honor may it please the court and us eisenman on behalf of the defendant appellant mrs karen dingle mrs tingles appeal involves two issues but unless the court has any questions i'd like to focus primarily on the first that being whether there was sufficient evidence to affirm mrs jingles convictions for conspiracy mail fraud and money laundering at trial the jury was instructed to let me tell you what it has been foremost in in my mind about mrs dingle the move of the twenty thousand dollars of grant money into a business account all owed by a check for her son's mortgage that's a difficult piece of evidence for mrs dingell i understand that paying bills from the business now is not a legal in and of itself but th showed that she caused grant money to be moved into that business account first so what i would appreciate is what is the best sure judge and that was definitely something that the government focused on a trial as well for the best innocent explanation which i think is fully supported by the record is that mrs dingell was given instructions from her husband to move that money the testimony a trial for ms kilpatrick was that only dr dingell gave instructions regarding moving funds from this grant account into the operating account but to the jury have to believe that because obviously the perspective we now need to take is you know was there any way the jury could have understood this to be you know consistent with her knowledge of the conspiracy consistent with the verdict that the jury reached so even if there was an innocent explanation if there was an alternative that she was comfortable enough moving this money around herself that she knew how to do it that she puts it and eventually you know fifteen thousand of it go to the son's mortgage  have reached the correct verdict here which is an acquittal on this count you're right you're absolutely right perhaps she didn't get direction from her husband but the critical matter here is whether she knew or was it least deliberately avoiding that false or fraudulent statements were made in these grand documents to acquire this grant money if she's moving funds from one account to the other that says nothing about whether she knows that her husband and his kilpatrick have lied to the government about getting these grants in the first place so what about these comments that she makes about the greedy comments yes that she makes that's why isn't that some in the cation that she knew about the fraud and the government definitely emphasizes that as well because greed is not the same thing as fraud i think that's the most basic explanation is calling somebody greedy does not mean calling someone a liar and thief and somebody who has cheated the government again the government's burden of proof here according to its own jury instruction is to say that mrs dingle had to know that they were lies in the grand documents and or lies in the tax documents and calling your husband greedy because he's taken his own paycheck before paying business expenses just cannot it's not reasonable to infer by using that word greed she means i know about the fraud i know that she told the government lies in the grand documents i know that you told the state lies in the tax documents and i know all these things that you've deliberately excluded me from because you've been having extramarital affairs with many of these women that you contract with but not the bookkeeper she doesn't have anything to do with the grants i'm simply saying well this is it isn't the evidence that mrs dingell reference grants by name and making account transfers fatal to her argument no it's not and that was what judge over there was talking about she's saying that she put a notation on this twenty thousand dollar transfer that it was for this one grant is a s p r grant but without any there's no reason to believe that she knew that it wasn't having to have to do with that grant she's not keeping the books she doesn't know what grant expenses are being paid out of their general operating account her husband's the  sorry judge and that mr jingo when when he was confronted by mrs thing go from you know being greedy that he reply that the grants the grandfather worth is money and his response with seemed to indicate i would that she was so player that he considered state grand plans to be his own money well why would that not doing enough to show her knowledge of the scheme well first of all remember this conversation miss kilpatrick doesn't even remember the year that this conversation took place so already you know we're trying to we're going to view that in the light most favorable to the government but i just wanted to point that out second of all he never says that i'm the testimony he doesn't say this grant money is my money and he said this is my money give it to me and that's all we have for context here that's one statement that they had and again if mrs dingell doesn't know that the grants were fraudulent we obtained in the first place then she doesn't know that there's anything wrong what if he means that she's already spent this money on grant activities according to the government's own admission these employees these company employees were doing the grant activity he was going to meetings mrs dingell is not aware of every sort of you know out of the grant expenses she doesn't know  what he's already spent that amount of money from the company funds and she's definitely not keeping tabs on the company accounts but she surely does know that that he's spending a lot of money on personal luxuries whether it's cars vacations yachts you know trips to germany and so on my concern is that your argument i mean i would do the same thing in your shoes but your argument is looking at some of these specifics and not stepping back and realizing that the jury can through circumstantial evidence find either from the ostrich instruction that she was deliberately avoiding finally connecting the last dot or the actual knowledge and there's a lot going on in this  scenario that she does know about this really questionable i understand what you're saying and i think that's probably how the jury verdict happened they set through seven weeks of this evidence