seven six eight united states versus sheldon palmer mr williams jordan members of the panel good morning if it please the court i'm douglas williams i appear and are you on behalf of show in palmer i think this court for the opportunity what i'd like to do if i can is to give the court  brief idea of where i'm going to try to take the court in my arguments because while i have raised various points on appeal they all tend to blend together although their points are intersection are different clearly i intend to focus upon the question of the construct of amendment of the indictment since that was the leading point but there is also a very meaningful point concerning sufficiency of the evidence into meaningful particulars as well as the inappropriate admission in the evidence by the district judge of documents that were both hearsay and created in contemplation of litigation and therefore at the opposite end of the spectrum from business records the indictment was constructively amended by the district judge and by government counsel starting in opening statement when the district judge herself told the jury that the case was about the evidence was going to show conduct as the result of which employees at money gram service centers  had been gotten to sen false and fraudulent money transfers resulting in palmers having picked them up here in the southern district of florida and in order to put that part of it into perspective what the evidence came closer than anything to showing is that at different parts or points in the country at different wal mart stores and perhaps other sending accomplished initiation of transfers from outside the southern district of florida to the southern district of florida ed at the end of that process they the sending people gave notice to second persons who having received notice of the transfer of funds then contacted palmer and asked palmer who was nothing but a freelancer  and a money runner according to his own words and according to words that witness for the government used wood on a sporadic unplanned  casual basis as it were go to a place he had been directed use a number that he had been given and pick up money and leave well mr williams was wasn't mr palmer charged under an eighty in a betting theory as well with regards to the wire fraud counts there is an assertion of aiding and abetting in the indictment  but the proof of his having aided and abetted was tenuous at best and essentially left to the jury speculation yes there was reason to believe that third of money outside of the southern district of florida to a place in minnesota what the government emphasized and what the testimony emphasized and the witnesses describe over and over and over again was palmer's having picked up funds here in the southern district of florida at wal mart so called money centers and then walking out the door there was never the first shard of evidence that indicated that palmer had any knowledge at all about any other phase or facet of the transactions that he was anything about the transmission of any kind of information out of the southern district to minnesota much less the use of a phony kading numbers and no evidence to show that he knew what the process was or why he knew about it so that while the indictment says that i have let me interrupt you there what type of evidence do you say the government would have had to say no to demonstrate his knowledge in an appropriate way judge the government showed no knowledge right but what would they have had to show the government would have been required to present some kind of evidence to the effect that palmer knew or reasonably was on notice that there was this remaining step after he picked up the money where some wal mart employee would then cause an entry to be made into a computer there was no evidence of that that there was a link between the miami based computer or the southern district based computer of the one part and the minnesota based computer of the other there was no evidence of that none i mean positively absolutely none and then that once the information had been entered into the computer in the southern district of florida and transmitted to a computer in minnesota that it was that process that caused the entire transaction to come to an end and it was at that moment in time the wire fraud was completed so he had to or the government needed to have some other dence of his knowledge of the use of interstate wires i understand the case law to say that it had to be reasonably apparent that interstate wires were being used but as the indictment is drawn palmer would have been required beyond a reasonable doubt to know that interstate wires were used not for that inbound segment of the process whereby people in the northeastern part of the united states were midwestern part of the united states a government introduced part of that trial yes ma'am they played the whole statement i don't recall where they played the whole statement but we can take it that they did all right and he admitted in there that he picked up the cash on the number of times wrecked he said he personally never heard the praja calls but he did hear the people he worked for discussing how the calls were made so he knew they were making calls from somewhere else out of state to hear south florida yes maybe he said that he was aware that people he worked for had up to in the money by quote getting on the phone and tricking somebody getting on the phone and tricking somebody is he said that he also said  that he went to the wal mart stores and used the fictitious names and the fictitious information and fictitious driver's license fixed issues i d's to help the wal mart where news of the fraudulent nature of the transaction ok so i understand what