please the court my name is scott sherman i'm counsel for kevin laney mr bell us who represents mr frederico is present we're going to split the time ten minutes between each of us with your permission and i'll reserve two minutes of my ten for a bottle please ok the government in this case charged kevin laney with quite serious federal crimes that resulted his conviction he's now in prison but he had no right he had no jury trial for the government's argument to prevail that there was a valid waiver this court has to ignore the plain language of rule twenty three and thirty years of jurisprudence in this circuit rule twenty three itself says there must be a jury trial unless quote the defendant waves or jury can you explain to me why we don't have an invited error problem here as i read the record it appeared to me that both defendants waived their attendance at the status conferences where the subject of the waiver came and that that there was a pending brewton problem that would have attended a jury trial and it looked to me like defense counsel did not want severance in two separate trials they wanted to try the case together and for that reason they stipulated to a trial to the bench thereby eliminating the bruton problem there's no suggestion in the record that either  client didn't authorize his counsel to waive on his behalf so the case really comes down to the argument that you're making that there isn't a written waiver or some sort of an oral coll on the record in the courtroom between the judge and your clients to confirm the waiver but because of the defense tactic of requesting a bench trial why should we not invoke the doctrine of invited there speckly i disagree both with your assumption and your conclusion ok in fact the government commonly wants a single trial it's much easier for them they want it to happen but there's no evidence on the record which of the two sides the government or defense council wanted a joint trial if either did there may well have been a some kind of combination of reasons one of the things had the bruton problem remain because of the fact that the defendants were facing jury trials the district court would have to have had to sever the two co defendants within are if the government wants to use a statement or all pro or certain parts of the statement again that wasn't part of the conversation on the record so we don't know so i think it's probably due respect speculation to say it was the defense moving for a joint trial we do know with regard to camera whether we're going or federico there was some sort of a post trial declaration where the defendant did acknowledge that he because it's a second motion for a new trial she said i'm not going to go there but interesting enough it inferentially i must concede she rejects the government's argument that of course the defendants were at the conference and must have agreed because in fact she makes no such reference in her order she could have said mr federico was there he told me it was fine having not done so it certainly raises the very strong inference that they were not present to go to your conclusion to the contrary there are certainly many cases where a defendant silence in the trial  will waive an issue or as you say be invited air with certain core constitutional rights that's never the case which is why rule twenty three says the court must take a waiver in writing this court is set at a minimum the courts language there must at least be an oral on the record inquiry of the defendant there really are two reasons what we have we have a writing but your position is there it doesn't contain a written signature from the client to the defense counsel cannot bind the client  to satisfy rule twenty three that's certainly this court's prior rulings i've cited half a dozen cases including herrera peralta which is cited in the briefs and gonzales flores where in fact a lawyer did say it was ok the client did not that's the case this court said that won't do so the difficulty here is we never know what the lawyer tells the client so let me give you a different scenario than when you suggest the lawyer is going paid money up front he says a jury trial it'll take me four weeks and i'm not very good in federal court i want someone next to me if i waive jury i get a two week trial i've adequately paid and i have a co counsel to help me there may be lots of reasons but it that doesn't matter we don't know what that lawyer told a client for the purpose of annoying and intelligent waiver and i think that becomes the critical point when swiss standard we used to review here i mean is this error is  you're obviously this was not brought to the attention of the district judge well the trial was going on i think the question is just one of error your honor that the government can see it as a structural error if the court finds there and therefore requires knowledge your honor in fact the court subsequently asked me about the same time and gura peralta said at a minimum there must be an on the record oral admission by the court as to rights and waiver or the written waiver required by rule twenty three i'm aware of no decision by the circuit or any other circuit that is found a lawyer saying it's enough your honor we say it's enough we're going to waive jury and no questioning of the client i'm not anywhere in the country that i know of in the government cited none you would think they would and the arguments they made were actually ordered let me just take one moment on one other issue with your permission which is a constructive amendment variance issue because i think it's really quite dramatically clear in the indictment i mean everyone says this is the core of the chart that they submitted fraudulent invoices for material used and work performed by the businesses knowing that the materials were not used and