[00:00:07] Speaker 00:
Good morning.

[00:00:07] Speaker 00:
May it please the court.

[00:00:09] Speaker 00:
Sonam Henderson for the appellant, Felix Cisneros Jr.

[00:00:12] Speaker 00:
I plan to reserve four minutes for rebuttal.

[00:00:14] Speaker 00:
I'll try to watch my clock.

[00:00:16] Speaker 00:
And I'm intending to focus on two areas today.

[00:00:19] Speaker 00:
First, the public authority instruction, and second, the four-level guideline enhancement.

[00:00:23] Speaker 00:
But of course, I'm happy to answer questions about anything.

[00:00:27] Speaker 00:
So starting with public authority, due process doesn't permit a court to force a defendant to disprove an element of his charges.

[00:00:34] Speaker 00:
Rather, it's the government's burden to prove all elements beyond a reasonable doubt.

[00:00:38] Speaker 00:
As this court has recognized, this principle means that when a traditionally affirmative defense like public authority would negate an element of the crime, the district court cannot put the burden on the defendant to prove that element.

[00:00:52] Speaker 04:
Just to set the table here, I just want to make sure I understand what happened in the district court when this came down.

[00:01:02] Speaker 04:
It's my understanding, if you're looking at the

[00:01:07] Speaker 04:
proposed jury instructions that both sides proposed the public authority instruction yes your honor and the district court judge gave it and the district court judge gave it without okay so we're here on plane air review we are here on plane air review okay and so

[00:01:24] Speaker 00:
What I was going to say is this court's instructed to avoid having situations like this happen, it's instructed that before giving a public authority defense instruction, the district court must always look closely at the statutory language of the specific offense charge and determine whether the public authority defense negates an element.

[00:01:44] Speaker 00:
The district court here ignored that plain directive.

[00:01:47] Speaker 00:
It didn't look closely at Section 201 bribery and match it against the public authority defense.

[00:01:52] Speaker 00:
And so it failed to recognize that the instructions requirement that a defendant prove he believed he was assisting in authorized law enforcement activity negates the corruptly element of Section 201 bribery.

[00:02:07] Speaker 03:
Tell me why I think I have an answer to it myself, but I want to hear your thought as to why the public authority instruction negates the corrupt intent element of bribery.

[00:02:19] Speaker 00:
Sure.

[00:02:19] Speaker 00:
So to act corruptly is to intend to be influenced by money to violate one's law enforcement duties in the case of a law enforcement officer and to, um,

[00:02:32] Speaker 00:
A law enforcement officer can't both be intending to violate their official duties and reasonably believe that they're acting as an authorized law enforcement agent assisting in legitimate law enforcement activity.

[00:02:42] Speaker 00:
I don't see how you could be doing those two things at the same time.

[00:02:47] Speaker 03:
Let me ask you this.

[00:02:47] Speaker 03:
I was looking to see if I could find a case, a post-Dixon case, where an affirmative defense did negate an element of the crime.

[00:02:57] Speaker 03:
or even public authority.

[00:02:59] Speaker 03:
And maybe you can tell me if you've seen one, because I don't think I could find one myself.

[00:03:05] Speaker 00:
I don't think I've seen one.

[00:03:06] Speaker 00:
I mean, that doesn't mean that down at the district court, they haven't been giving public authority defense instructions.

[00:03:13] Speaker 00:
People have been requesting them where they don't shift the burden.

[00:03:16] Speaker 00:
Right.

[00:03:17] Speaker 03:
So this was going to be my question.

[00:03:18] Speaker 03:
In Doe, Doe was the case about an intent to commit the conspiracy to traffic and drugs.

[00:03:27] Speaker 03:
And in Doe, the court said neither knowledge or intent would be negated by a public authority defense instruction.

[00:03:37] Speaker 03:
So there you had intent also not being negated.

[00:03:42] Speaker 03:
So what is it about corrupt intent that makes a difference?

[00:03:46] Speaker 00:
Because it does bring in, I mean, corrupt intent, it's a heightened intent standard.

[00:03:50] Speaker 00:
It does bring in some of the things that Congress doesn't seem to have put into a drug offense, where if you knowingly have the drugs and with the intent to distribute them, you're in trouble.

[00:04:06] Speaker 00:
Even if someone has, a law enforcement officer told you to do this, you have to bring in the defense.

[00:04:13] Speaker 00:
that doesn't fit into the elements of the offense, you have to bring it in as a separate defense.

[00:04:18] Speaker 00:
Here, if your superiors are telling you to do, you know, if Mr. Cisneros' superiors were telling him to do this, go ahead and do this, I mean, that fits.

[00:04:28] Speaker 00:
He's not doing anything corruptly if he's following orders, right?

[00:04:31] Speaker 02:
So was he, was the argument that he was following the orders of bail in?

[00:04:36] Speaker 00:
Not so much orders, but a reasonable request from another law enforcement officer.

[00:04:41] Speaker 00:
And they established below that it's reasonable for officers who work together, work in different agencies.

[00:04:48] Speaker 00:
They have access to different databases.

[00:04:49] Speaker 04:
He was a police officer, right, with the Glendale Police Department?

