may please the court counsel i represent mr shabazz i'd like to talk about three issues this morning to a related it's the introduction of uncharged conduct the two thousand and not charge fraudulent tax returns in the guilt innocence phase as well as their use at sentencing to enhance the sentence i just like to talk this morning about the role issue with my client got a four level role in ansan when there was insufficient evidence to support that hansen and the trial court switch burden up when he made a finding of well i can't find you didn't prove it therefore i find you proved it so those are used to like to discuss this morning as you know my client was charged with fifteen substantive tax fraud count fifteen corresponding aggravated identity theft counts the government introduced two thousand uncharged acts against my client to try them to try to support their case to try to prove these events of the fifteen and their justification was that hey these are also charged under count one the conspiracy the fact is they were not sufficiently charge under count one the conspiracy they were listed in the manner and means section of the indictment however they weren't listed by victim they were listed by date they were listed by  social security number there was no there was insufficient in disha to say hey these are actually charged in the indictment they were referenced in passing along with thirteen thousand other applications so i cannot say this was charged conduct was clearly was on charge conduct the government has relied upon the just record relied upon the ford case and i think the ford case is really where we will end up in this case and the fourth case the reason why they want to go to ford is because if you got a four hundred four b one of the first up some for a for b is you have to show the defendant was of the committer it was actively involved in the commission of the of the on charge conduct so they don't want to skip that hurdle by going to ford and say hey this is intrinsic this is intrinsic to the events this is part of the same scheme but they don't have that evidence as to the two thousand and charged events you don't have my client preparing the  single tax return and that's what's unusual about this case factually you have no cooperators you have no internal it vision into how this scheme operate in my client didn't prepare the tax returns his fingerprints were on any documents he wasn't there at the back picking up the money or withdrawing the funds it's all on known how this scheme operated all you have is my client's name on the on the charity he's the figurehead of that charity is the founder and leader of the charity but he's there's  inside information so we have that is in terms of the fifteen charged events when we go to two thousand and char's we have the same problem there's no proof he did them now in the ford case she mrs ford was a tax preparer herself she asked her name and company name were on the on charge returns she was that the bank taking the money out of the bank we don't have that with mr she was more troubling with the early have with m forms that claim large current tax expenses and false w t is that listed rev co or c v s as an employer these these are really like current th sir with all due respect no sir there we don't have fifteen common addresses i dispute that factually there were four addresses that were definitely connected to my client mr shabazz four out of fifteen there were four of the government concedes that they couldn't reference doesn't mean she joined my conspiracy just means i knew to throw her name out there so i just a dispute a lot but they weren't for i mean the fifteen addresses all also had the common thread the false tax returns were were coming from those addresses or they were the refunds were being sent to this address right but again you don't have mr chabot is on the front end or the back end for those addresses i'll give you he was tied to but that and that that's that's not enough to bring into it about the connection to indigent and me and i'm in the middle of there are thirteen thousand forms in that office but there are also thirteen thousand in fact hundreds of thousands of inmates in our prisons all over that this was a rampant scheme as you know this scheme was going on across the country the inmates themselves had access to their data they you know these are not the likely these are not the only forms they sent out there were two witnesses t of how this operation happened the they called the government called several employees of the company none of them were charged none of them were criminally liable they were and they all testified i was there every day i never saw anybody doing fraud i never saw mr blot of the time leslie sure they were the people running this charity day to day they are the people that had access to this data and that likely they are the people who perpetrated this fraud but inflated expenses or they gave false employees don't commit tax fraud dues or what people do i mean to say oh you worked at coca cola in atlanta is not exactly like it's not a smoking gun it's not a fingerprint and again you know in ford we had nine external returns coming in well i know you're not arguing that today but in your brief you were trying to get the the wallet to press because in the wall it was evidence do this under the ford you know the underlying ford analysis race just i mean that's when you when you look at the baker case that cited in ford it's all race just tied this this was very compartmentalise it addresses in pittsburgh you got to just in chattanooga you had addresses in atlanta this week it was not required to be part of the story to bring in these other these other venues or these other offenses as they should