you're saying he just to know that there's a why are you using that it's going but i'm not sure he needs to know for sure i know you argue that in your brief that he had to know of the last step before the cash was given to him that's what that's what your argument is you know no ma'am i clarify it for me yes ma'am let's take it as a given that he knew that there was fraud involved to some extent taken that he admitted that in his tape cordons very well agent for it in the process of generating the transfers from other parts of the united states to the southern district of florida i give that to the court it's undeniable what is missing is any evidence whatsoever that palmer knew anything at all about any step any phase any process by virtue of which once he picked up the money and walked out of the store and everything else that happened happened i mean  did something else yes ma'am here's here's another thing he said he said before the wal mart stores required to id the information that he needed for the cash pick ups was text to his cell phone including a name the reference time or the test question and the answer to the test question because that was part of the security protection that they had a question you had to know question mother's maiden name i don't know what the questions at all that had been text to his cell phone or perhaps even by voice communication one or the other to his cell phone but all of that and he needed that to complete the transaction correct you needed that judge hall to walk into the store and get money in his hand and walk out but he wasn't charged with that the indictment charged him with the final phase that occurred long after he was gone with regard to which there was absolutely no evidence that he had any information at all and it is exactly on point with this court's opinion from earlier this year in united states versus carroll dealing with peer to peer networks were a person was found to have had child pornography on his computer that the government accused him of distributing but failed to show that he had any knowledge at all that anybody else had any access to his computer and therefore could help themselves to the content of his hard drive there is essentially communications that occurred after he picked up the cash and not the ones that preceded the pick up of the cash judge jordan the wal mart fraud investigator himself said that albeit in one word in one line to the answer to one question when he was asked by me when did palmer transmit money out of the southern district of florida and the government taking him on redirect i asked was it causing wires to be used in the fraud that the indictment charged or was it sending money as counsel said and the walmart employee said wires referring to that after the fact is sensually mechanistic process of local wal mart person is putting information into a computer here after palmer was out of the store with money in his hand in the absence of any evidence at all in this record that he knew that anything else was left in the process so that while it did what does than if that's the chronology in the wires that are charged in the indictment are the posts pick up transmissions absolutely every one of them i'm assuming that for purposes of this question what does a defendant charged with wire fraud have to know about the nature of the wire transmission to be liable in every wire fraud that this court has decided there has to be knowledge of an intentional participation in a scheme usually a sophisticated scheme resulting in the perpetration of a fraud in this case well monod that's not at issue here there was undoubtedly sufficient evidence of fraud as a general matter right jordan in bound fraud freaking up the one whole there's no such thing as inbound and outbound fraud it's a fraudulent scheme and it has an inbound component and it has an outbound component but you're saying you segment those two things for legal purposes i do your honor because the indictment charged palmer with exactly that the indictment charge palmer with transmission and dollar figures out of the southern district of florida to someplace in minnesota ok then my question which is goes back to the one of the first things we discussed if the wire that's charged is the wire sent to minnesota from a wal mart store after he picks up the cash how can he not aid and abet the transmission of that wire if the pickup is necessary for the transmission of that wire he can only  it if he has some element of knowledge that it's taking place and take some affirmative steps toward causing it to happen or hear it he picked up the cash you're saying what's missing is the knowledge element is knowledge if someone has a phone or some other device it's going off oh ok never my knowledge plus the taking of some affirmative step in order to assist the perpetration or the culmination of the events described indictment so it's not just knowledge which he didn't have and i keep on coming back to the point that there was no evidence before this jury at all not the first bit that palmer had any knowledge of any southern district of florida to minnesota ligament much less that he took any steps toward the end of accomplishing that but to the contrary really couldn't have been accomplished unless he gave the matching data information  i don't know whether that's enough that step of the transmetal back would have never happened he caused it to happen because he gave the correct matching information he just i'm not saying that snuff but he that the transmetal back if he hadn't showed up with the right answer the test question the right id and the right  reference number or whatever it was he had to have then that walmart wouldn't have cause that transaction would have a