[00:04:52] Speaker 00:
A detective at the Glendale Police Department.

[00:04:54] Speaker 04:
And the defendant here was with the?

[00:04:56] Speaker 00:
HSI.

[00:04:57] Speaker 00:
HSI.

[00:04:57] Speaker 04:
So his argument is that when the police officer asked him to get this information,

[00:05:04] Speaker 00:
Police officer came to him and said, I have this person who could be a confidential informant.

[00:05:10] Speaker 00:
We would need to bring them in on a parole letter.

[00:05:13] Speaker 00:
Can you help me with that?

[00:05:14] Speaker 00:
And the government's witnesses agreed that this is something that people do.

[00:05:20] Speaker 00:
This is a normal thing to do.

[00:05:22] Speaker 04:
But asking him, can you help me with this,

[00:05:26] Speaker 04:
Is that the same as saying, do this?

[00:05:29] Speaker 00:
No, it's not the same as do this.

[00:05:31] Speaker 00:
But in doing it, he's acting.

[00:05:34] Speaker 00:
I mean, the idea would be he'd be acting as Balian's agent.

[00:05:39] Speaker 00:
He's not doing something corrupt, first of all, if he really believes he's doing this for Balian for a law enforcement purpose.

[00:05:45] Speaker 00:
And at the same time, he's acting as Balian's agent for a law enforcement purpose.

[00:05:48] Speaker 03:
I guess this gets me to my question.

[00:05:50] Speaker 03:
Even if you're correct, why is it plain error?

[00:05:54] Speaker 03:
Because if you don't have any case that has ever said anything about the public defense, public authority instruction negating the crime of bribery, and as Judge Pais just pointed out, there might be some nuances in what does it mean to be authorized or be an agent.

[00:06:11] Speaker 03:
Even if there were some error, why is it plain error?

[00:06:13] Speaker 00:
So I think it's plain error because of that instruction in Doe telling courts that they always must look at the statute.

[00:06:20] Speaker 00:
So they're saying you always have to look at the statute and weigh the elements.

[00:06:23] Speaker 00:
And I think that once you weigh the elements against it, once you put corruptly in the public authority defense next to each other, it seems pretty obvious.

[00:06:31] Speaker 00:
The government hasn't been able to come up with any instance in which you could have one without negating the other.

[00:06:38] Speaker 00:
I haven't been able to come up with one.

[00:06:40] Speaker 04:
So here what you're saying is that

[00:06:41] Speaker 04:
Once the parties stipulated to these instructions, the law was so clear that judge, I forget who the district judge was here, but the judge should have known

[00:06:56] Speaker 04:
that these stipulated instructions were improper.

[00:07:01] Speaker 04:
And that's plainly obvious to any reasonable district judge.

[00:07:05] Speaker 00:
Yes.

[00:07:05] Speaker 00:
Well, it's certainly plainly obvious, because of the instruction in Doe, that he had to go and do that analysis.

[00:07:11] Speaker 00:
Once he did that analysis.

[00:07:12] Speaker 04:
I might have a hard time with that argument.

[00:07:16] Speaker 03:
Isn't that a little bit in tension with your argument that there was not waiver?

[00:07:27] Speaker 03:
I'm thinking about invited error.

[00:07:30] Speaker 03:
And the way you get around invited error is if there was not an intentional waiver of a known right.

[00:07:36] Speaker 03:
But if this is so obvious that it should have been known to the judge and presumably the lawyers, then aren't we in invited error land?

[00:07:45] Speaker 00:
No, I don't think so.

[00:07:46] Speaker 00:
I mean, there's some gap.

[00:07:47] Speaker 00:
I mean, plain air exists.

[00:07:48] Speaker 00:
And it exists for obvious things and things that are not waived, because there's- But invited air, we don't even look at the issue.

[00:07:56] Speaker 00:
Right.

[00:07:57] Speaker 00:
But there's something that, you know, there's instructions to the judge in DOE, what he's supposed to do.

[00:08:02] Speaker 00:
And if he'd followed those instructions, then it would have been obvious.

[00:08:06] Speaker 00:
That's different from saying, which is what you need to show for waiver,

[00:08:10] Speaker 00:
intentional relinquishment of a known right.

[00:08:12] Speaker 00:
Not just that a good lawyer would have known this, but that he knew this.

[00:08:17] Speaker 00:
And there has to be evidence in the record that he knew this.

[00:08:19] Speaker 00:
And there's nothing of that sort.

[00:08:21] Speaker 00:
As the government says, nobody below caught it.

[00:08:24] Speaker 04:
OK, let's take this a step further.

[00:08:26] Speaker 04:
Let's take your argument that under Doe,

[00:08:30] Speaker 04:
district judge should have been aware that he needed to evaluate whether or not the instructions were proper, whether it negated or relieved the government of proving its case beyond a reasonable doubt, all elements.

[00:08:45] Speaker 04:
Okay, let's just assume the judge was aware of that.

[00:08:50] Speaker 04:
We have to go on under plain air to substantial rights.

[00:08:54] Speaker 04:
So why was, you know, why does this all satisfy that?

