fifteen or more unauthorized access devices three separate counts of aggravated identity theft issue of like to start with is the jury instruction issue at trial essentially the two witnesses testified regarding mr mosque of those alleged attempts to obtain eat finn's electronic filing identification numbers that are utilized by the i r s to file taxes alleged girlfriends ms garage and who also testified regarding the fin were uncorroborated witnesses both with respect to that particular testimony and that's why it was important when testified that she was assured she would not be prosecuted by the united states for the defense to request a specific jury instruction a special instruction on immunity of witnesses that issue was addressed by the district court the district court i believe made the same error that the government is making in its brief and that error is first finding that there was no formal grant of immunity i'm not aware of any law that would require a formal grant of immunity indeed pocket immunity i think the i think you're dead right about that there are certainly doesn't have to be a formal grant you don't have to go to a district judge on the six thousand and two and get use immunity you don't need a deal letter from the prosecutor but you need some evidence that the witness testified in exchange for some actual or potential benefit and that's where i i have my question for you that the critical language for me is that exchange at one forty process the defense counsel prior to going into the room where you wish sure that you would not be prosecuted answer yes that looks like a promise to me but then you have the next sentence who told you that you would not be prosecuted for anything that you told them of our nobody so let's just stop at that point for a moment and then we'll take up the rest of the call a quick yes or that doesn't strike me as enough to establish some kind of promise for whence the testimony was a licit without if that's all there war it seems to me you'd be hard pressed to say there's a bargain there's an exchange there's a promise it doesn't have to be in writing it doesn't have to be formal it's enough that there was one but could you say what she says who told you that she says nobody that well somehow there was a bargain or a promise well i think she was answering the question very specifically and the first question the assurance of non prosecution that goes to a promise of non prosecution a second question whether anybody had promised her that she wouldn't be prosecuted for anything she said that to me seems to be more of a limited use immunity type situation that she would have been talking about and it's a told it sounds like you have some unity i agree with that there's nothing transactional about for what you said but i frankly it strikes me that the language was very imprecise both in the question and in the answer but then you come to the second part of it let me ask it another way party going into the room did any of the agents or prosecutors tell you look don't worry we're not looking at you you're not going to be in trouble sounds more like a statement that is a more precise way you're not out neither a subject nor a target of the inquiry let's just suppose it was put even that precisely would that amount to a promise with that amount to a bargain if someone if the prosecutor told  witness here's your status is how is that a promise that if you speak nothing you say will be used against you or your that's my question and i follow the court and that in fact  the the question answer that judge graham stopped on during the charge conference and i recall correctly he described it as a curious way of asking the question i would argue that was perhaps a little in artful and i think the problem here is that we're all focusing on the trees without looking at the entire forest of whom is cortez was and how she came to be before the government  the facts from her testimony and cross examination clearly show that she was a target and perhaps even a coconspirator and that's the issue she had to reluctantly admit to signing certainly phin applications in receiving the fin application and her recollection was that she just didn't know what it was or didn't pay attention or some something to that it was my recollection something along those lines and that could have been used in closing argument had there been a proper instruction about what was in her subjective belief system with respect to whether she was going to be prosecuted by the  system wouldn't be enough would it i mean i might be out of my mind and think anything they said amounted to a promise it's got to be some reasonable objective than dish or that this is some evidence that there was a promise a bargain agreement and here we have a woman who's signed these even applications who is called to testify or is called to the u s attorney's office to be interviewed by agents and she walks in and as she said during trial she was promised she would not be prosecuted that's what's in her mind and was there was there a prosecutor in the room there was at the time that the style rug went down yes sir and she identified the individuals by pointing them out as they were seated at counsel table on cross examination she had in five the individuals with whom all three of them then referred to there were two agents at the table and a prosecutor yes or let me ask you just one final question in this regard let's assume that you were right and the maybe it was an error not to grant the instruction the question comes down to so what the failure to give the instruction might seriously impair the ability to present an effective defense and i'm not sure that you can sustain that given the overwhelming nature of the evidence in the in the case the admissions that were made in the so on and so forth so how do you show that you are seriously impaired and my time's running out for now that's a right you take your time and just if you could answer that thank you very much your honor and that's one of