[00:00:00] Speaker 02:
That would, uh, each side has 15 minutes.

[00:00:03] Speaker 02:
Good morning.

[00:00:04] Speaker 01:
Good morning.

[00:00:08] Speaker 01:
May it please the court.

[00:00:09] Speaker 01:
My name is David Garfinkel.

[00:00:11] Speaker 01:
I'm here with A&O Sherman.

[00:00:13] Speaker 01:
We are pro bono counsel for the defendant, for the appellant, Itzvan Kopach.

[00:00:19] Speaker 02:
Will you be using all the time?

[00:00:21] Speaker 01:
Uh, yes, we'll be, I'm going to set aside three minutes for rebuttal.

[00:00:25] Speaker 02:
Okay.

[00:00:25] Speaker 02:
Thank you.

[00:00:28] Speaker 01:
This case is about shortcuts.

[00:00:30] Speaker 01:
In the government's trial of Mr. Kopatch, the government took shortcuts.

[00:00:35] Speaker 01:
These shortcuts undermined both the fairness of his trial as well as the substance of the convictions.

[00:00:41] Speaker 01:
This happened in a few ways.

[00:00:44] Speaker 01:
One way it happened was with regards to identity.

[00:00:48] Speaker 01:
First, the government reneged on a pretrial agreement regarding the display of Mr. Kopatch's tattoos

[00:00:55] Speaker 01:
And then to compound the prejudice, after reneging on that agreement, the prosecutor made an improper statement akin to vouching regarding the individual in an at-issue ATM surveillance photo, implying to the jury that the individual in that photo was indeed Mr. Kopatch when that fact was not in evidence.

[00:01:18] Speaker 01:
A couple other ways.

[00:01:19] Speaker 02:
Well, what would have been, but the video would be in evidence and your client was in court.

[00:01:25] Speaker 02:
My understanding was that it was anticipated he didn't need to show his tattoos, but it wasn't, didn't, did something happen that they decided that they needed to?

[00:01:35] Speaker 01:
So, so what happens, so if, kind of going back, in the, there's a pretrial oral agreement on the record.

[00:01:42] Speaker 01:
It's at volume three, excerpt of the record, page 508.

[00:01:46] Speaker 01:
where the government wanted to come to a stipulation to a display of the tattoos to assist the jury in making comparison.

[00:01:55] Speaker 01:
They wanted to compare the ATM surveillance photos with some form of display of the tattoos.

[00:02:01] Speaker 01:
And they wanted to do this in one of two ways.

[00:02:04] Speaker 01:
One way was to have them make this in-person display, which is ultimately what happened.

[00:02:08] Speaker 01:
But Mr. Kopatch's counsel and Mr. Kopatch's counsel decided against that.

[00:02:12] Speaker 01:
What they agreed to was a couple weeks prior to trial, Alameda County Sheriff's Deputy Maurice Witt took a series of photos of Mr. Kopatch while he was in cell.

[00:02:23] Speaker 01:
He was shirtless in these photos displaying his tattoos.

[00:02:27] Speaker 01:
They actually had Alameda County jail shorts on.

[00:02:30] Speaker 01:
So the government had, if you look at actually the pre-trial witness list in volume three, excerpt of the record, page 517,

[00:02:38] Speaker 01:
The government had Maurice ready to authenticate these prison photos as a form of comparison to compare against the ATM photos.

[00:02:46] Speaker 01:
So it was either that or have the in-person display.

[00:02:51] Speaker 01:
Mr. Copatch's counsel agreed to do the, for those photos to come in, those prison photos, so they can do that comparison.

[00:02:59] Speaker 00:
A couple of quotes, sorry, go ahead.

[00:03:04] Speaker 01:
Now at trial, so that was all the agreement was kind of,

[00:03:08] Speaker 01:
centered around.

[00:03:10] Speaker 01:
At trial, during the governments, they call witness Agent Lopez, the secret service witness.

[00:03:16] Speaker 01:
When they called the secret service witness, they attempted to have her testify to the individual in the ATM photos, effectively acting as almost a juror in that sense, because she did not know Mr. Kopatch.

[00:03:28] Speaker 01:
She didn't know who the individual was in the ATM photos.

[00:03:32] Speaker 01:
she was effectively would be giving this almost expert testimony as to who that individual was when it was a role for the jurors.

[00:03:40] Speaker 02:
But ultimately, I guess I'm seeing, you're making all of these arguments, but the jury gets to see the video or the photo there and it shows someone with tattoos.

[00:03:54] Speaker 02:
And your client is in court, they show the tattoos, and it's the jury's looking, they can look at, do those tattoos match the person in the video?

