the case of the united states versus ms far persons who were involved in activities of filing false tax returns and then subsequently tank those checks from those tax returns and then having to go and cash them the center of the of the activity revolves around a gentleman by the name of a b who convenience store and this gentleman had agreed to and had actually been cashing checks in the in the neighborhood for quite some time and he became involved in participating in this and that by agreeing to cash checks for these people without adequate ids or what i ate some of these were actually just photocopies and such but there were some ids which were real it's hard to tell which were which because the the practice of the business was to scan unrelated charges in the state charges and subsequently the day began investigating him for this activity and he agreed to cooperate and then the investigation launches in relation to missile touch of four years after the  initial activity now one of the first things i want to talk about is the failure to get the instruction which i requested which was the instructor at the entrapment instruction and during the course of the trial and the testimony cross examination of mr b as well as the the lead agent mr degnan in this case it came to light that mr habib had been loosely watched to say the least there were a variety of circumstances which could lead the jury to believe that there was inadequate supervision particularly there was a conversation of more than two minutes or so and that was a report the initial contact was made because mr habib them said he received a miss phone call from  began to contact her as you contacted her she had indicated to him that she was no longer in the business in the longer engaged in in that activity and he talked to her about the checks and he kept on and made several phone calls to her many of which were recorded and in those recordings you hear and it's clear that look i've done i don't have those and the original phone call she placed was actually cash he was a check casher a fifty thousand dollar corporate check from a corporation that was closing on it she wanted to get his help and in closing that check in cash and i check rather so in doing so mr  the conversation with well you know the checks that you did in the past they were so good they never bounced i can't cash this check but you know what the smaller amounts we like those smaller amounts and he kept pursuing that that line of communication with her until finally she said well you know well maybe next year let's see what happens if things big up again and then he went how in the context of this case mr dominguez how does a request for an entrapment instruction fit in with the fact that she had engaged in the alleged criminal activity before she was purportedly entrapped to do it a second time how does that fit into the whole narrative normally you know  entrapment scenario arises when there is no indication that someone has engaged in criminal activity and is approached and then is persuaded sometimes too much by a government agent or informant to proceed but he or she had actually evidence was that she had participated in a previously one of the things that we presented and it's been it's a it's a known fact that she was all she herself was a victim of identity theft i think out in california and so forth and i heard part of  defense was at the initial part somebody was using her identity or acting as her the sect the instruction comes into the second part of the second activity the reengagement where he's drawing her in trying to get her reengage in the criminal conduct and they're not mutually exclusive meaning you can have one defense for one set of activity and then the second  there was a primary evidence which was where the videotapes were where the recorded conversations were basically all the product of mr habib's activity being improperly so i mean dignam himself testified and he said look i want to be more specific and i want to misquote him that he was  rather that he was rather difficult to supervise that he was needed i think the word was a kick in the in the pants because he had to try to keep keep them in line and so forth so and i think that you know based on the the case law if there is you know any evidence you know more than a scintilla and i think this is far exceeds a six to a scintilla obviously if there's any evidence to support and this is a theory of the fence case if the instruction you know why not give it to him let the jury work it out because there was there was certainly a lot of evidence regarding recorded conversations regarding all the contact that he had pursued persuading in pursuing her on tape this is not an allegation that's being made by the defendant does this something that's part of the evidence presented by the government it's clearly this is occurring this is happening in the jury should be given that opportunity and part of the the the instruction that i specifically requested had to do with the misconduct aspect of the where the it's not the necessarily the subjective entrapment defense but then you have the object of entrapment defense which is what i was arguing to the judge was look this is objective and trap and this is where the jury can say this police activity is such that we reject it that we're not going to have cia's out there being out improperly monitored not recording conversations and being pushy and pursuing people to do things when they've already told them look i'm not doing it i'm out of this thing it's done and so you had two different instructions within the same i guess heading accepting that it was error i mean just if we start with assuming it was an error not to give the instruction you've got to show prejudice and as i understand what you're saying then tell me how i've got