the reasons why we relied on actually your opinion in martinelli case in that case there was your honor found there to be no substantial impairment or serious impairment of the defendant's ability to defend himself because in that case all of the the district court provided complete instructions on on money laundering and not the requested instruction which was less important in this it's because ms cortez  ms go around were the only two individuals who obtained those events both of whom were and romantically involved with mr moscow who was married at the time in argument could have been made that had the proper instruction been given an argument could have been made that she was flavoring her testimony or changing her testimony to unfairly blame mr moscow for something that she herself did and that's why her testimony should have been considered with more caution and the court's instruction the general instruction on the truthfulness of witnesses doesn't doesn't cover the consideration of a witness who should be viewed with more caution than your typical witness 's just advise is the jury to consider that in whether they're being truthful not to look at that witness with jaundiced dies to look at that witness with more caution than you're looking at the normal witness that's the difference or it takes you maybe it doesn't take you the whole way home but it takes shift fairway because that the judge says to decide whether you believe any witness i suggest you ask yourself a few questions did the witness impress you was one who was telling the truth did the witness have any particular reason not to tell the truth did the witness have a personal interest in the outcome of the cases judge mark referenced so it's certainly focused the jury on the issue i think you're right that it doesn't make the circle complete and leaves out the this kind of witness has to be viewed with particular care in the courtroom as opposed to an instruction that my time is going to be relatively short because in part i'm adopting in full all of the arguments that were set forth by mr put truthy on behalf of mr moscow both the factual and the legal arguments says they particularly  pertain to both individuals i acknowledge at the outset that my situation is somewhat different from mr moscow for in the sense that miss this cortez's testimony made very little reference to him at all i believe she indicated that she did not know him and it was no evidence that that she had that he had any involvement and activities to which she testified so the  we have is not that there was a direct and a direct prejudicial effect from this cortez's testimony rather what we're concerned about is the fact that by failing to give the requested instruction that at the heart of the case it was a substantial impairment in trial counsel's ability to argue effectively on behalf of his client ours must be remembered as i indicated in my  on five different counts three of which mr moeller was acquitted of but they were he was they were convicted on counts one and two particular count one the conspiracy count the evidence was unquestioned that there was an ongoing association with the two men leading up to the arrest and there were circumstances indicating that they may have shared a more intimate relationship as well so there's already an inherent risk of potential of finding of guilt by association which is i suppose inherent in any criminal trial where the defendants are tried jointly however in this particular case because the because the testimony did not  did not directly affect mr muller the concern that we have is a potential spillover effect from the unfairly enhanced credibility that ms cortez would have taken to the jury room in the absence of request and instruction again as we know ms cortez was a significant witness the relationship that she had with mr musk over arguably could unfairly have enhanced her credibility in front of the jury in the absence of the request instruction that's providing the spillover effect that we're trying to avoid now had there in instructed rick now presumably trial counsel him made the argument in closing that her testimony should have been scrutinized more care but as this court is awareness week trial attorneys well familiar there's a substantial difference between an argument we can make in front of a jury that is not supported by line appropriate prosecution was the what was the factor which which led to her eventual cooperation and to that extent the  the risk exists that she may have either consciously or unconsciously been inclined to tailor her testimony in a matter more favorable to the government than it otherwise would have been so to the extent that that error would have prejudice mr musk over requirement that there be any type of formal written immunity agreement so i don't believe we have that area covered essentially ok a harmless error point that your your client actually confessed to filing brief is and that was it and in that sense this is i agree that this is not a case in which in which there was a scarcity of evidence against mr muller but again even in spite of his spite of thanks very much right thank you instruction would have been improper to provide you think it requires formal immunity that is you know a request for immunity and then a grant of immunity and in a written provable either by the government not in that sense your honor no but i do believe there has to be actual immunity provided in the sense that as your honor mentioned earlier that there has to be some sort of bargain some sort of promise that she's receiving in exchange and as the government stated to the district court docket i'm sure once i lived in the house that the prosecutor unless they wanted her to representation i think the wording i think the last question that was asked prior to going into the room did any of the agents or prosecutors tell you look don't worry we're not looking at you you're not going to be in trouble i think that's kind of the more accurate representation here because