[00:04:05] Speaker 02:
So I'm having a hard time seeing how the likelihood of what the problem is here.

[00:04:16] Speaker 01:
Yes, Your Honor.

[00:04:17] Speaker 01:
So to kind of clarify.

[00:04:19] Speaker 01:
The purpose of the there.

[00:04:20] Speaker 01:
So there's these prison photos and then there's ATM photos, the prison photos, defense counsel.

[00:04:26] Speaker 02:
You really want them to know he's in prison.

[00:04:28] Speaker 01:
So that was that's part of the prejudice here.

[00:04:31] Speaker 01:
He agreed to these photos of him in prison.

[00:04:33] Speaker 01:
to act as opposed to having to stand up and make this somewhat... There has to be a linkage to the person in court, right?

[00:04:42] Speaker 03:
You've got some photos, stipulation that the photos come in, now you've got the defendant in court, the tattoos that defendant has on him in court then provides the link.

[00:04:54] Speaker 03:
You're saying that the government violated a stipulation not to do that sort of physical demonstration in lieu of the photos coming in and the linkage to the defendant being made only on the photographic evidence.

[00:05:08] Speaker 03:
Is that the argument?

[00:05:10] Speaker 03:
So the linkage there, the linkage was- Because the reason I ask that is I'm looking at the record and it isn't clear to me what the scope of the government's concession was when they reached the stipulation for the photos to come in.

[00:05:24] Speaker 03:
I thought that the government was just saying, well, OK, the defense is essentially not forcing the government to lay the foundations, really a matter of asking two or three foundational questions, but that there wasn't any promise not to do that sort of physical demonstration in court.

[00:05:41] Speaker 03:
And there's nothing wrong with doing the physical demonstration.

[00:05:43] Speaker 03:
The law permits that.

[00:05:46] Speaker 03:
So what exactly is the problem?

[00:05:49] Speaker 03:
What was the stipulation that the government violated?

[00:05:51] Speaker 01:
So I agree.

[00:05:53] Speaker 01:
doesn't prevent the government from having that display.

[00:05:58] Speaker 01:
However, what that agreement was, so the linkage there that you mentioned, the linkage is part of the stipulation for those prison photos to come in.

[00:06:07] Speaker 01:
The stipulation was that these are authentic photos and that these are of the defendant, Mr. Kopatch.

[00:06:12] Speaker 01:
That stipulation was saved to the jury.

[00:06:15] Speaker 01:
So the prison photos, like this is Mr. Kopatch,

[00:06:20] Speaker 01:
That was supposed to be used, and in fact, the government actually did use this in their closing.

[00:06:24] Speaker 01:
They used those photos to compare it to the ATM photos.

[00:06:28] Speaker 01:
And if you look at the oral agreement,

[00:06:31] Speaker 01:
and three, except for the record, 508, that the purpose was, and defense counsel says this, like that's all there should be.

[00:06:38] Speaker 01:
I understand if it may come across a little bit.

[00:06:41] Speaker 03:
Maybe there was a failure of meeting of the minds between what you thought the government had promised and what they actually promised, but we'll see what the AUSA says about that.

[00:06:50] Speaker 00:
If there had not been an agreement, why wouldn't they have been admitted by the district judge?

[00:06:55] Speaker 00:
What's the basis that these photographs would have been excluded?

[00:06:59] Speaker 01:
The basis of the prison photographs.

[00:07:01] Speaker 00:
Correct.

[00:07:02] Speaker 01:
I mean prison photo facts.

[00:07:03] Speaker 01:
I they in their own right are prejudicial that they show this right a man he's in if you it's in supplemental excerpt of the record page 19.

[00:07:14] Speaker 01:
These are some of the photos that came in.

[00:07:16] Speaker 01:
They show him it's almost akin to someone in a jumpsuit.

[00:07:21] Speaker 01:
He's got these Alameda County jail shorts on.

[00:07:24] Speaker 01:
He's shirtless.

[00:07:25] Speaker 01:
He's got tattoos.

[00:07:27] Speaker 00:
My second question is this.

[00:07:28] Speaker 00:
When the agreement, what you're calling the agreement, was set forth, it was before the judge.

[00:07:34] Speaker 00:
It was on the record before Judge Breyer, correct?

[00:07:36] Speaker 00:
Yes.

[00:07:36] Speaker 00:
And subsequently, when Judge Breyer excluded testimony by Agent Lopez, where she was going to compare the photographs and the tattoos, he, Sue Espante, said this may raise the issue about whether the tattoos can be shown.

[00:07:52] Speaker 00:
You agree with that?

[00:07:54] Speaker 01:
Yes, I agree.

