[00:00:00] Speaker 03:
The first case we have on calendar is United States versus Abu Amo.

[00:00:06] Speaker 00:
Good morning, Your Honors.

[00:00:07] Speaker 00:
May it please the Court, my name is Carmen Sbarandoyo, and I represent Mr. Abu Amo.

[00:00:12] Speaker 00:
I would like to reserve two minutes.

[00:00:14] Speaker 00:
I will do my very best, but I can promise.

[00:00:17] Speaker 00:
Mr. Abouamo was indicted, tried, and convicted for acting as an agent of a foreign government, and more specifically, for acting as an agent of alleged foreign official, Badr Binassaker.

[00:00:30] Speaker 00:
The district court denied Mr. Abouamo's Rule 29 motion reasoning that Mr. Binassaker was a de facto official, a concept that has no grounding in the plain statute, in the plain language of the statute.

[00:00:44] Speaker 00:
and contravenes the very concept of sovereignty and settled international relationships.

[00:00:51] Speaker 00:
Not only that, but this unusual concept would inject impermissible vagueness in a term that is otherwise plain.

[00:01:01] Speaker 00:
So why did the court do that?

[00:01:03] Speaker 00:
It did so, Your Honor, because the government did not prove that Mr. Binassaker was a foreign official, was an official at the time relevant in this case,

[00:01:15] Speaker 00:
which is from December 2014 through February 2015 when he looked into the two Twitter accounts.

[00:01:24] Speaker 04:
And you don't think the government put on an intermediary theory?

[00:01:28] Speaker 00:
It did not.

[00:01:30] Speaker 00:
Definitely not, Your Honor.

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And that is plain on the face of the indictment.

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where it repeatedly, 55 times, more precisely, identified Mr. Bin Asaker as the foreign official and referred to Prince Mohammed bin Salman to MBS as royal family member one.

[00:01:50] Speaker 00:
Not only that, Your Honor.

[00:01:51] Speaker 04:
I mean, these theories aren't necessarily mutually exclusive, right?

[00:01:53] Speaker 04:
You could have someone who's a foreign official who's also an intermediary.

[00:01:57] Speaker 04:
Sure.

[00:01:58] Speaker 04:
So when you look at the jury instructions, there wasn't a whole lot of content, frankly, on the jury instructions about what any of this meant.

[00:02:04] Speaker 04:
They seem to have both theories embedded.

[00:02:08] Speaker 00:
I disagree, Your Honor, because first of all, the indictment did allege an intermediary theory as to co-defendant Al Muntari.

[00:02:18] Speaker 00:
So the government certainly identified somebody as an intermediary, but it was not Mr. Binassaker, it was Mr. Al Muntari.

[00:02:25] Speaker 00:
Furthermore, from

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pre-trial motions, through opening statements, all kinds of pre-trial matters, through closing arguments, the government consistently argued that Mr. Binassaker was a foreign official.

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So the fact that the jury instructions merely paraphrased the broad language of the statute, that's not an issue on.

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Those instructions are correct.

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But what the government charged and what it proved, what it tried to prove, was that Mr. Binassaker was actually

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a foreign official.

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And I would note that

[00:03:03] Speaker 00:
that upholding Mr. Abouamou's conviction on this theory that was not charged, prosecuted, argued to the jury, would violate both his Fifth Amendment rights and also his Sixth Amendment rights.

[00:03:15] Speaker 04:
Why do you think Benesacra was not a foreign official?

[00:03:18] Speaker 04:
I mean, you seem to have a narrow definition of that, to be basically someone who's acting in a kind of de jure legal capacity for a formal government office.

[00:03:27] Speaker 04:
Where do you get that from?

[00:03:28] Speaker 00:
I get that from the plain meaning of the term official that refers to some according to both dictionary definitions and various decisions that I included refers to somebody who actually holds public office or plays an official role in a government.

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I also think that

[00:03:49] Speaker 00:
the definition by contrasting, in a way, from the Supreme Court's decision in Percoco, who told us that there always been eminence in Greece.

[00:04:00] Speaker 00:
People with significant influence on government matters, but who also do not actually are government officials.

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And the distinction between the two is very important, because

[00:04:15] Speaker 00:
9.51 is a statute about foreign relations.

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It's not a statute about bribery like in 2011 where Congress defined the term official in a much broader manner.

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It's not like FARA where, again, Congress criminalized acting on behalf

[00:04:35] Speaker 04:
The pushback on this is foreign governments can be set up in different ways, and sometimes they're set up in ways that don't necessarily mirror ours, but where we're concerned that somebody's really acting at the behest of the foreign government, and why wouldn't that principle map on to this particular provision?

[00:04:54] Speaker 00:
That principle would carry, Your Honor, because somebody can, and that's what the government should have done, should have alleged, if you wanted, an intermediary theory.

[00:05:08] Speaker 00:
Acting on the behest of a government does not make one a foreign official.

[00:05:12] Speaker 00:
When, sorry to bring this up, but when Rudy Giuliani is going abroad and speaking about foreign policy during the Trump administration, that does not make him a foreign official

[00:05:24] Speaker 00:
United States government.

[00:05:26] Speaker 00:
The distinctions are important, Your Honor.

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And the fact that the government had the choice to allege an intermediary theory, but chose not to do so, it is what matters, because the statute is actually plain.

[00:05:39] Speaker 04:
What do we do with the visa?

[00:05:40] Speaker 04:
You know, that seems to be the, even on your theory, the evidence of the visa indicates that he was at least being positioned as some kind of official.

[00:05:53] Speaker 00:
being positioned as an official does not make one, Your Honor, but more importantly, let's remember a couple.

[00:05:58] Speaker 04:
But again, we're here.

[00:05:59] Speaker 04:
I mean, there's no challenge to the jury instructions, right?

[00:06:01] Speaker 04:
It's a sufficiency of the evidence.

[00:06:02] Speaker 00:
It is a sufficiency of the evidence.

[00:06:05] Speaker 00:
The May 2015 visa, Your Honor.

[00:06:08] Speaker 00:
leaving aside all the problems with the reliability of that kind of process, which is extremely differential to foreign governments.

[00:06:16] Speaker 00:
It only pertains to the latter part of the relevant period, May 2015, whereas the accesses happened here between December and February 2015.

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December 2014 to February 2015.

[00:06:33] Speaker 04:
But there's a timing matter from the standpoint of what a reasonable jury could conclude from this document about the nature of what this person was doing?

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Sure, Your Honor, because absent any other evidence, the jury would have to speculate how early Mr. Binasacker became a public official.

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And I would like to point out something that's very, very important.

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The government owns, the government's own expert.

[00:07:00] Speaker 00:
When asked whether Ms.

[00:07:02] Speaker 00:
Abinassaker played a role in the KSA government affairs before 2017, she would not say so.

[00:07:09] Speaker 00:
That expert, Dr. Dewan, presumably was shown that May 2015 visa.

