will also let you know you have two minutes left in the yard if we take you beyond the clock don't worry you're on our time and not your will on him till we finish with our without quest here on chimeras sons appeal i will focus in beginning of my remarks and issue three the identity theft jury instruction under eighteen u s c one thousand and twenty eight the trial judge in this case read over defense objection the standard th circuit jury instruction on identity theft that had recently been amended at the time of this trial the new standard instruction added a word that the defendant's theory of defense in this case and the jury instruction itself illegitimate as it related to him and in fact on the government's in this matter page sixty six they confirmed that that word and that modification of the instruction was intended for not him but his codefendant but as to him it expanded the reach of the statue by including the word illegitimate when the statute criminalized use of personal information in an underlying unlawful conduct whereas the jury instruction states the government is required to prove the defendant transferred his ass or use the other person's means of identification for an unlawful or illegitimate purpose adding  the jury instruction directly impacted the defendant's theory of defense in this case whereby he argued that while he may have broken or violated jamaica bank rules or regulations helping people send money there is no evidence in this case that he participated in the lottery fraud and in fact the fraudsters the liberally kept him in the dark moreover there's no evidence he participated in stealing identities or that he knew the penalties the stone under is that you see there's the what evidence that you mean no direct that there is no direct evidence and in fact the government for all intents and purposes confirmed that he was kept in the dark they did obtain the deliberate ignorance instruction and argued that he both knew and didn't know the evidence on that is we argue insufficient but either way the instruction on the jury instruction related to really where the evidence in the case light against my client was overwhelmingly in relation to the identity theft and the evidence that he used identities to assist in the transfer of money but as we argued that could have been done as part of a another kind of crime involving drugs or something else which would not have been located him in a lot of fraud or it could have been him sist think people with legitimate sources of income overcome very strict bank regulations and that all came out during the trial and case involved a on a service just brought instruction while the standard did have the normal standard fraud instructions it was the v the follow up instructions that expanded the use of the honest services fraud to include not only kickbacks but also underlying interest which had been specifically prohibited by the skilling's decision and so it's not necessarily sufficient just to have the basic elements it's those descriptive and definitive parts of the instructions like in the on spot case and like in this case that is what the jurors look to to define what the elements and the regular inspections the well and prevented him from being able to thrust his his legitimate defense and so while the jury the the court did instruct on the basic standards the addition of the he used the word illegitimate similar to the illegitimate instruction and aunts prevent said mr hasan from getting the full thrust of his defense in addition judge your honour's the evidence in the case was despite the assertions there was no evidence that mr simon ever in fact profited while there was testimony that he had to taint extra money they never found any throughout all their forensic review and it's fact there was testimony that whatever money he got was for the courtesy of doing the transfers without them being in person and in fact the only evidence really of the deliberate ignorance examination of the main codefendant he indicated that he had it under written agreements and unspoken agreement don't tell me no lies don't ask me questions i'll tell you no lies in fact that was severely impeached because he had never made that statement in any of his prior statements to be to the investigators or any of the three o jews it came out concept of left field during his cross examination and the government's brief suggests that's the most powerful evidence of his deliberate ignorance so in fact there was no evidence that he had any knowledge of this this could have been him helping people using legitimate source of income tried and he bade the bank the strict bank rules and under those thank you may please the court and good morning your honors deal this year on behalf of mr alexander i'd like to st begin with the vulnerable victim and have spent and there's two points i'd like to make both of which stem and flow from understanding mrs alexander's role in this conspiracy so that to set the stage the conspiracy here has two parts one aspect is targeting soliciting and scamming individuals in order to obtain money and the nd part which is the part all of the evidence linking this alexander to is the money laundering aspect of this conspiracy and the part your owners were just discussing with my colleague here on the vulnerable victim enhancement the district court said and i would quote this is on calls she did not participate in the phone calls she did not overhear any of the phone calls the p s r even reflects as much in footnote juan indicating that mr alexander was not and did not make any of the phone calls to the victims themselves so really when we understand of this fraud from these two different aspects of the one hand the solicitation on the other hand the running aspect we see a clear disconnect when it comes to the vulnerable victim enhancement because there is no  victims that you're talking about i mean i thought our case last and least were is here there is evidence you can see the evidence i guess where there's evidence to show that the defendant was pretty deeply involved in the conspiracy that the district  to be a finding that not just a general understanding of the conspiracy itself but that mr alexander there's a specific finding that she understands the types of victims to the nd half of what we're what the district court and how the district court is inferring as your honor was saying the inference here really is the problem because the inference is expressly made from the fact that