case number seventeen six five one two united states of america versus john roberts arguments not to exceed fifteen minutes per side mr cooper for the he was indicted for conspiracy to defraud the united states he was indicted for several counts of mail fraud and also a couple of counts under the arms export and control act we tried this case over three in august of twenty seven tame mr roberts was found guilty of all of the counts in the indictment just briefly as to the facts and i guess giving the government every benefit the scheme was according to the government that there were a number of soldiers at fort campbell who were essentially stealing government property military items and they were selling those to mr robertson to jumbo in the name of corey wilson that mr roberts and mr wilson were centrally fencing these items on e bay and that's what course led to the mail fraud calce our defense at trial was simple mr roberts testified that he did not know that these items were stuck in doing with these soldiers from fort campbell he had no knowledge that these audits were stolen but of course the jury rejected that testimony that argument he was found guilty i have prepared and submitted in my brief approximately ten issues and i don't think with this morning i'm will be able to go through all of them but i want to touch on a few of the ones that i feel i would submit or extremely important in the first one is kind of the trial issue that i have laid out for the court in this case and the trial issue is this as we were preparing for trial we had to submit our not only our witness list but also our exhibit list and i submitted a number of the bay listings  there in the record i have a few of them with me here this morning they just simply show items of military products sold on  relevant they have the same time period as the the alleged crimes no they were not judge moore unfortunately we were not able to go back to the time period and bring those postings in these postings were probably within six weeks of the trial in august of two thousand and seventeen but they were the same items they were the same type of items there was nothing different about them and mr roberts testified about that at trial  argument he was excluded were excluded from using the paper but he could testify that yes i looked only bay and i solve these items and there was nothing to ferry us about them there was nothing to suggest that there were any way improper or illegal act or use that for purposes of trying to develop pricing and that type of thing so he was able to testify about that the fact that he was able to testify about it pretty way l does away with any argument that this that the illusion of the evidence was not harmless and that judge givens i thought about then it really doesn't because yes mr roberts could testify about that in the jury could hear corroborative of the fact that he waited therefore he acted so i mean if that's something that a trial judge would consider right it is something a trial judge could consider but again this goes to whether or not these items were probative and relevant in this case and i've got a case here and inside of my brief i just found it's united states versus whittington it's four fifty five third seven thirty six and it says even if a district court believes the evidence is insufficient to prove the ultimate point for which it is offered it may not exclude the evidence if it has the slightest probity one and i tried to convince to go join also that that was the case and so that judge who admit the paper copies of the of the testimony he gave anyway right and the other question is we would have to find it to be an abuse of discretion i don't think any of the cooperating witnesses ever testified yes we told john roberts that we had stolen this stuff and yes he knew that the best that they got was it was always assumed now you're right the judge took their word text messages and some of them were rather damaging to mr roberts and he tried to explain in context a lot of those text messages and that's why again i feel like these e bay listings and postings were so crucial to kind of boaster and back him up and in what our whole defense was of he didn't have the state of mind to commit these acts and so i mean even the jury instruction said that we could says but the defendant state of mind can be proved indirectly from the surrounding circumstances including what the defendant said what the defendant did exactly was what the government use i use the text message and what the cooperator say but we needed this information for our defense i mean i thought about walking up here with one hand tied behind my back but i thought that might be a little bit too melodramatic but that's how i felt at trial trying to defend this man when all i could use judge gibbons was his words that's that was  i mean he could testify about that but i'm sorry a lot of times that just rings hollow with many jurors they're wondering you know where's the beef you know where's the evidence to support that so that's what we didn't have so that's the trial  issue with the approximate six minutes i have lift i want to talk about some of the sentencing issues one of the biggest ones the judge also determine was the amount of loss because as you as you all know these fraud cases are driven by the amount of this was a big one probation initially for almost six million dollars loss it was derived really from two two areas they the government use the value of the property that was seized from wilson and mr roberts warehouse and then added to that the value of these e bay listings so you've got one point four million in value from the warehouse and then you've got four point one million in value from a bank so you add those together and when you say the value for e bay is that the value that the products were sold on e bay so why isn't the town just tallying up the number of dollars involved in the sales of fish and you just told us it was four point one million because the government never could prove what was legal and what was illegal that mr roberts was selling on e bay they admitted that a lot of our some of the things mr roberts sold on e bay was legal mr jaworski will admit that when he gets up here the problem there a witness who said at sentencing that ninety percent of the products on e bay were illegal that's when it's agent perry and she and judge lawless and sort of got into a really bad version of the price is right because what she said was it's well beyond fifty percent it is the majority the items were stolen and judge lawson says well what does that mean does that mean fifty percent she says hire he says i mean sixty percent higher to where they get up to this eighty to ninety percent but if you use perry's words of it was well above or beyond fifty percent or the majority the items within you sixty percent and if you use sixty percent only one point four million and this