thank you your honor good morning may it please the court can everyone hear me yes thank you my name is tiffany and i represent the united states this case is simply about the fraud that the defendant perpetrated on the united nations and the later false statements they made during the course of the investigation into the fraud the district court here erred in granting the defendants motions for judgment of acquittal with regard to counts one and fo the indictment charging wire fraud conspiracy and wire fraud when it determined that the government failed to prove an intent to defraud the united the united nations as this court is aware defendants generally face a heavy burden when it comes to rule twenty nine motion because district courts must draw every reasonable inference in favor of the government and that this court recently stated in united states versus archer last week that just record must be careful to consider any reliable trial evidence as a whole rather than on a piecemeal basis when you apply that standard to the evidence presented to the jury it cannot be said that in this case there is no reasonable juror who could have found that the defendant possessed an intent to defraud the united nations by entering into the cooperation agreement with the united nations where it agreed that it would spend the money for the purposes of the grant proposal which was to build a radio station to support the development of women's s didn't require the dollar for dollar spending on the radio station i don't i they they may have said that but the reality is your honor when you're looking at what was before the jury and what was instruct jury whether or not dollar for dollar was required the whole idea of this benefit was not as the district court cast a district court cactus as being a bargain for a radio station the baddest not what was presented before the jury basically the united nations indicated that these are proposals in which the united nations decides it gets variety of proposals from different fraud the intent of the fraud and what the plans were for the fraud what was the scheme how does the scheme your honor is basically to get money from the united nations in order to allow the district apart to have the  you know that all that money is going to be spent for purposes to affect choice the grant and here they promise that you know this money was going to be spent in order t think the district court is drawing a distinction between a scheme to defraud and then getting money and then and then deciding you know if you get the money to to him and that normally is not not for profit that's purporting to be you know expert in an area in which it has no expertise in which you know many of the board members did not even know it was engaging in this it's almost like this is what i thought you were going to say look they asked for too much money that didn't indicate that they work in a needle this money and that's where that that's what evidence is the fact that they plan to skim right from the beginning and therefore it was the money was spent and even before they knew that the the accounting bar submitted was fraudulent they still cut off the remainder of the contract because it was submitted laden didn't have enough documentation so maybe it doesn't actually that the u n really did care about the specific dollars being spent on the radio station well i think that press i think the government's point representative who's who stated that you know we need to know how this money is being spent because of the fact that this is not it's not it's not this is not the un's money this is money from donor nations across the world or member countries and we're going to how do you respond to the argument that they ultimately spent over three hundred and fifty thousand dollars on the radio station and money is fungible so we have this that that's like treating the bargain and saying well there's a dollar for dollar radio station out there but this is not like this is not a situation where the united nations contract it out because they were looking for an entity to build them a radio station is an investment to the citizens of iraq to hopefully foster and plant seeds to grow messages of gender equality so it's somewhat in candlelight terms i think what it's like and i think maybe what you're saying is spending the particular grant money on the radio station was part of the bargain that they wanted is that right i'm saying that the bargain was to spend the money as as per the grant proposal that is actually bar not the radio station about what it is like the commitment to spend the money and you know produce something that will have the result that you know what you really are an essential to united and you have these two different different lines of cases that go under the heading of two different theories about a new sailor benefit of the bargain and then a separate theory of the right to control dollars now are you now describing the right to control theory because you're saying they didn't just want to reduce the show and they also want to you know had you know had the right not to be deceived into having the radio station in a certain way yes because of the fact that  mean that it naturally flows from entities that are giving grants out i mean this is not if you're for example let's say you're the government the federal government's national science foundation there are plenty of pride cases in which you know the grants he performs the research but there's fraud conducted in terms of how that money is being spent in the federal government requires the same type of accounting the united nations having the money spent a certain way was part of the bargain so so maybe the right to control theory is sort of this special case of the foot of the bargain theory does that sound right or