[00:07:15] Speaker 00:
All she was able to say is that

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Mr. Binassaker has always been close to the power of this rising star that MBS was at the time, and who in time became indeed a very powerful force in KSA.

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But at the time between December 2014 and February 2015, MBS was still a rising star.

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And Binassaker, not to study his close relationship,

[00:07:43] Speaker 00:
did not had an official role in the KSA government.

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And because the government did not charge an intermediary theory, your honors cannot compete on that ground.

[00:07:54] Speaker 03:
Can you address the venue issue?

[00:07:56] Speaker 00:
I would love to.

[00:07:57] Speaker 01:
Council, before you do, could you address United States versus Chung and explain why Mr. Benesacar isn't a foreign official within the meaning of that case?

[00:08:09] Speaker 00:
Well, you know, it is my understanding that in Chang, the defendant acted, the defendant was told that, was told that various people in the government of China, in the government of the Socialist Republic of China were asking him to

[00:08:36] Speaker 00:
asking him for the information.

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So I understand Chang to not even present a question about whether the people actually will asking, demanding, offering, providing the commands and the order, being Chinese officials.

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to the extent that Chang actually is relevant, it says that when, under 921, the government has always had to demonstrate, to prove beyond a reason doubt, that a person acted at the behest of a foreign official.

[00:09:15] Speaker 00:
And that's the reality of

[00:09:17] Speaker 00:
foreign of the concept of a foreign government foreign governments are not embodied entities they always act through people and those people have to be foreign officials or otherwise we need an intermediary theory and with your permission I would like to move to the venue question because it I

[00:09:38] Speaker 00:
As Johanna knows, the 1519 statute criminalizes whoever knowingly alters, destroys, mutilates, falsifies a record with obstructive intent.

[00:09:58] Speaker 00:
Andrew Rodriguez Moreno.

[00:10:01] Speaker 00:
we need to start with identifying the essential conduct element of the statute.

[00:10:06] Speaker 00:
And the only essential conduct element that exists in 59, 5019, is the falsification, alteration, and so on.

[00:10:17] Speaker 00:
Obstructive intent, while an essential element and the requirements rare, is a merely circumstance element under the Rodriguez-Moreno test,

[00:10:28] Speaker 00:
it describes the circumstances under which the prohibited conduct becomes criminal but does not require action and does not require effects.

[00:10:38] Speaker 03:
How do you distinguish this case from our decision at Agnati which is somewhat similar different statute but similar factual pattern where the court says well this is a continuing crime and therefore it impedes the investigation and until

[00:10:52] Speaker 00:
I might mispronounce the name of the decision.

[00:10:54] Speaker 00:
I call it Angoti.

[00:10:55] Speaker 00:
Are we talking about the same one?

[00:10:58] Speaker 00:
Probably, yeah.

[00:10:59] Speaker 00:
Maybe I flopped.

[00:11:02] Speaker 00:
With your permission, I will start actually with Fortenberry.

[00:11:04] Speaker 00:
Because what Fortenberry is telling us is that the concept of continuing offense does not dispense with applying

[00:11:13] Speaker 00:
in the first instance, the Rodriguez-Moreno test, we still have to identify the essential conduct element, and then when the conduct fulfilling that element spans more than one district, then you can be found in multiple districts.

[00:11:32] Speaker 00:
The way Fortenberry, and personally, I understand Angoti, is to say that under 18 U.S.C.

[00:11:38] Speaker 00:
1014,

[00:11:41] Speaker 00:
which criminalizes making certain statements to influence certain federal agencies, federal banks, or whatnot.

[00:11:52] Speaker 00:
That the essential contact element in that case is making the statement, but because of this required intent to influence a federal institution, that conduct

[00:12:09] Speaker 00:
happen, that conduct is a continuing one, which begins when the statement is made, but is only complete when the statement actually reaches its intended audience.

[00:12:24] Speaker 03:
I assume your friend on the other side would say, well, he falsified the record to the agents in Seattle, but presumably the agents would have gotten the falsified record and would have sent it back to their superiors or supervisors in San Francisco.

[00:12:39] Speaker 03:
So therefore, like a statement, it was continued on and impeded the investigation to deceive the supervisors.

[00:12:47] Speaker 00:
1519 does not criminalize making false statements.

[00:12:50] Speaker 03:
Excuse me, falsifying the records.

[00:12:52] Speaker 03:
But they would say that record would be transmitted to the headquarters in San Francisco.

[00:12:57] Speaker 00:
But what's important, Your Honor, is that whatever happened with that record after it was falsified actually is irrelevant.

[00:13:06] Speaker 00:
that the offense was completely the moment that mister obama actually falsified the statement the same would have he would have been as guilty if instead of emailing the statement he would have printed a copy and given to the agents in his living room.

[00:13:19] Speaker 04:
Right, but why wasn't that also basically true in Engadi?

[00:13:24] Speaker 00:
No, Your Honor.

[00:13:25] Speaker 00:
Angoti, again, and I'm not saying that it actually is correct, but Angoti understood the

[00:13:34] Speaker 00:
the kind of making a statement to mean making a statement to somebody.

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This is very different than just falsifying a record.

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And I will say, Your Honor, we also have to consider Fortenberry, which distinguished Angoti.

[00:13:49] Speaker 00:
We also have to consider United States Dimarsh, in which this court distinguished Angoti, because in that case it was an endeavor to impede the function of certain

[00:14:00] Speaker 00:
agents involved in tax collection would intend to obviously obstruct their investigation.

[00:14:06] Speaker 00:
And what this course said in March is that the only conduct that the statute criminalizes is the endeavor to impede.

[00:14:16] Speaker 00:
And the fact that obstructed intent is required is irrelevant because nothing is actually required to happen.

[00:14:23] Speaker 00:
Whether somebody is actually obstructed or impeded is irrelevant.

[00:14:28] Speaker 00:
No effects are implicit in that conduct.

[00:14:32] Speaker 04:
What do you make of the line in Fortenberry that says that venue might be proper in the jurisdiction for obstruction of justice?

[00:14:41] Speaker 04:
Do you remember that line in Fortenberry that says, well, that would maybe venue might be proper in the jurisdiction where the case was taking place?

[00:14:48] Speaker 04:
Would you just say that line, it's not binding, but would you say that's just incorrect?

[00:14:52] Speaker 00:
I would say, first of all, it is certainly a dictum, Your Honor.

[00:14:55] Speaker 00:
And second, I think that, you know, Fortenberry just did not have the occasion to really think through all the issues that arise in this Congress.

[00:15:04] Speaker 04:
No, I'll hear you on that, but do you think there's a distinction between this statute and the obstruction of justice statute?

[00:15:09] Speaker 00:
Certain obstruction of justice statutes are actually required that obstruction occur, that a jury or a witness number be actually impeded.

[00:15:19] Speaker 00:
So certainly there are obstruction of justice statutes in which the essential conduct element is drafted in terms of its effects.