seven weeks of evidence against her husband and seven weeks of the government kind of character admissions kind of come into play here and this kilpatrick testimony she testified for over a week against dr didn't go and never once did she say that mrs dingell had and knowledge about this fraud no knowledge of the grant fraud nothing to do with the bookkeeping no knowledge that any tears she didn't say she didn't have knowledge she just didn't say she did correct correct she said she didn't have any she said she never she never pointed to miss a single doing anything or knowing about any of the grand frauds being a part of any one of those discussions where this were you know dr dingell says to miss kilpatrick i'll just make the budgets work or take off our name from these grant forms she's never even paid through as being in the room for any of those she wrote down what she thought were personal likes and business expenses that were paid from personal funds but all she did for with that little folder was handed over to ms kilpatrick and the accountant ms white and they are the ones who put it into the tax forms some some tax discrepancies i totally agree with that in which she you know spending perhaps excessively yes but it's fraudulent knowledge that she had to have been the essential nature of this fraudulent scheme was lying these grant documents lying to the state about who was doing the grant work how much they were doing and how much they were getting paid for and there's just no evidence that she knew about the what's the record evidence on the source of the funds that was not great related the record evidence and i mean relevant year sure sure the government will correct me if i'm wrong on the numbers here but i think it was significantly less you know the united are money that they were bringing in  tingles rental income it was significantly less than it had been in the past no i believe the united armor was only during the period of time that we're talking about the grant money increased over time yes and i believe they started not dispute that but whether mrs dingell has knowledge about exactly how much money is coming from which sources you just can't find that in this record because she's not anywhere near the books and they're doing all these grant activities that she's not she's purposely excluded from ok so sorry are no no that's quite all right thank you very much mr stiller good morning and they have please the court regarding the instructions given to leon dingell's jury i think it's important to remember the faith that we generally place on jurors ability to strictly the obey instructions given by the court it's upon that faith that we believe that jurors can disregard compelling but stricken testimony it's upon that faith that we believe that jurors can compartmentalise evidence of a defendant's horrific prior bad acts as evidence for a limited purpose but not for bad character or propensity but mr stiller i mean we've been through this should versus mosque argument before us in our pattern instructions and i actually took the step  because you know i try to prepare for every argument i've flip through the dictionary looked up should which is a word i'm sure i've known for a long time and one of the meanings of should is must and our court has made the decision that the jury is not going to misinterpret this instruction as thinking that all well even if it's beyond a reasonable doubt they have an option of not convicting we've been pretty confident and then when when the rule twenty nine motion s made and review is made of the evidence that's a yet another safeguard so not sure that the case has been made even if other circuits see this differently for overruling mansouri and curley and changing out our pattern instruction i guess that goes back to my initial point your honor curley kind of disregards the faith that we otherwise place in jurors want to know why does it i mean you know you should honor question is that the necessary meaning of this that i think that is the question your honor i just believe that you know absent evidence to the contrary from a linguistic linguist or a behavioral ost in our day to day lives when we use the term should should see a dentist twice a year should give our children a healthy breakfast there are exceptions to those rules my six year old ate chocolate pudding for breakfast last week normally we try and give them cheerios or something healthy that's what we should do but there are exceptions to what we should do and i believe that on this fundamentally crucial issue the second circuit has it right in that must is not optional well but the case in the second circuit wasn't dealing with the may which is a completely different thing i don't know if you are a veteran at the rules committees process of restyling with various rules but there are many discussions about main must should shall which got ditched from the rules and should was understood to be you have to do this that's the way the summary judgment rule war was worded for three or four years summary judgment a reasonable doubt there's certain issues in common but they lack the constitutional component and that's what's crucial here curly also makes mention of the facial even handedness of the pattern instruction in other words there's should convict and there should acquit i think that even handedness is spatial but it overlooks the crucial distinction that nobody's constitutional right is violated if someone who's guilt is proven beyond a reasonable doubt is not convicted the same can't be wrong in thinking that leon himself or at least his trial counsel submitted to the court the very jury instruction to which there is now only if indeed you're correct your honor as the government points out in its brief dr dingell was a proponent of essentially the pattern language as i've tried to articulate in my reply brief up to waive something as opposed to forfeit it requires some purposeful and intentional conduct i'm not sure that the record here indicates that by sort of the passive reliance on the status quo that being the pattern instructions blessed by this court  curley and in months zuri that defense counsel or trial counsel was