should i kind of think of it  longer along both fine here because that you know this is how this case ended up being cast once we accepted that countrywide was to be applied we kind of had to kind of step into you know the government here kind of notice that there were almost i guess contract like obligations pursuant to the standard cooperation agreement but now kind of standing and taking a look harder look at this it's not quite the typical benefit of the bargain type of case because of the fact that this is not two entities negotiating for a bargain it is one entity saying to the other i like your proposal i'm going to give you this money but in order for you to get the additional money and in order for us to know where this money is going to you need to give us good accounting and that's what jabar powers on behalf of their organization did but as soon as they finally actually saw i was actually just asking you so so should we think of that the requirement for the counting as part of the bargain or should we think about it as the un's right to control the use of this money or is there not a difference between those two i think under these particular circumstances there is not a difference between those two things so in looking at it in terms of the benefit of the bargain the question is well what is the bargain and this is where the district court and the government diverged because we said at the outset when they said when they signed into the into entered into this relationship it was with the intent not to spend all that money you know for for the purposes of the grant they were not going to be abiding by the that's exactly what i was trying to get there but facts i think that is exactly the nature of the quote unquote bargain i don't even think bargain is the correct word  thing you're saying a rule twenty nine you could get there by your princes d based upon what's what's in the agreement and also what the common understanding years of ramps that they are not to be forever exactly on purpose is that the un has no interest correct i mean the un has the un has the broader interest in terms of development but it's not as if at all as soon as it's built or as soon as it's running as soon as all that money has been dispersed and spent as it should you know the un it's not as if someone can call and complain afterwards and say un the station is x y and z right the money at the during the course of the t turns out that the station can be built with three hundred thousand instead of three hundred and fifty thousand that's not this case but let's assume that and they cross every dot every i and cross yeah i think that that's that would be a slightly different scenario because of the fact that you know you know i think for some of those pics the grants he would just either disclose that you know the fifty is governor or whatever but i recipient of the money to pay it back correct because that there's been you know the money has already been you know dispersed that counting is all good you know the quarterly reports are all good and show you know that the u n could say listen you may need that for a rainy day in order to you want to social gaffe to talk about women's rights but sadly not this case and and that's why judgment ashleigh's point about right to control like again as a grand tour you know that's charged with you know the sky this money they have a right to have granted this money to a more deserving your organization or to an the u n gives you three hundred and fifty up front you cannot start spending it until you know until you can turn into the green meant once you start spending though you need to account for everything before you can get the remainder of the one hundred right so and here you know when they finally did some that their quarterly report they didn't you know to the extent that and this goes to the defendant's good faith argument to the extent that they're saying well now we could have we could have spent it on anything because no matter what at the end of the day we're going to get you that radio station and what's the harm in reporting to the united nations hey we spent you know thirty thousand dollars to repay mr jabbar stats but you know this you know the worry about it it's all going to go to the radio station but that's not what they did and to give a reasonable inference in terms of saying you know these parties did not go in with the intent of no matter what we're going to build a station they went in and mr as mr tripp are you can admit it you know such is life money is money i had to pay so as soon as that money came in he was going to feel like he needed to spend whatever he needed to spend and it's not as if mr jabbar said to special agent claims act we demand why are we here again you we built the station it's up and running it's great all things are great you know we did what we were what we had promised to do that's not you know how mr jabbar or miss powers talked about this and i think the most compelling piece of evidence is that check right that was written in seven thousand two hundred and one thousand dollars that was disguised as a bow radio payment but in fact what pay off the streets of our town of tonawanda tax reasons that forth in our brief sheaf among them is the fact that the government admitted that the evidence failed to establish defendant intent to harm and that it mission is binding on appeal now also as your other pointed out at the very beginning the heart of the matter here is the government also admitted that there was no provision in the agreement between the united nations and the defendant  that the money could not be co mingled or that dollar for dollar spending was required this appears on page twenty one of our brief and in the transcript that joint append that nine hundred and thirty three on top of that