perced the government argued that there were two point one million dollars in wires from the offshore bermuda entity and that it was not paid back second the government argued that the loan agreements were fake first the two point one million dollars and wires was not paid back the government argued the evidence is clear that these were not loans and the defendant had no intention of paying the money back how do you know let me count the ways how do we know the loans were sham well they were never paid back the defendant never intended to repay these loans and he never did in fact the evidence demonstrated that he made payments on these loans before and after he learned of the government's investigation in this case government exhibit number eleven was a summary exhibit a joint appendix twelve fifty one which summarizes repayments in the form of transfers of interest in four different pieces of real property one in st lucia two in jamaica and one in north carolina from two thousand and seven thousand and ten one element of the crime are you  or not the there was an intent to repay the loans at the time they were made the court instructed the jury that whether all repayments were made was one of the factors that the jury was supposed to consider in determining whether or not these were loans the government argued to the jury that there were no repayments and that was a misstatement of the evidence sense on a minute and trials closing arguments can be a bit unwieldy and in most every trial was ever part of there was something that was overstated by one counsel or another and it's the typically the duty  opportunity quite frankly to when someone does that for you to point out that they haven't said something different and that's kind of how trials work in and you know certainly i understand your point but why is that not something that is typical in a trial that can't be handled by opposing counsel and in even if there is some error you've got a lot of evidence to deal with about whether or not these were ones or not besides that that one counsel that one argument or those several arguments in closing you know your audience you're last point is the one that distinguishes in this case this is not a passing misrepresentation or mischaracterization of the very plain error standard and the case i would say that is most factually analogous to this one is the davis case from the d c circuit that i cite and what the davis case says is the standard is actually the same under a pla a harmless error standard for this kind of air and what davis says is when there are multiple misstatements multiple misstatements in here multiple misstatements about core issues in the case the question is whether or not those mistakes statements whether the court can say with confidence that those misstatements did not affect the jury's verdict so even under a plain error standard i would agree with the court there was no objection the defense counsel missed that opportunity and many of the jury case a would the losing party almost invariably theo's that the winning party was closing argument was an not and often you have diametrically opposed versions of the truth but what the jury is there for is to receive and consider pharaoh or is this court set in wilson by forcefully stating in on reasonable inference as fact the prosecutor this lead the jury the evidence in wilson was strong the court said but the problem there as the problem is here is that the follows this is the issue in this case the judge it really gets down to a simple question were these loans or was this income if it was income defen has a problem if they were los good day for the defense this was a v who are at issue in the trial according to that very good district judge and that very good district judge properly instruct jury that in deciding that very core issue it needed to consider whether the promised repaint was evidenced by a note or other instrument and whether repayments were made that you have that you ha evidence i mean aside from the closing argument you have actual evidence and and that and i don't know this off the tip of my tongue bassus that the district court on charge the jury that what coun say it says is not evidence that's certainly a typical charge and focus on what was said by the witnesses and the documents and i won't list them all but that you're familiar with the evidence in record i mean there is one hundred nineteen wire transfers you know you have yeah four hundred fifty thousand dollars it's listed in the us you've got you've got the percentage of the businesses that are supposed to be repaid that were greater than the percentage hundred percent you got questionable resolutions i mean it seems like when you look at this record there's lots of evidence that would be a reasonable basis for the jury to decide the question and i'm quite frankly surprised this is the argument if you would be talking about you know some of the other issues as a legal and because it's probably the one about which the district court has the widest degree of discretion but your honor first of all the court did not give the standard instruction on the closing argument is not evidence in fact said that you need to listen to the closing arguments did that it was it fact that millions of dollars were marked as fees which was a mischaracterization of the evidence further the fees themselves it one looks at the refund and reimbursement agreement a government eighty six and government eighty seven it's true thirteen twenty thirteen twenty one these are documents from two thousand and nine and two thousand and ten again before the government's investigation that says that s t s is advancing marketing advertising and consulting fees to the sutherland entities and what the government says is because there are wires from mass to gas and it says purpose for the wire consulting fees or marketing  agreements were fake there is no evidence that the loan agreements themselves or these reimbursement agreements were fake they were fabricated that they were done after the