[00:15:29] Speaker 00:
This statute, 1519, there are at most potential effects.

[00:15:34] Speaker 00:
And the essential conduct element is

[00:15:37] Speaker 00:
much is narrow and it's falsification and requires nothing else.

[00:15:42] Speaker 04:
But do you think, I mean you seem to be making a distinction between whether something actually produces harm in the venue where the case is filed or whether it could just potentially do so.

[00:15:53] Speaker 04:
I mean the statute on the face of it in Engadi seems to have the same kind of issue with potential where you could be making

[00:16:01] Speaker 04:
a false statement for the purpose of influencing a banking institution, but it doesn't necessarily tell you whether the false statement did influence it.

[00:16:09] Speaker 00:
And that's correct, Your Honor, and I believe that Angoti is actually clearly irreconcilable with Rodriguez-Moreno.

[00:16:15] Speaker 04:
Okay, I thought that makes more sense to me that you would say that.

[00:16:18] Speaker 00:
But I think there is, you know, because you are a three-judge panel and probably you would not want to go there.

[00:16:24] Speaker 00:
I think there is a way to read Angoti and that's that's my understanding of what Fortenberry actually tried to do is to say look in light of this mens rea we read making a statement to mean making a statement to somebody and that means a continuing offense that starts here and continues all the way until the

[00:16:44] Speaker 00:
that statement reaches its audience.

[00:16:46] Speaker 04:
So what do you think should be the test for these types of statutes that involve basically doing some bad act with the intent to affect some other thing, and that other thing can be in a different, might be taking place in a different venue?

[00:17:02] Speaker 04:
What do you think the test should be?

[00:17:03] Speaker 00:
So Your Honor, I think, and I don't know if I have a test for you, but I have some thoughts.

[00:17:09] Speaker 00:
One thought is that Congress, in statutes that are

[00:17:14] Speaker 00:
similarly broad or open has decided to include a special venue provision to take care of this issue.

[00:17:22] Speaker 00:
The second observation is that the Supreme Court in Rodriguez Moreno actually left open to the extent to which the

[00:17:31] Speaker 00:
the effects of the crime can play a role in determination of venue.

[00:17:36] Speaker 00:
So we don't even know when we're only talking about potential effects as opposed to actual effects what the Supreme Court would even say.

[00:17:47] Speaker 00:
And to return to Fortenberry, my understanding of Fortenberry is that it drew a line between statutes in which the essential contact element implies actual effects

[00:18:00] Speaker 00:
distinguished cases in which those effects might only be potential, and Section 1001 itself is such a statute, right?

[00:18:13] Speaker 00:
In that case, there is a requirement of materiality.

[00:18:17] Speaker 00:
The government argued that because of that, the statement will at the very minimum have some potential effects

[00:18:24] Speaker 04:
So would you say the test, just to follow up on, would you say the test should be, if the statute requires there to be effects in another place, that would be sufficient, but if it just has the potential for effects, then you couldn't?

[00:18:38] Speaker 04:
The venue would have to take place where the act occurred?

[00:18:40] Speaker 00:
Yes, Your Honor.

[00:18:42] Speaker 00:
I think that is my test.

[00:18:43] Speaker 00:
I think that's what Rodriguez-Moreno requests, and I think that's what Fortanberry requires.

[00:18:48] Speaker 04:
With Judge Lee's permission, can we talk about the loss issue?

[00:18:51] Speaker 04:
Can you address the loss issue?

[00:18:52] Speaker 00:
Yes, Your Honor.

[00:18:54] Speaker 00:
Regarding loss, the district court enhanced Mr. Abouamo's sentence by 10 levels, his offense level by 10 levels, in reliance on commentary note 3B, which

[00:19:12] Speaker 00:
instructs that court substitute the defendant's gain for the victim's loss when loss can reasonably be calculated.

[00:19:21] Speaker 04:
Assume you're right about this.

[00:19:23] Speaker 04:
Would it make a difference in your client's sentence here based on some of the district court's other comments?

[00:19:29] Speaker 00:
I think your Honor can very well do because the

[00:19:34] Speaker 00:
You know, there is a long line of cases that says that district courts have to start with the correct guidance calculation.

[00:19:40] Speaker 00:
And we also acknowledge that the district court can actually vary upward or downward when the guidance calculation does not accurately reflect the seriousness of the offense.

[00:19:51] Speaker 00:
But the district court has to start with the correct guidelines.

[00:19:56] Speaker 00:
And for that reason, Your Honor, I think it does make a significant sense

[00:20:02] Speaker 00:
difference to my client because the district court once presented with this significantly lower guidelines might make a different decision about what the appropriate sentence is, especially because this sentence is an upward variance from the correct guidelines, whereas right now it's a downward variance from the incorrect one.

[00:20:31] Speaker 00:
And I know that I'm so over my time.

[00:20:34] Speaker 03:
We'll give you two minutes for rebuttal.

[00:20:37] Speaker 00:
And just to clarify, you are not interested in hearing about a set of limitations.

[00:20:44] Speaker 00:
It's OK if you don't.

[00:20:45] Speaker 00:
You just have to let me know.

[00:20:46] Speaker 04:
I mean, there's a lot of issues in this case.

[00:20:48] Speaker 04:
Why don't you go ahead and, if it's OK with you, she can- Judge, you're going to have to buy me lunch, but I'll undo it.

[00:20:53] Speaker 04:
Yeah, well, I'm going to be buying you a few lunches here today.

[00:20:58] Speaker 04:
Go ahead.

[00:20:59] Speaker 00:
I appreciate it, Your Honor.

[00:21:02] Speaker 00:
As you know, the site of limitation issue is informed by two statutes, 3282 and 3288.

[00:21:09] Speaker 00:
The government would read the two statutes in isolation of each other and would ask you to say that in every single case, in every single felony case going forward,

[00:21:22] Speaker 00:
The government can unilaterally extend the statute of limitations by six months in felony cases by the mere formality of filing on the docket of information.

[00:21:34] Speaker 04:
Would there be no other checks on that?

[00:21:36] Speaker 04:
I mean, you can move to dismiss the information.

[00:21:38] Speaker 04:
There's probably some speedy trial issues that could arise or some other delay issues.

[00:21:44] Speaker 00:
Well, I don't think so.

[00:21:46] Speaker 00:
I don't think so.

[00:21:50] Speaker 00:
But more importantly, until a trial actually starts, dismissal of information is at the will of the government, with the permission of the court, of course.

[00:22:01] Speaker 00:
But there is really no check on these kinds of dismissals.

[00:22:04] Speaker 00:
And you are probably aware of the decision in

[00:22:09] Speaker 00:
BGG, United States v. BGG in the 11th Circuit, where this record actually tried to say, well, I'm going to dismiss this information with prejudice, because this is a plot to get around the set of limitations, and I'm not going to endorse that kind of tactic.

[00:22:28] Speaker 00:
Well, the 11th Circuit, this reversed.

