delver and delver good morning to both of you make yourselves comfortable before we begin just a couple of observations for those of you who may not be familiar with our lighting system you will note that we have a green light which obviously means you may proceed a yellow or amber light which is a two minute warning and the red light means that your time is when you see the red li we'd be much appreciative if you could bring your remarks to a conclusion the only other observation i wanted to make before we proceeded again for those of you who may not have appeared for us before as you proceed with your arguments you can safely assume that we have had a chance to review the briefs the record excerpts set and some of the instances we've had a chance to read some or all of the record as well so feel free really to go to the heart of your argument with that will begin with u my name is richard rosen bomb on behalf of the d d l the brothers and dell that will be known as kenny as he was known at the court below and sure both the best here and danny were convicted after a trial by jury and emotional suppress of of various offenses concerning identity tax fraud and theft cases the case arose in in two thousand and fifteen and while we have a ledge that there was an unlawful seach search and seizure that the evidence was insufficient as to kenney what i'd like to focus on today would be first of all the court's error in allowing the government to prove to permit expert testimony in the form of a tax refund fraud expert who testified as to jargon and terminology that was typically or allegedly typically used in the  tax fraud and identity theft areas no one in in any of the briefs has cited to any case law where in an expert has been declared in this type of case while clearly there are experts that have been permitted to use their expert testimony in drug cases in tax cases and things of that nature that this court has never expanded rule seven zero two of the federal rules of evidence to allow for an expert with regards to an identity fraud i'm not saying that that couldn't be done but what i'm alleging is that in this case detective ken sealy from the aventura police department wasn't properly qualified in this case and the re weren't the proper predicates laid to declare him an expert now he was declared an expert with regards to kennie over an objection beshear did not have an objection so that comes to discord upon plain error and it's very akin to the same arguments that we started making years ago with regards to drug cases the experts in this case the expert in this case detective seeley was able to know nothing about the case no nothing about the specifics of of the actual fraud that allegedly went on here yet he was able to testify that certain terms met me let me be sure that i understand the heart of your argument yes or judge marcus we're reviewing it by the way here for clear error with respect to what the government has to show it has to show one that he's competent by way of background training and experience to opine to that the opinion itself is methodologically sound grounded in something that people in that field might recognize and three that it might help to try or effect if i understand your argument you're quarreling with the trial judges determination only as to the first pro to opine in the field or is there something else you're saying beyond that judge i believe that it also spills in to the second area i don't believe that it's based upon his face you know challenging the methodology as well as the confidence yes sir but you're not disputing that something like this might help a trier of fact take it in certain circumstances i believe experts and there might be ling all that is used here that the dryer of fact would have no way of knowing and that could help  capacity he said that by way of foundation that he interviewed dozens of defendants charged with stolen identity refund fraud reviewed their recorded calls t classes on fraud related topics and had testified previously as an expert in federal court not only in fraud investigations but in terminology at least in want to cation do i do i have that that a fair summary yes sir why isn't that foundationally sufficient to allow the district court playing its admissibility role to say he's  various forms of identity theft fraud and this expert was never designated as to what type of area i guess and i think the closest analogy is dealing with drugs while someone might be an expert in drug terminology in crack cocaine cases they may not be in another type of substance the words here were fairly innocuous words such as plastic meaning cards meaning could the credit cards are and in this case the expert even took the quantum leap as to the green dot cars which were the cards that were ultimately used after the tax refund came back they were put on to these green dot cards and in some instances they came from the a t m as we talked about the expert witness did the expert have occasion to know anything about this particular group this particular dialect there are many many c j cases that i've handled that deal with this type of fraud and some of them are from different ethnic groups in different cultural groups and i suspect that the terminology that's used in the different groups varies from from one to another and so we believe that a one size fits all type of expert is not sufficient in this case couldn't you couldn't you cross examine the witness on those aspects just like you would do in any other and where he thought the the witness might not have the full story and let the jury hear why that expert might not be correct in this instance or but that could be done but the the crew actual cross examine is not very effective because the experts already come to his conclusion as to what innocuous terms mean there sinister meaning and it was a defense lawyer do stand up there and say well that's not true that's not true there's no way to really do that other then to perhaps bring another expert but i'm arguing that an expert was not proper in this specific case under these circumstances so how given that we've obviously got a lot of cases that allow these types of char in experts how would you propose that an expert be qualified in a case like this what i've been says between what happened here and what you think is appropriate i think that the expert needs to be able to draw some facts from the case into what his expert testimony is going to be he needs to assimilate the facts in order to come out with the jargon in the terminology that's used he needs to have some understanding about the players and what they're involved in in this case the expert had no involvement in the case whatsoever he didn't review the videotape of the undercut that's hardly fatal to any expert any time that's not you have to fly in federal court all the time without having