[00:00:02] Speaker 04:
Good morning, your honors, and may it please the court.

[00:00:04] Speaker 04:
Ruth Rajan, appearing on behalf of appellant Nosa Obayando.

[00:00:07] Speaker 04:
I'd like to reserve four minutes for a bottle.

[00:00:09] Speaker 04:
I'll watch my clock.

[00:00:11] Speaker 04:
The government tried a different case than it charged.

[00:00:14] Speaker 04:
The charged offenses all involved discrete acts, one incident of male theft, and ATM withdrawals from the same bank account.

[00:00:21] Speaker 04:
Yet the government at trial, sentencing, and now on appeal has sought to connect Mr. Obayando to a broader male death scheme.

[00:00:28] Speaker 04:
The resulting errors require a new trial.

[00:00:31] Speaker 04:
I'll start with the rule 404B issue and then proceed to loss and restitution with my remaining time.

[00:00:38] Speaker 04:
The district court improperly admitted other act evidence of uncharged mail deaths.

[00:00:43] Speaker 04:
Because of the dangers associated with propensity-based reasoning, this court has implemented strict guardrails on the admissibility of other act evidence.

[00:00:51] Speaker 04:
Yet the government here broadly proclaimed that Mr. Obayando stole mail on the charge date because he was captured on camera stealing mail on three other occasions.

[00:01:01] Speaker 04:
This is the exact reasoning rejected by Rule 404B that does not satisfy its stringent requirements.

[00:01:07] Speaker 04:
I want to begin briefly with the inextricably intertwined exception.

[00:01:11] Speaker 04:
This exception applies only when the other acts are part of a single criminal episode with the charge conduct.

[00:01:17] Speaker 04:
The government has not identified a single element of the charged male theft that needed proof from the uncharged male thefts.

[00:01:24] Speaker 04:
The inextricably intertwined exception was satisfied in Loftus, the case the government and the district court relied on, because the existence of the scheme was an element of fraud.

[00:01:33] Speaker 04:
But the male theft count did not require proof of any such scheme.

[00:01:38] Speaker 04:
The other act evidence.

[00:01:39] Speaker 01:
How about on the theory that, you know, this was, we needed this to tell a coherent story.

[00:01:45] Speaker 04:
So the government was able to tell a coherent story without relying on the Uncharge Act.

[00:01:50] Speaker 04:
So for example, it could have relied just on the testimony of Inspector Hudson about what he saw transpire the day that he observed the charged mail theft.

[00:01:58] Speaker 04:
The mail theft count only required proof that Mr. Obiondo took mail on the date of the charge theft.

[00:02:04] Speaker 04:
So the government's theory was that Mr. Obiondo was at the mailbox at discrete times.

[00:02:09] Speaker 01:
I thought some of these photographs were more relevant to the other two charges, not necessarily the mail theft charge.

[00:02:14] Speaker 04:
And for this reason, so I want to clarify the record here because I believe the government is mistaken in its answering briefs.

[00:02:20] Speaker 04:
So the uncharged thefts are not relevant to those counts because the ATM card, Ms.

[00:02:25] Speaker 04:
Erte's ATM card was taken from a different mailbox from one which Mr. Obayando had access to.

[00:02:30] Speaker 04:
So I'd want to point the court to three excerpt of record 345 where Inspector Hudson said that he did not see Mr. Obayando at the Kaku Ridge mailbox, which is where the ATM card was taken from.

[00:02:42] Speaker 04:
Mr. Obayanda was only seen at the Splendid Manor mailbox.

[00:02:46] Speaker 04:
So the uncharged mail devs could not be used to provide a coherent story or as part of the same transaction for the other two counts as well.

[00:02:54] Speaker 04:
If you're understood and have any other questions about the inextricably intertwined exception, I would want to move on to the other Rule 404b2 exceptions.

[00:03:02] Speaker 04:
I want to take each exception

[00:03:03] Speaker 04:
in turn, starting with the ones that the government advances on appeal.