[00:22:33] Speaker 00:
And on remand, the district court again dismissed, but on different grounds.

[00:22:40] Speaker 04:
So the government argues that you're trying to basically put back into Section 3288 some language that was removed.

[00:22:47] Speaker 04:
How do you address that issue?

[00:22:48] Speaker 00:
I don't think I'm doing that, Your Honor.

[00:22:50] Speaker 00:
I mean, first of all, it is true that a previous version

[00:22:54] Speaker 00:
spelled out that information needs to be filed after waiver of the indictment by the defendant in open court.

[00:23:02] Speaker 00:
But when Congress rewrote the statute in 1988, we know from the legislative history that that's not what it was interested about.

[00:23:12] Speaker 00:
It wanted to remove any particular reasons for which an indictment might be dismissed.

[00:23:22] Speaker 00:
but otherwise was not interested in the issue of information.

[00:23:26] Speaker 00:
And in the process of doing this technical rewriting, what it did, it referred to both an indictment or information charging a felony.

[00:23:37] Speaker 00:
This language

[00:23:38] Speaker 00:
indictment or information charging a felony, in my mind, clearly refers to an operative charging document, not a piece of paper that we call indictment or information and that can otherwise not support a prosecution, a trial.

[00:23:55] Speaker 04:
So on this issue, are you asking us to disagree with the Seventh Circuit and the Fourth Circuit?

[00:24:03] Speaker 00:
I think both decisions are

[00:24:06] Speaker 00:
very summarily reasoned.

[00:24:08] Speaker 00:
And one of the biggest faults that I see in those decisions is that they completely ignore the Supreme Court's decision in Jaipur.

[00:24:18] Speaker 00:
And unless your honors have further questions at this moment, I would like to reserve a bit of time.

[00:24:24] Speaker 03:
Thank you.

[00:24:48] Speaker 02:
may please the court jeffrey smith for the united states the district court rulings in this case were correct and the judgment should be affirmed first the district court correctly denied the defendant's rule twenty nine motion regarding start the section nine fifty one conviction count one the evidence overwhelmingly demonstrates defendant's guilt here

[00:25:10] Speaker 02:
Among other things, the testimony of Special Agent Wu.

[00:25:14] Speaker 02:
Special Agent Wu testified that the defendant told her that Benesakur was a Saudi official and a member of the King's team, and that the defendant had left Twitter because of contacts from the Saudi Arabian government specifically mentioning Benesakur.

[00:25:29] Speaker 01:
Mr. Smith, is it enough that Mr. Benesaca represented himself as a foreign official?

[00:25:35] Speaker 01:
Doesn't he have to be a foreign official?

[00:25:37] Speaker 01:
And what is that anyway?

[00:25:39] Speaker 02:
So I have a couple answers to that.

[00:25:41] Speaker 02:
First, it is necessary for Saudi Arabia to actually be involved.

[00:25:47] Speaker 02:
That is, if he was just someone who was lying and saying, I'm representing Saudi Arabia, that would not be sufficient.

[00:25:54] Speaker 02:
There is substantial evidence, additional evidence, I want to get to your questions rather than going through them.

[00:25:59] Speaker 02:
There's substantial evidence that he was in fact a Saudi official and that he was in fact representing the Saudi government in his dealings with the defendant.

[00:26:10] Speaker 02:
As to government official, in this case, the charged principal under 951 was the government of Saudi Arabia, and that's right in count one of the indictment, and it's also in the jury instructions.

[00:26:21] Speaker 02:
And so what was necessary to be proven was that when the defendant took instructions from Mr. Benesakir, and when he gave the stolen information to Benesakir, that Benesakir was acting on behalf of the Saudi government.

[00:26:36] Speaker 04:
And that's what the this is the this is now you're talking the kind of intermediary theory before we even decide whether been soccer was a foreign official.

[00:26:44] Speaker 02:
So the defense brought the use the term intermediary in their opening brief and so we address that in our brief as well there's no.

[00:26:53] Speaker 02:
I mean, intermediary theory isn't a specific... It's not in the statute.

[00:26:56] Speaker 02:
Right, it's not in the statute.

[00:26:57] Speaker 02:
It's not a term of law.

[00:26:59] Speaker 02:
It is a term that we would not normally use in this case because we normally use intermediary to mean someone who's not part of the government, and Mr. Binisaker clearly was part of the government, but it's not legally different.

[00:27:12] Speaker 02:
That is, if you have a chain, and at one end is the government of Saudi Arabia, at the other end is the defendant, then any link in the chain could be considered to be an intermediary.

[00:27:21] Speaker 02:
that even though Mr. Benissacher was himself a foreign official as well.

[00:27:26] Speaker 02:
He was a foreign official who was serving another foreign official who was serving the government.

[00:27:31] Speaker 02:
Or they were both serving the government.

[00:27:33] Speaker 01:
Free was asked to find whether he was a foreign official.

[00:27:37] Speaker 01:
And that was the instruction.

[00:27:39] Speaker 01:
So what is a foreign official?

[00:27:41] Speaker 02:
There was no, so I do want to answer your question.

[00:27:44] Speaker 02:
There was no jury instruction specific to Mr. Benissacher.

[00:27:47] Speaker 02:
The jury instruction

[00:27:50] Speaker 02:
Define foreign government.

[00:27:52] Speaker 02:
Well, the jury instruction defined foreign government.

[00:27:54] Speaker 02:
That's true.

[00:27:55] Speaker 02:
But there was no instruction about Mr. Binosakha, specific to Mr. Binosakha at all.

[00:27:58] Speaker 02:
The jury instruction named the principle as the government of Saudi Arabia, a foreign government, the Kingdom of Saudi Arabia, and the royal family, members of the royal family, I should say.

[00:28:12] Speaker 02:
In terms of what is a foreign official,

[00:28:18] Speaker 02:
So we don't think the court needs to define the specific statutory term in 951 because that's not relevant to this decision.

[00:28:28] Speaker 04:
However, we would look to... Just to be clear, it's not relevant because you're asking at the behest of the Saudi government and whether he was a foreign official.

[00:28:38] Speaker 04:
That's the so-called intermediary theory?

[00:28:41] Speaker 02:
Again, the charge principle is the government of Saudi Arabia.

[00:28:47] Speaker 02:
So ultimately, what matters is whether the government of Saudi Arabia is a foreign government under 951.

[00:28:52] Speaker 02:
And there's no dispute that it is.

[00:28:56] Speaker 02:
So we don't think it's necessary for the court to define the term foreign official in 951.

[00:29:01] Speaker 02:
But under any of the definitions that have been put forward, including the defendant's definition that he put forward in his brief, Mr. Binisakir clearly qualifies.

[00:29:15] Speaker 02:
says it's someone who holds public office or otherwise serves in an official position in a foreign government and is therefore authorized to exercise some portion of the foreign government's sovereign powers.