[00:07:55] Speaker 01:
That's what the record says.

[00:07:56] Speaker 00:
So in terms of the discretionary function of Judge Breyer in determining what evidence would be admitted, why wouldn't his decision to exclude Agent Lopez's testimony, which wasn't discussed at the time of the original agreement, matter in terms of whether there was an agreement?

[00:08:14] Speaker 00:
And also why wouldn't it be appropriate for the person who heard the

[00:08:17] Speaker 00:
The discussion about the agreement make a determination that it didn't preclude showing the tattoos under this change circumstance Yes, your honor My understanding is there's a lot going on at the trial at the time

[00:08:31] Speaker 01:
And simply respectfully, Judge Breyer aired in that situation in that there was any change circumstances.

[00:08:41] Speaker 01:
As you noted, Agent Lopez's testimony wasn't even considered in that pretrial agreement.

[00:08:45] Speaker 01:
It was rightfully excluded at that time because the government was attempting to have

[00:08:51] Speaker 01:
that Agent Lopez effectively act as the juror, and I believe Judge Byers said it at that time, like, there's no reason that 12 other people, as in the jury, couldn't kind of come to that same determination.

[00:09:05] Speaker 01:
So, like, I think US v. Shapiro is actually quite interesting.

[00:09:11] Speaker 02:
Well, I'm not seeing, you're spending a lot of time on this, and I'm not seeing it get great traction, but that's only my view, but then the prosecutor said something

[00:09:20] Speaker 02:
that you said was vouching something, that the defendant applied, that the prosecutor was identifying the defendant as opposed to leaving that to the jury province.

[00:09:32] Speaker 01:
Yes, Your Honor.

[00:09:33] Speaker 01:
So in four excerpts of the record, page, three excerpts of the record, page 429, as Mr. Kropatch, after they've gone back into an agreement, he's rolling up his sleeves, making a display for the jury.

[00:09:45] Speaker 01:
the ATM photos, the at-issue photos are being displayed behind him.

[00:09:49] Speaker 02:
And the individual in the photos is- So he uses the word loosely, that's the defendant.

[00:09:53] Speaker 02:
But I guess I don't really see what the damage is that I think most jurors would assume that it doesn't mean that you agree with everything the prosecutor says, but the prosecutor would prosecute the person that they thought was guilty.

[00:10:08] Speaker 02:
So I mean, you're just using nomenclature there.

[00:10:11] Speaker 02:
I think some of your other arguments might have-

[00:10:14] Speaker 02:
more traction.

[00:10:15] Speaker 02:
Why don't you move to those since I think you wanted to save three minutes for rebuttal.

[00:10:19] Speaker 02:
So we're already down to five.

[00:10:21] Speaker 01:
Yes, your honor.

[00:10:21] Speaker 01:
So in addition to what we're discussing regarding the agreements, another shortcut that the government took was with regard to the proving of the interstate commerce nexus.

[00:10:33] Speaker 01:
The government attempted to prove interstate commerce through one witness, it was Brian Jang, who was the VP of Corporate Security at First Republic Bank.

[00:10:44] Speaker 01:
He was not a custodial witness, he was an investigative witness.

[00:10:48] Speaker 01:
His, and his testimony to, it was only kind of one piece of testimony to establish this interstate nexus, was that the ATM transactions went to these out-of-state servers in New Jersey.

[00:11:02] Speaker 00:
And Texas, potentially.

[00:11:04] Speaker 01:
And Texas, potentially.

[00:11:05] Speaker 01:
That's correct, Your Honor.

[00:11:06] Speaker 01:
The problem with that testimony was that on cross-examination, so these servers, he said that these servers were held by a third-party company, which was Fiserv.

[00:11:16] Speaker 01:
On cross-examination, he specifically admitted to having no personal knowledge of where those servers were located.

[00:11:25] Speaker 03:
His knowledge was- Well, he knew enough to know that they were out of state, though, right?

[00:11:29] Speaker 01:
He, he, he was entirely, he was, he, while he said he knew, well, on a direct, he said he knew enough.

[00:11:35] Speaker 01:
On Cross, it came out that his knowledge was entirely from this kind of secondhand speculation of where Fiserv held, had their servers, where he never, never actually, like, operated the servers.

[00:11:48] Speaker 01:
He never looked at Fiserv.

[00:11:50] Speaker 02:
It seems to me that your argument goes to the weight of what he said.

[00:11:55] Speaker 02:
Well, you're saying sufficiency of the evidence.

[00:11:57] Speaker 02:
You're saying that there was no evidence of one of the elements of the crime.