[00:08:59] Speaker 00:
In terms of financial rights, on the one hand, this is a bad instruction, something shifting the burden on the key element in this case.

[00:09:09] Speaker 00:
And it's the key element because there's not a lot of fighting about what Mr. Cisneros did.

[00:09:14] Speaker 00:
We know there was a parole letter written.

[00:09:17] Speaker 00:
We know that checks were passed.

[00:09:20] Speaker 00:
What we don't know is what was in his heart and his mind and why this happened.

[00:09:23] Speaker 00:
So this is the key element here.

[00:09:29] Speaker 00:
And so we have a bad instruction on the key element.

[00:09:30] Speaker 00:
And then on the other hand, the government's case is weaker than what it claims, because it's based on... So let me just have you focus on the standards.

[00:09:38] Speaker 02:
So if we decide that this is...

[00:09:41] Speaker 02:
This was plain air on the part of the district court.

[00:09:45] Speaker 02:
We can then uphold the conviction only if there is strong and convincing evidence that the government did prove corrupt intent beyond a reasonable doubt.

[00:09:55] Speaker 00:
Yes.

[00:09:56] Speaker 02:
Okay.

[00:09:57] Speaker 02:
So can you address like whether the other evidence was strong and convincing?

[00:10:02] Speaker 00:
I don't believe so because it's all based on this guy, Sargsyan, who is a large-scale fraudster, who repeatedly told investigators that the checks to Cisneros were loans, that they weren't bribes, only changes his story way down the line in his own fraud case when he's looking for additional sentencing benefits.

[00:10:21] Speaker 00:
He demonstrably lies to the jury in the case.

[00:10:26] Speaker 00:
He lies to them about having no ongoing contact with his fraud co-conspirator, and the government has to come in and admit that he lied.

[00:10:33] Speaker 00:
He lied about passing the bar exam, which came out after trial.

[00:10:36] Speaker 00:
So he's lying even as he's in front of the jury.

[00:10:39] Speaker 00:
And I think it's enough that a properly instructed jury dealing with someone that dubious, if they really understood the government's burden, there is a reasonable chance that they would have acquitted.

[00:10:51] Speaker 03:
What about, I know you said that this person, Balian, was a go-between in a lot of these issues, but there was evidence, I believe, of direct interactions between Mr. Cisneros and, I'm forgetting his name now, Sargsyan.

[00:11:10] Speaker 03:
In one matter where he was asked, or it was alleged that he was asked to be informed about a federal investigation of a co-conspirator,

[00:11:19] Speaker 03:
Why isn't that pretty compelling evidence that he was doing things outside of a supposed knowledge that he was doing it for government authorization?

[00:11:27] Speaker 00:
So I mean, that one wouldn't be covered by the defense.

[00:11:31] Speaker 00:
And that was explained in closing by the defense attorney as just, I mean, these guys had a long running personal relationship.

[00:11:37] Speaker 00:
They did a lot of stuff together.

[00:11:39] Speaker 00:
They had thousands of text messages.

[00:11:41] Speaker 00:
And so he did a favor for a friend, not that he's doing bribery, not that he understood who.

[00:11:49] Speaker 03:
But to get back to the plain error standard, why isn't that strong and compelling evidence that his actions overall

[00:11:56] Speaker 03:
were not at the behest of another government official, but in order for this corrupt intent because he was being bribed.

[00:12:04] Speaker 00:
Those are a couple isolated incidents.

[00:12:08] Speaker 00:
Most of what the government focused on at trial were these.

[00:12:12] Speaker 00:
Aspects where there was the go between the rapid gathered situation and this Ken Kenyan parole letter Could they count to is entirely about the parole letter.

[00:12:20] Speaker 03:
So so those are I mean those you know, it's Their arguments to be made either way, but where he didn't disclose his relationship You know to to the person that would be the recipient of that parole letter, right?

[00:12:34] Speaker 00:
So where Sargisian didn't right?

[00:12:36] Speaker 03:
Yes

[00:12:37] Speaker 03:
No, no, that Cisneros did not disclose to his supervisors that when he's submitting this parole request, he happens to have some sort of a connection with the person at the end of it.

[00:12:48] Speaker 00:
I think the allegation is that he doesn't know that that's necessarily for, because it's coming from Bailey and it's not coming from Sargsyan.

[00:12:56] Speaker 03:
So your thought is Sargsyan was a pretty difficult, incredible witness.

[00:13:02] Speaker 03:
And so a lot of it starts to fall apart in light of that.

[00:13:05] Speaker 00:
And I mean, I think when the government trots out somebody like that, it has an effect of making their whole case a little unlikable.

[00:13:12] Speaker 00:
They're putting on a liar to make their case someone they know is a liar.

[00:13:17] Speaker 00:
It's not the best look.

[00:13:18] Speaker 00:
And when you're dealing with it beyond a reasonable doubt standard, there's work for defense attorneys to do with that.

[00:13:24] Speaker 03:
Why is there no prejudice if we think of the sequence of the way that the instruction was given, where the government first had to prove all the elements beyond reasonable doubt, and only then would the jury move on to this affirmative defense?