the work had not been performed that's the indictment they speak give you therefore a structure for what in fact how the fraud happen and i think it's undeniable that both the government and effected governments briefs to this court talked excessively about conflicts of interest and how there was a release of confidential information it's an entirely different theory i want to say i'm not sure that it is i mean it is i understood the purpose of creating the sham companies that each of the conspirators build imperial there's no evidence in the record that any actual engineering work was done so it's clear that the invoices that were submitted for payment by imperial were complete fabrications and that the same people who were behind those charades were in a position at matrix to influence the award of bids to imperial so why isn't that part and parcel of the scheme to defraud but the trial court found not unreasonably in some sense that there were that certainly matrix had to be involved but your assumption about invoices is mistaken in the record no invoice from any of these companies ever went to matrix but that's not the point i mean the point of the sham invoices as i understand it was simply so that the money could be paid in essence that kickback could be funneled to the conspirators in by quote unquote painting these invoices and that that money in essence was included in the amount of money that matrix was billed by imperial that's how the money flowed back to the coconspirators so i really don't understand your variance argument because in fact the indictment says that matrix was billed for work that was not done or materials not provided that's but isn't if if if that work is included a quote quote unquote work is included in the amount that matrix was asked to pay why isn't that part and parcel of the scheme to do because i'm not saying you could have in fact defined a broader scheme for fraud they mean told the defense here's what we're claiming you didn't do work that you built matrix for that's not true every ounce of work that they were hired to do but but but your ally being the question of what was the value of the work that was done by matrix for example the mckittrick tank project for you know ninety thousand dollars for two tanks or whatever it was was inflated so that there would be money available to pay these invoices i understand the government's theory which you've articulated just now but that was the proof it try i'm just i mean i read the indictment and i seem it appears to me that the language is broad enough to include this as part and parcel of the scheme and artifice to defraud under thirteen forty one because i think not because what the government presented at trial was that the argument they made was that the project matters that matrix gave confidential information to mr federico he allowed that allowed a higher bid imperial did exactly what it said it would do say fix those two tanks it did it there is no evidence no record that anything less was provided or the materials were provided they were paid exactly what they did so they had no inflated invoices so when it talks about interest but again you're overlooking the fact that the decision makers at matrix who influence the awarding of the bid got a kickback a portion of that money for the tank project by paying through imperial be in voices that were submitted for wor is what you're going to be tried again let me come at the question a different way how was the defense to prejudice by the alleged variance b c the defense core argument was we never submitted an inflated or false invoice to matrix ever and the government in fact found none by mr laney ever so that they said you did are not proving we built for work we didn't do to matrix or build for work for materials we didn't provide but that was there so i just don't understand how that matters in terms in other words you can be convicted of mail fraud because you set in motion a scheme of conduct that ultimately results in money being deposited or an invoice being mailed and there's no requirement in this case or any other that there actually had to have been work done behind these false invoices that benefited matrix the whole scheme as i understand it from the indictment was to figure out a way to channel the kickback money back to the people at matrix who are influencing the awarding of a contract agree with you if the government had charge in the language of the statute  victim then they have a wide range of what they can prove but the fifth amendment set is determined by this court's decision and the u s supreme court decision says if you pick a method by which the fraud occurred that's what you must prove unless you get a new indictment that's what i that's why i respectfully suggest you look at adamson again or davis this court's decision from february of this year in which the slightest change was made and how they were going to prove one element and this court said it's constructive amendment must be reversed because i'm not saying that anyone would like the conduct the defense focus had been on we in fact were to fraud ing imperium not the got the trial judge said i don't believe that but that was their defense and it was a direct inflating the bill that imperial sent to matrix let's assume that's correct and if they had charged the crime in that way that is just in the language of the statute the government may have been able to argue that but they chose not to do it they chose to allege this is how you did a crime it's like saying i'm charged with assaulting miss x and they tell me when it happened and where it happened and then they prove that i assaulted miss why i would say no no this is the notice i got i was going after miss x you cannot and in the names of businesses created specially for the purpose of perpetuating the fraud on matrix