at the outset judge newsome and i delighted to welcome and introduce to you our visiting judge who was sitting with us this week in helping with our work judge moore brings a world of experience and distinction having saw sat with a great honor and the district court for the southern district of georgia for many years he was appointed by president clinton in  ninety four and he indeed had served as the chief judge of that court as well for many years so we're delighted judge moore to welcome you and thank you for your efforts in helping us second observation for those of you who may be new to our our court when you make your arguments you may safely assume that we have had a chance to read the briefs the record excerpts and in some instances we've been able to read the record as well so feel free as you make your argument to go really right to the heart of the the argument third in the last again for those of you not familiar with our lighting and timing system you'll note that there is a clock that well let you know how much time you have left and there's a writing system green means of course you can go yellow it's a two minute warning and red means your time is up and we'd be much appreciative if you could bring your remarks to a conclusion when the red light goes on with that we welcome all of you to our court and we will begin with the first case which is the united states for us is edward townsend and finally we have some issues surrounding the sentence imposed by the district court the sufficiency of the evidence questions revolve for the most part about this question of knowledge and i think it's a very case in our modern time where there's so much electronic currency and transactions that the evidence in this case shows that the victims were fleeced out of money the money that they transmitted to other people was in the form of fourteen digits on the back of these things called a money pack or a green dot and the question the court has to determine is whether there was sufficient evidence from which a rational jury could have found that the recipient of some of those digits knew how the money was of cake that's the bottom line because this was not a case where there was any evidence whatsoever connecting the victims to anybody in any prison everyone kept saying it was done that way but there was no ip addresses no telephone records nothing whatsoever connecting these poor victims and what happened to them and anybody in a prison what we do know is that the money ended up in accounts that was directed by the to the mother of his child and other digits ended up with some lady named candle a parks here in stone mountain georgia that's really all we know about what happened to the digits now the question of knowledge in a money laundering conspiracy is always important but it's important a case like this because remember the government did not ask for a deliberate ignorance jury instructions the government did not request a standard pinkerton charge in a conspiracy case in which people are often found guilty based on the reasonable expectations of what their coconspirators might have done instead the government tried this case and agreed to try to convince the jury that my client had actual knowledge of how the victims were fleeced and we submit that the cases we cited in our brief their tenth circuit for us a parian decision the six circuits mcdougald case as well as this court's awam decision all money laundering convictions that were reversed because the government failed to prove that particular defend dance knowledge of the underlying crime tremendously support are our situation not my guess would be brother counsel here will stand up and say will those cases are very different those are not prisoners those are not prisoners engaging in actual violation of prison rules using cell phones gauging financial transactions but it's not just a violation of prison rules the argument was made that what they did constituted a crime as well didn't it did but i think the cases we cited in our reply brief styron chair rela and this court's mendez decision all say the government doesn't get to change course midstream they have to try to case they have to handle the case the way it was tried in the lower court and that was that it was best scam that was the crime not using cell phones not engaging in financial transactions so i think maybe the closest case is the sixth circuit macdougall to know what i think the the inference that they would have a jury draw and would suggest that they suggest we ought to draw is that the very fact that an inmate is that constitutes a felony under the laws of the state suggest that if he's doing it there's got to be some pretty good reason for him doing it and that bears upon this question different felony without a pretty good reason for doing it understanding the consequences of their act and that therefore one should draw the inference that he well knew what he was doing visa v the scheme but that inference then would hold true for the other twenty two thousand nine hundred ninety nine inmates who were also caught with a cell phone that's what distinguishes that theory it seems to me the government proved and relied on the fact that the use of cell phones and d mick in the georgia prison system so just because one inmate used a cell phone and i think they would say that you're right that it isn't an overpowering inference but it is an inference among all those that a jury could have drawn here and that because we're obliged to look at the evidence in the right most favorable to the jury verdict we can safely assume they drew that inference even though they didn't have to and even though it wasn't in another itself to sponsor i would agree with that or else you got yes finally on the question of sufficiency the substantive counts are even in some respects more troubling because what happened victim get scammed he buys five green dots he sends two of them that end up in my client's accounts about an hour later the other two sets of