fact rather other simply evidence with respect to a later in time post investigation documents i think this just sounds like the government was arguing its theory of the case to the jury and you think that that theory doesn't hold up and there is contrary evidence in the record and that's all fine but it doesn't actually go to a jury case law says that even when the evidence is strong the government cannot misstate evidence in closing argument and to do so is reversible error even under a plain error standard here there were multiple closing argument to accurately characterize the evidence or only ask the jury to draw fair and reasonable inferences from actual evidence not to encourage the juror to status fak something that is is to counter the argument no no that's not accurate your honor with all due respect closing argument is not to be about one so i can make up evidence in the other so i kept rebut the made up evidence closing argument is about a fair argument from real evidence and can argument from real evidence so no i would disagree with that i think there should have been an objection but i don't think saying that defense could have dealt with the closing argument is the answer let me now so go to the issue of just part of that you wanted to i think expected to discuss the obstruction issue so i would like to briefly address that as well the government i think has conceded that the official proceeding here is in fact a grand jury proceeding and i think that any event that's a settled question given this court's decision last month in the united states versus young  here documents return to review us attorney connection to the grand jury perceive the grand jury have been going to be correct factually it is to state the legal principles the same that the they're asked to be an intent to obstruct the grand jury proceeding the investigation here or the election obstruction indictment was giving of false or fake loan documents to the u s attorney with the intention that they be given to the grand jury but there is no evidence that they were given which to that that there was an intent that they go to the grand jury so what the government is stamping the door goes oh sorry didn't the district court instructed the jury right that there needed to be an intent to provide the documents to the grand jury so this is another sufficiency claim argues is that there was an intent to influence the grand jury because by giving these documents to us charging it was forseeable that the u s attorney that would not bring charges in fact that was the desired result and that would impede the grand jury because the grand jury when you agreed with thousand years artist that's a jury question your honor i think there are three problems with that argo one is th indictment alleges that the loan documents were given were given with the purpose of giving the won't documents to the grand jury not with the purpose of simply getting the grand jury to shut down and there's no evidence there was an intent that the loan documents be given to the grand jury second this is in direct influence of the grand jury the maybe the u s attorney's office will give them to the grand jury is the very sort of indirect influence that aguilar says is insufficient and third in the government's argument we're permitted here any time a proffer is made and proffer is disbelieved which is every time that a case is charged you could have an obstruction count if defense counsel had not provided documents at all and simply written the letter with no enclosures i'm asking at the end pleased to climb prosecution under the government's theory that could give rise to an obstruction of justice count when that and i actually share a little bit of that i can understand puts defense counsel in a difficult spot but how do we deal with that policy argument in the face of the black and white language of the statute the same way the and let me say someplace the case we have in front of us is not the hypothetical you just gave us right there is a on the facts of this case the grand jury is already can be known as it's convened he gives the grand jury has subpoenaed documents and then in an effort to explain away those documents false documents are given to the u s attorney whatever we might think about potential applications on other facts can you explain to me why on the fac think that the grand jury is going to conclude otherwise and what i'm saying i think if the grand jury has already subpoenaed documents which raise this very strong suspicion and then the defendant gives fake documents to the u s attorney in an effort to explain away the evidence has been put in front of the grand jury that looks like you're messing with the grand jury now it looks like you're messing with the u s attorney you're trying to get the u s attorney to decline prosecution the only impact that has on the grand employ the offices of third person jim in order to obstruct official proceedings you don't have to actually charge into the room yourself you can oh this this kind of statute can be violated channel and influence on through a third person in this case the us attorney and particularly the u s attorney has the most prominent indeed the commanding of the outcome of a grand jury proceeding what more direct way is there to influence a grand jury proceeding than to influence the u s attorney i mean you know they're not quite  the same but they almost are and many and most cases one could produce documents to the grand jury one could testify in front of the grand jury one could say to the u s attorney i understand you're going to be providing these documents the grand jury there are jury investigation it is certainly possible that those documents will make their way to the grand jury based on a discretionary whether it is an attempt to influence or obstruct and that intent to influence or obstruction take a variety of forms and it doesn't open itself up to absolute rules of  law it's a matter really you're trying to take factual questions and trends and legal questions and