mr alexander was present at the apartment where these calls are being made that's what that that is the girlfriend of the kingpin and was at the home itself and a really important aspect of this is there was two interrelated enhanced meant one was the vulnerable victim the other was mr representation of said they were from i r s agencies or other government agencies so if mr alexander is unaware that aspect which he presumably also would have over overheard it would surely follow that she did not  the same sufficient knowledge to understand the types of acts and that really circles back to the st point i was making the level of specificity it's not enough for her to know that call me want to thank you and it's not enough that she understands that perhaps there are victims in jamaica but that these victims are boehner and the types of them that are being targeted yes your honor what time can you establish knowledge as the government established knowledge of this and  matter i think i think a fair a fair reading of the case law is that knowledge could be established at any point of a participation of the conspiracy and since this is the conspiracy case before she had withdrawn here though whether to your last your honour's last point it it doesn't matter here because at no point in the conspiracy whether before during or after is there a single piece of evidence that mr alexander is in is even in the room when these calls are being made let alone that she's overheard the calls in the sentencing transcript the government's witnesses expressly said there is no trial testimony that she was present during the phone calls the p s r reflects the same wire fraud and opening credit cards and the only piece of evidence is the calls being made from the premises so the inference here is that because calls are being made one missile xander see being targeted and since we know she did not even year that the callers were misrepresenting themselves the inference that she could hear on the other end the types of victims is far beyond what the day case with a please the court my name is sarah sweeney on behalf of the united states up again with the vulnerable victim issue that mr alexander focused on during her argument here or mr bashir is argument here but in any event here at the district court in both that sentencing determinations that are at issue here but in particular as to this one focused on three factors it focused on the amount the different ways that m alexander promoted the conspiracy that showed that she had agreed to the full scope of the conspiracy if focused on the length of her involvement in the conspiracy the are known active involvement in the conspiracy and it focused on her proximity to the fraud that was going on so i'll start with the last one with the proximity because i think it most closely ties to what mr bashir argued here and that is yes there is no direct evidence that mr alexander heard a call or was present for call but what there is evidence is that she was present at different apartments where multiple of the conspirators slipped and there was ongoing fraud in those apartments including morris and stewart stated that they came to understand the nature of the conspiracy merely by hearing mr maturity make that evidence it's a fair inference by the district court that m that you could tell from the nature of the conversations that they were targeting and targeting vulnerable for instance mr corn belt family talked about how the calls preyed on him and and tried to establish these personal relationships and that would be something  but any fraud victim this preyed upon your honor i think here the inference would be that personal the attempt at the personal connection on and the way that they call it the same people over and over to says that reloading and being able to have that actually be effective does make a victim vulnerable but i want to continue i think i see i understand your honour's point and i think the other side here is that m alexander doesn't have to know that the victims are going to reveal the district court also relied on the fact that she should have known they were going and that that that does not depend as much on actually hearing and understanding the content of the calls but instead understanding the nature of the conspiracy and the district court found that it was part of the efficient operation of the conspiracy to be able to repeatedly target vulnerable victims and as a result of her her well the grima to the scope of the conspiracy if therefore found correctly that she should have known that there are times as well i would also just like to briefly address the idea that there are two linked enhanced as mr bashir said at the district court did find that she should not be held accountable for the misrepresentations on behalf of a government agency that mr alexander should not be held accountable for that i there's two i just would make quickly about that one is just because the district court didn't find her accountable for that doesn't mean that it couldn't have based on the evidence that mr bashir said which is that mr nas did say that he had been contacted by the s but even more than that most of the evidence about the misrepresentations on behalf of government agencies actually came from mr majority's computer they were written communications they were letters that the conspirators sent to some of the victims and that's given the necessity of the proximity that something this alexander could not be fairly to infer to have heard because it occurred in a in a different way from many of  here mr hassan you know says that this instruction undercut his defense but i thought it didn't because he still argued that all he had done was violate jamaican national policies and the jury clearly rejected that amplified by the rd element of the aggravated identity instruction which tells the jury that they use his action or transfer beyond being the person having illegitimate access to the identity information has to be during and in relation to a felony all sense and given the presumption that juries follow the instructions that are given to them here there was no impediment to the to the defense being made to the jury on because this jury instruction accurately cover well it can apply in different ways on so one would be where someone accesses identity information beyond the scope of their authorized ability to access it so for instance someone working at the d m v who has access lawful access to the information but exceeds