maple leaves court i'm here in behalf of mr robbins i'd like to raise a court first the issue of legally insufficient evidence this is a case in which there were some convictions for money laundering willful failure to file a form of ten thousand or more in cash i think what to start with here is prosecutor said to this jury admitted to the jury legitimate business are that mean he could not have been convicted of any of these counts no in context i think as we start to we move toward we're here about five cars out of thousands so so does it hit someone does this person have the as first and foremost and that is that in the nature of really what is claimed here that there's no evidence of any prior ongoing relationship with these five per purchasers as far as any knowledge of drug dealing that sort of thing so with it with respect to one of the purchasers i thought there was a from two thousand and four when the individual is showed mr robbins on the drugs that he was dealing in  fact actually he was not the purchaser and that's critically important purchaser was panic you're referring to lloyd's the purchase taiko purchasers no no only according to lloyd's testimony penick was the only purchaser and in fact said he will not take cash tendered cash he will only take cashier's checks or money orders lloyd was never a part of their transaction never had any testimony as to what was said in that transaction in the most important thing about it is then if we look specifically at lloyd lloyd said several things and he said i'm a drug dealer pen it was a drug dealer we kept it secret he also said we had it didn't he testified sold johns well again and this is this is lloyd now and it's not and there's no evidence that robbins knew that penick was a drug dealer in that at the time whatsoever in this case what the only evidence in this case is lloyd's testimony saying that tenet came and told him that robbins would not take would not take cash he would only take cashier's checks and money orders there was nothing said no evidence in the testimony what lloyd said was it was lloyd and tenet who then went out and said we are going to structure this by going to banks and get checks under ten thousand dollars so there was never a communication to here take the cash now by the way and here i am here this is a th page thirty four now they couple that with then saying the prosecutor asking lloyd he's the only witness on the stand and says well why do you think he only would take cashier's checks and lloyds and this is the entire rest of the argument of the government of what they claim is most damning saying i guess because it was for over ten thousand dollars i guess i guess that's speculation we don't convict on speculation and that's borne book law could you help me think about this in a more general way we have a number of counts here number of transactions in which there are varying amounts of cash transported in various kinds of bags and there are cashiers checks and so on and one friends well i just i just i look back at henry which we found which is another much money laundering conviction which we found the evidence was sufficient which seemed to  distinguishable because there then it was undisputed that that the defendant knew that the individual proposing the transaction had been involved in drug trafficking here it to me it's not so clear but we have a number of factors we have the use of a nominee or maybe gift recipient to take title to the car we have the kind of car purchased and maybe one or two cases  we have allegations and testimony about someone's reputation although not necessarily the defendant's knowledge we have a number of cashier checks tendered in some instances in some cases the elaborate nature of the legitimate upright business would do i mean you go into a car dealership and you buy a car and they say cashier's checks you can't walk in usually with cash and this that and the thing that the government wants to ignore th are their own witnesses who said there were no conversations this did not happen but he did take cash didn't he at eight thousand upfront in cash five thousand in cash let's say fifteen thousand dollars up front  cash different transactions right most often he said cashier's checks he said the reason was he'd been wrong which makes a lot of sense but what i'd also say it's in the case law and there's a tenth circuit case i cite in the brief and it makes perfect sense tender of cash alone is not sufficient to satisfy the element of proof of concealment although it's not tender he accepted cash in some circumstance and payment in cash and there's a ten circuit cases open payment with you compare hundred thousand dollars in cash if that's the fact that is not sufficient evidence to prove the concealment element it's open but i thought you were just saying that he did not take cash well i mean this we have a case it's not even as as as is stronger than that often he's saying i want to cashier's check why wouldn't i respectfully submit this just doesn't make sense because what if there's tender of cash i mean what would if he was really had knowledge of this you would never turn around and say go get cashiers checks you would say give me the cash if you say go get cashier's checks you're leaving a paper trail and you were infused about one thing because i thought there had been testimony also that many of those customers paid in here isn't that right yes and that was kind of reflective of kind of the financial circumstances of many of his customers and i mean also hard working that again undisputed so repairing cars and sort of  sauce making money on one hundred dollars a time for him by the way another thing to say about this case is if he was really involved in something from a don't you thing and it is i don't i'm not saying common sense right now this court case law that you would expect thousand dollar range rover sale house yes and the reason we know it is that the the records of the of the financing of these cars so we see what he bought the cars for we compare it to the sale price and the most he was making a couple of thousand dollars one transaction here that there are over one hundred dollars another transaction he probably lost money how much profit he made it is it is certainly this court and it's in the line of cases that i cited to the sport of dealing with it we you know when you're trying to rely on circumstantial evidence to establish mens rea you've got to be showing more in this court that we shown how much profit more well this court said substantial profit demonstrating a role substantial profit now here we have no profit