digits end up being used in an account that has the name of this man cesar fetches wife her name is tangible parks there is no connection whatsoever between my client and this lady who is at a stone mountain store in georgia who's cashing out these numbers my clients has the two sets of digits i go and his account you have the jury found him guilty of aiding and abetting whoever it was at the stone mountain store here in georgia who was cashing out those digits there and we submit that there simply is insufficient evidence from which any jerk could conclude that my client aided and abetted that person in their crime now they have an entry issue is in my opinion pretty interesting because i try lots of cases in which we're getting to the point where we were were we are stretching the business record exception to its f sense tell us about that it's an interesting issue here right so remember the business record rule is something that lets the proponent get around a hearsay objection it's not an authenticity rule basically the business records exceptions says you know there's a certain type of information that can come in if there is a source who can tell us about the information or the circumstances of the information show that it is trustworthy and the source has to be a qualified person now we are not saying that company x if it buys a company why can't it have a custodian come in and say yes we have used this other companies information but what we have here is company x eighteen t this was the worst one this guy from eighteen thousand literally flies around the country he's retired he says i am the custodian of records he knows nothing else they know nothing about whether the company or entity they purchased the documents from did anything in particular the material other than just shipping them over as part of the sales transaction so so you'd be satisfied with the sort of a reliance based nexus like the other circuits of post i would yeah and i don't think that's hard to prove actually you come it you bring in your records custodian is that he had this is the sort that the people in this division rely upon or what these other people in our organization use but we had none of that you know what do you do though with the langford case that seems it's pretty brought in is the is the business record exception could say who prepared the document in that bank that's not what we have here you know so in langford you're saying the n b c employee could be charged with knowledge of her own compan record keeping practices whereas here you're looking back to a predecessor company yes or got it now i can see the government caught me i failed to make the objection to two of the sets of don't want to suggesting or you that trustworthiness and reliability plays no role in the district court making these determinations are you i am not saying that no circuit does play a role i do agree with that the district court thought that there was a certain indicia of trustworthiness reliability here why is that wrong here because there's no evidence to support his finding of trustworthiness i greatly respect judge jones but i think that there was nothing in the record from which he could make that finding  because there simply i mean the one proponent said i know absolutely nothing about the other company and the second one set i assume they did their jobs and i just submit that that's not a full enough record now as i said to the documents i failed to renew my objection so we have a plainer standard on those but the others is the abuse of discretion standard and then we have to prove prejudice and especially with the substantive counts the phone records where the method by which the prosecution attempted to tie what the lady at the kroger store did with somebody and the and they made a big deal about using these phone records showing that there were some phone calls made by some the lady whose name was associated with the count to somebody in south georgia and that because of that i would submit that we were prejudiced furthermore the the other account now record i me how you sustain substantial project as you agree that two of the items we have to review for plane era and assuming we say it was error but it wouldn't plain or obvious you're left with three at least one maybe two of which didn't seem to me to be all that significant maybe i missed separate and that i do believe the court dismissed after handing that government's exhibit leben was an account now record of the lady was the mother of my client's son it was through that record that they were able to establish a direct link between the digits lost by one of the victims and her recollection of the phone conversations between the two of them where the money goes into her account he asks her to basically purchase additional digits that was substantially prejudicial to our defense because through that document the government was able to make a direct link to this lady's testimony without it we submit that they would have went on able to do so thank you and you preserve your full four minutes for a bottle thank you you might want to start with the business record issue yes your honor and good morning a minute please the court starting with the business record issue and then all circle back to the other matters after that i don't think that there is a question that the individuals that were presented were the people the two witnesses from eight hundred nine hundred eighty and the witness from green dot these were the witnesses that were presented as the custodians of record for those companies the records that were admitted  trial came from those companies and it seems to me the difficulty for you as i read the rule is the word show how is that that these witnesses showed that the original maker of the record had personal knowledge and that the predecessor companies made kept these in the regular in the regular course of business well on the front end your honor the records custodians testified to all the foundational question