[00:03:07] Speaker 04:
So first, intent fails.

[00:03:09] Speaker 04:
I think the government's theory violates the general rule with intent.

[00:03:12] Speaker 04:
So this court in United States versus Bettencourt said that discrete intent with discrete acts is the more usual case.

[00:03:19] Speaker 04:
And the government here has not offered a non-propensity basis for the reason for why these intents from these discrete acts, these discrete male deaths, would be transferable or would implicate the intent on the date of the charged theft.

[00:03:31] Speaker 01:
But second, a more fundamental problem is that the government... The intent is to, again, as to what offense, right?

[00:03:36] Speaker 01:
How about to the identity theft and the access device misuse charge?

[00:03:41] Speaker 04:
The government didn't really offer a basis outside of the scheme.

[00:03:44] Speaker 04:
So in its rebuttal closing argument, the government tried to use the mailbox theft to say it's like, oh, he knew broadly about this broader conduct and all of those stuff.

[00:03:53] Speaker 04:
But here, the government never charged and never provided any substantive connection between

[00:03:59] Speaker 04:
the ATM count and Mr. Obayando's presence at the Splendid Manor mailbox, because again, the ATM card came from a different mailbox with which they conceded that they had no evidence connecting him to.

[00:04:11] Speaker 04:
So even if it implicated that aspect of the scheme here, it's still not relevant to providing his intent or what he was doing with the ATM.

[00:04:18] Speaker 01:
I mean, I guess the question is, are we slicing it a little too thin here?

[00:04:21] Speaker 01:
I mean, sometimes with these other acts, we're talking about something that happened months earlier, years earlier, a totally different kind of thing.

[00:04:27] Speaker 01:
It starts to raise real questions.

[00:04:28] Speaker 01:
Here, you know, what's a little different about this case is that the other acts, as you described them, are sort of, they are similar in time and in nature to some of the charged accounts.

[00:04:36] Speaker 04:
I think it's important to slice a little bit with respect to the timeline.

[00:04:40] Speaker 04:
So the ATM withdrawals

[00:04:41] Speaker 04:
All the government's evidence was from February or March of 2018.

[00:04:46] Speaker 04:
And the uncharged mail thefts occurred months before.

[00:04:48] Speaker 04:
So they occurred in July and August.

[00:04:50] Speaker 04:
So there, we would argue that their connection is much more tenuous than the connection that we have here.

[00:04:56] Speaker 04:
But even for the intent, if we narrow it down to the charged mail theft itself, where there's a closer temporal connection between the offenses, the uncharged mail theft, there was minimal proof of what intent was

[00:05:08] Speaker 04:
for those offenses.

[00:05:09] Speaker 04:
So all the evidence that the government had of the uncharged mail theft were those photographs at the mailbox.

[00:05:15] Speaker 04:
But in order to prove mail theft, you have to establish that the person intended to deprive the owner of the use or benefit of the mail.

[00:05:23] Speaker 04:
But with the photographs, they don't show whether Mr. Obiando took mail belonging to another person.

[00:05:28] Speaker 04:
And even if you assume that the mail

[00:05:30] Speaker 01:
I mean, perhaps not on their own, but they're part of a corpus of evidence, right, where somebody observed him taking mail, personally observed him taking mail from a mailbox, right?

[00:05:41] Speaker 04:
I think that confuses a little bit about the inextricably intertwined exception where it talks about, oh, we need to tell a coherent or compelling story about the offense, which here we have demonstrated that that's not necessary because we have discrete acts at issue.

[00:05:56] Speaker 04:
with the rule 404B2 evidence, where they need to have sufficient proof of its relevance to the purpose in which the government is using it.

[00:06:04] Speaker 04:
So for intent, the government had no evidence just because it just had these photographs which didn't show whose mail was taken, what was done with the mail, all of which are part of the intent required for the mail theft count.

[00:06:16] Speaker 04:
I also, I next want to move on briefly to another rule 404 B2 purpose that the government relies on, which is identity.

