that we've raised but with the time constraints for we'll focus on two discreet ones they are one the transfer of the funds from one account to another was insufficient to establish money laundering and the  nd issue we want to discuss is the issue of burden shifting with respect to the transfer of the funds fifty thousand dollars which krantz furred by my clients from one bank accounts to the other as it turned out that fifty thousand dollars was the product a scheme that her son had and arranged and all she did with the fifty thousand dollars was moved from one of her bank accounts to another bank account mere transfer of that money could never have been an attempt to conceal his provenance it was in her name it stayed in her name nothing was hidden about it nothing here hid the source or the location or the ownership of that money if it was to hide the fact that it was criminal proceeds well interestingly and critically it is really irrelevant whether at the time of the transfer she knew or did not know the source of the funds nothing else happened to that money so whether she knew the source of funds or didn't know the source of the funds and of course the jury acquitted her of the fraud in this case there was nothing else happen to those funds that would that would satisfy statute the money laundering statute because nothing she did nothing happened to that money that would conceal in any way anything about that money the only evidence in the case with respect to that money was the receipt and the transfer of those funds she didn't withdraw any of that money or the before or after or write checks against it there was nothing to suggest let alone establish beyond a reasonable doubt that miss already assy knew of the transactions know quote to conceal or disguise a specific attribute of the funds indeed if she were trying to conceal anything the last thing she would do would be to keep the funds in her own name and to have created bank documentations of that very move it her transfer of that funds from one account to her other account in her name did nothing to conceal it in fact it made it and i thought that nine hundred and fifty seven is simply engaging in a financial transaction with dirty money it's like you buy a car with the what you stole i'm sorry now i understand you're right his question sorry judge the jury acquitted or of any of any of the fraud so this isn't a fraud this is one thousand nine hundred and fifty seven count for the indictment one of the money laundering council it believes he was convicted of that perhaps we didn't argue with argue when we should have as far as that the wire fraud charges of conspiracy to work for whatever it was but i i thought and maybe i'm mistaken i believe i thought that she was convicted of all of these so called quotes money laundering counts one  not the jury properly instructed as it should have been under nine hundred and fifty seven that one of the elements is knowledge but the money came from some illegal source not necessarily from fraud not necessarily from this particular scheme which would be necessary to convict her of participation in the scheme but just simply from some illegal source i agree with your honor what am i agree wholeheartedly that they would have to find that those proceeds on the that under that count those proceeds with the product of some kind of unlawful activity and i'm saying to your honor that the proof was insufficient to establish that and the fact that the jury found the not guilty is is some indication of that different than the concealment issue that you were just raising now you're saying it's not just a question of was this particular transaction sufficient to establish a violation that requires an intent to  source of the money now you're saying that there was also insufficient evidence to establish that she knew that this was dirty money of some kind where you implicitly made that argument that maybe it wasn't clear from the briefs what we implicitly made that argument that there was insufficient evidence to support the pro and therefore how could you be convicted of that dimia transfer without knowing that it came from some kind of a legal source that's what you say  he simply took the money out of one of her pockets or one of her drawers and put it into one of our rather pockets and one of her other drawers it just it it's a really irrelevant whether she actually knew anything at all about the source of the funds the mere moving of it did not satisfied least those two out of the three counts as you rightly point out in regular banking account hers was i'm sorry judge this was not a regular banking account of hers was no she had she had two bank accounts at that particular time that the money was put into one account and the next day she put the money into one of our other accounts the evidence shows she had used the st account for anything other than this po the evidence did not show specifically that she had used that account that's correct not even generally he didn't show it at all i don't believe so but i believe he had some funds in that account as i recall you believe was the evidence show i'm trying to remember that my crack associate may may may have that answer for you but i still think it's irrelevant the fact of the matter is as far as the counts that require concealment or hiding that she didn't conceal or hide anything it went from her name to her name as i said it's like she took money out of one pocket and put it in the other if she was trying to conceal it she would have taken money out she was sent it somewhere else she would have done something but the mere moving of that money from one account the other doesn't shock that is is the opposite of concealment and i only have a few minutes left so i'd like to go on to my other issue if i may and that is the issue of burden shifting during the interview that miss already assy had with the detectives they told her she was lying they told her that they don't believe that she hacked that and that they believe that she thought the money had come from the proceeds of the sale of our merchandise from her ninety nine dollars cent store that was