wire transfer wouldn't have kurt is that correct it would have stopped on he didn't show up and give him the right information and then after the fact basis we now know that because of a process that no way meant i'm just trying to say if he hadn't showed up with the right information that max max matched what was in the terminal terminal then wal mart subsequently would not have senate is that right only if he knew that there was a terminal and only if you mangle into his knowledge about the bar i'm just saying if the wire were not the same he didn't know they had to do anything more but it wouldn't have happened if he hadn't showed up at the correct information it wouldn't have happened if it hadn't been the system that wal mart had designed about which wal mart had exclusive knowledge to the exclusion of all other third persons on this globe that's the only way in which it could have happened palm or can't be held responsible for something about which he had no knowledge and in which he did not knowingly and willingly participate or in his rule over time we've taken you way over your time but you've saved all of your time for rebuttal thank you why mr williams believes that the government charged palmer with transmitting money to minnesota when it's so obvious from reading the indictment that he's charged with transmitting or causing to be transmitted images and signals and signs and writings the only thing that makes sense is that he's mr williams is hung up on the language in each individual count of the indictment and each individual count of the indictment charges and i'll give you to start with count one example that charges palmer with the transmission from the southern district of florida to money gram in minnesota for seven hundred thirty nine dollars and thirty nine cent money transfer with reference number eight on three three seven four one four and actually i  agree with you that that seemed to be the argument that was primary and then preferred it seems that we're hearing today is that the government was responsible for showing the defendant's knowledge that a particular wire signal would be sent after he picked up the further into the scheme use of the wires need only be reasonably forseeable to the defendant i'm not aware of any case where it says that we have to prove that he had knowledge that the wires were interstate that's just the hook for federal jurisdiction we only have to prove that he used the wires and we can prove that either by actual knowledge or by proving that he reasonably intended to use the wires in other words the wires have to be incident to a step in the fraud scheme we prove that as to his knowledge that wires were used in furtherance of the scheme the evidence established from the from what judge paulus said he confessed that his scheme involved people getting on the phone and tricking people getting on the phone the phone is the wires no that's not the liar charged in the indictment you didn't charge him with conspiracy you are missing humans are the rules of the government didn't charge him with conspiracy the government charge him with substantive counts of wire fraud and i agree with you that they don't charge him with the money itself as a transmission to accomplish it but the phone calls are not charged right right it's the transmission from wal mart to minnesota to accomplish the final link of the money trail i don't know why would the government have i don't know why the you know the proof has to be segmented into inbound and outbound it's oh i don't rothstein going on saying i don't so much saying it has to  think it i don't think it does i'm just the one the way i read the indictment the charges in the indictment were they didn't charge the phone calls they could have charged the phone calls but they don't charge the phone calls that's why i started my argument with very put emphasis on the word for those the word for the governor was very careful with its language in all thirteen counts of the indictment it says that he's responsible for the transmission in in regard to each money transfer it doesn't say that he transmitted seven hundred thirty nine dollars and thirty nine cents of money it says for and that in context means with respect to are concerning it seems to me that the government's language in that charge covers both the inbound and outbound in other words he's responsible not only for causing the wire transfer he's aiding and abetting the transmitting of the wires to send the money and as a principle he's responsible for causing the transmission on the wires to pick up the money now there are forty one videotapes in this case that show him standing in front of an agent in a store typing things into a computer as he's giving that agent all the information that the agent needs to give him his illicit money the agent is typing it in you would have to be a luddite not to know that the wires are being used computers are no different from phones they're part of an interconnected  world wide net held together by wires and he's standing there causing an agent forty one different times to enter information into a computer and that information is transmitted the wires to the mainframes in minnesota he doesn't have to know that those computers are in minnesota he knows that wires are being used but i'll tell you what he knows that this scheme has an interstate commerce element because he was caught in april of two thousand and fifteen his name first came up when he went into a wal mart with a friend of his and they tried to send five thousand dollars of money in a money order to oklahoma his friend didn't have id so palmer says wait here i'll go out to my car and get id he came back into the store presented his id then tried to give a bribe to the