the only legal question here as i see it is the question of a nexus that was it please the court amy ray for the united states just to begin by correcting mr pollack and answering just quite a bombs question about the instructions to the jury about closing arguments and i don't intend to well in the closing argument issue unless you're owners have some questions pages ninety nine eighty nine eighty one of the joint appendix instructed the jury that you should you will properly the lawyers will properly make their arguments you should listen to those in the end it is your decision to make with regard to how you review the view the evidence in this case if they are in you something that you are memory differs from you take your memory not their memory also remember at all times what the attorneys say is not evidence so i think judge congress gave exactly the question the instruction that should have and i don't think that the united states closing argument was actually that far of what was out of bounds at all i think it was inappropriate argument based on the evidence but turning really what i think  relationship in causation time and logic we have causation grand jury time and grand jury issues its subpoenas three months later mr sutherland provides these false documents to his lawyer  and the government had to show not only that these documents were provided they had to show corrupt intent and i would respectfully suggest judge quantum a part of on that that is maybe the limiting factor here there has to be corrupt would have then if the documents were created prior to investigation is it sounds like there were sounds like you're obstruction claim is not the creation of the documents that would been too remote it's the transit middle of them to the u s attorney yes now i will say that i it's not clear at all when these documents understand so if we could have shown that they were created more say after the grand jury proceedings have been institute they actually were but yeah you don't have evidence so we don't need to show that i don't say we have evidence but sorry to interrupt you now that's ok so if someone creates documents sometime in the past over an issue about which there is evidence either way about whether it's a loan or a income and that's their defense in those documents exist in their response that would produce in them in response to  d in my hypothetical to provide documents if they don't produce the documents they're violating the force of all of the subpoena if they do produce the documents you're going to charge them with obstruction what's a defense lawyer to jury found against the defendant which is what we have here right and i don't think that that would support an obstruction claim now is that what you have what we have here other than they were given to the u s attorney rather than directly in response to the subpoena because they we have to show corrupt intent we have to show that they in that sutherland intended to impede the grand jury and these documents happened to be on their face they show that they're faults that they were fabricated because the dates that they were signed reference loan payments that are rather loans that were already paid say they were signed in two thousand and eleven supposedly but they refer to payments that were monies that were sent funds that were  open to the charge of perjury and they're put to the choice of just in many cases not taking the stand as a as a fifth  amendment problem or taking the stand and you know running whatever possibility there is of perjury and the supreme court said that kind of coercion quote coercion is not notoriously difficult to bring in prove and the same with this kind of thing which is quasar perjury people provide documents in response easy crime to prove and as a practical matter it exists only for just blatant misrepresentations and false hoods alaw here right and that's because we have to show a specific intent to impede it's not enough for us you know most current crimes are if you know what you did you were guilty but of course with both tax fraud and this obstruction count we have to show that you intended to impeach that's not easy to show if it's simply well we think that these records support our argument that we can show only if we can show that the records were fraudulent and that was the evidence in this case it really wasn't close in terms of the nexus requirement because at least as to you know more difficult what i would argue would be more difficult cases of someone simply saying something we have documents that appear to have been fabricated we could support that argument and that in documents were provided to the u s attorney's office and they stipulated i don't recall was their objection to their admission and no no no because their argument is that those what documents  support their defense so there wasn't an objection in fact even on appeal they're relying on these loan documents and arguing that we couldn't the jury couldn't possibly have concluded and the government was improperly arguing that they were fraudulent now i do w refer the court to a couple of cases that i think support our next argument one is the wine decision united states versus wind up to two thousand and thirteen unpublished decision from this court in which this court held that a letter that was attached to a motion to dismiss that was filed in the course supported a fifteen twelve c conviction so a letter that was provided through a lawyer to the core and then also the eleventh circuit has a decision two thousand and seven which was meant meier and in that case the defendant gave the attorney notes to use to coach a witness before the grand jury testimony so both of those simply stand for the proposition that you can use an attorney you can use a third party to commit an obstruction of an official proceeding violation also in every law or itself i know that the supreme court said it one of the factors it considered was in that case the government had not shown that the agents acted as an arm of the grand jury