shipped to africa and the the interview made a big point out of showing that they didn't believe her and then they put the onus on her when she had no rick there's no requirement all for her to prove in fact anything and then after that when we get to trial the government then puts the onus on her as well to try to prove in fact that the money came out that she believed that the money came from a legitimate source and this was despite the judge reiterating that the defendant has no burden of proof but you can on ringing the bell at the very same time that we  introduction of those statements that the when in which she was asked during the interview well they have any documentation the you have any records you have anything at all and she said she she answered the questions and then the government piggybacked on that and argue to the jury in fact in their closing argument that that's in the that's an indication of her guilt interestingly enough proof that there was proof at the trial that was brought out on the defense case that in fact she had shipped the merchandise because the person who picked up the merchandise for shipment to africa testified at the trial she never had any burden at all and yet the jury was now led given the impression that she was required to come forward with evidence to prove her innocence and the judge's instructions to the jury on several occasions just did not in any way ameliorate the effect of that charge  if there's any other questions of that charge you don't you mean of the government's argument or you don't really mean of originated in media res i understand it didn't ameliorate the charge and i'm suggesting i'm sorry in that no i'm i meet the charge didn't ameliorate the fact that the government's argument to the jury that that's sergeant thank you mr cohen thank you you've not reserved time but will now hear from the united states it please the court my name is sebastian sweat i am an assistant united states attorney in the southern district of new york i represent the united states on appeal and i also represented the united states at the district court proceedings i'd like to st just briefly address the issue of burden shifting i think that there are three reasons here that the that the comment that the the comments that the government made in the questions of the government's asked about videotaped statement were entirely permissible st as argued in the brief the intent of these questions was was not to attack a defense theory it was merely to impeach the statement that she made at the time even if the defense had not put on any case the government would have been entitled to prove that she had lied in that interview to show her consciousness of guilt and so asking the police whether she provid information to them which she said would have corroborated her story about frank and the sister was an entirely appropriate line of questioning regardless this was in fact the defense theory the defendant at opening pointed to the fact that that statement that the statement she made to the police was in fact made in good faith that she did in fact believe that the money had been received in exchange for sale and because that was the defense theory the government was able to attack it by pointing out the deficiencies in that argument now the only one the only way in which that crosses the line is if the government points out weaknesses or points out points to a lack of evidence that would require the defendant herself to take the stand that certainly wasn't the case here as in fact cohen appellant counsel points out there was evidence that could have rebutted the government's argument at the statement at the time she's met with the police she gave them a shipping receipt and then at trial she called an individual mr a who testified that he had in fact shipped merchandise for her so there was never any suggestion from the government at any point that the only way she could in fact prove her theory that the statement was true or at least made in good faith was by testifying and so it was an entirely appropriate means of attacking the defense theory for the government to point to these deficiencies and then rd any error to the center was was harmless there were numerous instructions how exactly  but it was a conscious decision to point out that there was no evidence provided to the police which is an important distinction because ultimately the government's purpose was to impeach that statement it could have also attacked the theory and it could have said to the jury you have not seen evidence of shipping receipts photographs appraisal reports but but that was ultimately sort of a follow on effect from the bigger question for the argument for the government i'd like to then go over the the issue of concealment and respond to some of the questions that were raised during palin's argument so i think the fundamental problem here with palin's argument is that he is construing the verdict in the light most favorable to the  t essentially by arguing that an acquittal on count one exonerates say of anything up until the point where she transfers the money from her bank of america account to her chase bank account ignores a wealth of evidence about this scheme and about her role in it this is not an instance in which the money just magically appeared in her account after the victim was defrauded of over three hundred thousand dollars that money moved through a series of of cordon aided and rapid transactions from a company called off with erm to brittany earlier who testified at trial some of that money went from this year lying to an account in china and some of it went to massage the os a and and certainly when you look at the three money laundering offenses one of them was a conspiracy i mean this is classic evidence of a conspiracy and certainly is at the end of that conspiracy and in fact an argument the government made at trial was it's relevant that she was at the that she was in the end that rather than have the money hit her account and then immediately move to the next person down the line as you would expect for a mule with a a minor role in the money laundering it hits her