it was communicating an affirmative preference for should rather than must it's different than the trudeau situation in which the records show that defense counsel there wrestled with the government and wrestled with the district court to get the language that he then complained about on appeal but that wouldn't even a waiver rule for jury instructions because the only reason somebody would be complaining on appeal about an instruction is that they've now upon reflection discovered some problem with it that they didn't appreciate was there when they said it was ok so your rule really would be you can never do more than forfeit on a jury instruction i disagree  if there's an affirmative invitation to the error later complained about affirmative the judge this is what i want i understand my options a versus b and i want b that waives the ability to complain about b sentencing or that dingell is now making the garcia cigarette waiver applies only to claims of cunningham error that is that the court passed non frivolous argument over in silence dingle on appeal is only making one claim of cunningham error which pertains to the district court having passed over in silence his claim that the fact that he had set aside roughly one point one million dollars of advance funds towards restitution was a mitigating concern  that as my reply brief tries to acknowledge what he says something about it he's considered leon's ability to pay restitution by selling legitimately taint assets i know it's not full something good that there's a nod it was mentioned in the context of i've read the sentencing submission in these are the claims being advanced yes but that was the full extent of the district court's discussion of the restitution issue and we do believe that that came in violation of cunningham that itself justifies the sentence being vacated and remained it and going back to judge rover's question about garcia sic gora as my reply brief indicates the the colloquy occurred to me like appellate advisement had already been given trial counsel had moved to withdraw we were fussing and trying to figure out who's going to notice the appeal and what about his in form a pop or a status and so on and so forth and only after it was sort of all that smoke it cleared and dusted settled did counsel for the government reminds judge mill that that question needed to be asked questions where where does it say that's too late i mean if the judge is asking the question th what what reason do we have somebody had spoken up and said you know i don't think you paid enough attention to restitution that he wouldn't have circled back and tried to do so i think it's garcia cigarette itself that states that the magic word question has to be asked obviously after the pronouncement of the sentence but before the appellate advisement and that honors the general principle that we're not requiring people to take exception to sentences for purposes of the record beyond the silence with respect to the restitution issue which again i believe itself justifies that the sentence be vacated i think this is an opportunity for this court to speak to the perils of a stock application of general deterrence as sort of a trial to a defendant's mitigation are you arguing that general deterrence is just inherently an inappropriate consideration since it's not focused on this defendant or are you arguing something more narrow i'm arguing that in this case the judge the judge's consideration of dr dingell's age and by extension mortality wasn't sufficiently thoughtful and individualized given the manner in which general deterrence was applied in stock fashion to essentially trump the mitigation judge mills gave some indication that yes i understand that this is unusual you are a seventy eight year old man and that doesn't happen every day in this court but to give you a substantial sentence reduction would send a message to people of a certain age that exten won't be taken this seriously so judge mills was focused on a particular audience not just big people or people dealing with government funds it's people of a certain age and here i see that i'm out of time things are in age was seventy eight years of age so the question needed to be asked how big is that audience as it relates to how important general deterrence is and is that group of people does a lengthy sentence is a lengthy sentence necessary to deter that group however big or small thank you ok thank you very much mr bass question judge roemer you asked the question what is the best innocent explanation for that twenty thousand dollars transfer judge williams you asked if the notation of the on the transfer as asked for admin expense was fatal to her argument and i would submit that judge the answer to judge or o'connor's question is there is no innocent explanation but the mere asking of that question resolves this appeal because the question on appeal is not whether there's an innocent explanation for the evidence the question is whether there is some evidence to support the conviction or more specifically whether the record is devoid of evidence was allegedly running a legitimate consulting business i mean when she writing more chats was she spending more time at the office was she spending more money than she had in that was for the jury to answer those cornell but it was not entirely and so here's my i think judge everybody's moving in this direction suppose that  this is before the fraud the fraudulent enterprise begins and mrs dangle is there and she takes twenty thousand dollars from a corporate bank account she moves it over and she uses it to pay a relative's mortgage well you might have a problem of corporate law involved there you might have some issue about you know commingling of corporate and personal assets i can think of various things you would have but one of them is not that you're defrauding the government i mean you know you're just as many small business owners are you're being kind of sloppy with the books is what's happening and i think the question here is when we look at this twenty thousand dollars of which fifteen goes to the sons mortgage are we looking at being sloppy with the books are we looking at her actually