as the government told the district court they weren't we weren't looking at her because there was no evidence it wasn't a matter just because someone's not being prosecuted doesn't states attorney i believe that's correct you're and the discussion takes place not outside the courthouse but in the actual u s attorney's office i believe that's correct suppose she had said in response to question one prior to going into the room where you are sure that you would not be prosecuted answer yes who told you that you would not be prosecuted for anything you told them suppose instead of saying nobody she want to know whether that would be enough to constitute a promise that would be less of a requirement to give the instruction at that point if she had said yes i think that tension there may have had to have been a hearing to get into more detail about what what actually happened but the government is after all the focal point of this is how does it affect the state of mind  motive for a witness to testify in the manner she may be testifying well i think ultimately your honor because the jury's entitle to know that a witness for the united states is up there because they promised her that she didn't have any real problem any real exposure well and i think this is where we go to the subjective versus objective standard because while her state of mind me very well be relevant to any arguments that defense counsel want to make on cross examination or in closing argument her subjective state of mind of believing that would not warrant the granting of this instruction oh and but we would ask what a reasonable person under these circumstances might apprehend the meaning of this this discussion this dialogue between an assistant u s attorney to case agents in the u s attorney's office yes your honor but i think in this case she was very clear that nobody promised her anything that she didn't so what are we to take of the second call workweek you are not going to be in any trouble we're not looking at you don't worry i believe that i would a reasonable person off the street take that assurance from an assistant united states attorney in two case agents i think at that point there are any concerns they have are alleviated but there's no sort of concern about what concern about liability concerns about criminal exposure right isn't that what this is all about yes but i don't i think that that exchange there because if you look at the entire exchange you're on are being told that she wouldn't be prosecuted for anything she told them and she understood that nobody said that i think in the context of hearing that answer no reasonable person would assume while ok i'm i'm not going to be the she's not a subject and she's not a target to use sort of the inside baseball jargon christ she wasn't being looked at because suppose the witness we're told by the prosecutor you are neither a subject nor a target of this investigation you have nothing to worry about so feel free to tell us what you've got to say the witness is ok i did x y and z i saw a b and c blah blah blah would that be enough to trigger the instruction no i don't think so not at up point because the witness was in a target was in a subject we have no evidence against that witness so there wouldn't be anything to go forward with at that  thought the focal point is whether there was some evidence that the government had promised something doesn't have to be slam dunk it doesn't have to be proved beyond a reasonable doubt it doesn't have to be clear and convincing it doesn't even have to be right you agree with that correct you just need some evidence or act but i think at that point there's no there has to be some sort of bargain and some sort of quid pro quo and if we have nothing that we're looking at this witness for at the outset then there's really no exchange at that point of a promise it's just hey we're just letting you know we're not looking at you so you'll free up but you see what's interesting about the  we're not looking at you doesn't come along and it comes after the first question where you were assured you would not be prosecuted which is direct and immediate as you can make it right yes but i think rather it's use immunity transactional immunity whether it's a promise from the prosecutor or six thousand and two from a district judge doesn't matter prosecuted means say in court to prosecute me and then on the second formulation it is well it looks like  we're talking about a civilian witness who's maybe not use of the specific jargon there but by the end of that colloquy it's clear that it's don't worry we're not looking at you and then the government confirms to the district court look there was no immunity of any sort granted here and so without any sort of immunity that instruction can't be given because well the defense was was free to question her about her state of mind they were free to argue in closing argument the general credibility instructions that the jury was instructed about they were free to do that but there was she wasn't granted immunity here and so to provide that instruction would have served only to confuse the jury wouldn't have been accurate in this scenario maybe maybe the charge doesn't actually have to refer to unity as such but it could refer to the colloquy that she felt that she was not going to be prosecuted reasonably thought so and and as a result that could could affect one's testimony and then you just follow along with the unity church i wonder why the government it is resisting giving a some sort of a charge  special charge in this particular kind of situation that was requested by the defense you presumably opposed it yes your honor and i wonder what the interest is of the government in opposing i think the interest here was to not confuse the jury  honor she wasn't granted immunity the instruction would have been inappropriate to give and but if you look at the in the struction eleventh circuit pattern instruction f's one point one testimony every category is testimony of accomplice and