed frivolous documents against federal employees in retaliation that was sufficient for a basis to have the two point of justice and ha and that's exactly what we have here this particular defendant filed a bogus form fifty six iris tax filing documents where he indicated that judge winds judge gaetan and myself were his fiduciary and that was simply a false statement that in and of itself justifies an obstruction of justice and hands man but when you couple that couple with the fact that he had to be forcibly removed from a grand jury room that he was held in contempt on three different occasions that he was you know quote unresponsive in general and cooperative quote argumentative stated that he wasn't present when he was yelling and interrupting all of these factors all together all factors that also justify judge once this decision that an upward variance in this case was  three thank you i'd like to point out in the sentencing when the they start talking about the pre sentence report on page six cost us and say that he doesn't have any objections he said that he had sent in a number of objections and the court says we'll fight in inadvertently missed anything referring to he says no i'm fine with us or it's not clear that he's doesn't have any objections no i'm fine with us or in response to it you can have a copy of you can articulate that for the record but he had filed something as far as the variance goes he did object to the variance on page seventeen as soon as the judge does that and then of course after the court says all his reasons for doing what he's going to do again he tries to object and it's cut off the it is the variance that is based on the fiduciary filings the obstruction of justice is based on documents filed in general to me that indicate that they they keep putting they are trying to parse these documents out but conceptually all of these filings that he put in are these is the sovereign citizen kinds of documents even though he denies being a sovereign citizen they're the kind of now these documents had to come from somewhere he certainly didn't have them with him in the prison so there's a question of whether they were filed on his behalf i know that i looked at the postmark on the outlook which is in the record it is not the same zip code not sent from the same zip code that is prison zip code is so that's in the record so it appears that they were sent in from outside based upon the zip codes that are there in the record and in the varian also the court uses the fact that to give them another six months that he got social security disability which of course is what put him in trouble in the first place and what put him at level seven and what you added a think that that mr cox can clearly prove that if he was sentenced based upon the actual conduct in his case without the dollar amount being double counted without the handwriting being used over and over and over plus the civil contempt for it and without these documents that were filed being used in every enhanced meant i understand the sophisticated means because of the money order but the variance and the obstruction of justice i believe have to fall and i believe that the sentence is unreasonable and the court could have taken it into consideration the fact that he did do eight months in prison and part even being sentenced for the handwriting once again this year pardon me oh lucy he is sixty four years old now thank you think