well if there is any or as a grand jury it is the united states attorney and so and it really doesn't matter whether the indictment charged that the that sutherland intended to provide those circuit you don't need the fact that they were documents were submitted in response to a subpoena right in order to to prove prove their claim here we have the added fact that there was a subpoena can't be just some far off possibility and that's what you have here yeah and i would note that in addition to this actually notices last night when i was rereading everything the district court not only instructed the regular instruction i have yeah you have to find that they intended to impede the grand jury but the district court also said and on page ten eighty one the intent to influence an ancillary proceeding independent a grand jury is not enough  glad you mention that because i also thought that that instruction was highly significant and i will tell you my one concern about your argument is that when you talk about the u s attorney sort of being an arm of the grand jury i mean the u s attorney is not an official investigation right i so i'm worried about a rule that would effectively turn the u s attorney into an official investigation is that if you live in the u s attorney or fabricate documents and give them to the u s attorney that's sufficient and i do think that that instruction helps to address that concern but can you tell me other reasons i shouldn't be concerned about that well i mean i agree i think that if we were making the right first of all let me just say that i referenced the arm language because it's used and i was trying to think of it was an arm of the grand jury i suppose maybe an f b i that's going f b i agents going out to get the documents something like that might be more properly considered and are either way the government all along and has said we are not it you can't provide documents to us all day long and twice on tuesday if there is not a grand jury investigation that is going on if it is earlier in the process we are not an official proceeding even if the grand jury can be anticipated well you know you get to the point of reason forseeable and of course that's the right case i mean if you're close enough and they know they're a target let's say they've gotten a target letter from us it's possible that you could get close enough before the institution of the grand jury proceedings and i certainly don't want to say that that's not close enough because i think it would be the question really comes down to time causation logic works facts and it is the i love this language here maggie lark is the natural improbable consequence of the endeavor to impede the grand jury that's a really nice language to me about kind of what a jury can decide is it probable that what you just did would impede the grand jury and music reasonably foreseeable so i think that's the limiting factor alone with the corrupt intent which i think really probably did not focus on enough in my brief i think that's an important limiting factor because that's a lot for us to prove if your honour's don't have any further questions about honor first of all with respect to the closing argument point the quotation from counsel about the instruction from the trial court i would note that in the davis case that standard instruction was also given to the jury in the court said that standard instruction cannot truong argument that is not based on evidence that it is improper to give argument based on evidence and it reversible error regardless of whether or not that standard struction is given with respect to the obstruction of the government as you argued that the corrupt intent is a sufficient limiting principle the government made that exact argument in ad are and  not to mr sutherland individually the loan documents were loaned to mr sutherland in his individual capacity they were not responsive to the two thousand and twelve documents and in fact the government later in two thousand and fifteen as to mr sutherland for the first time and received these very documents in response to that subpoena so they were they were not responsive to any subpoena that had been issued at the time they were given to the u s attorney's office  the government again talks about the loan repayment documents that are effective two thousand and eleven two thousand and twelve but make reference to two thousand and thirteen loews to argue that agreements those agreements there is no evidence in fact the government of made a concession that they couldn't prove that those documents were fake and that's exactly what the government in closing argument told the jury and asserted as fact that those documents are fake and that's exactly what the indictment allege the jury did not have any trouble convicting i would agree with that observation and they came back very quickly very quickly after a closing argument that repeated lee misstated the evidence on the millions of dollars no evidence of that there's a word for it ladies and gentlemen it's appalling find the defendant guilty on all counts i would agree that was a very effective argument the problem is it wasn't based on the facts in the record with respect to the case l cited by the government in support it actually illustrates the problem here they cite a case wine in which a letter was filed with the court file directly with the official proceed coaching a witness before the grand jury coaching the witness in the official proceeding of the government made a very significant concession of the government thinks it is more likely that mr sutherland did not up but the idea that he intended the documents to be given to the grand jury is pursue eisley what the indictment charges paragraph eighteen of the indictment and it is precisely what the government argued in closing the very thing that decision that in and of itself makes it obstruction of the grand jury proceeding thank you very much sir we appreciate your argument thank you we will come down and greet counsel and move directly into our