former witness with the munity and then if you look at the exact line which is really interesting and i remember when it was drafted and it was drafted with surprising breath and i want to read it to you it says you must consider some witness testimony with more caution than others for example paid informants while she was in that witnesses who have been promised immunity from prosecution while the first question at least alluded t or this is the third formulation or witnesses who hope to gain more favorable treatment in their own case who hope to gain more favorable treatment may have a reason to make a false statement in order to strike a good bargain with the government so while a witness of that kind may be entirely truthful when testifying you should consider that testimony with more caution than the testimony of other witnesses pretty broad right yes and the language or who may hope to gain more favorable treatment from the government in connection with her own case now i don't know whether there was a case where there wasn't a she thought there was that there wasn't but somehow the prosecutor in the case agencies thought they had to tell her that there's no contrary evidence in this record so i have to assume what she said happened in the u s attorney's office along with the government statement to the court the she simply we weren't looking at her simply because there was no evidence your honor there was no evidence against her and so witnesses who hope to gain more favorable treatment in their own case there simply was no case against her and so this instruction wouldn't be a political and let's assume for our purposes that the instruction should have been given so what does it matter here no it doesn't your honor because there was more than sufficient evidence in this case not having this instruction did not seriously impaired the defendant's ability to put on a defense both mr moscow and mr moller confessed in this case they each confessed to having filed fraudulent tax returns mr  must in fact further admitted that he actually filed for an even which was the entire point of ms cortez's testimony was that she had provided mr moscow vo with her p i and she provided him with a filled out fingerprint card and shortly thereafter and even was filed was opened in the name cortez union corporation and that cortez union corporation was used in the tax returns that were fraudulent lee filed so and in addition to that in addition to mr moscow was admission in confession there were multiple tax refund deposits in his bank statement in multiples of similar amounts and so there was more than sufficient evidence in this case your honor so that even if there was any sort of era here it wouldn't have made any difference esther both mr musgrave and mr miller mr miller also additionally had corroborating evidence as to his confession of filing fraudulent tax returns he actually had specific tax returns that were deposited directly into his bank statements and that was shown and so we have more than sufficient evidence even without ms cortez's testimony in this case so even if there was any error here it would have made no difference in this case your hono eve got the last word yes or thank you very much your honor if i could start with where counsel for the government left off with respect to ms cortez i strongly disagree that ms cortez  it brief starting at page sixteen and seventeen particularly with respect to ms cortez she testified at trial that she was concerned she could be in trouble that coupled with the fact that she was interviewed multiple times by the i r s agents who visited her home prior to going to the u s attorney's office where she met with the prosecutor who told her she wouldn't be prosecuted that is something that would cause her in her mind to believe that she was being immunized that she was being promised immunity for being there in fact that doesn't even have to be a quid pro quo the instruction s one point one just as witness with immunity and again your honor i would agree that it's quite correct to hone in on how that instruction is written it's all about what the witness is hoping to gain what in the witnesses mind this is not an instruction to the jury that says you should look at any government witnesses that they tell you who are cooperating witnesses with more caution rather you should look at this witness who hopes to gain some favor or who is hoping that she won't be prosecuted because  prosecutor told her she would be prosecuted she wouldn't be prosecuted rather and with respect to any harmless error analysis i would urge the court that it wouldn't even be a political in this case again ms cortez was a very very important witness and this goes to judge walker's question to mr moss ms cortez again it was an uncorroborated witness as to the application of that particular if in she was also in so far as she corroborate d the other female witness who testified prior to her ms give our oh i'm sorry i got her name wrong ms grand she too was someone who again was involved with mr obtain one mr moskva did not confess to having that ip address that was the third defendants that was mr opens mr mosque of the did not have and even company for filing these returns again that was o'brien who came back on his event the third individual who was in that apartment this case was all about the constructive possession of these fifteen or more unauthorized access devices and it was all about a conspiracy in that regard for all of these for these three men these two women and everybody else that frequented that apartment and used that internet protocol address so with all of that in mind that's why it would have been important for a jury to view this particular witness's testimony with more caution than another thank you thank you both munched thank you counsel i know mr morse that you were court appointed we very much appreciate you taking on the burden of representing your client in the matter and we'll move on to the next case which is mcguire versus united parcel