[00:29:26] Speaker 02:
The evidence in this case clearly sufficient to meet the rule 29 standard on that even on even on that definition.

[00:29:34] Speaker 02:
Um, in addition to, you know, Agent Wu's testimony that I talked about, as Judge Bress mentioned, the, uh, Binassaker himself and the Kingdom of Saudi Arabia represented to the U.S.

[00:29:45] Speaker 02:
State Department that Binassaker was an official employee of the royal court whose vocation was government.

[00:29:52] Speaker 02:
the emails that uh... the defendant sent to his colleagues at twitter uh... represented that the communications he risk he had with been a soccer uh... we're coming from high levels of the saudi governments in february during the time period that that that uh... my colleague talked about

[00:30:08] Speaker 02:
Mr. Binasaka registered an email on the domain HRHPMPO, which stands for His Royal Highness's Prince Mohammed's Private Office.

[00:30:18] Speaker 02:
There was expert testimony that a senior royal's private, or any royal, but particularly a senior royal's private office handles public affairs and public issues.

[00:30:27] Speaker 02:
And even defendants expert said that there's no real distinction between the private office and the public affairs of state.

[00:30:35] Speaker 02:
And the government's expert also testified that Binisakir was the main aide and right-hand man to Prince Mohammed, who held the title of minister during all relevant times.

[00:30:49] Speaker 04:
And finally... It seems like the defendant is just saying, well, listen, that's all fine, except that he did not actually have an official government title and an official government agency, and that's what we should look to.

[00:31:02] Speaker 02:
One, I don't think that's what you should look to, even assuming you are interpreting the statute.

[00:31:05] Speaker 02:
Because again, their own definition doesn't require a particular title.

[00:31:09] Speaker 02:
There's just no basis for that.

[00:31:12] Speaker 02:
But in any event, the jury, the Rule 29 standard allows, requires this court to defer to the inferences from the evidence.

[00:31:21] Speaker 02:
And the jury clearly could have inferred that he had an official position with Prince Muhammad's office and with the royal court.

[00:31:29] Speaker 02:
particularly because the Kingdom of Saudi Arabia itself said he was an official slash employee of the royal court.

[00:31:36] Speaker 03:
Could we say that even if we don't think he's technically officially employed by the Saudi government that de facto he is under the Saudi government?

[00:31:47] Speaker 02:
I mean, I think that he, yes, you could say that.

[00:31:50] Speaker 03:
There's a system of government that's a little bit different from ours.

[00:31:53] Speaker 02:
Their system of government is a lot different from ours.

[00:31:55] Speaker 02:
And of course, the purpose of the statute is to prevent foreign government influence within the United States without the proper notification being done.

[00:32:06] Speaker 02:
And so to allow someone to operate

[00:32:13] Speaker 02:
because they were able to keep their name off of the payroll or whatever, but they're actually operating on behalf of the government.

[00:32:19] Speaker 02:
And I would note the nature of the scheme here was personal, private information about Saudi dissidents.

[00:32:26] Speaker 02:
The nature of the scheme, again, shows that it's a government, a public affairs scheme.

[00:32:32] Speaker 02:
It's not the private acts of a private person.

[00:32:36] Speaker 02:
It wasn't Mr. Bin Laden going after his own personal enemies.

[00:32:40] Speaker 02:
These are dissidents criticizing the Saudi regime.

[00:32:44] Speaker 04:
Can we go to the statute of limitations issue next and can you respond to your opposing counsel's point that basically an information could just be dismissed and you could just do this kind of indefinitely?

[00:32:58] Speaker 02:
Oh, so no, I don't think you could do it indefinitely because the information in order for 3280, so we're going entirely by the plain text of 3288 and 3282.

[00:33:11] Speaker 02:
In order for the initial pleading with the relevant charges has to be filed within the statute of limitations period.

[00:33:20] Speaker 02:
And then there's a six month period after that is dismissed.

[00:33:23] Speaker 02:
But you can't keep doing that.

[00:33:25] Speaker 02:
You can't use like six months on top of six months.

[00:33:26] Speaker 04:
No, that's true.

[00:33:27] Speaker 04:
But I think the implication is that you could kind of file a placeholder information and then have that sit there for a long time and then eventually dismiss it and get a superseding indictment.

[00:33:36] Speaker 02:
That's not really true either.

[00:33:38] Speaker 02:
First, I think it's important to note, and as the Fourth Circuit noted in Briscoe, in order for the ultimate pleading to be valid, it has to relate back to the earlier pleading.

[00:33:50] Speaker 02:
And in that case, there's some discussion of that because they weren't exactly identical.

[00:33:55] Speaker 02:
Here they're exactly identical, so there's no problem with the relate back.

[00:33:58] Speaker 02:
But the fact that the government has to have made its case within the statute of limitations

[00:34:03] Speaker 02:
period, and has to have filed that in a way that gives notice to the defendant within the limitations period of the charge that he is going to be defending.

[00:34:12] Speaker 02:
And also, as the district court noted, he can file a motion to dismiss.

[00:34:18] Speaker 02:
It can give rise, it can support an arrest warrant if necessary, which wasn't necessary here.

[00:34:24] Speaker 02:
It can lead to a preliminary injunction.

[00:34:26] Speaker 02:
And of course, again, it gives notice, as the Fourth Circuit noted, the most important function of the statute of limitations.

[00:34:34] Speaker 04:
So, I mean, here the information was filed in April 2020, I think?

[00:34:39] Speaker 04:
Yeah, April 7th.

[00:34:40] Speaker 04:
And then the superseding indictment in July is not a huge amount of time, but what would have happened if it had been, you know, the information was filed in April 2020 and then the superseding indictment wasn't filed for another five years?

[00:34:53] Speaker 02:
So I think I have to answer that one, the defendant would have the opportunity to to push things along of course and to to ask for preliminary hearing to move to dismiss, but also the speedy trial limits within the Sixth Amendment.

[00:35:08] Speaker 02:
um... apply here so and and other due process rules may apply as well uh... it's not as if the government can just like put things on ice and leave the defendant hanging the defendant has the opportunity to go to court immediately if he wants to and any event has other rights including uh... those related to the speedy trial is it is it the government's position this issue can be resolved just on the basis of three two eight eight without getting into the meaning of

[00:35:36] Speaker 04:
the word instituted in 3282?

[00:35:40] Speaker 02:
Well, I think that, and I think I read the defendant's reply as agreeing with this point that the phrase the information is instituted in 3282 refer to the same thing as the failure to file within the period in the last sentence of 3288.

[00:35:59] Speaker 02:
So it seems

[00:36:03] Speaker 02:
clear that what the, you know, what the statutes are referring to is the filing of an information.

[00:36:10] Speaker 02:
Now, if the court wanted to, you know, take the independent look at the word Institute, I think, you know, you could look at what the Fourth Circuit did in Briscoe and what the San Filippo and

[00:36:23] Speaker 02:
and other district courts, Rothenberg I was thinking of from right here, have very persuasively explained the meaning of that, the statutory meaning of that, of the term instituted and that it means to start or set in motion to causing to come into existence.