that access another way that i saw illegitimate described in the case law and this is in the flores euro a case from the supreme court they describe potential illegitimate uses of  of it was illegitimate and then in furtherance of a felony off so that was discussed in the florists bureau case as well so there are a number of ways that someone can possess use or transfer this information illegitimately rather than necessarily unlawfully from the outside and then mr warner also discussed the the deliberate ignorance instruction for a period of time in his argument and i want to respond particularly to one thing he said he said that this was an unspoken agreement between mr mcgurk one of the main coconspirators mr who saw on the evidence at trial was that it was not it was explicit mr madeira testified that he and mr hassan had in fact explicitly agreed that mr hassan would not ask about the source of the funds and that that evidence is really more than sufficient to support the giving of a deliberate ignorance obstructionist if falls precisely within what the nature of that instruction is that so much put on notice that something is wrong and then deliberately omits to ask any further questions on the other hand there was sufficient evidence as well there were the jury had kind of two theories of responsibility for knowledge that it could find here the other was actual knowledge and there and mr assad was not directly informed of the nature of the funds but he received repeated trainings and warnings and even specific warnings to him from jamaica national the or we obviously do our argue harmless error on this point in our bery but i and you know i can't comment on on every case where we do this but in this case in particular i mean i i don't know that i've seen another case where there was testimony about an explicit agreement not to ask questions that to me seems to justify a deliberate ignorance instruction were guard listen whether there was also proof of actual knowledge which obviously we do think there was here but i mean yes it is harmless error because there is proof of actual knowledge but i would say the evidence that that from which the jury could find deliberate ignorance is  particularly strong here i think it's rare i don't i would say it obvious obviously it's happened before in the canons of criminal law but it's rare that there's a direct and explicit agreement on that point  think i don't think that it's fair to say that it was strongly in peach but regardless of whether it was or was it in terms of the sufficiency of the evidence sort of issue you know all the inferences are drawn in alexander the instructions did not explain that in any way shape or form so the jury was free to utilize it in whatever way they chose and again it clearly impacted negatively on defending his sons theory of defen wonder you're you're sort of bleeding out so if you could just face to the microphone will be able to hear you i'm so sorry your honor your honour's can review mr missouri's testimony on that issue it's on page two hundred and seventy eight of document three hundred and seventy six and clearly he never mentioned even the government acknowledges in its in its examination of him on this issue that he never told the agents that there was this explicit agreement and  one of the three o choose stablished that it was out of left field and yet the government hangs this entire deliberate ignorance at on this explicit agreement that was not part of the evidence until it was brought out of left field and in fact all of the testimony or honors of all the co defendants throughout the case were was that they went out of their way to prevent mr hasan from having the information because they knew or concerned how he reacts and in fact jamaican national bank when they when they instructed mr hasan they instructed him by mailings and letters no evidence that he in fact was urgently instructed and in fact thank you but again your honor if he did not have actual knowledge or deliberate ignorance of those transactions then it's not a criminal act it's a businessman doing his job even if he was evading restricted regulations he did not have any awareness of the criminal nature in fact it kept it from him and they went out of their way to keep it from him because they were concerned about what he would do about it in other words if he were to case there is absolutely no evidence that he had actual knowledge or participated in any way yes there was a lot of transactions but no evidence that he had any knowledge that the victims were the identity theft victims were stolen here and i do want to just two brief points and pick up on a theme judge short in that that i think you hit the nail on the head when it comes to knowledge here and how the government really is trying to have it two ways and as it specifically relates to mr alexander i bring the court back to the two aspects of this conspiracy the solicitation and the running and we know from conspiracy case law you can be found guilty without having knowledge of the full scope and hear and i can use my the right hand doesn't necessarily need to know what the left hand is doing and the theme i think we are hearing from both parties or all the parties this morning is the key players in this conspiracy were trying to keep the ancillary players including mr alexander the an outside what was going on so the idea that mr alexander knows every aspect particularly the types of victims and the most interval aspect that this is a lottery scam to falsely represent the types of victims really is a bridge too far and the last point i'll just briefly make your honor mention and all the years that you've been doing this how the government is arguing deliberate ignorance and knowledge it made me think  and a very common theme as well as in every case in which you have a minor role particularly significant other girlfriend that's involved in the scheme there's always a presumption well she should have known but what's missing is the actual evidence of why she should have no in fact we know from here the again the key players mr curly mr marty are excited or deliberately keeping miss alexander and others outside of the little so as to insulate themselves and we know that to be true because of the minor role enhanced meant we know that to be true because of the misrepresentation so in finding up by the preponderance she should have known on the other end of the call the types of victims the district court did error and abuse discretion