realizing that there's this fraudulent effort to siphon money from grants that the that are being received for you know hiv education all the rest of the things these grants were supposed to go for where's the evidence that pushes it over the line rather i totally agree that sloppy bookkeeping does not equate to male for good so we're on the same and if more moreover if the mail fraud or wire fraud statute said in order to convict a defendant of those offenses he or she must either fully be aware of the scheme or fully participate in the scheme we wouldn't be here but that's not what the mail fraud statute says that's not what this court has repeatedly said in fact this court has repeatedly said that a single act constitute fence and the single act here was not just the transfer of the twenty thousand dollars to another account and then directing most kilpatrick to apply those funds or fifteen thousand of those funds on her son's mortgage but the evidence put mrs dean go in front of a computer and it put her not only transferring the funds but making a false statement in doing so she inputted into that transfer that the purpose of the transfer was for that asked for grant admission now so what's the distinction between what you're asking me and what the evidence was is a transfer coupled with a false statement that's mail fraud and somehow that false statement tells us that she knows about this scheme circularly when we look at the backdrop of this because the evidence did show that dingle had reasons to hide information about the grants king from mrs dingell because of the extramarital affairs right well that was evidence he certainly he certainly took steps to hide his relationships with these other women there's no question right that and he did yeah and saw in part of the other women was they were all involved in the great scheme and so he wasn't sharing any of that with mrs dingle in terms of what the evidence is in the record right your honor he certainly was hiding his relationships with his extramarital relationships with the other the other women but he wasn't hiding anything else how do you know that because let's record evidence on i mean that's the problem how do you know that well as you know in terms of the phone the various documents that were submitted that were fraudulent and there's a ton of evidence on him but you know i'm happy very light on her i'm happy to answer that your honor as you as you mentioned the backdrop and here is the backdrop as you also inquired of counsel on at least three occasions  kilpatrick to transfer to him directly one hundred thousand dollars in addition four hundred forty thousand dollars of the two point six million out of the ten million total ten million total two point six million of that ten million was written directly to mr mrs dingell up to two point one million and mrs so did she have to endorse a check of the two point six million your other four hundred forty thousand dollars in checks were written directly to karen dingell they were written to her and only to her and she cashed them in addition she personally benefited from the other two point one million dollars in checks that were written to leon thinking because those checks were deposited in the personal pot bank account and then mrs dingell wrote checks are for that account in total nine hundred fifteen checks mrs dingell signed totaling one point seven million dollars for the payment of largely prefer personal expenses course it's not your position that any time an individual is an intended beneficiary of a conspiracy that he or she is part of it right agreed roger but there are three aspects to this scheme and the civil law is that a defendant conspiracy or or a scheme does not need to participate in all aspects of it does not need to know all the the other coconspirators or coconspirators does not need to be a participant during the entire period the three aspects of the scheme where the fraudulent back was ition of the funds the conversion of the funds to personal use and the fraudulent retention of the funds by filing false tax returns mrs dingell participated in two of those three she was every time she wrote a check every time there were grant funds issued to her  which she was not entitled she was participating in the fraudulent conversion of the funds well if we if she knew that there was something wrong if he had been a very successful hedge fund manager or something and i guess money you know would have poured into accounts she could have written the same nine hundred fifteen checks i mean some people are very wealthy right you know so they write checks for a lot of things if people still write actual checks so don't you need to kind of nail down somehow i mean my understanding is the government's theory is that from the ostrich instruction that is is these pennies from heaven or are flowing in you know she should have been aware that there was something wrong with them but i'm trying to understand why she should have been aware or your other two theories that we advanced and and judge mills noted as this court stated previously that the government need not  that it is true following this court's caution and using that instruction sperry instruction did say that if the jury were to find this is  the deliberate avoidance theory it must find that she was aware that the red phones were frauds and we obtained that there were false statements made to the department of public health and i would submit to you that there were certainly some evidence some circumstantial evidence including the fact that she was there in the office for more than twenty years she participated in and some of the letter writing and she even wrote a letter on behalf of a broadcast minister's alliance purporting to be writing on behalf of the grantee there was some evidence that she was aware and then again the confrontation of just going about his grief there were some evidence your honor i would suggest  that she was aware of this had a strong suspicion but if you throw aside what change and how much she did  doing more honor i think the answer that question is that her involvement or her activity will remain fairly constant throughout the time period