yeah but they were just walks through the elements i mean i read the testimony and it's you know did it did the maker have knowledge yes or was this court kept in the ordinary course of business yes or was it made in the course of of ordinary business yes i mean they were just sort of marching through and i was wondering as i was reading that how does this person know i mean i just want to know like shows got to have some teeth to me and it seems to me that show i looked it up and it means something like you know convince you know my reference to evidence you other than this person say so i just don't know what the show is here you're on or i think that there's there was testimony that was provided during the trial from at least from the green dot witness where he walk through how green dot both relied on the records that were obtained from financial partners including account now he talked about how the green dot tell us where we would find the fact that i understand your argument to be that a successor company may well rely upon the record keeping procedures employed by the acquired company and that may be an indicia of reliability where do we find in the record words to that effect suggesting in some way we relied on these guys after we bought their company we were satisfied with them and we know that they kept records reasonably well and we relied upon that in our business your honor there is not a question directly asking whether when the company was purchased those records were relied upon however there at least for the green dot records there was evidence and presented at trial that relied on the financial product information and that is in documentary one thirty six pages seventy nine three eighty two where the witness discusses financial partners and how they interface with those financial partners and then on pages ninety three ninety three where they discuss the refund process that could happen if an individual determines that they have been defrauded they could call into green dot in order to potentially freeze or refund their funds if they purchased a money pack and were defrauded but if the money had moved to another financial partner then they would not be able to freeze that it those accounts and freeze that money so while it's not directly asked as a question as an eviden matter it is present the idea that green dot relied on other companies records in order to operate the money packrat would be relevant for which there were five exhibits in all there was eleven thirteen twenty one twenty two and twenty three two of whom there was no objection so let's hold a massage so what about the other three ones where there was that twenty one twenty two and one well so i think i might be missing recollecting it separately but fourteen and fifteen no objection plain eleven thirteen twenty one twenty two twenty three yes objections right that's correct so there are five as to which there was an objection and there were two others as to which they were not that's correct your so let's focus on the five eleven thirteen twenty one twenty two and twenty three so exhibits eleven and thirteen were both records from a count now they were admitted through the green dot representative that green dot representative did the boilerplate answers to the foundational questions but he also testified at times on pages one nineteen through one twenty eight of of his testimony in the trial testimony in pages one fifty three through one fifty four that's about line six to line twelve of his testimony where he was bored teared and asked additional questions and he exhibited knowledge about how account now worked and he stated and i didn't identified some of those some the statements that he made about how account now worked during during his questioning and he answered and he said these records are created by by automated systems and customer service representatives is he the one who said maybe they both said at the toward the end of four dear at least the piece of it that's exerted in the briefs i just assumed that this was done properly sort of a presumption of business regularity is that what the sort of boils down to i think that that answer was done with was given for exhibits twenty one through twenty three your honor and those those exhibits excuse me those questions were asked of that record custodian who said she didn't know whether they kept good records and i believe i can put up on the record right now your honor if you don't mind you i don't want you to have to waste your argument time looking for it it's fine we can find it but i mean would would you acknowledge that if the if the showing that i'm at least concerned about boils down to an assumption o business regularity that that's not really showing your own i think that his those words the assumption was also covered and informed by his understanding about how account now worked and i think that that's present in the record at those record sites that i provided where he described what they did and how those records were created and the district court did hear all this testimony the district court heard the board here and the district court did decide that there was reliability and trustworthiness in the testimony and permitted to be entered at all but reliability and trustworthiness i agree wholeheartedly with marcus that it has a role to play but i think the structure of the rule explains the role that it has to play it comes in at the back end reliability and trustworthiness are not a sufficient basis for admission they are a necessary basis for admissions such that you've got to show show your the witness has to show that the maker had personal knowledge and that these were made and kept in the course in the regular course of business and then your opponent to to rebut that if necessary under subpart i think the rule can show that it not trustworthy or reliable so i don't think it's enough for the court just to say in sort of the rule says what it says but i think this is trustworthy reliable i agree with