good morning honors me please the court my name is elizabeth crewe shack and i'm appearing on behalf of mr paul anthony i will watch the clock and try to reserve two minutes for rebuttal i will start given the court's order on sexton and the twenty eight j letters i will start with the forfeiture issue so we've reached the point both parties agree that honey cut applies to forfeiture orders under nine  believe that for the reasons set forth both by the government in its twenty a j letter and my twenty a j letter that that is the correct legal position and i'm happy to answer any questions about the  sexton if the court wishes to ask more questions given the government's position i think i may have more questions for the government on that than for you i think i understand your argument on that one question i did have is that let's assume this is not just an assumption let's assume that honeycutt applies to the statute as i understand the facts in this case the your client is maybe contesting guilt but the facts are that the funds were to were deposited into her account the fund she then remove the funds from the account and then w them overseas that is correct yet the checks were made out to her they were deposited into her account and then she withdrew the cash there's no dispute about the art so if those are the facts i've read on the cut a bunch of times and it seems like there are a couple different things going on in that case the government might say well look she clearly had possession or if she actually acquired actually actually acquired the fund they were actually deposited into our account that's one way you can read honey because there's another way you  talks about an ownership interest and i do mean you would say in your case your client never had an ownership interest because she was basically a bag man correct yes so my position is that my client is analogous to the college student that  honeycutt uses as an example for why we don't have joint several liability i understand that there's some sort of pull to the fact that well the checks were issued to her and they went into her account but if you really think about it that doesn't make her any different than the college student who gets say cash payments for drugs the college student could be issued a check he's paid the check he turns it over to the mastermind that still makes you a pass through and the money was never hers now i agree that she did obtain a portion it's somewhere between five and ten percent that she saved that's proceeds that she obtained but the proceeds were actually obtained and that's what honey cut really focuses on the proceeds were obtained by these other coconspirators in nigeria and elsewhere to whom she passed them along so she really is like this college student who is receiving the money and the money is flowing through her but it's never her intent to have it she never actually obtains it or acquires it within the meaning of honey cut because the people who actually obtain are sort of obtaining indirectly through her are those people in nigeria and i guess that's why  tt to me is so confusing because i think it's fair to say she acquired it but you're you're arguing and there's language of support your argument that she did not actually have an ownership interest in it she did not know it was never her property the only thing in which she had an ownership interest would be the fees that she was paid she didn't have an you know that's the only i don't even want to use the word ownership interests she had an interest to the extent that she took a fee from no no i was not minding your business and i think it's very clear what's not clear  i don't know if we look at it we couldn't find it's not a well developed area of law because it's so so recent so i don't i you know i really to me the best analogy that i have is the college student as a pass through i think that that fits  situation and i think that that would be fair to miss anthony under the basic criminal forfeiture principles that criminal forfeiture is aimed only at the defendant's interest in property and her only interest was in those fees that she actually prong in which it talked about simply the pass through delivering the drugs but there was another one in which it talked about indirect obtaining of proceeds and in that hypothetical the court said that the college student could receive payment for the drugs and then pass that payment along to the mastermind and even if the college student was paid a small fee for that the college student would only be on the hook for the fee that was paid and not for the entire proceeds that went through the college student so they did not set up their own green dot accounts so they were held by those individuals and those accounts were set up by mr coleman or his coconspirators not my client and then someone also not my client cut checks correct yes and so my position again just to be clear is that she is analogous to this college student knowledge of the law as is thin on this issue but i think i think that that is the best analogy i would like to talk briefly about the constructive amendment issues as well unless the court has additional issues questions about forfeiture i'll talk about the money laundering count here i think it's clear that there was in the government concedes that there was an error in the instruction and the question i think is whether there was evidence what the government disputes is whether there was really evidence to convict miss anthony's such of this constituted a constructive amendment of the indictment i believe that there was sufficient evidence that a jury could have considered to convict her under this theory and therefore there was a constructive amendment and this count should be reversed the government presented evidence that miss anthony used multiple bank accounts multiple accounts in those banks that she wired money and then took steps to avoid wiring requirements and all of those requirements would have been linked to financial regulations and rules about reporting transactions and reporting activity and so when you look at the evidence that evidence could have easily supported given the general jury instruction a conviction based on the unindicted and uncharged conduct of structuring money laundering i do see that i have only about two minutes remaining so i would reserve the rest of  good morning may please the court my name is monica adelstein and i'm an assistant united states attorney in the district of arizona i was trial counsel in this matter you keep your voice yes and it's your honor turning first to that and to honey cut issue i believe the court may have some questions on that the united states position on this is that simply stated miss anthony is a farmer in the example she is not the student driver the order that the court issued with  directly tied to proceeds that she possessed directly the three hundred twelve thousand plus dollars were funds that she had were mailed to her through the green dot checks that she transacted through her own bank accounts and  then directed others or herself wired a portion of those those funds across to nigeria quite frankly that cultivated the dollars yes judge essentially what it was is that this is an individual who was a principal in the scheme the facts of this case were that the green dot cards that were originally purchased many of those were purchased directly by miss anthony in the united