the government would have this quarter but i'm not from the point on that point can i just ask so the government now says well they acknowledge there's no expressed requirement for that but if you look at the agreements where the u required an accounting of every dollar spent why isn't that a requirement that all those dollars needed to be stern that it was important to the un in the agreement that every dollar needed to  well i have two responses to that the st is to take that back and that the government hinges much of its argument on what you believe the nature of the the agreement was between the united nations but they failed to party may have meant the district court ice cream sandwich hypothetical we think really drives this point home so if this court will recall the district court posited imagine there are two accounts three hundred and fifty dollars from the united nations goes into one account money from private funds exist in a different account the district court asked the government if these private funds are used exclusively to build the radio station and the grant money is under the contract if they do do the ice cream so we tried to circle would they have to submit an accounting that said that the grant money was spent on ice cream sandwiches wouldn't they be required by the contract well i know that the government makes that argument but interesting lee they don't point to anything in the cooperation agreement and of course we don't have the program document to say that all we know is that the united nations wanted an accounting at the end of  the st reporting period the reason that they did not just the the remaining one hundred and fifty thousand dollars was in large part due to the fact that they just did not get their report on time but the report  accurate accounting is really important for the u n and isn't it weird for us to say or for a court to say this isn't really part of the bargain it was so important to us that they cut off the project in the middle because they got it leaked and then a cour tries to play a little bit fast and loose about what it thinks this agreement was i mean on the one hand they argue it wasn't a contract it was a grant and therefore it that has legal meaning somehow i struggle with that argument today they say the bargain with not actually to build a radio station rather the bargain was that the money be spent in a particular way notwithstanding the fact that we don't have the project document and the government has conceded that the express term don't necessarily disagree with that except that in this case the government is asserting that evidence of fraud is this failure dollar for dollar expenditure so then i think the or have to ask itself evidence that might be sufficient evidence to go to a jury how your express terms of the contract dreams of the actual bargain expressed in the contract to i which i'm that was cool i understand and yet i think i would put a finer point on it which is to say this court should not occur at the very least it should be really very reluctant to draw inferences about an agreement between two parties when by the government's own admission it's baled to introduce the dispositive document that memorializes their agreement but but even if we could assume that the lack of dollar for dollar expenditure constituted a breach of contract we've then run into the fact that as a matter of this court case law that alone does not establish fraud which is why i try to move to say if we take a thirty thousand dollars foot view of this case it's so unusual in part of the  that the defendant really miraculously established a radio station in record time in a war zone and because this radio station is broadcasting pro women programming exactly the programming the united nations wanted it's become a target of attack and had to be essentially saved by the french and canadian governments at times this this is a situation where the united nations only wanted that question with posed to one of the government witnesses and they had to concede that they didn't know the answer is as and in fact this came out through the government's witness that the defendant incurred substantial personal debt by taking out loans from people that they knew who were so enamored with the radio station and the programming that it was providing that they were very willing to contribute to help fund it which is why at the end of the st reporting period it turns out the defendants had spent three hundred and seventy four thousand dollars on the radio station and by the time it was all done they wanted up they ended up spending six hundred thousand dollars on the radio evident you're out of the rest of the record evidence here is a little bit confusing the certainly they had they had the idea for the radio station before they apply for the grant obviously there was some confusion about different iterations of what the grant proposal was and whether the defendants were fully aware that the united nations was on its own sort of wanting to impose its quarterly reporting requirement and there still ambiguity as to whether mr jabbar himself was aware of these added requirements but at any rate they had a preliminary agreement in place in november evidence in the record suggests defendant believed that was the agreement and at that point they began spending their own money to prepare to build a radio station two issues so if the un had decided well ok we're going to contract with somebody to build this radio station for women we want it to be a woman owned business completes the project and that's important to us and mr jabbar to see the u n into thinking that even though he's the owner that actually someone else was the owner is a woman in the business and so in between the contract would say that deception didn't matter or didn't go to the