any different than any other card you actually think he was probably giving pretty good deals i mean if i had if i knew a car dealer i bought a car and i'm on you know cardio is only making a couple thousand dollars report the cash so he registered vehicle and mr stevenson stepfathers name he put a lien on the yukon even though he was getting full payment and the government argues that that these were all  t first of all they had no relationship they had the testimony was by seasons and we barely knew each other in high school we didn't know each other after that was a test run things in a reasonable jury find from putting a lien on it even though he got full payment and putting it in someone else's name don't those things evidence and intent to date as i recall the testimony here was he paid fifteen thousand dollars down and the rest was to be paid he was going to pay over a period of months so putting a lien on a car absolutely put a lien on a car when you have on paid amount maybe the government reckless i thought it was twenty five thousand  sh it may have been cash but it was over time fifteen thousand dollars down payment stephenson paid in cash and balance and balance stephenson and then this is a quote from the record just told robins he would pay him the ten thousand later and that's a complete said he did not know the first buyers had won a drug dealers where do you get this from from my tax return the second one is stevenson see vincent has a legitimate business he has a bar to cash business to do and he and he says i kept secret that he did some minor drug dealing on the side and he said it repeatedly to the prosecutor i never told him that i was a drug dealer that any of this was any drug money but why do we have all the nominees why is no buyers an easy one and now the government uses the word nominate ok it sounds bad what was it that when you look at the record you look at what these witnesses said they said that let's say for example the aunt and the the a this particular one was that when it came to nominees using the government's term nominee it was often there was a benefit and there was testimony that i wanted to ensure it in the other person's name i'm doing a benefit for the benefit for them either i have a better rate or they can't get insurance that's that's a generalization i do not recall specifically as i stand here i'm sure it's in my group as to exactly what the testimony  s but i think the most important thing about it is stevenson repeatedly saying i did not tell him anything now if i could if i can and i just quickly on this one last thing that i talked about the most damning davis agreement they got on the stand they said look you know yes there are two bills of sale the reason there's a two bills a sale is the first we did we said we would give you a trade in our trade in of or other car and robbins was a good guy and he said look if you can sell it for a better price you know we'll come back we'll we do the transaction just buy it and that was and they said that's the reason for the second and then the other ones there's a yes you look at it and there's there's they're saying this the vehicle price is different from what the testimony was well all right i can't say they didn't produce the people other than stevenson who said there was nothing wrong with this and also look toya his ex wife saying i fill out the forms he did not so i can't say how the numbers got there but i can tell you what it absolutely does not prove and actually is proof positive it was not hiding and that is is not what it would be he was not trying to he was not participating in hiding drug proceeds from the government and failing to file the form and the reason is that to purchase agreements of the government points of different prices different price twenty two thousand and twenty three thousand you're not hiding it's gotta say under ten thousand to be hired if that was if that was approved now they point to another one that says thirteen hundred dollars which makes some sense by the way on the contract no question jerry robbins signature is forged he had nothing to do with writing it how do we absolutely in a and my lesson how do we know absolutely had nothing to do with the form of his forge signature i don't know how it got there it's felt his as a signature g r r why his name is je r r y don't you sign your signature you don't misspell your name so he had nothing to do with that i would submit i don't know there's some other reason maybe it's the monthly payment where he had the rest ten thousand to to pay off and he said  going to pay off in months that would make sense the point is that what the government rests on is pure speculation it would be and let me rest with this it would be as if the kinds of inference is that they want this court to draw  here is if you would say as a matter of logic drug dealers make fun use the phone to make phone calls i called my wife yesterday i am a drug dealer that's an inference it's a bad inference thank you within a week thirty five hundred nine i don't remember from there so within a week of the deal it was paid off and notably the next section there in page three i wanted to know there was a lien placed on the car no i did not he didn't learn about the three and counts eight was strong gust with regard to the nature of the transactions and the legalities that occurred with regard to that specific transaction count three as was noted that bar was purchased twenty five thousand dollars cash there's no dispute about that at all that it was twenty five thousand dollars cash that was not reported there we have evidence in the record which is a two thousand and seven purchase of a shovel and suburban and rightfully the court would of the circumstances were that our only count i wouldn't i wouldn't be here but that's not our only countenance the circumstances with regard to that count especially the fact that that adust the record the record from the car auction place specifically says the car was purchased for ten thousand five hundred dollars that's not even his testimony that's just the that's the business record that's validated right there the trial court concluded that honor we're looking at this in the totality of circumstances and with regard to that again that car was purchased that same day for ten thousand five hundred dollars but we have one or two bills the sales copies scratched out one found in the file jack at one found on the desk of at the dealership the day of the of the warrant was executed just circumstances there that are not your run of the mill average properly conducted business transaction