have been carved out the government had plenty of evidence to proceed with their case they didn't need to bring in all this on charges is too many very quickly if i can move to roll there was no evidence of who my client supervised he ran four different businesses he had a car detailing had the charity he had he had a chicken in the eggs he had he had all these venues are all these endeavors going on there's no evidence he supervised anybody in the commission of fraud and with all due respect in the trial court he got it wrong and he said well he makes this comment you know the best way or he's a sentence think you know there's no evidence my client supervise these people and judge that and says well i can't find that he didn't and that's burden shifting that's flipping the bird and see if the if there was evidence sufficient to convict him that he at least supervised that is why no ma'am i don't concede that i don't concede that there's no evidence that he supervised his wife in the commission of any fraud and i hate to say it but there's a there is a presumption here that the man's in charge and every now and then we have those cases you and i had when i looked up and arthur bailey came to mind was his former employees testified he was in charge they did and charles de test two employees testified that he was in charge of the legal businesses that were going on and never in charge of any fraud  one of the woman one woman was not exactly happy with mr tobias because mr she was married her daughter the other guy worked there for two months and that was his observation was mr shabazz in charge but nobody not one person said he was in charge of the fraud and it's a four level swing with four points for all of two points for the monetary increase on the on the last was a six level swing and we're talking about an almost a nine year difference in the sentence that those errors made so my name is mary webb representing the united states there was no reversible error and the admission of the two thousand tax returns and there was no reversible sentencing error and the application of the role and handsome and in this case there simply was no burden shifting by the district court in this case my opposing counsel that talks about the first thing the district court said in response to the defense lawyers argument but then there is a next then it switches the district court saying i think that he d that's correct turner and so read in full context the district court did not inappropriately shift the burden and here there was evidence that mr directly supervised at the senate saying so for instance located individual who really started the entire investigation well mr fenn license of those people may exist and they may have done bad things but there's no evidence his client supervised those people what is your rejoinder to that well for instance your honor at  trial there was evidence and our solution on boyd gordon who was the individual living at fourteen forty seven walker avenue that he was installed at fourteen forty seven walker avenue and  there's and then one person how about the others what's the evidence in terms of his wives multiple people testified at trial that in their observation of the relationship between  shabazz was in charge and we know that there was evidence that led us was a criminally culpable individual because at the search warrant execution at cheyney street there was there were documents containing the prisoner personal identifying information in her purse so that we do have evidence that mr foss was in charge and then there's also dionne mcbride who is the individual in pittsburgh otherwise extensive it was whether our there was sufficient evidence to find that mr shabazz had actually exercise control over an individual and so didn't the government and some statement to the court to admit i'm not sure which statement that the court is asking about about expressing concern about why they are but the government has gotten to five individuals but the argument a senate saying was not over whether that otherwise  five criminally culpable individuals applied the argument at sentencing was over whether mr shabazz had exercised control sufficient to meet the enhancement for any of these individuals and so exercise control over who were also criminally culpable and that's when the back and forth happens between the defense lawyer at senate saying and the court about whether about what whether the government had shown that he did in fact actual size control over any of them i mean your argument is essentially to find him guilty you necessarily are funny exercise control over this operation based on your evidence if you are the government's theory was that mr was the leader in the head of this fraud scheme that he founded indigent in maine that he was the person truly in charge of it he's the one out renting these addresses installing people to live it he's the one directing the operations most of burden shifting by the court here and there was sufficient record evidence for the court to find that the for the role and handsome applied and that was not an incorrect ruling by the district court if i may are there or if there are no further questions on that point then district court and many of them that was based on the core of ford case and it is the case that here are the charges we're calling them tax returns had the similar  disha fraud and show that they were really part of the same scheme as the name as the name victim tax returns and named tax returns in the indictment and here the government took really a very conservative approach  thousand indigent inmate tapped into inmate applications located at the headquarters those are all keyed in by the pennsylvania analyst and sent to our us and then the