good morning good morning honors john ballasts on behalf of the defendant paul johnson i'm intending to reserve two minutes for a bottle defendant paul johnson was convicted of making false statements about the incident in which the forest service vehicle he was driving caught on fire and that all the rado national forest we've raised on appeal a challenge to this fish and sea of the evidence to see to sustain the convictions as well as  number of different sentencing objections i want to start briefly on the insufficiency of the evidence argument focusing on the materiality aspect and then and then go to a couple of i think the substantial  sentencing issues the th amendment issue and the definition of involved on the cross reference and a guideline the two false statements he was convicted of was that after the vehicle caught on fire some campers showed up in a in a vehicle in st in a written statement three days after the incident he wrote that i called dispatch to report that my vehicle was falling golfed and then some members of the public pulled up when in fact they occurred the other way around this statement even if he admitted  false during his testimony at trial but it wasn't material to the government's investigation whether he reported the fire to dispatch before the campers showed up or a few minutes later after they had left would not of had any tendency to affect the investigation i think that's also on count five he made a similar statement in a recorded interview in october several months later there he told agents that at the scene this is about nine months later they had told witnesses at the scene that he would call for help rather than he had already called for help and again he admitted at trial that this was false and it wouldn't have had any tendency to affect the government's investigation and and the  sentencing issues i'd like to start with the th amendment issue and the argument here is essentially that the district court violated the th amendment by sentencing johnson for one offense arson when the jury convicted him only of another fans the making of false statements this is an argument that justice scalia has advocated since the reader pain in that there's going to be some cases where a sentence cannot be upheld that will violate the th amendment if it's based on facts found beyond what was found beyond found with that with the jury found and i acknowledge that the th circuit this court found in treadwell it had rejected the opinion but now a different standard a different standard of proof convincing evidence and a situation like this where the jury finds beyond a reasonable doubt but the more recent case law well it's you're arguing that we shouldn't allow the judge to make that determination about whether or not the evidence is c convincing you just told that if the jury didn't find him guilty in the judge can't go there i'm saying as actually in this case when the court uses a finding of arson to go rita there's been three justices in a denial of cert position in jones that it says that this issue should be raised again and has criticized the court's th circuit's treadwell decision but i think that the decision that i'm arguing is right on point now is the more recent firstly florida decision that evaluated that looked at the florida capital sentencing scheme and that won it essential ly the logical conclusion of that decision is that the the rule has now changed and it's not enough for the jury to make factual findings to authorize the maximum punishment as an a any fact that is required to increase that punishment must be found by the jury and in hurst the florida florida had this hybrid sentencing system where the jury st had to find an aggravating and then also make the advisory recommendation to the judge on whether or not the death penalty was warranted based on all the aggravating and mitigating factors the judge then has to independently also find an aggravating factor and then determine the the death penalty was warranted so it counsel i take your point about the death penalty but that's different isn't it i mean  is pointed out on a regular basis and sentencing district judges take into account what the p s r says about various and sundry things which the jury may or may not have found but i gather you're saying that if an element of a crime was specifically not found by the jury that the district judge cannot rely upon that in sentencing he could he could  and following the apprentice a line of cases ring and hearst etc briefly the on the other sentencing issue on the issue of involved got the district court applied a cross reference to increase the guidelines substantially because the offense involved arson he found the case law talks about defining involved in two different ways a broader sense of just being related to a more narrow sense as as we're advocating that it included something as a necessary part of and that is what this court uses a definition in frankland in a different context and the agent that was st investigating this case the one st on the scene with a forest service agent who is up there trying to determine what caused this fire did the vehicle light the wild land on fire or did the wild land light the vehicle on fire i kick that point counsel but as as your opponent indicated that if i understood him correctly the nd bald statement really wasn't very material because you got what you needed in the st false statement this point there's been a nd fire at the forest service warehouse has gone up in flames and mr johnson is involved in that fire as well and so now three agencies are investigating both fires so they've reopened the investigation into the vehicle fire which was initially ruled an accident which to me that drives home the whole materiality of the st false statement and i gather you're contending that it was this nd statement that so there and they're investigating both fires and at the trial testimony made clear i think in a couple of places at least in the testimony of the a t f agent brian parker the timeline of a fire the timeline of a sequence of events that happens with regard to a fire is critical in a fire investigation and that's what both of these false statements are about is that timeline what happened when in the critical moments just after the fire had started and so for mr johnson to st reverse the order of what happened that the campers had come or that he called and then the campers came that's an ordinary that's what anybody would expect somebody to do if they have a cell phone and there's a fire use the phone call it and in the nd one he understands from the investigators themselves that they have a sense of when that call happened and it was not the way he told it the st version so he's trying to thread a