agent to let him use his i d that's how his name came up that's when we first identified sheldon palmer he knew that that money order was going to oklahoma that's proof that he knew the interstate element but again like i say i'd i'm not aware of any case law that says we have to prove that he knew that it was going to minnesota or crossed state lines the only thing that hasan compels us to prove is that he knew that the use of the wires were involved so it's a reasonable in front that when the terminal of their inner ring the data and that he comes to that terminal of fraudulent intent he noticed me all fraud and i'm looking at your indictment it says use of wires ok so you define it as for purposes of executing and in for other moments of the scheme he he made false print pretenses which caused to be there was a constructive amendment he was fully advice as to what he was charged with it's moot here and and he certainly aided and abetted i just checked you did charge violation of thirteen forty three and two so you have a aiding abetting charge i don't i don't know what prejudice he would have even if there's some type of constructed you argue that in your brave there's no prejudice at all that he was fully advisers as to the charges or you didn't argue that i made or you're ok my feature argument was that there was no constructive amendment whatsoever so i didn't have an alternative argument saying even if there was there was no prejudice think i think i've exhausted the court's questions with respect to construct a construct of amendment and sufficiency those are the only two issues that were raised here in oral argument i don't expect there to be any argument about business records i can't argue that but if the court has any questions about big business record aspect of the brief then i'll be more than happy to answer it of a question and as long as they're here how do you know how exhibit twenty six was created yes ma'am and i have to say before i answer your question that my argument in the government's brief is flawed it doesn't really help you decide what you need to help because i didn't understand mr williams argument with respect to government exhibit twenty six and i didn't focus clearly on his concerns government twenty six is an x l spreadsheet it's a computer printout of information pulled from business record information stored in money gram international computers in minnesota the problem that i missed in my brief was that that excel spreadsheet government exhibit twenty six was introduced as a business record under eight zero three six it probably should have been introduced as a summary chart under federal evidence one zero zero six the same way government exhibit thirty was government exhibit thirty as of like a summary of government exhibit twenty six and government twenty six you know mr williams is right they're both summary charts that being said both government exhibit twenty six and government exhibit thirty were admissible because the form in which electronic business stat is presented whether it's a computer print out or a summary chart that's not the deciding factor every item in government twenty six reflects a bare fact that was pulled from business records all of those business records were not only provided to mr williams before trial but they were introduced as evidence at trial so you know if there if there's any inconsistency between the xcel spreadsheet and the summary chart of the business records the jury can can cross this was the real basis for the judges when the judge told mr williams you you need to check out eki your the does district d c case because it says that just because electronic business doubt is presented in a spreadsheet or computer printout that doesn't mean that it alters the underlying validity of the business records and you know he cited a couple cases that says computer printouts are not admissible that may be true but in those cases the government didn't put in the underlying records or didn't make them available to the defendant or call the witness who was unable to authenticate them we don't have that problem here every business record that's relevant to the forty one money pick ups from sh palmer was introduced into evidence so to make sure i understand as it sounds like you're saying there's a large database that has all of the information that was presented for every in any setting and that exhibit twenty six is a subset of those records with him with no changes made correct those records and yes ma'am and even at that is most of the information  government twenty six is not even relevant could you got things like the zip code which to me is not relevant for the charge money pick ups and that's why the government try to winnow government twenty six down by introducing government thirty us of the summary of a summary but to the extent that i called government exhibit twenty six a business record i think that's a mistake i was wrong i think it's a summary chart probably should have been introduced as a summary chart but it's really to me it's a distinction without a difference because all of the business records were there who who prepared that was it in the employee or an employee from money graham who compiled that excel spreadsheet yes or it was william hart he's the guy at money graham who's responsible for supply responding to subpoenas from the government so the government issued him a subpoena and said we want all of the business record and all of the information you have about these money transactions so he pulls it out of the computer puts it on a spreadsheet in excel spreadsheet but again all of the facts on that x x l spreadsheet are in the underlying business records which were introduced  man please the court we have