this wrong because all the evidence is so the case what you're saying the case after mr had be started cooperating with the government the evidence was stronger then and so if that hadn't or if that if the jury had believed she was entrapped as to that conduct she might have been acquitted of the earlier conduct as well as such or yes that's that's what i believe in this case because there was the aspect of the identity theft and whether or not you believe mr b to begin with that she was actually the person that she actually knew her out after all these years had passed the she was the one question because there was a myriad of people coming in and out doing this activity so the bulk of the case really was at the tail end which is when all this activity ensued so and if you also have basically the jury finding that there is objective entrapment there could reject the entire presentation of the government's case saying look this is improper you shouldn't do this is not the way you are best to get cases and this is not the way to proceed so you could have had the jury saying giving them not guilty on that aspect because of the the way that the bulk of the case was presented that's all the evidence that they really had with there wasn't any independent evidence and this because it's mutually exclusive with what mr rodriguez has already said was his primary featured defense which is that her identity was stolen i don't think you get or you're entitled to come in and say on one hand my identity was stolen but on the other hand i was entrapped and the defendant's reliance on the case of matthew's versus united states in his reply brief at three does not help him because that case involved a simple guilty plea and the only issue was whether or not the defendant should be required affirmative admit that he committed the offense to get the benefit of the a trot an instruction in the supreme court said no you don't have to do that but this isn't a simple guilty not guilty plea she not only pleaded not guilty she asserted the defense that her identity had been stolen that it was mistaken identity case she should get the attraction and defense for that reason alone but in any case there is no support for the argument that habeeb coerced her in any way  the agent never there's no evidence here that she that hubby was loosely supervised and i mr rodriguez uses the terms first he said he was loosely supervised and he said that the agent said he was difficult to  supervise well that's not the same thing yes the agent had a difficult time supervising him but that doesn't raise the inference that he was loosely supervised i challenge mr rodriguez to give a cite for the allegation that there was a two minute conversation between habeeb and far that was never recorded i don't believe that that's in the evidence at all it seems to me that the evidence shows that everything that went on between have b been far was court said that mrs far had not introduced a presented sufficient evidence to get the benefit instruction on either one of the problems or both prongs or did it elaborate it didn't allow the court in the library ok so there's no evidence of even mild coercion in this case but that the fact of the matter is that probably the government's strongest argument is that the evidence of her predisposition to engage in this type of behavior was overwhelming i mean she came into the conspiracy with her own team of id forgers and she had she was a member of to talk services already her own  she was cashing checks even before how b became a government informant so i'm not really sure about the whole idea of mr rodriguez his argument that she was in a conspiracy and then she was being reengaged by the government if that's some kind of code for saying that she left the conspiracy or withdrew from it she never did she never left the conspiracy it was a seasonal conspiracy she was there from year to year because all of the conspiracy  the tax season so it was a seasonal conspiracy and to the extent that he raised these arguments at in the district court in his brief that that she was on probation and that she left the conspiracy because of that i don't give any credence to that i mean laying low because you're on probation is not the same thing as withdrawing from a conspiracy i mean this court has already you know pretty clear guidelines what you have to do to withdraw from conspiracy you have to make an affirmative withdraw you have to tell the other  and you have to do something to disavow your participation the conspiracy like going to the police and disclosing the scheme so she never left the conspiracy she was in from the get go from before abby was a government for until well  after from on march two thousand and thirteen until october of two thousand and fifteen so i think i've fully addressed the only argument that was presented here the entrapment argument if  the court has any questions about any oh i can't go beyond that but if the court has any questions about any other aspect of this case i'll be happy to to address those questions i'm situation with regard to the scope of the conspiracy what is it that brought that brings vila into the same conspiracy as far well  introduced grace via to have be happy but stop doing business with precedent because you say too many checks that were dishonored by the not honored by the banks so presently said fine let's continue this with another person i'm going to introduce you to grace via same thing happen to greece to be at a certain point habeeb stop doing business with her she turned around and introduce latasha far so that's the change from preston do that as jason miles called in the head of the horse to grace we're introduced far as an ex girlfriend of preston to so it's clear that far new press and do there's two things that connect them materially