[00:13:40] Speaker 03:
You know, if the jury thought that the government had proven its case beyond a reasonable doubt of a corrupt intent, couldn't they have just rationally decided, I believe the government and I don't believe that there was a reasonable basis and we don't have prejudice as a result?

[00:13:55] Speaker 00:
I have two responses to that.

[00:13:56] Speaker 00:
I mean, first, this court's never suggested that the sequencing can negate negation.

[00:14:01] Speaker 00:
And in fact, it goes contrary to Doe, because every public authority defense instruction is going to start with if a person engaged in conduct that violated a criminal statute.

[00:14:10] Speaker 00:
That's what the one in Doe

[00:14:11] Speaker 00:
And yet Doe is still saying, you've got to go and look and see what's going on.

[00:14:15] Speaker 00:
And that makes sense, because even jurors hear two different standards for the same thing.

[00:14:20] Speaker 00:
Who knows what they're going to do?

[00:14:21] Speaker 00:
And then the other point is, when you look at what the jury was actually told, they're not told to go one and then the other.

[00:14:33] Speaker 00:
They're not told, first you have to find guilt, then you have to find

[00:14:38] Speaker 00:
whether the defense applies.

[00:14:40] Speaker 00:
It wasn't like a special verdict form.

[00:14:42] Speaker 00:
They're given the whole soup and there's nothing in the instructions that prevents them from looking at the defense first, looking at the offense first, having them do it at the same time.

[00:14:56] Speaker 00:
I think there's enough room in there for them to do what they want with these conflicting standards, and that's the problem.

[00:15:02] Speaker 00:
I'm running low on time.

[00:15:04] Speaker 00:
I'd love to get to the guidelines enhancement for a minute, if I can.

[00:15:12] Speaker 00:
So the 2C1.1b3 imposes a four level enhancement on someone convicted of offering, giving, soliciting, or receiving a bribe if the offense involved an elected public official or any public official in a high level decision making or sensitive position.

[00:15:27] Speaker 00:
Importantly, this is the only enhancement in the bribery guideline that's based on the rank of the person being bribed.

[00:15:33] Speaker 00:
It's the same enhancement that

[00:15:35] Speaker 00:
a corrupt senator would get or a cabinet secretary would get and it doesn't properly apply to a line investigator like Cisneros.

[00:15:43] Speaker 00:
He's not an elected official and he doesn't hold a high level decision making or sensitive position.

[00:15:48] Speaker 00:
The government concedes here that the commentary doesn't apply and that Cisneros did not himself hold a high level decision making position.

[00:15:57] Speaker 00:
So instead it's arguing that he had a qualifying sensitive position or because of his supervisor's position.

[00:16:03] Speaker 00:
In terms of sensitive, I think it fails for several reasons.

[00:16:07] Speaker 00:
First, the best reading of the text is at the modifier high level.

[00:16:10] Speaker 00:
It applies to both decision-making positions and sensitive positions.

[00:16:15] Speaker 00:
That, Brian Garner calls that the series qualifier canon, but this court applies it without the fancy name.

[00:16:20] Speaker 00:
For instance, in Diea, property damage or loss means property damage or property loss.

[00:16:26] Speaker 00:
So at the best reading is high-level decision-making or high-level sensitive position.

[00:16:31] Speaker 00:
Second, there's a doctrine of no-sutura socis, and I apologize if I've said that wrong, that tells us that the items on the list need to be read together.

[00:16:39] Speaker 00:
Here, elected official and high-level decision-makers suggest much higher-level officials than a line investigator.

[00:16:47] Speaker 00:
And third, there's the overall structure of the guideline.

[00:16:51] Speaker 00:
Again, this is a substantial increase.

[00:16:56] Speaker 04:
I was going to ask you something about this particular issue.

[00:16:58] Speaker 04:
The district court didn't have the benefit of, what is it, Castillo?

[00:17:02] Speaker 04:
It did not.

[00:17:05] Speaker 04:
Should we just send this issue back to the district court?

[00:17:07] Speaker 00:
You certainly could.

[00:17:07] Speaker 00:
I mean, I might point out to the district court, the no-city or associates, that kind of thing, to give it some guidance on how to go about it.

[00:17:16] Speaker 00:
But certainly, I don't think this court needs to go through and complete the analysis itself.

[00:17:22] Speaker 00:
OK.

[00:17:23] Speaker 00:
All right, unless anyone has questions, I'm going to hold on to my two minutes and 42 seconds.

[00:17:27] Speaker 00:
Thank you, counsel.

[00:17:28] Speaker 00:
Thank you.

[00:17:42] Speaker 01:
Good morning, your honors.

[00:17:43] Speaker 01:
May it please the court, Juan Rodriguez, on behalf of the United States.

[00:17:48] Speaker 01:
Defendant was a federal agent who sold the resources of the federal government to Edgar Sargisian for cash and checks the evidence clearly established that he did so corruptly and I want to start off by first addressing a comment the council made that this at the affirmative defense was a joint proposed instruction it actually wasn't it originally started as a defense proposed instruction now point the court to the district court record and

[00:18:15] Speaker 01:
at 72, sort of as a defense proposed instruction and then the parties conferred and the defense counsel insisted on the instruction so the government did a see to it and the court said submit it as a joint proposed, which is why it ended up as a joint proposed.