[00:36:41] Speaker 02:
So in modern times, the filing of an information is what causes it to come into existence, excuse me, and thus,

[00:36:53] Speaker 02:
that is sufficient to meet the terms of 3282.

[00:36:56] Speaker 02:
I hope that answered your question.

[00:36:58] Speaker 02:
No, it does.

[00:36:59] Speaker 03:
Can you address the venue issue?

[00:37:00] Speaker 03:
I mean, the invoice was falsified in Seattle.

[00:37:04] Speaker 03:
I mean, why is a venue proper in San Francisco?

[00:37:07] Speaker 02:
So the venue issue is controlled by this court's precedent, specifically Engadi, Pace, and Fortenberry, and more specifically, Fortenberry's discussion of Engadi.

[00:37:17] Speaker 02:
Fortenberry, of course, in Engadi, as the court is aware, the court found venue in the central district of California, although the defendant had provided the document with the false entry in the northern district of California.

[00:37:31] Speaker 02:
In Fortenberry, the court distinguished that and it said that

[00:37:35] Speaker 02:
Section 1014, which was at issue in Angadi, unlike 1001, which was at issue in Fortinbury, quote, expressly contemplates the effects of influencing the action of a financial institution, which in that case was the headquarters in Los Angeles.

[00:37:50] Speaker 02:
And it's basing this in the same page, it's page 710 of Fortinbury, it's basing this on the language in the statute for the purpose of influencing the action.

[00:38:00] Speaker 02:
And the 1014, in all relevance,

[00:38:04] Speaker 02:
senses is directly parallel to 1519 in the following ways.

[00:38:09] Speaker 02:
First, each criminalizes falsification on a document.

[00:38:16] Speaker 02:
Second, for the purpose of influencing.

[00:38:18] Speaker 02:
And third, some protected activity or action.

[00:38:23] Speaker 03:
But how far does this go?

[00:38:25] Speaker 03:
Looking at the statute here, 18 U.S.C.

[00:38:27] Speaker 03:
1519, it says intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency.

[00:38:35] Speaker 03:
So I guess your point is this was the agency here is the U.S.

[00:38:38] Speaker 03:
Attorney's Office in Northern District of California.

[00:38:40] Speaker 02:
Yes, and the FBI office.

[00:38:43] Speaker 03:
I mean, how far can that go if the government brings in FBI agents or agencies from main DOJ to be involved?

[00:38:51] Speaker 03:
I mean, obviously you're from Washington, D.C.

[00:38:53] Speaker 03:
Yes.

[00:38:54] Speaker 03:
Is venue proper in D.C.

[00:38:55] Speaker 03:
because some decisions will have to be made in D.C.?

[00:38:58] Speaker 03:
?

[00:38:58] Speaker 02:
No, I don't think it goes that far.

[00:38:59] Speaker 03:
I think the issue here is that the 50-19... Why not under the logic or if we read the statute that way, maybe the final... I know it's not probably for most cases, but certain high profile or certain areas like tax or national security, you have to get the sign off from Maine DOJ or maybe they send agents from Washington DC to do it because they have some specialized skill or knowledge.

[00:39:20] Speaker 02:
Well, I think it's possible that if there was, if there was some sort of requirement for say solicitor general approval or something like that, then, then maybe, and the false document got to that person and affected her decision, then it's possible it would be like Angati.

[00:39:34] Speaker 02:
But I would say, and the court doesn't need to go there in this case because- That seems like a crazy result then.

[00:39:39] Speaker 03:
Government can always involve main DOJ FBI agents from DC and high profile cases and have the venue in Washington DC.

[00:39:48] Speaker 02:
No, I don't, I don't think that at all.

[00:39:49] Speaker 02:
I was saying if there was a specific decision that needed to be made and the decision maker was influenced or was thinking to influence that particular decision that it might be on all fours within Gotti.

[00:40:00] Speaker 02:
But again, that's not this case here 1519.

[00:40:04] Speaker 02:
It was it it sort of infers the idea of an investigation of predicate crimes.

[00:40:11] Speaker 02:
That's the whole idea of of an of the of an ongoing information investigation or expected investigation that the person is purposely trying to influence here the.

[00:40:23] Speaker 02:
the underlying crimes were committed in this district, in the Northern District of California.

[00:40:27] Speaker 02:
The defendant knew that, the defendant lived and worked in the Northern District of California and was, unlike Angati, was aware that the investigation was centered there.

[00:40:37] Speaker 02:
He forged this document or made the false entry on this document at the very end of a long, or I don't know how long it was, of a relatively extensive investigation.

[00:40:47] Speaker 02:
interview so he was aware of all of these facts and of course the agents had introduced themselves as coming from the San Francisco area office of the FBI so here this isn't a situation where the government is sort of manipulating jurisdiction this is the natural

[00:41:06] Speaker 03:
uh... place because it's the place where the underlying crimes i agree there's been nothing untoward to start in san francisco's is you know with twitter here just you know kind of logical result of the government's position is let's let's get main d o j involved and

[00:41:26] Speaker 03:
in high-profile cases or certain areas, national security, tax, where you have divisions in D.C., or get a main DOJ or main FBI agents involved, and you can have a plausible case for venue in Washington, D.C.

[00:41:40] Speaker 03:
Public corruption, etc.

[00:41:42] Speaker 03:
And you'll work in conjunction with the local U.S.

[00:41:44] Speaker 03:
Attorney's Office, but you see that a lot where main DOJ and Washington, D.C.

[00:41:48] Speaker 03:
FBI field agents are involved.

[00:41:50] Speaker 02:
Yes, I think the mere involvement of someone from Washington would not be sufficient, but I would have to look at the facts of a specific case, and here we don't have that.

[00:42:01] Speaker 02:
I mean, here we have just the, we're just talking about the investigation of the crimes, where they occurred, by the office that has the jurisdiction, the FBI.

[00:42:09] Speaker 02:
And again, this isn't really based on DOJ, it's based on, or the lawyers, it's based on the agents' investigation.

[00:42:16] Speaker 04:
Your opposing counsel want to draw a distinction based on potential effects and actual effects.

[00:42:23] Speaker 04:
Can you respond to that.

[00:42:24] Speaker 02:
Well, there's no distinction between 1014 and 1519 in that regard.

[00:42:29] Speaker 02:
The, you know, the relevant language in 1014 that the court in Fortenberry cited is

[00:42:35] Speaker 02:
for the purpose of influencing in any way the action of, and then it's a long series of potential entities, including banks.

[00:42:42] Speaker 02:
1519 is with the intent to impede, obstruct, or influence the investigation.

[00:42:47] Speaker 02:
So neither of them, for a crime to have been committed, require the influence to actually work, or even to necessarily reach the person.