benefit of the bargain because they got the radio station that they had bargained for in the beginning is that  well and i think that my answer is going to hearken back to your honor's question about that is a right to control three really different than a false pretenses theory i certainly don't disagree that in the hypothetical you could  envision a scenario much like your honor just did where you might have a right to control issue but were that case to come up to this court on appeal the st thing it would have to ask itself would be to the government a certain that theory of liability during the trial and the reason that the government's right to control theory fails in this case that there was no right to control syria started in the indictment there was no request for a right to control theory but know this is a purely hypothetical because a hypothetical of course that was not the fact of our case under here on a type of i mean i think that that could give rise to a right to control theory but they are but it is distinct from it pleads that in the indictment and the jurors are given a right to control jury charge none of those things happened in this case this right to control theory with the rd id for the very st time on appeal and so the district court was correct to reject it but if if the look say that the can let's say that the u n had put into the contract the requirement that it be a woman whose business i mean i guess my suggestion is i don't see that part of the bargain is the identity contract did require accurate accounting and it was important to you where in that they get information on where all the money was spent and in fact in this case they cut off the project upon that receiving that why couldn't we conclude that that's part of the bargain that you wouldn't want to know were all the money was spent and wanted a trustworthy counter party that would spend all the dollars on best all you can squeeze out of that here is that there was a breach of contract you then have to ask well what is the evidence that at the time the contract was entered into by the party they had no intention of actually performing and this has been the fundamental problem with the government's case no no no no that's not but that's not the point i think the government saying that course they have an intention of performing but they also have an intention dollar for dollar matching was not part of the agreement and so well the defendant i mean the evidence very clearly shows that at the same time the defendants were using money to for personal use they were receiving money from other sources that was specifically earmarked for the radio station and there was a there that receipt of private money far outpa the money that was spent for personal use i know i know we've been going for a while i don't know if the court would indulge a pivot to my suppression issue  i think you you know i just want to say i think one way to think about this is that an interrogation at a police station doesn't always qualify as custodial but that is sort of the hallmark what we have here is if you will a police station on steroids there is absolutely no question for all of the reasons that we set forth and our brief that mr jabbar with in the custody of the f b i agents he was quite literally at their mercy and had no ability to sort of terminate the interview and go about his evening walking ten miles back through heavily guarded compound and order to end things and so strengthens our position so he was a civilian he was working with military officials the evidence in the record is that he understood that if you did not comply with the directives of his military superiors he would be quote on the next plane out he was told by his military superiors that the f b i wanted to question him and so a very fair inference that can be drawn from that is he believed  to recognize it as factual findings made by the district court which is here there were armed guards concrete barrier pass code was required to enter the facility escorts were required inside the facility the job bars escort  sidearm and the facility was completely unfamiliar to disbar he'd never been there before this facility was located close to a dangerous neighborhood and a war zone and it was a ten minute drive away from the u s embassy that combined with the fact that his military superior told him this interrogation was going to be taking place and the fact that during the interrogation he was confronted with evidence of what the government believed was criminal activity checks that i feel comfortable with the discussion that we've had on that issue the only other thing that i will add is that if this court is inclined to agree that the statement should be suppressed then insofar as mr jabbar is concerned it may not reach the mahoney yes good morning your honor so i guess that plenary observation is it's a rather preposterous idea that somebody would think of rich in themselves by building a radio station in a war zone and what really is important to me is to emphasize the fact that we're dealing with an indictment which had a very specific serious fraud in the indictment and that theory was that that was something that some representation that the defendants had made in their application for this grants or in the contracts or whatever that was inconsistent with their use of the farms to fund defer one of the funds constituted a violation of some promise now you can i posit five all sorts of other ways that the government could complain about what happened but they have the obligation to defend it can't be convicted any theory or facts other than what were contained in that period of criminality in the indictment and what actually happened at the trial as very quickly in the trial maybe  realizing at that point that they really didn't have this