been involved personally in the case for example pathologists come in and they review reports forensic reports from somebody else orthopaedic surgeons operate and then someone else comes in and says i've reviewed i've reviewed several viewed the cat scans i've reviewed a variety of things one involved even as treating physician so it would not be unusual for an expert to otherwise be qualified and be able to opine without actually having had anything to do specifically with that particular case why is that fatal i'm not seeing it in your pathologists example i see that as being very distinguishable from from the scenario here here you're  dealing with words that are said during the meeting and you're trying to interpret those words i didn't this expert say something like he said the word fos f o s is a term identity fraudsters used for information or information like the name date of birth social security number etc of an individual i ventured to say they're on three people this courtroom who would know that terminology that vernacular the word thoughts so would certainly help a juror and now if he's otherwise qualified having heard the term used on multiple occasions in these kinds of investigations why couldn't he opine about the meaning of that word i'm missing what it is that would yield reversible error on the part of the district judge who said i let it in well our contention is that by taking the innocuous words and then giving them a sinister meaning that the expert has been permitted to take this from an innocuous situation to one which potentially violates the law based upon only the experts just to moni when he has no knowledge i see that no knowledge about the particular case or no knowledge as a general matter about the use of particular terminology about the particular case he may be very knowledgeable in how the terminology is used in certain cases and i believe that the pathologist situation is quite different because  used to looking at the evidence that they look at separate and apart from what has occurred because the pathology here we're talking about what happened in an ongoing alleged conspiracy and the expert is using the words to try to tie in the defendants to the conspiracy i hate to cut you off just marcus no no you go ahead i see that my time is waning i would like to touch on the sentencing i had to because as you know in this case but sure testified the sheer took all the blame bashir said my brother had nothing to do with this the there were firearms that were open and present leaning against the wall in the townhouse that seized me the townhouse was occupied by at least six or seven people some of whom were cousins of the informant that he didn't say the question becomes whether kenny actually had these firearms in a position that under to be one point one he should have been assessed the two points and we urge the court to reverse based upon the ground set forth in our initial brief i think that when they left the townhouse that they did they take the firearms with them and no your honor the they stayed in the high state in the house as they abandoned the townhouse everything there were assuming so one individual was followed as he left he was an unknown male and he got away and the second morning my name is brandy bring terry gallery and i represent the united states this morning to start with the expert testimony in response to that the expert in this case was qualified broad y as an expert in fraud and his experience in that regard was laid out as as your honor judge marcus pointed out very clearly in the record he had been identified theft task force officer so identity theft which is exactly the crime that we have here he had been specialized as a task force officer since two thousand and twelve he had trained with the i r s secret service h s i all of those three government agencies and then on the private side he had trained with citibank and discover broward community college and broward police academy he had conducted over seventy five fraud investigations over thirty different individuals jail calls that he had listened to  involved in more than twenty db reef's says he had personally played the role of an undercover at least three to five times top numerous classes regarding fraud testified in thirty to forty fraud cases and had also happened in this case correct here on false tax returns then get it but all debit cards so it was exactly the same as in this case that he had worked on what what we know for sure what the record reflects is during his cross examination there was some questioning about that and what he clarified there is that his experience included a number of tax fraud investigations so being an identity theft t f zero involved in tax fraud investigations would certainly suggest that it was this same exact kind of fraud the stolen identity refund fraud  given that broad based of his experience and training our position is that the district court was well within its discretion to go ahead and accept him as an expert witness in the case and then our position is that he used he called upon all of that experience that he had in that training to interpret some of the language that was used in this case by the defendants on the video that the average lay witness a person an average juror might not be familiar with so he was able to identify some of that jargon and give it meaning as well as just give the jurors a broader basis of a background in this unique kind of fraud of the stolen identity tax refund fraud are you aware of any case that requires an expert witness to have particular involvement with the investigation or the criminal charges i hand my understanding your honor is that it can go either way when an expert is testifying in this regard there are some cases where the expert had no involvement whatsoever in the investigation itself and was only called upon to give background investigate background information about the kind of fraud or i'm sorry the the kind of crime or to interpret certain terminology there are other cases where the expert was very involved and had listened to hundreds of wiretap  recordings and it was based in part on that knowledge of everything that happened in that specific case in addition to their broader experience in other cases that they were qualified as an expert i think the thrust of the question is whether the expert must have some personal knowledge about the case i don't think the answer is no i i would say i don't believe there is your honor i think that it's possible to present the expert with certain terms and ask the expert to interpret those  terms certainly it did help the jury in this case so all three then of the requirements are met or to clarify what did this the expert listen to the recordings that had been taken at the townhouse so what how it played out at trial your honor is that the expert testified