[00:18:32] Speaker 01:
So that's the first nuance.

[00:18:33] Speaker 01:
But even if it was a joint proposed instruction, there was no burden shifting here.

[00:18:40] Speaker 01:
And that's because it's very clear that the instructions outlined what the government had to prove that the government's charge was, that the government had to prove that the defendant acted corruptly.

[00:18:50] Speaker 01:
And even its own affirmative defense instruction reminds the jury of the government's charge.

[00:18:56] Speaker 01:
It actually juxtaposes the preponderance standard, and it reminds the jury that the government still has to prove, count one and two, each element beyond a reasonable doubt.

[00:19:07] Speaker 03:
Does this defense negate an element of the corrupt intent crime?

[00:19:13] Speaker 01:
It doesn't, Your Honor.

[00:19:14] Speaker 01:
The instructions make it clear that it's conditional.

[00:19:17] Speaker 01:
It says if the defendant committed the crimes charged in counts one and two.

[00:19:23] Speaker 01:
So based on the fact that it's conditional.

[00:19:25] Speaker 03:
But Doe's not turning on whether it's conditional or not.

[00:19:28] Speaker 03:
It's a more, I mean, it's a pure legal analysis of, for certain types of defenses, it just excuses the action.

[00:19:37] Speaker 03:
And for others, you're negating an element in which case the government has to bear the burden of proving the affirmative defense, or negating it, rather, beyond a reasonable doubt.

[00:19:48] Speaker 03:
So why don't we have a problem here if that wasn't a part of the instruction?

[00:19:53] Speaker 01:
Because there was no negation.

[00:19:54] Speaker 01:
If you look at the government's charge, the government's instruction, that corruptly was correctly defined, and the jury was told in all the instructions that they're supposed to read them all, they're all equally important, and that in order to find the defendant guilty, the government had to prove each and every element, which includes corruptly, beyond a reasonable doubt.

[00:20:12] Speaker 01:
So the fact that there's an affirmative defense instruction

[00:20:15] Speaker 01:
that goes to the element of corruptly doesn't negate the fact that the jury still had to find that the government proved that the defendant acted corruptly, so there is no negation.

[00:20:27] Speaker 03:
Do you agree that these are mutually inconsistent?

[00:20:29] Speaker 03:
There's no way that one can corruptly intend to take a bribe or conspire to and also have a reasonable belief that you're doing it in an authorized way?

[00:20:38] Speaker 01:
Yes, sir.

[00:20:39] Speaker 01:
They are mutually exclusive.

[00:20:40] Speaker 03:
So do you see this as just a superfluous instruction at best, then?

[00:20:45] Speaker 01:
Exactly, Your Honor.

[00:20:45] Speaker 01:
It's a superfluous instruction.

[00:20:47] Speaker 01:
And even if the court were to believe there were error, as I believe Your Honor is noting, there is no on-point case.

[00:20:53] Speaker 01:
There is no plain error here, even if there was error, which, again, the government doesn't believe there is error because the jury was correctly instructed.

[00:21:00] Speaker 01:
Nobody has argued otherwise.

[00:21:02] Speaker 04:
And moreover— Well, counsel pointed to Doe.

[00:21:07] Speaker 01:
Doe is a drug case, and it's not.

[00:21:10] Speaker 04:
Well, it dealt with the public authority defense.

[00:21:14] Speaker 01:
Correct, Your Honor, in a different context.

[00:21:17] Speaker 01:
It's not on all fours.

[00:21:18] Speaker 01:
It's not controlling as to the current issue.

[00:21:20] Speaker 04:
Well, it set down some guidelines that courts should follow, didn't it?

[00:21:24] Speaker 01:
I think it's certainly informative, but I wouldn't go as far as saying.

[00:21:27] Speaker 04:
We just put it aside and say, ah, we shouldn't bother with this.

[00:21:31] Speaker 01:
Under plain error, Your Honor, I believe that is the correct analysis.

[00:21:34] Speaker 01:
But I understand that the court.

[00:21:35] Speaker 02:
Suppose we disagree.

[00:21:37] Speaker 02:
Point, tell me what your strong and convincing evidence is that the government did prove corrupt intent.

[00:21:44] Speaker 01:
Yes, Your Honor.

[00:21:44] Speaker 01:
And actually, there's three buckets.

[00:21:47] Speaker 01:
The first bucket, Edgar Sorghessian testified that him and the defendant directly met and spoke and created this corrupt agreement.

[00:21:56] Speaker 01:
And I know there's a lot of commentary that Edgar Sorghessian was a liar.

[00:22:00] Speaker 01:
The government knew that, the government embraced that in its closing and told the jury, even if you believe he's a liar, he's corroborated by independent evidence.

[00:22:09] Speaker 01:
And one of those is the defendant's tech queries and techs is the law enforcing database.

[00:22:15] Speaker 01:
And I'll direct your honor to excerpt the records 596 through 598.