and i'm suggesting that if the if the the fraud was to increase the value of the bid to matrix which the co defendants were in a position to allocate or approve then matrix was in fact a fraud and it paid more for the week for the work than it should have legitimately paid but for this i'll call extra cushion that was included in the bill that imperial submitted to matrix so that the kickbacks could be funneled back to the coconspirators direct here to the very next paragraph eight said pass the inflated faults invoices on to matrix so they are saying and they do it again if you go to the actual count one it talks about the same thing and that was in fact the government's theory that inflated in were and one of those invoices included the inflated faults invoices that had been submitted to imperial which then got passed on to matrix i that's i'm just not seeing in the variance here that's not what the government responded your question i'm sorry if i've done a poor job of trying to you know you know no no no you've done your best but just to reassure co counsel mr price would you put ten minutes on the clock say it's ok to go ahead and waive the jury and this council signs off but but i don't think that solves it and i think what you're sugaring touch a little bit on and that is that you kind of invited air you have the you have such a fundamental right under the constitution as well as the as well as the statute and he's not void geared on it there's no evidence that he that when he is boy dear and on the details of what it means to waive a jury he sounds good he and all will be together with you know all that but he it less you have that extra piece of the puzzle which is not here then you can't really pin the invited error on him he's got that right to know that his lawyer at the colloquy with him or and in that case i guess this a day a case is if you don't get the written waiver you got to actually ask the questions about you know it's twelve people beyond a reasonable doubt and one person doesn't vote guilty of going to be ok you don't get convicted those are just foreign concept to a person going to a trial the lawyer said we've reached an agreement to have a bench trial a wolf or to stipulation and they have both said we agree would that have been enough no it really would have been the judge would have then had to ask questions what are you agreeing to do you know what it's what it's what the federal well under sanjian these other cases it clearly would be ok would not if they say if they personally signed it yeah not if they authorize it they wouldn't have to say a word just signed their john henry that's correct that be enough that could get so in your client's case frederico who later acknowledged that this step the stipulation was fine by him that's not enough wasn't signed by him it was signed by as attorney no but did he later a knowledge that that was ok confident that he knows what he's authorizing what he's giving up a jury trial course won't it and then just this judge talk of why we don't have any particular knowledge when he signs his name because all we know is that there's a signature well i don't like that rule myself i think should be united states constitution we have to have a completely wa federico comes on the scene that was apparently for one tank to clean up a tank or whatever the vague order was he federico goes down his shop is in livermore he says i i can't bring my whole quitman down i want to i want to do it well maybe we i'm not was on repairing the two tanks but it seems to me that the answer to that has to be if if imperial couldn't do the work of repairing the two tanks for ninety thousand dollars then there wasn't any extra money in the deal that could be kicked back to the folks at matrix the coconspirators who had approved that's right the work to be done so so i don't think the government has to prove fair market value in this instance because otherwise there's no explanation for why that money got paid i don't think that i don't think governments approve anyone has with fair market value the value that the sub contractor bids that can be anything that can be what the market is in mr a bar that the car is a koan around yeah i mean didn't he testify that business got really good after e he and mr federico got together and that's you know and then the oil industry gas prices were high and the oil industry was going great guns and you know when when it rains we all get wet and everybody was getting soaked here in cash but he also conceded he did not a bit he was in that he was inept at that he said it wasn't my thing so i got a guy on a sort of a p r and in your book but but inherent in that testimony is that imperial wasn't losing money on this work and there was one point three million dollars that got college ok sculpted well that's not it we ought to be invoices that i mean tricks paid but we have written  where the rubber meets the road on this because a matrix pays one point three will say or they pay seventy thousand in that particular mckittrick case back to what they paid more than one point three eight and was just zoomed at the seventy thousand on the side and in the planes the owner of that tank on the california they pay it but they don't pay it necessarily because they lost money they paid for publicity or for but p r reasons i could say they're a big company they don't want if that thing smells of kickback they're just going to get that send that money back there's no proof they didn't lose that money then ninety thousand might have been a perfectly fair bit or a perfectly legitimate bit fair is not the right word to somehow try to i think you'd have a much stronger argument if there were only one construction project here to which it which is in fact the contract that should be reversed that should not have stood well that will give