problem with these misrepresentations to prove the government began engaging other variant theories of liability claim that they made misrepresentations in their application  and that the u n cut off the projects when they didn't receive it isn't that a commitment to provide this to be accountable for the specific use of these dollars why why isn't that part well because st of all fraud requires misrepresentation now to strip the misrepresentation that there's no evidence that they misrepresented at the time of the agreement that the intended to submit a fraud some sort of false accounting wrong the accounting is all they didn't say that they put money in their pocket which was reimbursement for the money that then spent on the radio station the government the government said well they didn't put that in that account and every witness by the from the government and every witness who was asked said the purpose of that accounting was not to say not to trace where the money went but to state what had been spent on the radio station and that was what it did no witness for the government ever said that there was anything wrong with any line item in that accounting our own way to go our own witness bush which a meal did point out and we questioned about this there were some differences in the accounting compared to the budget because for example they  forgot that they really needed a generator so they had a cheaper transformer and they bought a generator the government never claimed that that was anything improper about that and in fact the agreement allowed for differences and substitutions so it's a hoax to say that there that accounting it was accurate there was no witness says it wasn't every witness said it was only there this is so the expenditures the government the jury kept saying well you didn't that wasn't been there about whether the disbursement the money this is something the government had stipulated to or at the said many times during the course of the case the judge acknowledged this and so that was something that happened afterward it could only come up if it were a problem with the accounting as a quote breach of the agreement and of course then we get into the country wide the country issue but in fact that it wasn't part of the scheme to defraud because it was done after the government stipulated the pro complete with this person the money they made that stipulation they made that litigation position because there were money laundering counts as well and they occurred after the money was dispersed and so the government overlaps the scheme of the fraud with  the question the question was really truly is under the indictment was there a representation made to the u n that the very specific dollars being given to ok i would be dedicated to the radio station and the government conceded it wasn't and so really every other theory they're arguing is a variant theory that was never ever pled now i well you know there's the that and the thing about the the right to control just like an aggressor that for a nd of course that wasn't pled the right to control theory originally began as a question of how do we deal with cases where there doesn't appear to be any harm to an entity that's b misrepresented to and they're complaining about it's a right to control as a substitute for property that they have a property interest in their right to control their spending which has to do with giving the grant to begin with none of those cases ever said that means that they have strings on funds given to a grant here or given to the vendor to to buy something as to as to how they spent that money so and i think the other thing about the right to control theory that that  judge alarmist i think it's critically important is that theory also requires the best representation so what was the misrepresentation that had to do with the right to control theory  applied to different circumstances is that your position well that might be right to control theory in this case is that there's no firm of misrepresentation that alleged in the indictment or even said now as to what was misrepresented to the government about about how it was going to use the funds it was always about the use of the funds not about programming or amount of music or something something like that but in this case the only the misrepresentations that the government alleges was this but the right to control theory was that concealing from the government of what they were going to do with those dollars that is a problem but not disclosing something conspirators alleged besides to barb ours but the concept of misrepresentation that the government if you look through the government's argument their claim of misrepresentation relating to the right to control all have to do it turning that was accurate and that was important to the country it would be carried out and there was enough evidence to infer that they didn't intend to provide an accurate accounting that would be enough to just say that as a factual matter there aren't the facts which would make a difference here is that right that's right but also you have to show that they would have that intent was if they had at the time that they did the agreement this is under countrywide so where is that where is the idea that they didn't plan to account to see if they that that's a big if the government's conceded that that wasn't part of the agreement they have nothing to say that there was any agreement to sequester these funds you know i understand that that's the issue so you know that's a really big problem and  provide use of funds in strict accordance with the program document that was a larger document a compass a two million dollars worth of grants in iraq that was not before the court and i and nobody ever testified that that document itself said anything about