[00:22:19] Speaker 01:
And there, the jury was informed

[00:22:23] Speaker 01:
and shown one of the defendant's tech queries, and he queried the street name Albers, and Edgar Sargisian lived on Albers Street, and there was testimony that if Edgar Sargisian was under investigation and his address where he lived was associated with that investigation, then the defendant would have pulled up a record and known that Edgar Sargisian was under investigation.

[00:22:43] Speaker 01:
And Edgar Sargisian testified, that's why I bribed him.

[00:22:46] Speaker 01:
I wanted him to protect me.

[00:22:48] Speaker 01:
That was the whole point of the bribery.

[00:22:50] Speaker 01:
So that's category one.

[00:22:52] Speaker 01:
Category two is with regards to WR.

[00:22:56] Speaker 01:
WR was a client of Edgar Sargisian who had immigration problems, and Edgar enlisted the help of the defendant.

[00:23:03] Speaker 01:
He paid the defendant, through John Ballion, $30,000.

[00:23:07] Speaker 01:
But Edgar Sargisian, and I'll direct the court to 490 and 523 through 524, Edgar Sargisian testified that the defendant thanked him in person for the $30,000.

[00:23:18] Speaker 01:
But again, there's hard evidence.

[00:23:21] Speaker 01:
And I would again point the court to excerpt of record 584 through 586, where the jury saw, again, a text query by the defendant where he queried WR, again, independent cooperation of what Edgar Sargisian was testifying about.

[00:23:36] Speaker 01:
And lastly, the third bucket with regards to DK, Edgar Sargisian's brother-in-law.

[00:23:44] Speaker 01:
There was, I'll direct the court to excerpt of record 367 and 1419, direct communications between Edgar Sargisian and Felix HSI, which was the contact name that Edgar Sargisian had for the defendant.

[00:23:59] Speaker 01:
And there, they discuss Edgar's, quote, inmate relative.

[00:24:03] Speaker 01:
And he testified that that was in reference to his brother-in-law, DK.

[00:24:08] Speaker 01:
Indeed, at excerpt 1201, the defendant texts

[00:24:12] Speaker 01:
and says, I checked the system.

[00:24:16] Speaker 01:
And I believe he said there was no update.

[00:24:18] Speaker 01:
And again, further independent cooperation, I point the court to excerpt of record 593 through 596.

[00:24:25] Speaker 01:
Again, a text query by the defendant showing that he queried DK.

[00:24:31] Speaker 01:
And again, the parole letter lists DK.

[00:24:35] Speaker 01:
And as your honors were asking counsel about,

[00:24:40] Speaker 01:
The defendant submitted this letter to ASAC Getch.

[00:24:44] Speaker 01:
And he didn't explain that there was a personal relationship with Edgar Sargisian.

[00:24:48] Speaker 01:
He didn't explain that DK was Edgar Sargisian's brother-in-law.

[00:24:53] Speaker 01:
And he certainly didn't tell his ASAC that he was getting money from Edgar Sargisian, whether you want to classify it as a bribe, as the government proved, or even under the defense's theory that there were loans.

[00:25:05] Speaker 03:
Was the defense theory that this parole request was coming from the Glendale Police Department?

[00:25:11] Speaker 01:
Yes, that was the defense theory.

[00:25:13] Speaker 03:
OK.

[00:25:13] Speaker 03:
And what evidence was there to support that?

[00:25:17] Speaker 01:
That defense theory?

[00:25:18] Speaker 01:
Yeah.

[00:25:18] Speaker 01:
None.

[00:25:23] Speaker 01:
OK.

[00:25:23] Speaker 01:
So for all those reasons, Your Honor, there was, again, no error, even if there was.

[00:25:28] Speaker 01:
There's no controlling case.

[00:25:30] Speaker 01:
There was no plain error.

[00:25:31] Speaker 01:
But even if this court were to find that there was plain error, the evidence of defendant's guilt was, to put simply, overwhelming.

[00:25:39] Speaker 01:
I understand a lot of that hinged on the testimony of Edgar Sargisian, which the jury found credible.

[00:25:44] Speaker 01:
As defense counsel argued in closing, the case hinged on Edgar Sargisian and yet the jury convicted.

[00:25:50] Speaker 01:
So they found him credible.

[00:25:52] Speaker 01:
And I think part of that analysis of why they found him credible is because there was independent corroborating evidence, the direct communications between the defendant.

[00:26:01] Speaker 01:
And I'll just point the court to excerpt the record

[00:26:05] Speaker 01:
at 849 where the case agent testified that there were thousands of direct communications between the defendant and Edgar Sargisian.

[00:26:14] Speaker 01:
And I would also direct the court to the government's answering brief at page 17, that text message where the defendant says, God is watching over you and so are the feds.

[00:26:25] Speaker 01:
Edgar Sargisian testified that what he understood that to mean was

[00:26:29] Speaker 01:
that Edgar Sargessian was under his protection.

[00:26:32] Speaker 01:
Of course he was.

[00:26:33] Speaker 01:
He was bribing the defendant.

[00:26:34] Speaker 01:
He was paying his credit card bills and giving him cash.