you got is that we've got a conspiracy that includes count two as one of the substantive overt acts and further it's of the conspiracy and the district court could virginia why that test is not well because the actual bids not inflated it's it is what it is ok and then again the money this kickback has to do with the fact that frederico rents resents the fact that your bar is ripping them off on time so there's an apples and oranges they're not tied together like the good the court seems to be looking at or the district court looked at the in that particular case they're not but he just isn't that the province of the finder of fact in order to make the inferential leap from this evidence it's not a fair inferentially and that's i'm going to reserve but i've got left here going to couple minutes thanks pieces that were structural errors are yes your honor the the case from that it's not cited in my brief united states versus ratio three seventy one f third ten ninety three where the court said that structurally or absolves the defendant of showing the third prong that is the prejudice prong of plain air so the defendant must still show that there was air that it was plain and it seriously affected the integrity and public proceedings so in our view the defendants have not shown that there was error that it was is saying that the defendant himself or herself need not sign the defendant yes your honor the court has been extremely clear that the defendant himself or herself need not sign a waiver what's your best nights or good case on that there's no there's no night case that actually i asked the question but i think that physics decision in pages is helpful in that it basically says that when the defendants have asked for something they're not entitled to argue that it's an error and and in this case the defendants could have had a jury trial the court had set to individual jury trials because of the problem it's then at the defense rick quest apparently it it joined the trials for a single bench trial and we know that for example from the declaration that federico filed after the trial that that he was agreeable today to this lady has not shown that he that he was not agreeable to it the we heard in particular that plainly has not shown that he was not present during the the march eighteenth telephone conference that the court held and until he shows that or until there is some showing of that he cannot show that he was not aware of the that that a that the court was thinking away with your article three district judge on one end of the telephone conversation and three lawyers two defense lawyers in the system united states attorney and no one has the presence of mind to say that the defendants are either a present the not present or see have consented to not being present and that's ok well they the defense have they did they waive their presence for the pretrial telephone conference and that's clear from the record can you come back to the question of signing and whom of sign you said the law is very clear that only the lawyer presumption that the defendant has has waived his right to a jury trial and our parson mission is that the signature under these circumstances the signature of the defendant i've cited the defense counsel is sufficient to constitute a waiver it says it is if there's a no written agreement signed personally by the defendant or be in court call a coup with the defendant there is no jury trial where that's when it stands it does say that your honor and but our submission would be that there was a waiver by the defense counsel in this case and on the circumstances present that we have here there was no error that is the defendant's  a post trial declaration federico saying he he knew about it and laney has not established that he did not know about the waiver in addition the waiver was in their favor they did not want a jury trial separate jury trials both of them say we wanted to binge drop because we thought it helped us that i'm talking about the defendants not their lawyer it didn't the federico does not say it helped us but he did say he was agreeable to a a bench trial in the declaration which office about why an assistant u s attorney should demand a written waiver from the defendants personally i agree your honor they knew the district court or the defense or the the assistant of state's attorney should have demanded  a trial but i don't think the government should be penalized and nor should the district court for for what for something that the defendants essentially want in this case and you know penalty to the district court if we reverse on that basis she never sees the case again so there's no penalty to her well i'm not aware that she would be in the well if the court wishes to to reassign it it can but i don't believe that a waiver of a jury trial would would prevent the district court from proceeding again in other words it's just a waiver so the court could hold a proceedings on remand i don't believe there's a double jeopardy bar to further proceedings so but but if that even if we find structural error that that would not trigger double jeopardy preventing retrial on the counts of conviction i believe that's correct that the court could find conceded that that there would have to be two separate jury trials and then found cases from this court that say that a bench trial was this does not raise a burden problem and the court cited that in th whether the district court quiz lanie about it but i just want to point out that there are other rules that that specifically require the defendant's  attorney and himself to to to two to waive a right and particular rule ten specifically says the defendant in open court after being advised of the nature of the charge and the defendant's right ways to the extent that other courts have required a a signature from