generally about the surf stolen identity refund fraud and then at some point gave defined certain terms like dump work plastic p d and confirmation and then was allowed to he and play part of the video recording that the cooperating suspect had made when he went into the apartment building yes that's my question you have to listen to it only during the trial or before he gave his of the testimony i believe that i'm not sure that the record is crystal clear on that i do think that we can infer from the record that in his preparation for testimony was not the very first time that he had heard the recording in court and he was able to give meaning then to those particular words that he was asked about he was able to place them in context within the conversation that was happening during the recorded video  he did not give any sort of ultimate opinion about whether the speaker was in fact guilty and that is really the line that has evolved in the case law as far as when an expert testimony goes too far is there a transcript of the conversation on the recording at trial there was your honor and parts of it were in korea also was a translation transcription paper copies of that were provided to the jurors directly i take it to the jury room no i just had it in front of them while they listened to the recording well they definitely had it in front of them while they listen to the recording moreover the recording itself the video that was played had married up the transcript in simultaneous time with the video itself so as the video was playing on the screen the almost like closed captioning was appearing on the bottom of the screen with the transcript  if there are no further questions on the expert testimony i'll address if there are any questions about sentencing we leave it to you if you want to add anything if not we thank you much for your efforts while i have a question about count three  e you want to deal with the farm first i have nothing specifically to add beyond my brief on the fire i'm so unhappy well if i am saving the townhouse and so everybody gathered up all the credit card documents and everything and fled the cat townhouse because i thought some i was watching the farms were left out that's his argument so there was no connection well the firearms it's true that the firearms were left there but so was and of other evidence of the tax fraud they did not have time to completely clean out all of the everything from the house that she or he was in plain view in the room where they all are it was your honor yes and if the panel indulge me i have some problems on count three i'm concerned whether or not we have all the evidence in the record and not to support the verdict on count three and since we'll have some real battle time i wanted to raise this with you because i can't find the evidence count three list five people who and i think three of them came in testify that that's my personal identification of never allowed these two defendants to use it so we know who the people are encountering and the reason why i ask it because it's aggravated and has the consecutive twenty four months and you with me on what i'm talking about i believe still your honor ok scout three where they had to possess the information social security numbers date of a real person and that's what's charged there and i took the names of those five people and then i looked at exhibit twelve which is a tax returns that were actually filed and none of those people are on the tax returns understand that that's what you're telling me now i know that's what i understand the record i could be wrong yes promise can you this question but you don't know the record well enough to tell me what you're saying since that had not been an issue that was raised by the defense they raised sufficiency of the evidence as to knowledge that these were real people right so i guess it is raised by the evidence and what i'm trying to do is to see is there any evidence here that would lead them to believe they were real people yes your honor there absolutely is and i think it is circumstantial evidence and where is that evidence because let me tell you the next thing is all of the documents are in boxes  that have assume they have these people's names on it but all we have in the record is a photocopy of the by goes box we don't have i couldn't find any bankers boxes no documents whatsoever and i record of exhibits and they could be c d they're all went out with the jury and i can only assume that's where it is you know what i'm talking about i do your honor and i saw that myself that when the exhibits were filed with the court that certain exhibits were only a photograph of the box which is not very helpful i understand not only not very helpful is no evidence before the court i couldn't find a single document in the record that has the names in piece of the people alleged in count three that kerry consecutive twenty four months senate no evidence of any document in the record with their data on it so i don't know what we do about that well i would have two things to respond your honor ok first as far as whether or not someone is a real person these people came and said i'm a real person ok we know they were real people as how did they know what ok we don't have in a document that they even had their id if on what i'm saying i think i may have lost you know ok i'm saying there's not a piece of paper in the record that has lond churches name on it with any of her id ok our jeffrey fluker catherine lawson i think it's in those micro boxes it's just not in the record are you following me i do and i haven't looked at the banker's boxes completely myself so i am not able to to point you to which piece of paper it would be that would fulfill that however what would say this is a problem you know i should have scanned all the documents into the record we consistently have this problem in the southern district and then we were to have copies of whatever the evidence is i think it was admitted demain i think the boxes were admitted they boxes made it on the on the courtroom deputies exhibit list they were your honor they were definite that as far as i understand based on the record we can see that each piece of evidence that was identified was arrogance in this case with the the point that you were you know and you have a dog and i'm with a dad or on at best circumstantial evidence you thought that was a real person i understand that i'm trying to get to where is this what is the circumstantial marcus's question which piece of paper shows that they possess that any circumstantial evidence right when i was speaking about circumstantial evidence i think i was on a different track ok as for me answer the question in this way you put on a fraud expert who said that the c's documents with the p i appeared to include medical billing sheets ledgers and hospital patient printouts