those inferences and are allowed to rely on circumstantial evidence and inferences when we're making a case such as this support the finding yes i want to ask you about a point that is on page that starts on page one hundred  critique there wasn't much of a response to it in the in the read brief but that is that the charge of the charge with respect to section fifty three twenty two and whether the instruction is is inconsistent with  the supreme court's decision and rach life and and in fact that the charge is different from watching judge sans pattern instructions there is a difference there and watch the government's response well first that obviously bad stuff is an older case that everybody is well aware of it by the time this comes around that with regard to the i didn't pull the briefs quickly enough here but we're speaking of the word use of the definition willfully  charge specific chant right for the purpose of evading the reporting requirement i don't know that there's much of a difference but the supreme court thinks that seems to think that there is a difference but in rats not the problem there your honor was on the just on the facts th two problems there were that willful wasn't that wasn't part of the definition of the or the instruction that was provided to the jury the district court there didn't think it even had to do that and there secondarily and relatedly was that it was not a related to money laundering it was a it was a structuring charge so there the funds had been obtained through gambling profit or debt the other way i guess it was a debt that was racked up during gambling and so he was going to pay off the debt office supposed to pay off the debt and there was nothing in there that made those funds or made that inherently illegal charges given this is correct when conceded in my brief the definition of willful was provided with regard to the initial instructions not with regards pacifically to those to that count that set of counts but here the instruction certainly and willfully included an intent to do something unlawful and that's what the supreme court saw was missing and wraps off that the jury had to find that he knew the structure in which to engage was unlawful and that's the definition that was given in this case of will was intend to do something unlawful so not only was it given and he'd credence to paid attention to in this case the definition of willful but also that was a structuring and i think that's important to keep in mind that second to just ask what is the status of the car dealership the property the government initially claimed it as property to be forfeited but i believe it said then it was going to  relinquish that claim and dated back to the defendant what is the status that's been taken care of think you're out of that's the matter is now closed and it's been dated back to mr robinson so that's no longer part of the claim it's just the seventy s thousand dollars that the money part of the forfeiture claim ok could you talk speak to my general question before about the government's position on what facts are particularly telling as circumstantial evidence here of knowledge i'm concerned about the go what the government has used to demonstrate the willfulness of the money laundering off fence and the knowledge that mr robbins needs to have had  and you seem to play great great weight on the use of the nominee and the payments in cash sometimes even the style of the bag used to transport money also the kind of car purchased and so on do you do you think that someone buying a car and putting title in the name of someone else is that's all red flag for a car dealer or what else is is telling from when that car was not his it was never going to be his and he was the only one who ever drove it in that context yes i appreciate the difference with regard to count seven where we had a fiance and i feel it's coming in i appreciate the difference there that's a different relationship and she testified that she drove the car but the simple fact that one person's buying or paying in the title goes to someone else is not a red flag necessarily it's i don't like a low flag and i think enough yellow flags can make a red flag but no just that single circumstance standing alone would not be the you know end of our proof would not be the end of the government's case we couldn't stand on that no and the government seems to rest also on the reputation that various people had for dealing drugs but the evidence seemed sketchy about mr robins own knowledge of the reputation i guess i'm talking about not lloyd so much as the other stevenson and so on was their direct testimony about his own knowledge about their reputation there was testimony about their reputation certainly with regard specifically to talk about hi knowledge of their reputation and reza posed to someone saying that he had a reputation as a drug dealer kind of in the city that we certainly were and there's no that's sort of the point in the survey case you can't do that unless it's dear diary drug dealer came in today and bought a car i mean i don't really know that that that that not to be flip but that's i don't know otherwise here where we have testimony from people who say i know that we have testimony from people say i didn't tell him i was doesn't mean he didn't know based on the circumstance of the transactions that they were asking him to conduct the reputation is a very in a more amorphous context it's kind of reputation and what community and what size population and in what neighborhood and so on but also just standing alone again i wouldn't stand with the government wouldn't have put this case forward strictly  reputation alone it was the nature of the transactions it was the type of vehicles purchased it was the request for nominees it was the way in which you know a couple of the specifically try to be specific but count thousand and louis this was in the first part purchased from from from mr robbins there were other cars that had been purchased so and this trading up and we had testimony about how the trading up for flasher in place your vehicles is a sign with regard to lewis specifically we had information that he certainly wasn't involved in drugs had been wasn't present at the trial because he was deceased because of involvement in drugs and so that's not just selling selling on the corner sort of reputation information that's shot and killed because of his involvement  drugs and that's a little bit more stark in terms of what somebody in the area might have known about the person but you also speak to account and panic boyd i was your adversary said