[00:12:02] Speaker 02:
But he testified and gave testimony that for that, you cross-examined him, and it was up to the jury to decide if that element was established.

[00:12:14] Speaker 02:
So how do you win on that?

[00:12:21] Speaker 01:
So that cross-examination testimony

[00:12:25] Speaker 01:
I agree.

[00:12:26] Speaker 01:
It was submitted to the jury on that.

[00:12:30] Speaker 01:
One part is this shouldn't have been submitted to the jury because based off of that cross-examination admission that he didn't have any personal knowledge.

[00:12:39] Speaker 02:
Did you ask to strike all of that testimony?

[00:12:43] Speaker 01:
There was no objection made at the time in the record.

[00:12:48] Speaker 01:
I can't speak to what trial counsel's thinking.

[00:12:53] Speaker 02:
Well, so then that puts you at what error?

[00:12:55] Speaker 02:
Plain error?

[00:12:58] Speaker 01:
No.

[00:12:58] Speaker 02:
Well, it's an element of the crime, but there's evidence in there that you don't object to.

[00:13:03] Speaker 02:
So then it's up to the jury to weigh whether that establishes that element.

[00:13:08] Speaker 02:
You say it doesn't.

[00:13:10] Speaker 02:
They say it did, and the jury obviously was instructed as to the elements of the crime.

[00:13:15] Speaker 02:
So if there weren't, if without that witness, I would, you have my attention that there would not have been evidence of that, but that testimony went to the jury.

[00:13:29] Speaker 01:
That testimony did go to the jury.

[00:13:31] Speaker 01:
The jury instructions also state that they shouldn't have to speculate regarding beyond the reasonable doubt standard, which is what needed to be met there.

[00:13:39] Speaker 01:
And I only have a couple of minutes and I'd like to save some time.

[00:13:42] Speaker 00:
Just one last question.

[00:13:44] Speaker 00:
One of the exhibits that was admitted was the transactional history.

[00:13:49] Speaker 00:
And that showed East Coast timestamps.

[00:13:53] Speaker 00:
In terms of the weight of the evidence, wouldn't that be part of the evidence to be considered in terms of whether there was communication with servers outside the state on the East Coast?

[00:14:02] Speaker 01:
Yes, your honor.

[00:14:03] Speaker 01:
So those timestamps, those were in first Republic Bank's business records.

[00:14:09] Speaker 01:
And there was no, even Mr. Jang testifying to those Eastern timestamps, it's until entirely speculative of what is driving that.

[00:14:19] Speaker 01:
Those weren't necessarily authenticated timestamps.

[00:14:21] Speaker 01:
They could have, there's a whole list of reasons why something might be in Eastern.

[00:14:26] Speaker 02:
Was there objections to that?

[00:14:28] Speaker 01:
I don't believe so, your honor.

[00:14:30] Speaker 02:
Okay.

[00:14:31] Speaker 01:
And then just one last point, I'm going to say the rest of my time for rebuttal.

[00:14:35] Speaker 01:
There was a Rule 29 motion filed, so rather than plain error, I recommend the Court add an abusive discretion standard in denying that Rule 29 motion.

[00:14:45] Speaker 01:
And for now, I'm going to save our remaining time for rebuttal.

[00:14:47] Speaker 02:
Okay.

[00:14:47] Speaker 02:
I'll give you two minutes for rebuttal.

[00:14:49] Speaker 02:
Thank you.

[00:14:49] Speaker 02:
Thank you, Your Honor.

[00:14:52] Speaker 00:
Thank you, Mr. Garfinkel.

[00:14:58] Speaker 04:
Good morning.

[00:15:00] Speaker 04:
Good morning, Your Honors, and may it please the Court, Molly Smolin for the United States.

[00:15:04] Speaker 04:
This Court should affirm the District Court because none of Copatch's contentions have merit.

[00:15:10] Speaker 04:
I'd like to begin by addressing why the evidence here was more than sufficient for a rational jury to conclude that Copatch's crimes necessarily

[00:15:20] Speaker 04:
impacted interstate commerce.

[00:15:22] Speaker 04:
And here the standard is that this court must affirm the denial of a motion for a judgment of acquittal based on sufficiency of the evidence.

[00:15:31] Speaker 04:
If after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

[00:15:42] Speaker 03:
We're familiar with the standard counsel.

[00:15:44] Speaker 03:
Let me ask you something.

[00:15:45] Speaker 03:
You weren't the trial lawyer.

[00:15:46] Speaker 03:
in this case, right?

[00:15:48] Speaker 03:
Correct.

[00:15:49] Speaker 03:
So with regard to the issue of the comment, this is a picture of defendant, or this displays the defendant's face, I think was the comment.