and an i r s analyst testified that refunds had been requested in connection with the  what someone from iris but also from social security had testified that they had reviewed all of the information that had been seized in the case and cross referenced those names and social security numbers or dates of birth with their records and out of the social security expert was able to not expert but the social security witness was able to testify that out of th sixteen hundred and approximately ninety names that she reviewed that were provided to her only sixteen of those did not come back as being real social security numbers i would need though however to double check to make sure the five names that were charged in this case do appear in that list of sixteen hundred names all right thank you thank you may please the court judge hole i obviously raised sufficiency of the evidence and argued that there were no real people i did see the boxes that you referred to in the record and i likewise have not matched up to sixteen individuals to see whether those were the same individuals that or this is not a claim that you made in the blue brief and that you're not making now is that no it but we did discuss whether there was knowledge of the defendants knew that they were real people yes that i understand with with regards to the expert  they're real people they still got to have those people's i d s are something about those real people that they do but if you had agree those boxes were it minted evidence they were so we just don't have the scanned copies of the documents that are in the boxes is the problem right and it is where do you think the boxes are if you saw where are they i do not know where those bite was no movement happened in the clerk's office down here just gives all the government back the evidence would tell them not to do but that's what keeps happening but i'm curious if that's what happened in this case they just give it back to the government and nobody puts it in the record i can tell the court i have two boxes of materials i wasn't a trial lawyer the government's saying that the expert obviously help the jury in this case i'm not really sure how the government makes that assertion it's probably more more akin to help the jury convict in this case the expert inserted criminality he said well there's almost always gone is involved in identity theft cases because these people might be armed and they might be dangerous and this is exactly what an expert shouldn't do is try to insert prejudiced into the case this expert should not have been allowed let me let me you're raising now a slightly different argument the first argument as i understand it regarding the experts is that the trial judge abused his discretion in determining one that the witness was competent as an expert to opine and to in saying that the foundation the methodology was sufficient i understand that argument now you're saying and you do argue it in the brief i just want to be sure i know what you're going through is that even assuming argued wendell that the witness was qualified by background and he was able to give an opinion about the meaning of the terms he did more than that he gave alternate opinions about the ultimate outcome of the case and thereby invaded the problems of the jury that's what you're saying now correct where in the record will i find a particular comment made by the expert that invaded the province of the jury as opposed to saying this term means this this term is used by fraudsters in general etc where did he go too far if the court refers to docket entry one fifty a page four ninety nine that is when the experts said a lot of individuals we have dealt with are armed when we're doing these crimes between pages i have for fifty four to four sixty two was where the government first started dealing with the expert and giving his general meanings and again our contention i think that the court knows what what we're arguing here because i mean the thing what the general argument is what i'm looking for is some particular assertion by the expert that went beyond saying this is what frauds to say this is what fraudsters generally do this is their lingo but somehow went beyond that and amounted to an invasion of the jury's process dr trapped in the argument that you're making now yes or documentary one fifty a page forty three is a i think  a representative example the number yes for eighty three the state detective and again we're dealing here with mostly federal crimes and so they're saying that this state agent has has great expertise but the detective claimed that the term work meant opening credit card accounts and filing false tax returns using the victim's p i r i that went above and beyond  just interpret the word if an expert in the drug field would a walk into a courtroom and he said i've been involved in fifteen hundred undercover cases and investigations and the word marijuana is used in lingo in a variety of ways like we grass whatever and he comes up with some other obvious cure reference to a name that you might never have heard of wouldn't he be free to say folks who deal in marijuana refer to it as x that this is the lingo that dopers use why couldn't experts say that i think he could refer to the language in the dark on isn't that what you have here or if not i may have missed the reference that you just made well he's in this case did you checked it was not only referring to his interpretation of the of the words so marijuana is a pot but he's saying that work means a b c and d and there has been no no showing that that that's actually true it's just an expert's an opinion obviously is subject to cross examination and can be impeached but it's our contention that he shouldn't be able to give that utterance to begin with let me ask the question this way before you can establish a basis to reverse on the grounds that the district judge him robin and lee admitted the testimony you've got to show that the ruling by the trial judge was manifestly erroneous it's a real high burden when we look at abuse of discretion in the particular field of a judge playing the dahlberg role of flashing the card green or red whereas the manifest there are judges we believe that this manifest error because of the prejudice that was caused not only did the expert give the jury more information then simply an identity fraud case so he's at the heart of the argument really goes beyond competence and methodology and says he said too much and went too far even if he was qualified and that that created  asked the court to reverse as to the judgment conviction and you know where the evidence for this list of sixteen hundred people social security i know there are you know where that is in the record it was very much thank you both and will proceed with the next case which is the american civil rights union versus brenda's snipes