that your honor and i think that there's that testimony from the witness and i think that the case law of our circuit including the langford case supports this approach to admitting evidence in that case the witness did not have personal knowledge of the contents in the witness did testify that the answer that the witness gave in that case was that the records were part of or appeared to be part of business repeatedly that the proponent of the document ordinarily need not be the entity whose first hand knowledge was the basis upon which the facts sort were proven to be admitted under this exception the person who actually prepared the documents need not have testified so long as other circumstantial evidence and testimony suggest their trustworthiness we've said that repeatedly now what suggested circumstantially or otherwise the trustworthiness your i don't i want you to tell me i think that that i heard you did say one thing maybe two in response to this sort of this dialogue and i want to know is that all she wrote or is there something else i heard you just say one item is reliance that  success your company relies that in its own right in suggests a certain degree of trustworthiness of from acquiring company relies on the record keeping process or practice of another company that was one argument you on ambiguously about whether the records were made and maintained in the ordinary course of business whether it would have been the ordinary course of business to make and maintain them and he answered those questions and at least the district court attached some significance and we're reviewing it for an abuse of discretion that's the standard here and so the trial judge gets a whole lot of discretion even if we might have done it differently or even if we might have pro perhaps with greater intensity than the lawyers or the judge did but i want to know is there anything else i think that supports the theory that there is circumstantial evidence maybe other testimony that suggests sufficiently trustworthiness your own i think those two principles that you just explained in compas what creates the reliability and trustworthiness for those records ok let me ask the question slightly differently i assume argue when we were to say one quite enough is this to stop a reversible error or is this homeless tell me your view on that your honor it the error was certainly a harmless error tell me why so you may be right but i have to confess to you i don't have the same certainty about it  defense counsel stated that the fact that government exhibit eleven and that the phone calls were crucial evidence in the case and i think the briefing explains why that's not the case why that is not true starting with government exhibit number eleven those account now records were records from the girlfriend to shawn williams whose testimony was very powerful and very incompetently for the defendant but those records merely corroborated what she said in her testimony which was that she had been recruited by the defendant to pick up and purchase new green dot money packs to replace the money packs that he had that were obtained from victims second there the that government exhibit number eleven is actually just the same the other side of the same coin for exhibits fourteen and fifteen so governments exhibits fourteen and fifteen were green dot records and those green dot records actually matched up with the account now records so they showed the same transaction so even if you were to take away exhibit number eleven there would still be another account record showing that that deposit had occurred and that that transaction had occurred to  williams and on top of that of course there was the williams's testimony there was the victim testimony and the government's exhibits fourteen and fifteen both of which were the other side of the same coin for government exhibits eleven and thirteen so i believe that covers the financial records nout telephone records your honor i don't think that they were particular date they were helpful i don't think that they established we're talking about twenty one twenty two and twenty three yes your honor this is the government's exhibits twenty one through twenty three and those records showed that tangible who is caesar futch his wife who was another individual who had been charged in the case that she had in one thousand nine hundred telephone and that there had been phone calls made to green dots around the time of the green dot transactions for the substantive counts in addition to that the telephone records showed that there was another telephone number starting with two to nine that had contacted both her phone number on the eighteenth tee line and the verizon wireless and it had contacted her phone number and contacted green dot and those were verizon wireless records that the government admitted in those showed that those showed that somebody else had been calling in although there was no subscriber information now those records while showing that there were communications setting aside those records there was evidence showing that the funds obtained in connection with those two with those four counts went to the defendant and went to tangible parks so the government's exhibits seventeen eighteen and twelve all showed that after that victim j g had been defrauded that shortly thereafter within an hour or less these individuals were then the the money packs were then transferred to every town since amex accounts tangible parks's green dot account twice all within an hour so those documents are still there regardless of whether we have those phone calls or not and in a sense showing that  a phone that had a two to nine phone no phone number but no subscriber information well actually let me step back there was also a green dot record showing that the two to nine phone number and the other phone number had both called in to two green substantial amount of other evidence presented in this case your honor showing that the defendant was guilty beyond a