[00:16:00] Speaker 03:
That was clearly erroneous, right?

[00:16:04] Speaker 03:
Whether it survives plain error review is another question.

[00:16:07] Speaker 03:
I didn't see an objection in the record.

[00:16:09] Speaker 03:
But you can't point to a photograph and say, well, this is the defendant.

[00:16:13] Speaker 03:
Now, you have other arguments.

[00:16:15] Speaker 03:
It may not matter in this case in light of the clarity of the photo, plain error review, et cetera, et cetera.

[00:16:21] Speaker 03:
But I didn't see an acknowledgment in the government's brief that you can't do that.

[00:16:27] Speaker 04:
Well, Your Honor, at most this was a misstatement by the prosecutor at trial.

[00:16:32] Speaker 02:
Well, except you sit there.

[00:16:33] Speaker 02:
I was a prosecutor.

[00:16:34] Speaker 02:
You can't sit there and go, oh, there's the defendant.

[00:16:36] Speaker 02:
Look at those tattoos.

[00:16:39] Speaker 03:
You can't do that.

[00:16:40] Speaker 03:
There's a lot of blurry photographs being shown, and that's the prosecution's burden, is to demonstrate the link to the defendant sitting in court.

[00:16:47] Speaker 03:
So you can't point to a photograph.

[00:16:49] Speaker 03:
I think it was the ATM photograph in this case and say, this shows the defendant's face now.

[00:16:55] Speaker 03:
It didn't draw an objection, and it should have, but I would have thought that in that instance there would be some acknowledgement in the brief that that statement was not appropriate, whether it was inadvertent or something like that.

[00:17:08] Speaker 03:
I'm not commenting on that at all, but I was a little bit surprised to see no concession there.

[00:17:13] Speaker 04:
Well, Your Honor, at most this was a misstatement.

[00:17:16] Speaker 04:
So while arguably one could find that it was error, there are no cases supporting that this would be plain error.

[00:17:24] Speaker 04:
That is a clear and obvious error.

[00:17:26] Speaker 04:
Because, for example, in United States versus Young, which was a plain error case,

[00:17:32] Speaker 04:
Yes, the prosecutor in rebuttal expressly told the jury that in his personal opinion, what the defendant did was fraud.

[00:17:40] Speaker 04:
And the Supreme Court held that that was not plain error when taken in the context of the entire trial.

[00:17:47] Speaker 04:
And in the Hermannic case,

[00:17:49] Speaker 04:
this court applying harmless error review, found that where a prosecutor repeatedly referred to the investigation team as we and us during closing, thus expressly vouching for the credibility of the witnesses and making it clear that in the prosecutor's personal belief that the witnesses and the investigation deserved integrity, that this was the prosecutor's personal belief,

[00:18:17] Speaker 04:
It was objected to below and this court held that that was harmless error because it was not an intentional statement and nor were those statements so numerous as to materially affect the fairness of the trial.

[00:18:31] Speaker 04:
And similarly here.

[00:18:33] Speaker 03:
I understand that.

[00:18:35] Speaker 03:
My point simply is that.

[00:18:38] Speaker 03:
whether it was right or not is different than the application of plain error view or a review for harmlessness.

[00:18:45] Speaker 03:
Let me ask you another area that I am somewhat troubled by in this case because we're seeing it a lot, not just in this case, but in a number of other cases as well where

[00:18:57] Speaker 03:
A fact witness also relies on some expertise during the course of his testimony.

[00:19:05] Speaker 03:
And I wanted to see what the government's perspective on that is, because during his testimony, Mr. Chang did refer to things like velocity, structured transactions.

[00:19:15] Speaker 03:
That's not commonly within a lay person's knowledge.

[00:19:19] Speaker 03:
So do you see this as a dual testimony situation?

[00:19:24] Speaker 04:
No, Your Honor, because the standard for whether something crosses that line from lay opinion testimony into expert testimony is the basis of the opinion, not the subject matter itself.

[00:19:37] Speaker 04:
So here, where Mr. Zhang was testifying as a recipient witness, his testimony about the meaning or his opinion on the way that these transactions took place was based solely on his knowledge of this investigation.

[00:19:53] Speaker 04:
So, and that's made clear because he's actually asked at one point whether he had ever encountered a series of transactions, a pattern like this one, and he said that no, he hadn't, and that's at volume two, excerpts of record 288, so it's clear

[00:20:11] Speaker 04:
that in the context of Mr. Zhang's testimony, that his opinion of which Kopatch complains here could only have been based on case-specific facts, which this court approved in Gadsden in a similar context where the agent there testified based on his knowledge of the investigation as to the meaning of a coded drug term.