now heard the government admit that the records both governments twenty six and thirty were in fact prepared for use  at trial which in and of itself essentially takes them out of the class or category or definition of business records judge hill a the information and governments twenty six which was the overarching chart came into existence and how it was put together and the same mr hart to whom the attorney for the government made reference in his argument said that the information in that chart was pulled his team a government says the underlying information the business records themselves are in evidence too is that correct i know they took it from these underlying records and made this excel spreadsheet that the government stresses the underlying business records were put into evidence some book question is that true no ma'am what the government said and what the testimony at trial was was that mr hart i met tom had a testimony i'm talking about were there other underlying business for records behind exhibit twenty six we don't know that what we do know we do know whether they're in evidence at trial or they are not in evidence there are records in in evidence at trial judge hole we do not know whether they are all of the wreckers because the are some business records that reflect the original data entry that are now put on the express excel spreadsheet is they are act some business records whole that were not susceptible of cross examination to find out who made the choice as to what to include and what not to include in the same way that governments thirty which was the summary charge also partly not about thirty whereas came about because twenty six if it's in you can probably have thirty we're looking at twenty six here and i think you've answered my question i just looked at the record here and it seems like there are video clips of every time your client picked up money at the at the wal mart store is that correct did they come into evidence video clips came into evidence and video shots of every time he came did the forty one pick ups as they end evidence there are video clips in evidence whether they or sheldon palmer is fairly debatable i'll stand some i identified him and said that him i realize that but that was for the jury to determine absence looking at the pictures of the video clips he's in front of four or five computers and did they enter data into the computers file he's standing right they are in some cases yes ma'am ok and that's what the government contended and is it true that they put in evidence that he legitimately use money coram and wal mart send that five thousand dollars bail to oklahoma it did they put that in evidence to i did it you put that in i put into evidence the sending of the bail money to oklahoma to show that he thought this could be legitimate way to get money to other people to oklahoma and so to that end he sent it from south florida to oklahoma as man and why would there be sufficient circumstantial evidence given all the computers there they're entering this given his p transaction where he's used it to know the wires are being used and interstate commerce at these computer terminals because he didn't know that there was a ligament at all between his walking into a store and picking up money and walking out with cash in his pocket and that after the fact internally generated transmission of information about which he had no knowledge the difference is this in the is there enough circumstantial evidence for him to know that they're sending the name the reference number or the test question answer all of that data to somebody no ma'am there is no evidence  reasonably for see that those computer terminals are being used no ma'am you not attack somebody else on doesn't help the government there is no evidence at all in the record that could give rise even to the inference that it was reasonable for him to see foresee that that was happening and with regard to the forty one other episodes or transactions that the government was allowed to put into evidence those were so clearly prejudicial and unnecessary they were four hundred four b evidence they were intrinsic act evidence they were not an extra couple intertwined but more than anything else they were should have been excluded by r of three because as we said in the brief the indicted counts in the evidence for the indicting counts was more than enough to show that palmer knew he was coming into the store to pick up money and that's all they showed that he was coming into the store to pick up money the remaining forty one transactions was absolutely superfluous overkill that had only one purpose and that was for the purpose of prejudicing the jury and showing bad conduct bad acts and bad character on palmer's part and that's why when we finally are you the case to the jury after stressing the way in which the indictment had been constructive up i close with a comment that i did when i was arguing in front of the jury given all of the errors that permeated the trial from the introduction of the extr or the intrinsic acts which were wholly unnecessary and the use of hearsay and the tainted nature of what the government portrayed as business records we come back to jackson versus virginia which is one of my favorite cases of all times published by the supreme court in which they said under our system of criminal justice even a burglar has the right to complain that he has been unconstitutionally prosecuted and convicted as a thief and that's exactly what happened here all right thank you very much mr william thank you very much of the rosa mr williams we know that you are court appointed for mr palmer and we really do appreciate your service to him and to the court thank you it's always a pleasure thank