needle and say i told them i would call it him so he's trying to dispel suspicion from him from himself and that's something that has a natural tendency to cut off a line of inquiry into well why didn't you call it and why did you stop to talk with these campers about snow line and camping spots up the road with your back to the car knowing that the car was on fire and the whole time and you are somebody who holds a firefighter to card it's a very suspicious circumstance and so of course he told it a different way to try to dispel suspicion from himself so that's the materiality of that nd statement or let me ask you about the the the charge false statements don't seem to me to deal with the actual commission of arson how do they enc involve arson in the context of the statute it's using the definition that the district court did so they are about and closely related to and so in looking at this guideline it's to be one dollar which i think any district judge has a lot of experience with it's a very common guideline it involves all of the fraud cases and in this case so it doesn't apply just a false statement as it applies to everything mail fraud wire fraud investment and in this case it's a false statement so i think we're in the heartland here of what it involves it is a false statement about what happened with that fire here committed by the person who the district court found committed the arson so so but the false statement arguably involved arson but didn't really involve the investigation of the arson or not the arson itself that's there your honor but i still think that fits within the circle of what's about and closely related to he's trying to cover it up he's trying to cover up the arson that he committed otherwise there's no verbal statement i think that would cause an arson it's teaching general and all i mean this isn't to be a one  all of these are going to be fraud type crimes at their core and so for the good the guideline commission to put that in the cross reference into this guideline means that i think in every case there's going to be some space in between what the crime of conviction is and the arson but here i think it's about as close as you can get with the statement is about the very arson that the district court found by clear and convincing evidence occurred about the investigation of yours know because when he's making this statement he's he's writing up a one paragraph st he's writing up a one paragraph his own written statement about what happened with the fire and so at that point i don't think he thinks he's being investigated for arson he's doing what the forest service asked of him which is right down the relevant things that happened that day and he did that and in doing so he lied about it and then the nd one i think at that point he is aware that there is an investigation going on of the arson but he is he's trying to still cover his tracks make himself not a suspect make it seem like it was accidental so  there's not a precedent on this cross reference really that we were able to find but the smith case the supreme court case about the firearm a misstatement involved a firearm i think it is about as close some point as it's going to exist and the supreme court in that smith case said the definition of involved is expansive and this guideline to be one point one actually uses a number of different verbs throughout the guideline  some more expansive than ball some less and so the word involved here i think this court should give the expansive definition that the supreme court encouraged and smith and it's done by the district  think he would have to testify that he did it will be i think the district court the district court under this court's case law finds three things and one of them is willful and i'm talking about the he was enhanced because he testified in the judge found that he  code i think in this case it's maybe a little unusual but it happened and he was asked a question that had exactly all the elements listed in it and he answered that question in the negative and so that captures that captures what we say is the perjury here it was perjury but what the dischord did was go an extra step which is say this testimony that he gave was not the result of a faulty memory so in your honour's example i suppose it's possible that someone could testify truthfully at the time as a result of a faulty memory deny all the elements of the crime and then the court would not automatically which is the count five statement that was in it to our interview with three agents in october about nine months after the fire and i think it's significant that during in that interview john knology told investigators he admitted that he called dispatch after talking campers rather than before and then after that in that same interview bilbo the afterwards when they asked him what he had told the witnesses he told them that he would call for help when in fact he actually told them that he had already called for help but the fact that and in that same interview he admitted that he called  fashion after talking with campers would be the significant point and whether or not what he told the campers at the scene is not material and he said well let me ask you this can the council your opposing counsel suggested that the way this occurred occurred a little bit later and it did influence the investigation or was intended by your client to influence the investigation what's your response to that well you know as you started off by talking about the warehouse fire and that's kind of a red herring i mean we're talking about a specific false statement of what he told the campers at the scene about when he called for help and in this case since here ready had written ready made a statement in writing in february and then in that same statement earlier he admitted that he told the campers that he had called dispatch after h campers that the little further statement he made of what he told campers at the scene was not significant again if my memory is correct the only counsel suggested that the big forest service was treating the st fire basically as an accident and you get to this later investigation and what he said seemed to be intended to throw them off the trail of finding there was something more to it is that that your understanding as well i think i don't think you can make that one specific statement in the two hour interview of throwing off the trial after he had just after he told that this significant point would be potentially when he if he told them something that would have a tendency to change their investigation or hinder their investigation yes but the argument is in this context there's no way that could have when he actually said during that interview that he had called dispatch