[00:26:37] Speaker 01:
Of course he was going to protect Edgar Sargessian.

[00:26:39] Speaker 01:
And he put that in his own words.

[00:26:43] Speaker 01:
So for all of those reasons, Your Honor, we think that, again, it was no error, even if there was.

[00:26:48] Speaker 01:
It certainly isn't plain.

[00:26:49] Speaker 02:
What should we do about the sensing enhancement?

[00:26:52] Speaker 01:
Yes, Your Honor.

[00:26:57] Speaker 01:
this court should uphold the sentencing enhancement, and that's because there's a little bit of background that is important with regards to this current guideline.

[00:27:06] Speaker 01:
So this guideline was amended more recently, so there's two versions in the prior- Which version was applicable at the time of sentencing here?

[00:27:14] Speaker 01:
The version that's before your honor.

[00:27:17] Speaker 01:
And in the previous version, it was an eight-level enhancement, and the commentary used the phrase, supervisory law enforcement officer.

[00:27:25] Speaker 01:
And the reason that's relevant here is because when the sentencing commission modified it to the current version that is operative here, it cut in half that enhancement.

[00:27:37] Speaker 01:
So it minimized it to four.

[00:27:39] Speaker 01:
And it removed from the commentary the word supervisory.

[00:27:42] Speaker 01:
such to show that it wanted it to apply to a larger swath of people.

[00:27:47] Speaker 01:
And it's not just me saying that.

[00:27:48] Speaker 02:
It wanted it to apply to a lesser swath of people.

[00:27:54] Speaker 01:
I would direct the court to the government's anterior brief at 63 and 64, a Seventh Circuit case in Hill that talks about this juxtaposition or that juxtaposes the old guideline, the new guideline, and it draws a conclusion at 909

[00:28:08] Speaker 01:
These changes signify an intent to encompass more public officials within the ambit of the enhancement.

[00:28:20] Speaker 02:
We need to look at the text of the guideline to determine whether it's ambiguous.

[00:28:25] Speaker 02:
Is it your position that it's ambiguous?

[00:28:27] Speaker 01:
No, Your Honor.

[00:28:28] Speaker 01:
I believe it isn't ambiguous.

[00:28:29] Speaker 01:
And I think a plain reading is that the defendant was in a sensitive position.

[00:28:35] Speaker 01:
And I know counsel argued that high level modifies both decision making as well as sensitive position.

[00:28:43] Speaker 01:
To my knowledge, no other court has read it that way.

[00:28:45] Speaker 01:
In fact, even the Hill case that I was just discussing holds, and I'll quote it in part, that it only reached the decision that Hill held, quote, a sensitive position.

[00:28:56] Speaker 01:
We don't have to reach the question of whether he was also a high level decision maker.

[00:29:00] Speaker 01:
It doesn't use the word high level to modify sensitive position, because that's the more natural reading.

[00:29:06] Speaker 01:
And I know the commentary isn't binding, but if the court goes even to the commentary in terms of the examples given,

[00:29:13] Speaker 01:
The examples are broken out into the two parts, into the two buckets, with one of them being a high level decision maker and the other one being a sensitive position.

[00:29:26] Speaker 03:
What is a sensitive position?

[00:29:28] Speaker 01:
It's a position that's categorized by the type of information that the defendant has access to.

[00:29:35] Speaker 01:
So here, the defendant had access to travel records, financial information, travel patterns, criminal histories, such that that information is sensitive, just in the traditional usage of the word sensitive, information that people wouldn't want public.

[00:29:56] Speaker 04:
Government official that has access to this kind of information is a sensitive, holds a sensitive position?

[00:30:05] Speaker 02:
Yes, Your Honor.

[00:30:07] Speaker 02:
So every member of the FBI, every member of the CIA, every person who works for DHS, all of those people are in a sensitive position?

[00:30:19] Speaker 01:
Yes, Your Honor.

[00:30:20] Speaker 01:
And again, I believe that is why the Sentencing Commission

[00:30:24] Speaker 01:
Cut the enhancement in half from eight to four because that was the intent it wanted it to apply to a large sloth of people To that very point it did want it to apply to all law enforcement officers everybody in the FBI everybody in the CIA because they so law clerks for federal courts at anyone that has access to any type of database that's not accessible to the general public is a person in a sensitive position

[00:30:49] Speaker 03:
I guess defense counsel makes an interesting point that maybe we should look at these words together and think about it in a more restrictive fashion, but I guess it just suggests to me that maybe this is an ambiguous term that's not so easy to decipher.

[00:31:07] Speaker 01:
That's a great point, Your Honor, to the extent that there is some ambiguity.

[00:31:11] Speaker 01:
Thank you.

[00:31:13] Speaker 01:
To the extent that we're disagreeing about what sensitive means, then of course we would look at the commentary.

[00:31:19] Speaker 02:
I think you would first go to the ordinary meaning of sensitive.

[00:31:24] Speaker 01:
Yes, and I think under the ordinary meaning of sensitive, that would be things that people wouldn't want to be public, non-public information.

[00:31:33] Speaker 02:
I'm not sure that's the dictionary definition.