[00:42:57] Speaker 02:
And that was clear in Ngati that he could have been, the crime, he had committed all his criminal actions when he provided the false document in the Northern District of California.

[00:43:08] Speaker 02:
And indeed, probably under the statute, even when he had just signed it, so long as he had the purpose of ultimately getting the loan based on the false documents.

[00:43:16] Speaker 02:
But nevertheless, the court in Ngati said that the act of making false statements continues until the statements were received by the person whom they were ultimately intended to influence.

[00:43:27] Speaker 02:
Which in this case was the person in in Los Angeles, can you address it?

[00:43:33] Speaker 04:
We can't really the loss issue.

[00:43:35] Speaker 02:
Oh sure So the district court in this case said that there is a logical reason to value the loss based on which missed what mr. Abu Amal was paid by the Kingdom of Saudi Arabia to obtain the private information and at another point said it was the appropriate way to measure loss and

[00:43:54] Speaker 02:
The defendant simply hasn't

[00:43:58] Speaker 02:
Explained what the district court should have done to measure loss the the staff really how is how is the value of a watch and the payment?

[00:44:08] Speaker 04:
reflective of Whose loss are we talking about Twitter's loss somebody else's loss anybody's loss.

[00:44:14] Speaker 04:
How is that?

[00:44:16] Speaker 04:
Even if gain can be a measure of loss.

[00:44:18] Speaker 04:
How was that appropriate here?

[00:44:20] Speaker 02:
so the the loss so as the district court said the the loss is

[00:44:27] Speaker 02:
The value of stolen information can be measured based on what someone is willing to pay for it.

[00:44:33] Speaker 02:
Now, normally that's going to undervalue it because you don't have, you know, you have a limited number of, and that's certainly the case here, you have a limited number of customers and which is why

[00:44:44] Speaker 04:
But so that's the idea that this money, the value of the payments plus the watch equals what somebody would have paid Twitter to get this information?

[00:44:54] Speaker 02:
Well, it's what the government of Saudi Arabia did pay the defendant to get this information.

[00:44:59] Speaker 04:
So it's not what... Right, presumably with a premium for the alleged illegal features of this that he had to go through to provide the information.

[00:45:07] Speaker 02:
So I would think it would be with a

[00:45:08] Speaker 04:
Discount because there's no one else who would buy it and he really has no no ability to party either way Whichever one of us is has a better view on that It seems that it just underscores the problem here with that.

[00:45:20] Speaker 04:
This is not really a measurement of loss It's a measurement of something else.

[00:45:24] Speaker 02:
Well, I don't agree.

[00:45:25] Speaker 02:
I think it's not a perfect calculation That's certainly true

[00:45:29] Speaker 04:
But it's not a meaningful calculation.

[00:45:32] Speaker 04:
How is it a meaningful calculation in any sense of loss?

[00:45:35] Speaker 04:
I mean, you know, maybe some other losses here, you know, that you could have demonstrated whether through testimony from Twitter or otherwise.

[00:45:42] Speaker 04:
But we're talking about just the value of a watch and some cash.

[00:45:46] Speaker 02:
so there well there was testimony from twitter in the in the trial uh... about the importance of this information twitter and how was it seen uh... uh... significant business decision to keep information confidential how that was important to their business model and there's also

[00:46:01] Speaker 04:
Testimony about the extensive investigation that they had to go through as a result of this now There are no dollar figures put on that and I don't think you could have one could have put dollar figures on that Why couldn't somebody have come in and just said we spent weeks resolving this trying to investigate this and we estimate that the amount of time and Of our company and the loss to our company's reputation was the following and that could have been credited or not

[00:46:30] Speaker 02:
Well, Your Honor, I suppose somebody could have done that, and you'd have the same objections that people are making guesses and estimates.

[00:46:40] Speaker 04:
Well, I think you'd have some different objections.

[00:46:43] Speaker 04:
Those numbers are maybe not accurate, but you wouldn't have the objection we have here, which is that there's just a mismatch between the two things we're talking about.

[00:46:52] Speaker 02:
So I don't read that as actually the defendant's objection, although maybe it will be on rebuttal.

[00:46:59] Speaker 02:
Their objection is that gain cannot be used as a measure of loss, despite the fact that it's been frequently used in cases in this circuit, and that it's used in a variety of ways, as the district court explained in its opinion.

[00:47:21] Speaker 01:
Can we decide that question without addressing whether or not loss is ambiguous in 2B1.1?

[00:47:28] Speaker 02:
So I think that you can because the district court are found that it was the appropriate way of doing it.

[00:47:36] Speaker 02:
However, I understand the argument that you should address whether loss is ambiguous enough.

[00:47:47] Speaker 02:
It is, well, let me go with what the district court found, that it is ambiguous because it doesn't say what, you have to have a loss based on the plain text.

[00:47:57] Speaker 02:
It just says you have to apply loss.

[00:47:59] Speaker 02:
It doesn't say what to do when you know that the loss, you've determined that the loss is not zero, but you also can't precisely calculate it.

[00:48:08] Speaker 02:
And so then you need to use other tools.

[00:48:11] Speaker 02:
It certainly doesn't unambiguously strike this common tool for measuring loss.

[00:48:17] Speaker 01:
So the guideline says calculate gain if you can't calculate loss, but you only get to that guideline note if we find that loss is ambiguous.

[00:48:30] Speaker 02:
Yes, you only get to the, yes, I think that's right.

[00:48:33] Speaker 04:
I will note- There's some situations clearly where it might be a meaningful measure of loss, right?

[00:48:39] Speaker 04:
If you steal someone's watch and they have some, we don't know what it's valued at, but you go and sell it on the black market and you get some money for it, that might reflect the value of the watch.

[00:48:49] Speaker 04:
But here we're talking about value of stolen information and the cost of

[00:48:54] Speaker 04:
of having to address that problem within a company versus the value of gifts and other cash that was given to the defendant.

[00:49:04] Speaker 04:
Those two things, there seems to be less of a relationship there.

[00:49:08] Speaker 02:
I suppose there's less of a relationship, but it's the same idea of selling stolen goods.

[00:49:17] Speaker 02:
Now, as courts have recognized, when you're talking about intangible property, it's harder to value than the watch in your hypothetical.

[00:49:25] Speaker 02:
But the courts, you know, still need, district courts still need a way to make a best measure in order to demonstrate the severity of the fraud.

[00:49:36] Speaker 02:
And, of course, the fraud guideline, you know, is very extensive in order to punish major frauds more so than minor frauds.

[00:49:45] Speaker 02:
I would, if you'd give me just a second, I would like to address the question that you asked my colleague about what effect this would have.

[00:49:54] Speaker 02:
it's very unlikely to have any effect, because first of all, the district court made clear that the sentence on count one, which is the same 42 months, would be the same regardless of the guidelines calculation.

[00:50:10] Speaker 02:
And count one was not part of the guidelines.

[00:50:13] Speaker 02:
There was no guideline for count one.