reasonable doubt we started i started by mentioning to shandra williams his testimony she explained in detail how she was recruited by the defendant how she was asked to get new prepaid debit cards by the defendant how she gave a prepaid debit card to the defendant how the defendant loaded her prepaid debit card with money packs and that he instructed her to go to the store and purchase new money packs that that testimony was corroborated by records that were obtained from the various financial companies and the testimony of the victims t m and wm there was testimony from williams that the defendant stressed that it was important to purchase the new money packs quickly there was testimony from to chandra williams that the defendant defendant had used three or four different cell phones to contact her and that he had contacted her once every two weeks or so to have her purchase money packs for him and that and she also testified that her prepaid debit cards had been blocked from the green dot network during the course of the conspiracy out looking at that evidence just from to shandor williams a critical fact there is that the defendant was always asking to shandor williams to take a product a money pack that had been obtained from a victim and then simply replace it with another money pack and that is quintessential money laundering divorcing the victim's money and the victim's ability to get that money and placing it into another financial product that he controlled that he could conceal and that could not be frozen and could not be refunded so williams his testimony was very important in the case in addition to her testimony there are all the bank records and the financial records that we have already previously discussed and there was the victim testimony that explained how the individuals have been defrauded and specifically one individual i'd like to highlight is j g who testified that when he was called in this is the this is the victim who was who in counts two through five had been victimized and victim j g explained that when he got those phone calls he talked with three different people two men and a woman and that once again corroborates the aiding and abetting and conspiracy aspects of the case and i believe that there is other information listed in the briefing that play out the right thank you very much the question of reliance the pages cited by the government all talk simply about what the witness was saying about how the system was structured the different companies it never says anything about we relied on the other companies especially that we relied on their records that preceded the time we brought them under our umbrella secondly the government says on harmlessness that there is no harm government's exhibit levon was the direct connection between the victims fourteen digits that he sent to somebody over told someone over the telephone and my client without that the connection is not there the file there was an awful lot of all the circumstantial evidence from which a jury could have drawn an inference don't you think i disagree and that's why we come back to my orignal argument about what the the level amount of knowledge that was proved with all due respect i think this was a close case on knowledge and the business records tilted and tipped the balance that's why if you look at the i think it's on page forty and forty one of our opening brief i excerpted a large portion of the government's argument counsel while this is a circumstantial case  there is nothing in the record that indicates that towns that had the ability and while he was incarcerated earned this amount of money that showed up in his accounts that's one thing the other thing is that there was no explanation at trial for any other reason for these proceeds to be n his account while he was incarcerated i agree and if i had a burden of proof that would be a problem but i didn't have the burden it was the government's burden to prove that he knew how the digits were generated i agree with you there was no explanation judge as to why the money at least no explanation presented to the jury and sentencing question there was he said i got the testimony of the government's witnesses were that he did have an agreement with us that he knew he knew what was going on that that he called and said  transfer this money and money was transferred right he said transfer the money when you said knew what was going on there was no such testimony with all due respect but but but isn't a plausible inference as well i mean there's no other rational basis for the transaction right to take the money off this money pack card and put it on that money back card like why would someone do that but for you know sort of knowledge of some underlying criminal activity i don't really understand what the what the plausible justification for that transaction would be absent some nefarious intent and that's why i cited the cases because all of those had these sort of curious circumstances why would mr mcdougal go take money from a known drug dealer go to a car dealer say i'm buying the car in my name drive the drug dealer back out to california in the car and then leave it why would mr russ aperient take all the money from his son's scam to run it through his own bank account buy stuff for them and then law and law enforcement people come to him again very curious  reversal of a conviction why would the banker in this court's a want decision hang out with people who were laundering gigantic amounts of money and who all told the undercover agents we will never involve someone who is not on the inside again very curious again a reversal of a money laundering conviction for the failure of the government to prove knowledge but i think the court i think there is one other point i think those are the points that i wanted to make thank you much counsel thank you both i note mr kish that you were court appointed and we very much appreciate you taking on the burden too well and vigorously represent your client yes or we will