[00:31:35] Speaker 01:
Yeah, I know opposing counsel did put the dictionary definition, and as the government argued in its brief.

[00:31:43] Speaker 03:
So a clerk at the Department of Voter Vehicles, that would qualify?

[00:31:47] Speaker 01:
I guess it would depend on the type of information.

[00:31:50] Speaker 01:
For example, sometimes addresses and phone numbers can be available via open source data.

[00:31:55] Speaker 01:
So I think it would affect intensive inquiry in terms of what information is available to the individual.

[00:32:02] Speaker 01:
But here on the record, we have, based on the information that defendant had access to, and not only had access to, that he affirmatively used in this bribery scheme, we think the enhancement's appropriate.

[00:32:16] Speaker 04:
So you just think we should go ahead and decide this issue and not send it back to the district court?

[00:32:21] Speaker 01:
I think your honors have sufficient information before the record to uphold the sentencing enhancement, correct?

[00:32:29] Speaker 01:
Okay.

[00:32:30] Speaker 02:
Okay.

[00:32:31] Speaker 02:
Thank you Council.

[00:32:32] Speaker 01:
Thank you.

[00:32:43] Speaker 00:
A few quick points.

[00:32:45] Speaker 00:
Just in terms of the government seeming to fall back and try to rely on the commentary, they did waive that in note 16 of their brief.

[00:32:53] Speaker 00:
I think their point about the change in 2004 just goes to show how arbitrary the commentary is, because in 2004, the same language, high-level decision-making or sensitive position was interpreted to mean supervisory law enforcement, and then they just

[00:33:08] Speaker 00:
Change the commentary with no real comment, no explanation of why the words themselves would mean something different.

[00:33:16] Speaker 00:
And the government's argument, I think, is very strange as well to argue that a DMV clerk and Bob Menendez should have the same enhancements under the guidelines.

[00:33:29] Speaker 00:
It kind of makes a joke of the idea that you should have higher sentences for more serious crimes.

[00:33:37] Speaker 00:
Going back to the first issue, I'd just note that a lot of the government's

[00:33:43] Speaker 00:
Arguments about their strong and convincing evidence again rely on the words of mr. Sargsy and who you know is just a terrible liar and the fact that they embrace that for the jury Doesn't mean much where the jury was wrongly instructed So it's you know that that that the jury let it go when there was a bad instruction in front of them doesn't tell us what a jury that was probably I ask what about

[00:34:07] Speaker 03:
Are in closing arguments defense counsels repetition that the government bears the burden of beyond a reasonable doubt and and the court Of course made that instruction as well for all the elements of the offense Does that assuage concerns of prejudice with how much emphasis was placed on that?

[00:34:24] Speaker 00:
I don't think so, because as I read the defense closing, I don't see him focusing on corruptly much at all.

[00:34:31] Speaker 00:
And I don't think that he, instead of arguing corruptly beyond a reasonable doubt, he's arguing this public authority defense where he bears the burden and he's taking the burden.

[00:34:43] Speaker 04:
Let me ask you this.

[00:34:45] Speaker 04:
Assume, for purposes of this question, we agree with you and decide to reverse.

[00:34:53] Speaker 04:
We send it back.

[00:34:54] Speaker 04:
So how should the district court handle this issue at a new trial?

[00:35:00] Speaker 00:
So I think at a new trial, we'd see if the defense attorney requested such an instruction.

[00:35:05] Speaker 00:
If they requested it, you'd hope that they would request it without taking on the burden.

[00:35:11] Speaker 00:
And then it would be up to the district court whether the instruction, you know, I mean.

[00:35:17] Speaker 04:
Well, he'd have to give it if that was their defense, right?

[00:35:20] Speaker 04:
Sorry?

[00:35:20] Speaker 04:
If public authority was a defense.

[00:35:24] Speaker 00:
Yeah.

[00:35:25] Speaker 04:
He would have to give it.

[00:35:27] Speaker 04:
So how does the district court avoid this situation?

[00:35:31] Speaker 00:
By giving a version of the instruction that doesn't take on the burden.

[00:35:36] Speaker 00:
I can suggest wording for you if you want.

[00:35:41] Speaker 00:
You could hit the same principle.

[00:35:43] Speaker 00:
You could say that defendant contends he believed his actions were taken.

[00:35:47] Speaker 00:
The request of the government agent for government purposes in order to prove that he acted corruptly as required by counts one and two of the indictment, the government must show that the defendant did not reasonably believe he was acting as an authorized government agent to assist in law enforcement activities.

[00:36:03] Speaker 00:
OK.

[00:36:03] Speaker 00:
And I'm totally in the red, but I'll just point out really quickly that the government, when asked repeatedly, still couldn't point to any way that the instruction didn't negate corruptly.

[00:36:16] Speaker 00:
Thank you.

[00:36:17] Speaker 02:
Thank you very much, Council.

[00:36:18] Speaker 02:
U.S.

[00:36:18] Speaker 02:
v. Cisneros will be submitted and we'll take up U.S.

[00:36:22] Speaker 02:
v. Shenzhen New World.