states she provided that source information to her co founder it's who then were able to open the green dot cards and direct the i r s refunds into those onto those cards but for miss anthony the proceeds in this case the illegally obtained proceeds would have remained to nothing more than a wire transfer from the i r s to the green dot company and from the green dot com pany there would have just sat in those accounts but the facts are that checks were issued in miss anthony saying they were deposits she received those checks to her mailing address she received those checks to appeal box that she controlled and that with respect to the entire three hundred twelve thousand plus amount she individually transacted those through numerous bank accounts in the in that she held in her name or in her businesses name so but for miss anthony's active principal role in the scheme there would have been no proceeds with which to transact the evidence further shows that she did retain a portion of these proceed she did utilize them personally to make personal purchases and she did also make the decision when and how these would wired to nigeria with the instructions that she and her co founder it worked out together via e mail the large number of correspondence that they had back and forth can i ask counsel and again i had your job once upon a time so if this is washington d c tell you that argues that position then you can just tell me that i'm trying to understand why the government would concede that honey cut applies to nine hundred eighty one a one c i believe the six circuit we have a someone from that court right now here disagrees with that it never seemed to me that the sixth circuit has a pretty good argument as to why it wouldn't apply and it seems to be against the position so if your position is that's what the that decision based on different reasoning and the department has taken the position that honey cut does apply to the forfeiture statute the nine hundred eighty one a statute as well and so on argued in the petition for  cert with respect to sex and arguing in opposition to that so the department does take the position that honey cut applies to the forfeiture statutes including nine hundred one and so if we were to get from your view we'd like we may have to write an opinion in this case right so normally we would we would want to say more than the department says that is so that's the way it is is there something in some pleading somewhere or you mention the circuit to sion that really lays out why it is that i'm just looking at the language here in ninety one and it's very different in a language in a fifty three so there's is there something in the language a nine eighty one i know is a little awkward for you arguing the position of the other side but is there something in the language of th statute i'm missing here i would judge there really is no need to decide specifically whether honeycutt applies to the nine eighty one statutes because of the factual scenario before the court you know i appreciate that man you're what you argue that look you don't you can assume it applies you have to decide because she was the farmer correct ample evidence with respect to her actual possession and transactions so with respect to trying to look at it from a high cut perspective it's whether it applies or not she has the requisite control and possession but since you've thought about this is just and i thought last time i'm going to ask is there anything in the statute that you can point us to to say hey hey judge gilman get that six circuit on line over there they don't know what they're whereas the honey cut standard is obtained there there is some distinct similarities between those two phrasing and also that when you're looking at a case it is we're talking about proceeds that are subject to forfeit connected to the crime can be analogous to obtained in the context of well i think you've done a very good job of defending the department this is here i will push more with respect to the constructive amendment issue the united states does agree with to count fourteen that there was an error however the united states position that there was there was absolutely no prejudice as a result of this error there is both a omission and an inclusion of the included language with respect to this idea of a structuring theory or avoiding a transaction to report the evidence a trial is simply that there was no mention of c t r as there was no mention of the word structuring it wasn't argued by counsel there were no witnesses in contrast to that the omitted prong of the international money laundering actually took two of the three days of trial all of the evidence was focused on that and to the great  detriment of the government that particular way of committing this crime was omitted from the final jury instructions so to the extent that the prejudice in this case clearly from the record was to the government rather than to the defendant the government believes that there is no professional vari guideline range would not change based on the last amount there are two conspiracies this was the second conspiracy and there's absolutely no nothing on the record of the jury instructions that supports that any variance of any kind occurred with respect to count one there's not a plus two sometimes for money laundering there's a plus two when it's in conjunction with mail fraud on the guidelines would that maybe be one difference potentially but it would not ultimately that would not ultimately have changed her her guideline over the consideration the court would have had and she did actually receive a below guideline sentence there are no additional questions thank you just to address the last point first miss anthony did receive the plus two enhancement under the money laundering so i do think there is the potential for a different base offense level i do acknowledge she did receive a downward variance but nevertheless that was based on a particular guidelines calculation  with respect to factual disputes that the government has consistently portrayed my client as sort of a mastermind and i i would just like to take an opportunity to point out that she was consistently acting at the direction of this mr coleman or whoever it was in if she did not formulate this offense she didn't do anything to obtain the identities of the people whose tax refund refunds were stolen and filed she obtained the green dot cards at his direction she directed the  money via wire at his direction so she was always acting at his direction so if we're going to make an analogy to you know the farmer versus the college i are ethics pretty she i don't know what mr coleman's expertise was quite frankly she was a tax preparer and she testified as such she acknowledged that she was but nevertheless she was still she did not formulate the scheme and she did not she was not in charge of anything other than she just received the checks and wired them as mr coleman directed and so our position is that makes her not a principal not the farmer but the college student and then with respect to the constructive amendment claim i would just point out that simply because structuring wasn't mentioned or simply because a cash transaction amount or something like that that we all know would be structuring wasn't mentioned doesn't mean that the jury couldn't have decided based on the evidence presented and the limited definitions in the jury