exactly how the funds would be accounted for by a grant we do we never saw the body ever testified as to what its contents might be while we have is an indictment which which suggests that there w something about these written agreements and a list of the terms of the agreement in the indictment and you can't vary from that is very precise i never asked for a bill of particulars in this case because the indictment was very specific as to what it was alleging  station and it's turned out the government has had absolutely no proof of that and i ended up conceding that they never did and so that's the case and you can see you know i pot a size things like you know i  if what if there was an intense not to accurately account for it when there was absolutely no evidence it's not a question of the weight of the evidence is sufficient to have and there was no evidence whatsoever that there's anything inaccurate about the accounting but even if even if there were the government still to have to prove that somehow if that's the intent of fraud that's a separate scheme that a fraud the government agreed and stipulate and the judge found that they agreed that the scheme to defraud terminate at the time that they did ok i received the fun and once they had those funds they were their fund they were entitled to those funds what they wanted what they could reimburse jabar for his expenditures already and they could reimburse powers for her expenditures and it turns out it's quite clear in the record form the un at the time they were considering finally approving it that they already had spent between sixty dollars and six million four hundred and eighty four thousand dollars on this and having been told that the money was going to be forthcoming going all over to brand borrowing money because they knew there wasn't going to be enough time for them to get the money from the un to start building the rate station and have it ready for in time for the elections which are coming in the spring and which would give me all testified that one of the reasons they they approved the ok proposal despite the fact that they didn't have any experience in radio stations all they had a lot of people in iraq worse yet was that they had the capability of getting moving forward with this well yeah i think a very very different issue you know even in the scope of the one thousand and one or one charge you know even the most well meaning witness is going to make a mistake and calling events and and one thousand and one is sort of the st play in a federal investigators as as i think one of your owners mentioned well maybe that's a woman maybe that's a theft or something like that but it's not a federal offense and of course as we know even later on when the government tried to make it  agent and you're jumping ahead of me judge because this is a materiality this agent said that there was no end of the direct testimony i asked him to follow the leads that she gave him about the fact that they had spent money over in iraq already that counterbalanced and the county evidence proved this is absolutely true later on and he said that that whatever she said jim wasn't going to change his mind one way or another whether she answered correctly or falsely wait presented with these checks so this isn't a question of hypothesizing well you know it could have best get back to the investigation that only did he declare and i think the government found by this that it would have affected but in this case he agreed they were and you know the government never even redirected him on that question so of all the cases we have to say well you know things might affect the investigation we don't know and so on this is the only case where the agent has gotten on the stand and testified under oath it would have affected one way or another so unless we say the to reality is just you know a formalism that doesn't mean anything how do you ignore this and the government says nothing about it respect to you know the false statement issue as judge walker noted materiality is defined as capable of you know influencing a decision maker and certainly the answer to the question in terms of what happened with the findings that ok i had been granted from the u n whatever answer it would be significant capable of influencing a decision maker and so therefore regardless of whether or not i don't especially think when zajac was going to act on it specifically the fact remains that it's still a material statement for purposes of the one thousand and one  jabbar made and then finally i know we've been discussing the rule twenty one point over and over again ultimately i would just leave with the fact that under the standards of rule twenty nine the question is drawing every  of every reasonable inference in favor of the government is this a situation in where where the you know jury was properly instructed as to wire fraud they were also given a country wide instruction is this a case where i guess i got you know the whole question is whether or not is there evidence to support that the defendant from which a reasonable juror can and you know infer that there was an intent to defraud the united nations at the time that the united nations interest in particular when it's giving a grant and to this and there was testimony from the united nations representative about the fact that you know for held accountable they have to account correct because of the fact that you know that the grant process is separate and apart from a prepare my process for granted looking at projects that are in line with the united nations mission so it's like you know the american cancer society if someone is if it gives a grant for cancer research but then the money is being spent on ice cream sandwiches how do they count to its donors so much very much for the question of government