[00:20:33] Speaker 04:
And that was permissible lay opinion testimony.

[00:20:35] Speaker 04:
So it was not a dual purpose witness there, and it was not here either.

[00:20:43] Speaker 04:
But returning to the issue of the interstate nexus, which opposing counsel was discussing with this court, Exhibit 52, that transaction journal in this case, made clear that at the very least the transactions in this case necessarily crossed

[00:21:05] Speaker 04:
state lines because, as Mr. Zhang explained, this document that he created in the course of his investigation in this case showed that the time that these transactions occurred was recorded in Eastern time, which was the time that the transactions hit those servers in New Jersey.

[00:21:25] Speaker 04:
That was sufficient for the jury to conclude that, as they were instructed, that Copatch's conduct

[00:21:32] Speaker 04:
in some way affected commerce between one state and another state.

[00:21:36] Speaker 04:
That was their instruction.

[00:21:38] Speaker 04:
That's at volume two, excerpts of record 101 and 102.

[00:21:42] Speaker 04:
And that was enough there.

[00:21:44] Speaker 04:
But I would also like to address the issue of the display of Mr. Kopatch's tattoos to the jury.

[00:21:52] Speaker 04:
And here it was well within the district court's discretion to require Kopatch to show the jury his tattoos.

[00:22:00] Speaker 04:
And the parties did not

[00:22:02] Speaker 04:
stipulate that in return for Copatch agreeing that exhibit 101 was authentic and admissible, that the government would therefore not seek to have Copatch display his tattoos.

[00:22:16] Speaker 04:
That's simply not what the stipulation said.

[00:22:18] Speaker 04:
All it said was, with respect to exhibit 101, that the parties agreed that that exhibit consists of photos of Copatch taken on August 17, 2022,

[00:22:30] Speaker 04:
which are authentic and admissible.

[00:22:32] Speaker 04:
That's at volume three excerpts of record 488 and 489.

[00:22:36] Speaker 04:
Nothing more.

[00:22:38] Speaker 04:
That was the scope of the agreement and nothing that happened thereafter at trial violated that agreement.

[00:22:47] Speaker 00:
Are you saying there was no discussion between the council as to not then necessarily causing Mr. Kopatch to display his tattoos?

[00:22:56] Speaker 04:
There was at the pre-trial conference

[00:22:59] Speaker 04:
statements made by defense counsel that, in his opinion, Exhibit 101 should come in and that's all that should happen.

[00:23:08] Speaker 04:
That was defense counsel's opinion, but that's simply not reflected in the stipulation that the parties agreed to, that they entered into the record, and that was read to the jury.

[00:23:19] Speaker 03:
Right.

[00:23:20] Speaker 03:
I think the confusion for defense counsel, of course, it wasn't the trial lawyer arguing for the defendant today, but Mr. Yeh, was that the USA trying the case?

[00:23:33] Speaker 03:
Mr. Yeh and Mr. Chang.

[00:23:34] Speaker 03:
Right.

[00:23:35] Speaker 03:
Said that should be fine, Your Honor.

[00:23:37] Speaker 03:
So perhaps that led counsel to think that that was an agreement.

[00:23:42] Speaker 04:
If that was the case, Your Honor, and

[00:23:46] Speaker 04:
The record of the pretrial conference is subject to multiple interpretations.

[00:23:50] Speaker 04:
Any confusion there should be alleviated by the stipulation which followed after the pretrial conference.

[00:23:57] Speaker 04:
That was the agreement.

[00:23:58] Speaker 04:
That was the meeting of the minds that was entered into the record here.

[00:24:03] Speaker 02:
But there was also some discussion about whether it's a person or an organization, a specific individual, and if you think

[00:24:15] Speaker 02:
1028A extends to stealing the identity of an organization.

[00:24:20] Speaker 02:
How do you harmonize 18 USC section 1028D7, which provides that the term means, the means of identification in 1028 means a name or number that may be used to identify a specific individual.

[00:24:37] Speaker 02:
So how do we, should we be concerned about that?

[00:24:41] Speaker 04:
No, Your Honor.

[00:24:42] Speaker 04:
In fact, the argument that Kopatch is making here on this point is a very narrow, limited argument because he concedes that the evidence was sufficient for the jury to conclude that Kopatch knew that the debit card and pins that he was using belonged to real account holders.

[00:25:00] Speaker 04:
He's trying to make a distinction between real people, real account holders, and natural people.

[00:25:06] Speaker 04:
But that distinction is simply not supported by the evidence here.