[00:50:15] Speaker 02:
And it's an interesting case, because count one is sort of

[00:50:19] Speaker 02:
the the count that that most embodies the egregious conduct of the defendant and yet there's no the guidelines is driven instead by the fraud guideline because there is no guideline for count one.

[00:50:33] Speaker 02:
Secondly, the district court didn't

[00:50:37] Speaker 02:
Senate's within the guidelines anyway.

[00:50:38] Speaker 02:
And third, it seems likely that, although not certain, that by the time the case returns, the guidelines will be amended such that note three will be in the main guideline.

[00:50:55] Speaker 02:
Great, thank you.

[00:50:57] Speaker 02:
And yeah, so I would just ask that the court affirm.

[00:51:00] Speaker 02:
Thank you.

[00:51:06] Speaker 00:
I'll try to be very, very brief, Your Honor, and I'll start in reverse order with the loss issue.

[00:51:13] Speaker 00:
Just to be clear, ex post facto, the ex post facto clause applies to the sentencing guidelines and the Supreme Court precedent, so Mr. Abouamo on resentencing would have to be resentenced under the guidelines, in effect, when he was initially sentenced, and I see Judge Cain nodding.

[00:51:32] Speaker 00:
Judge Brez,

[00:51:34] Speaker 00:
Your line of questioning goes to the heart of this issue.

[00:51:38] Speaker 00:
What this information was worth to KSA is not the same thing as what losses Twitter suffered.

[00:51:47] Speaker 00:
And the mere fact that the district court had to go to this application note

[00:51:52] Speaker 00:
We know that because that application note only comes into play when losses cannot reasonably be determined.

[00:52:00] Speaker 00:
And to go back to Judge Kane's question, we cannot decide, you cannot decide this issue without first determining that losses is ambiguous in this respect and with all due respect, it is not.

[00:52:12] Speaker 03:
To move back to venue- Just stay with loss.

[00:52:16] Speaker 03:
Would you agree then loss could include cost that Twitter incurred to internally investigate this issue?

[00:52:23] Speaker 00:
I assume that they can try to do that, and they've had the opportunity to do that.

[00:52:27] Speaker 00:
It's my understanding that they proffered no evidence whatsoever.

[00:52:32] Speaker 00:
To move to venue.

[00:52:38] Speaker 00:
I'm re-reading, I'm skimming Fortenberry again, and it is clear to me that Fortenberry made a distinction that I propose between potential effects and actual effects.

[00:52:49] Speaker 00:
And I would point your honors to pin site 708 and 712.

[00:52:54] Speaker 00:
The 712 pin point is where the score concludes that because section 1000, because A, section 1001 offense,

[00:53:04] Speaker 00:
is complete at the time the false statement is uttered, and because no actual effect on federal authorities is necessary to sustain a conviction, the location of the crime must be understood to be the place where the defendant makes the statement.

[00:53:20] Speaker 00:
And I will only point this.

[00:53:23] Speaker 00:
My colleague is completely ignoring the discourse decision in March, which I've already addressed.

[00:53:30] Speaker 00:
And I'm not quite sure what PACE has to do with our issue, because in that case, the essential conduct element is the wire fraud.

[00:53:37] Speaker 00:
And of course, a wire fraud can travel between districts.

[00:53:43] Speaker 00:
Finally, in this case, actually, the DOJ and the NSA in DC was actually involved.

[00:53:50] Speaker 00:
So, Judge Lee, your questions about could they have prosecuted in this DC probably under the government's theory is yes.

[00:53:59] Speaker 04:
Well, there's still some mens rea component to this, right?

[00:54:02] Speaker 00:
The defendant has to know.

[00:54:03] Speaker 00:
No.

[00:54:05] Speaker 00:
A defendant does not have to know where venue lies.

[00:54:08] Speaker 00:
There is no such thing as a mens rea associated with venue.

[00:54:11] Speaker 00:
And that is actually something important.

[00:54:13] Speaker 04:
No, but I mean, here they came in and indicated they were part of an investigation that was happening in California, right?

[00:54:19] Speaker 00:
Sure, but that's not a mens rea requirement.

[00:54:20] Speaker 00:
It's just what happened.

[00:54:22] Speaker 00:
even if they said nothing, the venue would have still lied where the investigation was contemplated or something.

[00:54:32] Speaker 00:
There is no mens rea associated venue, Your Honor.

[00:54:35] Speaker 04:
And I would like to also make... So what does it mean that you have to intend to obstruct an investigation within the jurisdiction of the Department of the United States?

[00:54:44] Speaker 04:
You have to know the fact of the investigation, but not where?

[00:54:47] Speaker 00:
You have to know that that's something that the federal authorities can investigate.

[00:54:52] Speaker 00:
For example, you know, electoral fraud.

[00:54:55] Speaker 00:
You don't have to know what an investigation has to be, what the contours of that will be, what the potential charges might be.

[00:55:02] Speaker 00:
None of that, Your Honor.

[00:55:04] Speaker 00:
Also, even under the government theory, venue is still improper here because Mr. Abuamu emailed that invoice to the agents while the agents were in Seattle.

[00:55:17] Speaker 00:
And that's where they received that invoice.

[00:55:19] Speaker 00:
So even under their theory, they lose.

[00:55:21] Speaker 00:
but I urge Your Honors to actually decide the issue under the correct application of the law and not on this impermissible theory.

[00:55:30] Speaker 00:
And finally, just on the 951, very, very briefly, my colleague brought up an email address from February 2015.

[00:55:38] Speaker 00:
That email address ends in

[00:55:41] Speaker 00:
come just like all of us have gmail.com email addresses and what not that particular email address which the district did not even bother to address its ruling says nothing about whether Mr. Binassaka was

[00:55:58] Speaker 00:
was a foreign official.

[00:56:01] Speaker 00:
And I'm really, I was really struck to hear my colleagues suggest that your honors don't have to decide what a government official even means.

[00:56:10] Speaker 00:
I think, and to go back to Judge Kane's question, Chung makes clear that in every single case, at the bottom, there must be a foreign official somewhere.

[00:56:20] Speaker 00:
So it's important to know what the foreign official is.

[00:56:22] Speaker 00:
and who that person is.

[00:56:24] Speaker 00:
And in this particular case, the indictment has clearly identified Mr. Binassaker and only Mr. Binassaker as the foreign official and identified Almultari, co-defendant Almultari, as an intermediary between that foreign official and the other co-defendants.

[00:56:44] Speaker 00:
And unless your honors have further questions, maybe?

[00:56:50] Speaker 03:
No, I think we're good.

[00:56:51] Speaker 03:
Thank you.

[00:56:52] Speaker 03:
OK, great.

[00:56:54] Speaker 03:
Thank you.

[00:56:54] Speaker 03:
I know we went double over time in this argument, but thank you both for the excellent advocacy and helpful argument.

[00:57:00] Speaker 03:
The case has been submitted.