that lloyd who was that individual had shown him  drugs in a prior a circumstance was not the buyer of the car i think that mr panic was and that i'm sorry to say i disagree with my counsel but it's in the record i'll just stick with the record th yes i'm sorry i believe so i don't believe that we did anything unusual here and think that there's a range was based on the total money judgment or the amount of the drug trafficking i'm sorry the amount of money laundering charges which was a range of seventy two to one twenty and i don't recall there being anything different there if i could but my time is up but if i could i do believe that most of the arguments that were made were arguments that were made to the jury with regard to knowledge with regard to repetition with regard to the manner in which these transactions were conducted and that's appropriate but the jury here had defendants had witnesses on the stand who would say i didn't tell him involved in drug dealing but they might have said i didn't tell him i was involved in drug dealing and that would come out the same way in black and white as i didn't tell him i was involved in drug dealing so our black and white record here respectfully doesn't give us the full flavor in the courts well where the credible credibility determined nations are to be made by the jury not strictly just based on what came out of the person's mouth and was transcribed by the court reporter but their manner their demeanor and everything else that goes along with being a juror evaluating witness kind of credibility and i jury all of a jury is in correctly instructed on what it needs to find as if we have here and we have it here the prosecutor saying to the jury that it's easy to convict here easy and the reason it's easy all you have to find is he didn't file the form that's what he said to the jury and it's permeated through the instructions unfortunately it's it's in the read back of the judge asking answering the question from the jury exactly honest it is in the government's indictment here to get a conviction both on money laundering and on file the form this form so they could get a conviction on that and if the jury then looks and says it takes so little i have to kuala what the prosecutor says and what it says here so say for example as an illustration the read back to the jury saying having a question well if there's an element if you have just one it doesn't make you guilty of both and it was with respect to counts seven through nine of whatever it was this is a money laundering money the government's indictment here said either money was either concealing proceeds or or failing to file the form now the judge in talking back to the jury then saying it's an either or  yes and the question is question is from the jury this is seven seven regarding counts three through nine if you're guilty of one section of that count does that automatically make them guilty for the full c and now they're referring by the way here and i pointed out to the special unit roger you know roger tours of the verdict sheet so it's a verdict page fifty verdict page to judges charge page fifty ok so they're reading that's why the verdict sheet is so important it is special findings and that's wrong saying the elements and they did they were going by what what that verdict sheet so i think we're supposed to find and it was it was absolutely wrong on what the mens rea elements missing elements wrong elements strict liability on the final form and this is the judge's response to the question to the question of guarding counts three through nine if you're guilty o one section of the count are you guilty of the entire count is that and if you look at those counted that's fine i just and so what that is the answer to that question are the answer is you look then at what the judicial explanation was of the that underlies each of those counts and it's an either or proposition in the first instance you have to find beyond a reasonable doubt the defendant knowing the transaction is designed in whole or in part entered into it to conceal or discuss the nature of the location the source of the ownership the control of the proceeds of the specified unlawful activity and here comes the war  verbal response he didn't write back i am not being counselor record but from everything i'm reading from the record this is ok could you do it again it's hard to follow a star from the game just  just read the answer in the first instance you have to find beyond a reasonable doubt that the defendant knowing the transaction is designed in whole or in part entered into it to conceal or discuss th nature the location the source the ownership or the control of the proceeds of the specified online on lawful activity or he entered into the transaction to avoid transaction reporting requirement no strict liability there is no knowing element in this case he should have said no and andrew said knowing where knowingly avoid a true transaction reporting requirement that is the mens rea element of the correct instruction there and you combine that then with the repeated statements by the prosecutor to the jury saying all you've got to do is find he failed to file the form this is easy now and to give credit i don't want to say you know we did convict on some counts i'm just reporting and not on money laundering does and they had the special instruction foreman for a special verdict form in front of them and what's confusing to us to listen to without the special verdict form and without the whole context you know is it so obvious that mr robbins own witness saying well she said that they learned they had to file the form in two thousand and five two thousand and six therefore if they never filed the form after two thousand and five two thousand and six he's guilty well you know i i think the spray paint the many many many pages of briefing we've got and i think there is a substantial issue as to the charge and whether it's consistent law what what the trial court charged here is different from what's in the sand and and so i think i understand the government's argument that somehow the general charge on willful fixes it i'm not sure i buy that but i think it probably would be useful to have some additional briefing limited to this point  well i understand it's it deals with section fifty three twenty two is what we're talking but if you want i mean if the governor wants to put in something i i think that would be fine and well i don't want to do this now i mean i think let's the government can submit a letter brief no more than ten pages how much time do you want two weeks and you can respond