to the conspiracy first of all  when you get to the evidence at sentencing when agent degnan testified you see that present you opened up the detax services and he opened it up under fars name and she was the president and registered agent she gave him press and do her e f t n her electronic filing identification number and there were at least one hundred victims of bt tax services use checks were cashed by bt toc services before habib even became a government example said look you know for press and do gave me a lot of phony checks that the banks didn't honor and i had the banks forced me to pay those checks out of my account for says tell you what let me take care of that i will agree to you taking a bigger cut out of that phony checks that i cash so that press and do so the presenters text only checks can be reimbursed on your behalf that's not something was any of connection between foreign press and do and that's part of the reason the district court tagged far for all of the checks from that press and you cast as well as the checks from their joint tax ervice bt tax services  i do want to respond to a couple things regarding the the failure to get the instruction it was clear that needed to be kicked in the rump in the government's own brief that page twenty three and then citing documentary to fifty six one sixty to one sixty three and then continued to keep lines of communications open with the draw her into to participate documentary two fifty three and one sixty eight and he tried negotiating percentages and even making at the turn the offer more attractive and then the appellant and she refused even under those conditions and he continued to again and again and in all those are at or at the docket entry to fifty three one sixty eight store the connection between these people that may have even known each other was was fictitious at best because the reality was these people were competitors or what we were working together they may have known each other they may have been in the same neighborhood as these neighborhood stores have a limited area but the reality is that knowing each other even having a relationship outside of the conspiracy does not make one a conspirator it was clear that she  in the in the testimony truck it became clear that this force look i don't have anything to do with those people i'm not with those people to work with those people they were competitors or were working together her and her situation was vastly different from the rest of the conspiracy and that and that evidence came in a trial and that's why mr habib was so impressed he said look your checks in the past always never got returned is her hurt her modus operandi and was completely different she had fall returns for persons that were either out of the country or deceased so that there was never a claim by someone else that their identity had been stolen because those checks were never returned the rest of the group was having checks returned and all sorts of problems because they were operating completely differently they were just basically stealing a so security number of filing fake tax returns getting and hoping it sticks to the wall of course what the government says in response to that argument as well she is he's justifying why he's reengaging her but the reality is there's no evidence to show to show that other than his statement there isn't any any link which of course the jury had a had a right to believe me they had exactly did i gree with that part i think that the jury you have believed that but the reality is that the way that the evidence was was presented here was in twined with the credibility of mr habib who was already suspect for not even being a good c and the fact that the jury was not a prize of the fact that her situation was that's the difference and that the relationship between them was one of knowing each other from the neighborhood and that in fact she had been dating this or present do in the past so it wouldn't be outside of reach to say that she had some sort of relationship with him although not participating in the same conspiracy and not committing the same the same crimes or even working together taking it as a given that the jury was entitled to credit to people testimony yes what can you charge to the district judge in this case i think that using the evidence that in the second set of the investigation caused confusion to this jury because of the fact that they presented this evidence of these tape recordings of all this new activity that was way disconnected from the time period during a time period by the way that was clearly she was no longer having contact with any of these other people already involvement and that's that's clear he said look i don't talk to any of them i have nothing to do with them and so forth so that was the evidence of the jury could have said look this person is always involved in something we're just going to find him guilty but the reality is that there was no real evidence no real connection between  very i didn't mention this but i think the most important part of this trial was with a pro se defendant as representing himself and i'm there representing this far and this is to say the least more than a three ring circus ok it was a spectacle but the judge kept it in control but the say the least of this this thing was a highly charged environment it was crazy and it really made things taylor had you know run of the courthouse i mean it really was that type of situation and i think that that affected the jury's verdict i think that affected everything in a my time is up again to thank the court for its time thank you we appreciate you being here t present your case and we we understand your court appointed and appreciate your service to the court as we always do with the u s attorney's office as well thank you