account it stays there for about a week and a half or two weeks and then she personally goes to a bank withdraws it and moves to another account so what is the transaction if any that was in the either the indictment or in the government's summation specified as the transaction that was designed to conceal the source of the phones the government argued and the government's view is that the the transaction into or account that is the deposit into her account from britney erling was designed to conceal that she knew about it as evidence by her false exculpatory statement and that her decision to transfer the money to herself was further intent to conceal ok and the one thousand nine hundred and fifty seven count in any event could perfectly well apply to the other transaction her her transfer as well because that doesn't require concealment as a goal absolutely but the but the one thousand nine hundred and fifty six account the government is relying on the transfer into her account as a transaction in which she participated that was designed to conceal something about the transaction or nine six we rely on both it's true that both accounts were in her name but concealment does not just mean identity it means source it means ownership it means nature or location and frankly concealment doesn't necessarily mean successful concealment acros here is a case in which the defendant may transfers in his name and the nd circuit how that that was sufficient evidence for concealment but frankly either transaction would work for concealment a different question about an argument that was not made orally today but is in the brief which is restitution what evidence is there that supports the conclusion that ms was aware that there was more money involved in this transaction so there are other words she she got fifty thousand dollars is there any evidence at all that she was aware that some other coconspirator was laundering other parts of  illegal money whether there was anybody else involved here at all except her son and the intermediary who transfer the money to her but with respect to your specific question of knowledge of this particular transaction the answer would be no however it isn't that what the restitution is the restitution is the total amount of the scam on the victim who was told that her son was in trouble and transferred the three thousand dollars right restitution is  her that this was more than her son did some kind of scam that involved fifty thousand dollars and she was going to hold it for him and transferred to him and for him what says that she knows anything beyond that so the bank of america account is opened on june rd in two thousand and fifteen about twelve days later i think june th there is a deposit of about thirty five thousand dollars into that account that was in the trial record and  sentencing the government proffered without objection that agents had interviewed the individual who had made that deposit and that woman told the agents that she was in a romantic relationship with sylvester is that's another victim and there's no restitution ordered to that victim the issue here it seems to me is there's restitution of three hundred thousand dollars warded to the specific victim who is the grandmother specifics of the scam whatever scam it was was bigger than fifty thousand dollars so two responses to that st the language is that she needs to be aware of the reason the foreseeable  that that doesn't mean necessarily that she knows the quantity it doesn't necessarily mean that she know where any other acts besides a scam that elicited fifty thousand dollars which she was supposed to hide from her son or transferred  m and what i'm arguing is that the fact that she received another transaction into her account that fit the same pattern made her different from a sort of one off mule who makes an account available doesn't really know much else besides that and the  point which i think she mentioned says her son does a whole bunch of scams but why does that make her responsible for a five hundred thousand dollars three hundred thousand dollars scam rather than the fifty thousand dollars game because the victim restitution act is focused on the victim and weighs on making the victim whole and in fact it allows for recovery of all actions of coconspirators so long as they're reasonably foreseeable so her or her involvement with her son in more than one scans makes six it foreseeable that that what he did in this instance went beyond the mere fifty thousand dollars it went into account is it enough that she knows that this is more than that fifty thousand  do you have to show it was reasonably foreseeable that it would be three what is it three hundred and twenty nine that whatever the number is i see that my time has elapsed may i answer the question thank your honour's it is it is simply the  fact that there were additional acts and i think that there's an important analogy here a contrast when you look at the guidelines just to be clear we're saying once a person with fifty thousand and it's foreseeable that that person who the scam was more than that that's enough to make them have to give restitution for the and i or amount of the scam that is the that is what the mandatory victim or situation act provides for i think when you compare that to the guidelines which which calculates reasonable or which calculates a loss based on a reason we foreseeable peculiar harm you see the contrast one is focused on the amount you know sort of the the dollars and cents at the end of the day the other one is focused on the x and i think that that is appropriate given that restitution ultimately recognizes there is a person who is out a large sum of money and that that that the court should be should have discretion to fashion that award so long as the so long as the defendant knew that this scheme was bigger than the solitary act that she was involved in then yes a consequence of that is that restitution at that point would need to be that also demonstrates that she was more than just someone who made an account available for a single transaction with no greater knowledge thank you very much reserve