four point one million and you do the math then all the sudden guess what it's under three point five million which takes it below that eighteen level down to a sixteen level doesn't sound like a lot but when you're calculating these guidelines it's very important so what relief would you want with respect to this amount of lost shoe syndic back allow us to use twenty five hundred dollars that i wanted to use from the c j a fonz to be able to hire a forensic accountant to come in and help me look at some of these things and crunch some numbers to be able to defend this man on this amount of loss how would have forensic accountant help you and how did you when you were asking for the forensic accountant how did you explain it to the judge  explain it just like i explained it to you just more that i needed because i knew after the trial that we were going to get into this and i'm mediately asked for that to look at you know a lot of these items were used and just almost ragged and they're using retail price but if it's the e bay ones they were actually sold for that amount right well then we're going to have to get into forcing the government to decide what's legal and what well how would a forensic accountant help you with that more just toward the math i guess than anything it would be more really for the forensic accountant just to help clarify these numbers because again this was stacks and reams of documents as to e bay listings in postings in the amounts and he wouldn't be able to tell what is  yes ma'am and they also had photographs of the items from the from the warehouse strangely enough agent perry testified she didn't know what was cory wilson's and what was john roberts when the pull the stuff on the world is it just start mixing it up so i don't have a clue who's his his property and who's robbers and you could say well it's a conspiracy and it really doesn't matter but again i think for this purpose it does why why does the amount of loss calculation depend on whose property it was well i think the law is that you want to try to determine for see ability and whose property it is as opposed to just even if it's a casting net bring it all in even if it's a conspiracy even if it's conspiracy so is there a case that you would say would help you in that regard your honor stand here on my feet i thought we sided one in our brief i can't quote you burson chapter right now i mean there  i did want to talk about one other thing on the sentencing was obstruction of justice and if i could i could just add another minute to margaret here and just take a minute or rebuttal because i do want to complete this vault oh mr roberts was given a two level and has met for obstruction of justice and it was essential because he testified at trial that as a told the court about the government said is sensing we're not seeking obstruction because he got up there and the law had or women were were seeking obstruction because he got up there in law based on the jury verdict that's what the government say it governor also said i think you can make that inference based on the text messages and the testimony the cooperators and the judge lawson said i just simply make the finding that the defendant testified falsely as a stand here right now i don't have a clue as to where mr roberts is supposed to have a lot other than the fact that he just simply got up there in his own defense and testified i did not have any knowledge that this property was stolen and respectfully your honour's i don't think that gets it is far as obstruction the government for this in has meant essential he has to prove perjury and you've got to have specific findings about that and this record is totally void from the sentencing hearing to support that obstruction  charge and it says stop and i shall stop thank you very much more in your honour's may please the court my name is thomas jaworski i'm going to sr united states attorney from the middle district of tennessee and i represent the united states i ask that you affirm the district court's judgment because the district court  got it right it got it well whether the district court got it right or wrong it looks to me at least for the senate saying like the district court who is from georgia had no idea what the sixth circuit requirements war with respect to supporting the senate's he imposed at least in terms of the obstruction of justice in hansard  would respectfully ask that the court do x your honor i did ask the judge to make a finding that mr roberts committed perjury he made that finding but he didn't make a specific finding the way we require under the supreme court's dunnigan case his is finding was based on after i made arguments about the concealment of the scheme that were in your body i believe it's fair that he adopted those your honor when he made  ruling and i don't we require a more specific statement that when the when the defendant said the sky is green he was lying we don't know what specifically this defendant said that was please make a specific finding on sophisticated means on obstruction we took those steps knowing that he was a visiting judge and we believe that he did comply with the six circuits requirements so amount of loss is also a real troubling thing in terms of the sentence with this witness perry and her meandering about about what percent of the sales were legal or illegal why why shouldn't we for a careful determination of what the amount of losses you're on or exact rescission is not required by the circuit what's required is a reasonable estimate she made a reasonable estimate because she was the case agent involved and she examine these records there's no dispute that four point one million dollars were sold in e bay property in perry examine those listings she and other agents on that four point one million was sold on e bay but we have the question that some of the sales were sales of legal products and some are sales of illegal products and everybody agrees to that right there there were some legal things intermingled so how how does perry's testimony give us confidence that a certain dollar amount or percentage amount was illegal products because i thought she was sort of jumping around saying well more than half and then your opponent is saying that she could have been just sixty percent but somehow or other the district judge comes up with ninety percent of what's the basis of a ten percent were legitimate products and if you call your honor from the trial testimony age of perry is the one who discovered the scheme on e bay in the first place is familiar with military property and knows what was stolen from fort campbell and what was contemporaneously sold on the e bay so we believe that her testimony was credible while the judge did push her a little bit exact rescission is not required so what what what does she say of the four point one million sold on e bay is the amount that should be included in the last