the defendant that's not the law in the circuit yet might be about to follow that would be a fairly major change i mean this court has basically taken a flexible approach and and a number of different judges have have signed on to that flexible approach and i don't think that this is the case where a court should impose a requirement that the defendant himself sign a rule twenty three waiver because there are circumstances vary and this may not be the case that the court may find that the defense did not executable twenty three waiver but this is not the case i don't think a language of the rule says the defendant we've seen a jury trial in writing that's correct  can sounds like the defendant supposed to do it well except that the rules themselves use the defendant basically as a default and so when that when the rules are mean to say that the defendant has to do something personally the rules say that and for example rule eleven says the defendant has to be addressed personally and it uses the word personally as i said before rule ten says the defendant and his defense and defense counsel have to sign a waiver  seven v says the defendant in open court has to has to waive right to indictment so there are there are situations where it's clear from the rules that the defendant himself has to sign a waiver and this is not one of those situations there are there are many situations where the rules impose a requirement on the defendant and by that by the defendant i think the court rule drafters of the rule simply meant the person who stands you know the defendant or his counsel says that the defendant defrauded matrix by knowingly so many or causing to be submitted false inflated invoices to matrix and in our view the causing to be submitted is sufficient to cover what we actually proved at trial the the defendants submitted to fall so that what happened in this case is imperial submitted false bids to inflated bids to matrix and then the defendants most of the several defendants submitted invoices to imperial and imperial matrix paid imperial imperial paid matrix but we think that the cause to be submitted is sufficient to to obviate any need matrix through imperial and that was sufficient to to avoid any constructive amendment if the court has no further questions i'm happy to submit the case thank you thank you  abuse let me respond as several specific questions you asked the governor first with regard to rule twenty three the government suggests that the word defendant which you pointed out is in rule twenty three is somehow flexible in fact the contrary is true in the rule itself it in other places use of the word the parties so it chose the word defendant quite pointedly and to read it out of the rules when in fact in rule twenty three in several places it says the parties may agree to something this court also has said even the parties must require the fund in participating the court asked about the standard of review in shorty this court said its review didn't know what the jury trial issue so it court looks at united states versus shorty that's what it is in fact holds you ask the beginning of his it says the court must and it specifies twelve jurors unanimous jury you can participate in for deer and if you give up your jury trial i alone get to do it so this course only specify what should be advised so the court can decide if there's a knowing intelligent waiver because the bottom line is the defendant may say yes i want to give it up but not understand it in this court would readily say it was not a knowing intelligent waiver there's not a valid waiver which is why the review is done to novo by this court because it's a legal constitutional question so and the last point that i would make in thirty seconds is that the government argues to night or has taken a flexible process that's not fair the rule is in writing and the only thing the ninth circuit has permitted is oral on the record inquiry by the district court of the defendant and basically that becomes the same the written transcript becomes the written waiver but otherwise the ninth circuit nor to my knowledge any other circuit in the country has said it's enough that the lawyer signs off and the defendant is never question that found it was not present thank you very much for giving me that time he was the project manager that approved the ninety thousand he was a government witness is he not there i thought there was a change between sands and then leni came in towards the end of the opposite or so there was a change so lainie had a hand in it he just didn't made the job worth it so he that bit i know that he's got the pattern i know that the similarities and what i mean the general rule in these cases you notice was i don't follow the money right right now and that's what we all do you know it's what the government tries to do when they defraud and what the defense tries to deflect the jury's attention for but i mean well you know if the end of the day it was your client who was sitting there holding holding the money the kickback the seventy thousand  split thousand he got sixty three i mean everybody got well because it was raining but that that is not that's not kickback off that project that project was not fraudulent that that is simply money that he defraud they could carry the scheme out and as long without him figuring out something was going on that's what strikes you but that's what's also shows this was not a fixed bid on this one or that his or her may be one of the most ignorant businessmen in the history of below and on this one it's a i thought that i thought that that kickback seventy thousand was a side deal and it didn't really taint that case and that's why i'm asking the court to find insufficient for that count thank you thank you thank you both sides for their arguments the case united states versus