of the charged conspiracy because she was in the office  regularly she did consistently throughout the time period of the scheme of conspiracy write checks for personal expenses and receive checks made out directly to her she was it mentioned she did some  the letter writing for dr dingle and here's another in the litany of of the summary of evidence that i was providing your honor she agreed with mrs kilpatrick not to pay the sales taxes knowing that they had sufficient funds to do so and then she knew that the the you know all this just when they said oh what's a hassle with the sales taxes now and correct and then she knew that that false tax returns all sales tax returns with them be submitted to the state of illinois as a result more importantly so the tax returns are fos because they say zero sales are made and therefore zero another piece of evidence was that in two thousand and nine when the grand jury investigation became over and a grand jury subpoena was issued to us acronym for the  business mrs kilpatrick testified that she had a conversation with barbara white the the accountant and mr mrs dingell about the payment of personal expenses or the deduction of personal expenses and and some of the adjustments to their tax preparation that needed to be addressed and yet after the issuance of that grand jury subpoena in two thousand and nine mrs goal directed mrs kilpatrick to to sign the dingles names to their two thousand and nine tax returns that were filed in two thousand and ten and the two thousand and nine tax return was also false because it continued to deduct evidence of some evidence of the fact that the record is not devoid of evidence that mr that the jury could find mrs daigle guilty beyond a reasonable doubt and again your honour's i appreciate the questions you have about assisting there's no question that her level of culpability was far less than dr doing but culpability is not a question for the jury against her it's a question that sentencing and judge mills and if i believed to two and a half or three but they specifically agreed to it and then thereafter the government agreed that mrs dental because of the difference in culpability should receive a four level reduction in her  participant and finally judge mills after considering the difference in culpability imposed a below guideline sentence as he did with dr daigle not to my knowledge your honor this court has never reversed a seventies that's one reasonable apolo guideline sentence as unreasonable and has never done so now that doesn't mean that it would not in an appropriate case but i would submit that this is not such a case and so if i could i just return one last point to how this argument began judge rover's question and judge williams question i appreciate the questions but i would submit that the mere asking of those questions answers the appeal as far as the sufficiency of the evidence claim the evidence there was some evidence and in judge mills as view overwhelming evidence as to both defendants recognizing that their culpability was significantly different the evidence as to both of them was overwhelming and for that reason we would ask that the conviction of  other four women because in your initial motion you mention the two which certainly were driven point home and then you kind of went the extra mile so to speak the other you are  one of the things i've learned been privileged been before this court for many years is in order to be a good trial lawyer you must be a good appellate lawyer and you must be prepared to defend what you on appeal what you did in the trial court and i remember several years ago standing here before you and having to defend the forward be evidence question that your honor asked me when you used the word propensity and i responded by saying that sort of a bomb word and and so the question here is the same one we addressed with respect to this evidence first of all can the government do it should the government do it and did the government do it and the evidence of dr dingell's personal relationships with these other women was not submitted in the back and it was there was evidence of his personal relationship with the directors of public health there was evidence of his relationship with doctor him bottom his friend a personal doctor and the fact that he was lying to these people that he himself was a medical doctor and it was within that context of dr doing those access influence and personal relationships that his personal his extramarital relationships with these women was so program and we presented that question to judge mills and he concluded that the evidence was significant progress now in hindsight your honor it may be that the question as to our letter smith as to why she left because dr dingell asked her about her sweater and maybe that that everything that question and hindsight should have been asked and i would simply respond to that by saying that it certainly wasn't reversible error wasn't  thank you so much judge i appreciate that i just want to say including near performing fact that it grants a scheme to defraud or crime performing acts participating as the government keeps saying you can list one hundred things that she did to participate in that but if she doesn't know about the fraud that's insufficient evidence to convict her and it has to be sufficient evidence beyond a reasonable doubt i would just ask the court to really take a careful look at this and see whether all the government's evidence is really going towards her knowledge of the fraud which is what they had to prove and also just to repeat that she is a seventy seven year old woman who spend she has spent the last nine months of her life in a federal prison and if this court is inclined to agree with our position i would just ask that she be released as soon as possible thank you very much art thank you and mr stiller anything further all right well let me thank you on behalf of the court both of you mr stiller and ms eisenman for accepting these appointments it's of great help to us and i believe great help your clients thanks as well to mr bast will take the case under advisement and the court is going to take a br five minute or so recess