amount he's testified to ninety to ninety five percent and if i may you have the authority on the novo review for the judge methodology i will concede that he was incorrect on the math in this like did he what did he find he found the found well he ninety percent should be three point six for the e bay but he found it is three point one so that that era one favored mr roberts so it should have been three point six million and stolen property sold on e bay and then the total amount i'm sorry my voice is going but the total amount of loss has to be more than three point five million in order to justify this particular enhancement correct so even if you don't count the inventory prepared by the hundred first airborne who's familiar with military property who found property in mr robert's warehouse his house his vehicles which had military serial numbers on them even if you don't count that we're still over the three point five million dollars threshold if you use the three point six correct which is the ninety percent of the four point correct even if you use the three point one your honor it's logical that it wouldn't take much to get over to the three point five threshold from the army inventory list it would be four hundred thousand and that the military property list was one point four you're on one point four million so was there any testimony about what the value the whatever the value should be was of that military property in the warehouse because this is where his depreciation issue comes in right right district judge get the eighty percent number from agent perry testified to it is that that's exhibit one from the sensing transcript which is in the record and the court can make their own determination but i believe agent perry actually underestimated that eighty percent if you see the serial numbers in there almost all of those items have military serial numbers which means they cannot be outside the channels and so one of the arguments of your opponent is somehow that a forensic accountant should help with depreciation or determining value of the district judge refused to allow a forensic accountant on the surface it would seem that if you're trying to figure out amount of loss that the district judge should have allowed a forensic account ant how how do you respond to that maybe so your honor it was not an abuse of discretion the for the forensic accountant couldn't do anything with the prices of the items sold on e bay those are what they are four point one million dollars the fair market value of your house is what anyone is willing to pay for it it's the same in this case with respect to the inventory list this list was compiled and added up by the hundred first airborne the supply unit for campbell less familiarity with these items this friends could count the best he could do is come in and add it up he would be able to testify as judge cook noted as to whether something was actually stolen from the military that's something old whatever it could but then we fall back on harmless error because we're still over the threshold as long as it's at least four hundred thousand without one dollar from the inventory had the judge used the correct me thodology of ninety percent ok so so the big question is the trial presented by your opponent is the question about the e bay listings and if the concurrent e mail listings or the listings within six weeks of the trial would not support the defense of the defendant here that he didn't know that these items were inappropriate to be selling if we didn't have his text messages showing his state of mind if we didn't have cooperated testimony that everyone knew then perhaps there's an argument there but we didn't just rely on the e bay listings  but why do you keep the defendant from trying to show he was innocent by his best available evidence when there is a lot of evidence against him i mean this would seem to be the kind of situation where a defendant was specially wan be able to come up with some shred of evidence to show that he innocently believed that these were perfectly fine things to sell your home quote which was lost at the bench conference on the record this is a speeding ticket defense it doesn't matter that other people may have been selling military equipment this has nothing to do with the price of eggs with his exact steel but his but the defendant is that because other people were selling on e bay the defendant thought that what he was doing was legal so you're saying that because if if everybody is speeding on a road you can't think that it's ok to speed understand your point your honor but if i make may quote something from the record that may help hope you understand a little a little better record entry to thirty five page nine six seven the defendant received a text from a soldier talking about the helmets investee just stole and quote that's why i'm taking risks for this blank because it could be any day so i got that blank was crazy risky mr roberts responded i can only imagine i wondered about that i magine it was pretty locked up mr robert knew this property was stolen regardless of whether other people on e bay were selling similar items had absolutely no bearing on the state of mind your honor well the court thought it could be confusing to the jury it could be your honour's i think that that seemed to be the argument offered by the court that's right that's right rather not that an argument but what why would a rationale why would it be confusing to the jury if the government could say hey these are these are kind current e bay listings from the trial defendant stop selling military gear for a three year period text after text after text our point was that he knew and it didn't matter if we were just relying on e bay listings back in thirteen fourteen exactly that's not the way to articulate the argument i think on your own the government we're gross your honor we don't agree with it is a harmless error at best considering all the other evidence i don't have a whole lot and i was just looking at the trial transcript i was sitting over there a list of mr jaworski we came up with judge lawson came up with this ninety percent i think based on some testimony at twenty one thirty six is the page of the number where he s agent perry could you give the cordic percentages to just a conservative estimate of how many items appear to have been stolen from the military and that's where she said i would say ninety to ninety five percent again without any evidence where she had gone in how i did this information and that's where they tag or judge lawson tagged on the ninety percent for purposes that anybody let's did you have a chance to question her and challenge her on that and i understand that you've been representing your client pursuant to the criminal justice act and we thank you for your service to your client into the justice system thank you both for your argument the case will be submitted and with