[00:25:10] Speaker 04:
First,

[00:25:11] Speaker 00:
Well, couldn't an entity be a real account holder and have persons authorized by the entity to use the ATM card?

[00:25:18] Speaker 04:
That is possible, Your Honor, but the means of identification here is not the account number.

[00:25:25] Speaker 04:
It's the debit card and PIN numbers that COPEC was using and the evidence in this case that

[00:25:32] Speaker 04:
the jury could reasonably impute to Copatch was that those means of identification that he was using could only belong to real people.

[00:25:43] Speaker 04:
It's not the account, it's the debit card and pin numbers, which as Mr. Zhang testified, could only be issued to real people and were unique.

[00:25:52] Speaker 00:
Well, couldn't a real person be issued a card for an account associated with a business, an entity?

[00:25:59] Speaker 04:
Yes, Your Honor, I believe so.

[00:26:01] Speaker 04:
But still, the means of identification that Copatch was using were necessarily belonging to real, natural people, even if there had been evidence in the record that in this case, those debit cards were connected to a business account.

[00:26:20] Speaker 04:
But that simply wasn't the case here.

[00:26:23] Speaker 04:
And the way in which, first of all,

[00:26:28] Speaker 04:
The means of identification were obtained only makes sense if it only makes sense that COPEC would know that these were related to real people.

[00:26:39] Speaker 04:
They were obtained by the use of skimming devices and pinhole cameras.

[00:26:44] Speaker 04:
Only a real person uses an ATM.

[00:26:47] Speaker 04:
Only a means of identification belonging to a natural person could have been captured in the way that they were captured in this case.

[00:26:55] Speaker 04:
And in fact, these were.

[00:26:58] Speaker 04:
cards and pins that belonged to five real people.

[00:27:03] Speaker 00:
But there's no evidence that Mr. Kopatch was present at the ATMs when the cards were used.

[00:27:08] Speaker 00:
They were scammed, correct?

[00:27:10] Speaker 04:
That's correct, Your Honor.

[00:27:11] Speaker 04:
That was not before the jury.

[00:27:13] Speaker 02:
I wanted to clarify something that with Jang's testimony, you didn't identify Jang as an expert, correct?

[00:27:21] Speaker 02:
But Jang was identified as a witness.

[00:27:24] Speaker 02:
Yes.

[00:27:25] Speaker 02:
So that wasn't a surprise.

[00:27:27] Speaker 02:
But was there any objection to improper expert testimony of Jang at the trial?

[00:27:37] Speaker 02:
I don't recall, Your Honor.

[00:27:39] Speaker 02:
I'm sorry.

[00:27:39] Speaker 02:
Well, I didn't see any.

[00:27:40] Speaker 02:
I'll ask counsel for Mr. Kopasz.

[00:27:44] Speaker 02:
But so the court admitted all of the testimony or just a portion that required his expertise.

[00:27:53] Speaker 02:
Did the court admit all of Jang's testimony?

[00:27:56] Speaker 02:
Yes, Your Honor.

[00:27:57] Speaker 02:
Okay.

[00:27:59] Speaker 04:
And on all of those points, with respect to the interstate nexus, with respect to whether these were real people, the evidence was more than sufficient for the jury to find that all of those elements had been met.

[00:28:14] Speaker 04:
Okay.

[00:28:15] Speaker 04:
Thank you, Your Honor.

[00:28:16] Speaker 04:
We ask that this court affirm.

[00:28:17] Speaker 02:
Thank you.

[00:28:18] Speaker 02:
Any further questions of our panel?

[00:28:21] Speaker 02:
No, thanks.

[00:28:21] Speaker 00:
No, thank you, Ms.

[00:28:22] Speaker 00:
Mullen.

[00:28:23] Speaker 02:
All right.

[00:28:23] Speaker 02:
Two minutes for rebuttal.

[00:28:33] Speaker 02:
So can you clarify for me what piece of Jang's testimony did you object to as being improper expert testimony?

[00:28:40] Speaker 01:
Yes, Your Honor, I was trying to track down that pin site.

[00:28:43] Speaker 01:
The specific testimony that was objected to, I believe, is on the record at

[00:28:51] Speaker 01:
To excerpt of the record, 286 through 288, there were objections to questions that elicited testimony relating to the pattern of structure transactions that were almost signature to one person.

[00:29:06] Speaker 01:
And I believe those objections were, I don't want to misstate the record.

[00:29:09] Speaker 01:
I need to double check.

[00:29:10] Speaker 02:
So do you object to admitting that the court abused its discretion, admitting all of the testimony or just a portion of it that required Jang's expertise?

[00:29:23] Speaker 01:
Our position there is the, anything that was elicited like for questions that only an expert could have, someone with this, I think the cases say like this error, like it's this error of expertise.