government's case focused just on two thousand tax returns that were the time period of the conspiracy that were in the names of indigent and may applicants and social security numbers and that had these one of these fifteen common addresses and so the government engaged really in a very conservative approach in determining which tax returns to put in as proof and too ill to allege were a part of the scheme and to prove and then also at senate saying to hold mr accountable for a for a loss amount and so under the core afford case this was appropriate for the district court to admit these at trial and it was also appropriate for the district court to find that the really it's a you really are having him in circumstantial case but it's you have to make some some inferences and some leaps to get there don't it to some extent your where the pennsylvania agents first showed up and then there's also that i believe it was in the name of sandra oya lucy debit card in that other wallet that was at his business address so there's two two wallets one is in the pants pocket and that has the william zero one debit card in it and keep in mind your honor that it's not just that the debit card is there and there was also the bank record evidence at trial that of how the william alone tax check was mailed out it's deposited into an account and then an amount and almost the full amount of those proceeds is written from the william alone inc business account to put into checking account all those bank records came in at trial and then also the william malone in were prosecuted in the northern district of georgia your honor and said then at the business address there's a wallet on the desk on the business desk there's a second wallet and in that wallet there's the sandra oya lucy debit card which is just sort of similar to the way melinda carpet so there's those two debit cards that are really direct evidence as to mr spazz and there's also of course mr post arrest statement to the agents which certainly the governor argues is high business and then there's additionally the circumstantial evidence at which i believe the court's probably familiar with from the parties perhaps in the record and then finally there is of course the fact that mr shabazz chose to testify and he testified he denied involvement in the scheme he offered an explanation for those debit cards by claiming the agents had planted them on him and so under this court's precedents that this court can say that given that the jury clearly disbelieve and you have five minutes thanks or it is true mr testified and it is true obviously that the jury chose not to believe him but we cannot say here joy did take this substantive evidence of you which we can take i substantive evidence you can but we cannot say that the reason why the jury didn't believe him was the two thousand extra tax returns trying to defend against that volume of evidence it's impossible it is it is it's we're talking needles in haystacks we're talking this case had been tried with fifteen and maybe some additional uniform was nine additional returns but two thousand extra returns to defend against it's just too much it's circumstance on top of circumstance when you start doing the four three analysis it's just it's too it's unfairly prejudicial in terms of its relevance we've talked about the commonalities the commonalities are stretched here and this sort of like saying every drug dealer puts that cocaine in a bag i mean there there are some there are four evidence there for a addresses that are consistent but a lot of these things are inherent in the commission of tax fraud the the client kingpin did he deny knowing the on the no but the statement is not it is not the smoking gun it is not oh absolutely i'm guilty of all this tax fraud so i don't i don't think that is i understand a point and i think it's something the court consider but i don't think that it's the end of the day by any means for mr shabazz they're going back to the role issue there's no evidence he supervised these people you know renting an apartment for your cousin or renting an apartment for your rap artist is not supervising someone during the commission of fraud and we look at what the guy like you could be if you're running it for the purpose of having false tax returns sent to it that's a very if though that's the million dollar if and there's no evidence that he did that and that's that there's no evidence that he did and everybody every witness when asked about why you were there there was the story of the guy that ran the car dealership the  car business with mr shabazz he's like i was always late to work my wife and i lived all the way across town my wife when they went to set up a daycare center on this side of town and so this this place i could live here was much closer to go to work there were legitimate explanations for  almost all of these things and not one of these victims came for witnesses came forward and said i did it commit fraud when we look at what the guidelines require for the role and handsome and we talk about you know indications of role relate to decision  already recruitment of accomplishment has claimed right to lord her share of the fruits of the crime planning and organizing the degree of control and authority there's just no showing here it's all assume it's assumed that he's the man he's the husband he was in control and we just can't make we just can't make that assumption here it's a four level swing it's a it's us very significant enhancement to my client's sentence and it's assumed it's  and it shouldn't be the finding of this court the again there's no evidence he supervised the wives and there was some testimony that he appeared to be in terms of the relationship appeared to be the person