[00:29:38] Speaker 02:
Well, like I said, didn't Zheng have personal knowledge about how FRB's transactions are sent to all these FIS serve servers out of state?

[00:29:47] Speaker 02:
Didn't he have personal knowledge of that?

[00:29:49] Speaker 01:
of how the transaction was sent.

[00:29:51] Speaker 01:
Well, he admitted to not having the actual person and knowledge of how that necessarily worked.

[00:29:56] Speaker 02:
He was just- But that he knew that that was the way it happened.

[00:29:59] Speaker 01:
His words, I believe, on redirect exam were like, as someone whose position, you kind of know how things work as far as ATM and transactions go.

[00:30:08] Speaker 01:
And that simply should not be a sufficient basis for someone to testify to what, like, if there is sufficient evidence for a reasonable juror to find that

[00:30:19] Speaker 01:
that an essential element of the criminal case has been found beyond a reasonable doubt.

[00:30:23] Speaker 02:
Well, I know you don't like the timestamps, but it seems to me that possibly one could argue that the timestamps showing Eastern Standard Time for the ATM transactions is enough to establish the interstate nexus.

[00:30:39] Speaker 01:
Well, those were, again, those were

[00:30:42] Speaker 01:
timestamps within the First Republic Bank's own business records, which sort of makes it distinct from all the other cases the government cite where everyone was testifying to either their own business records or they were at least looking at this third party business records.

[00:31:01] Speaker 01:
Mr. Jang admitted to doing none of that and that on its own should be

[00:31:06] Speaker 02:
But that's one way you could look at it.

[00:31:10] Speaker 02:
You were free to cross-examine and show it couldn't mean that, right?

[00:31:17] Speaker 01:
Sorry, can you say that again?

[00:31:18] Speaker 02:
The stamps are there.

[00:31:19] Speaker 02:
You could cross-examine the witness and show that it couldn't mean that, right?

[00:31:25] Speaker 02:
Or you just don't want to touch it because it is evidence.

[00:31:30] Speaker 01:
Admittedly, it is a tricky issue.

[00:31:32] Speaker 01:
But that, I think if you look at the fact that these were, he was looking at only first public banks business records and these were, he doesn't understand where these time stands came to.

[00:31:43] Speaker 01:
Perhaps that could have happened on Cross, but that insufficient, that him just admitted to not having any personal knowledge about those servers generally.

[00:31:53] Speaker 01:
I think should be enough to undermine any inference of, uh, that there was, that he had the sufficient basis to testify to the, um, to the- Well, you're already at, I've given you three and a half minutes, but I've taken up some of that time.

[00:32:06] Speaker 02:
So if you want to just wrap up, that would be good.

[00:32:09] Speaker 01:
Um, yes.

[00:32:10] Speaker 01:
I mean, um, so just a couple of points.

[00:32:13] Speaker 01:
I just want the government mentioned, um, like this stipulation, the written stipulation.

[00:32:19] Speaker 01:
I think you can't read that stipulation without looking at the pre-trial witness list for Maurice Witt.

[00:32:24] Speaker 01:
Should the parties not agree to stipulations on photographs of Mr. Copatch being entered into evidence or alternatively allowing Mr. Copatch to exhibit his identifying tattoos in court to the jury, Deputy Witt will testify.

[00:32:37] Speaker 01:
I think that helps better explain that agreement.

[00:32:42] Speaker 01:
And then just briefly, I know I'm over time.

[00:32:48] Speaker 01:
briefly on the real person point, the only evidence that they, the evidence that they imputed for the debit cards was this knowledge that Mr. Jang had that First Republic Bank only issues to real people.

[00:33:02] Speaker 01:
And it's hard for me to see the logic of how- I bet every person on the jury had a debit card.

[00:33:08] Speaker 01:
Yes, Your Honor.

[00:33:09] Speaker 02:
They should- And they're thinking they're a person.

[00:33:13] Speaker 01:
I'm sure that they, that the

[00:33:18] Speaker 01:
That doesn't still take away the government's burden here, which is to prove that Mr. Kopatch himself, or the defendant, had the requisite knowledge.

[00:33:28] Speaker 01:
And that evidence that a bank has shown this might only do to real people doesn't show anything about what Mr. Kopatch would know.

[00:33:37] Speaker 00:
Can the jurors use their common sense on that issue, evaluating the evidence?

[00:33:41] Speaker 00:
Absolutely, Your Honor, yes.

[00:33:43] Speaker 02:
All right, thank you for your argument.

[00:33:44] Speaker 02:
This matter will stand submitted.