[00:06:23] Speaker 04:
And I think here it's important to understand the particular dates that the government alleged the uncharged male death.

[00:06:29] Speaker 04:
So for July 2nd and July 8th and August 4th were the dates that the government relied on, but for those first two dates,

[00:06:36] Speaker 04:
The pictures are simply too unclear.

[00:06:38] Speaker 04:
They were taken late at night, and they're too dark outside to even make out who exactly is implicated.

[00:06:44] Speaker 04:
So I think both of those pictures are simply out when it comes for identity purposes.

[00:06:49] Speaker 01:
Why couldn't the jury agree with you on that?

[00:06:52] Speaker 04:
So I will say that the role for the jury with other acts of evidence is a little more limited than it is more generally.

[00:06:59] Speaker 04:
Because this court in United States versus Curtin, the Ombong Court, recognized that there's a danger when you introduce other acts of distracting the trier of fact from what actually transpired on the date of the offense.

[00:07:11] Speaker 04:
And here, which is a reason why the district court needs to play more of a gatekeeping role than it might otherwise under other rules of evidence.

[00:07:20] Speaker 04:
here because the government consistently reference his closing argument saying mister over yando committed these steps on these other dates we say here that that sort of implication impermissibly can taints the verdict that the jury will have in the district court needs to exercise its discretion and exclude those sorts of that dot dot dot that sort of evidence

[00:07:39] Speaker 04:
But but going back briefly to the pictures the only picture that is actually clear is from August 4 and that's after the offense occurred and even then there's nothing under this court's case law that shows something sufficiently distinctive in order to make a connection for identity purposes so this court's case laws emphasize that you need.

[00:07:57] Speaker 04:
unusual characteristics, and the only thing particular here was the mailbox, but the government had introduced evidence that at least two individuals had frequented the mailbox, so that by itself could not establish something that was sufficiently distinctive for identity purposes.

[00:08:12] Speaker 02:
It is quite unique in similar circumstances to have people loitering, hanging around the mailbox.

[00:08:20] Speaker 04:
I think here the issue is that Mr. Obayando's defense was that his co-defendant was the one who committed the mail theft.

[00:08:27] Speaker 04:
And all the evidence the government had was that two individuals were at the mailbox, Mr. Obayando and his co-defendant.

[00:08:33] Speaker 04:
So the other acts of evidence did not do anything.

[00:08:36] Speaker 04:
in terms of identity of narrowing it down when considered in the context of the defense theory.

[00:08:40] Speaker 02:
Presumably you, or I don't know if you're a trial counsel or not, but you probably made that point to the jury in those pictures.

[00:08:47] Speaker 02:
It may not be him.

[00:08:48] Speaker 02:
Mr. Avallando might have been his roommate.

[00:08:50] Speaker 04:
I think that's right.

[00:08:51] Speaker 04:
And that's an argument that defense counsel can make.

[00:08:53] Speaker 04:
But again, I would like to go back to the dangers

[00:08:55] Speaker 04:
other act evidence that this court emphasized.

[00:08:57] Speaker 04:
Because the government repeatedly claimed with this evidence that Mr. Obayanda was the one captured stealing mail on these other dates and had the jury draw the imprints that then he must have been the one who committed the mail theft on the date of the charged conduct.

[00:09:11] Speaker 04:
Can you address the loss issue?

[00:09:13] Speaker 04:
Sure.

[00:09:14] Speaker 04:
So I'm happy to turn to the loss issue.

[00:09:15] Speaker 04:
So I think there are two issues with loss.

[00:09:17] Speaker 04:
There's both the substantive issue with the proof that the government supplied with relevance to the evidence.

[00:09:22] Speaker 04:
So I want to focus first on Mr. Handy.

[00:09:25] Speaker 04:
Here, we don't think that the government supplied sufficient evidence as to what's lost, because the only document that the government provided was this anonymized statement.

[00:09:34] Speaker 04:
We don't have no idea who it's from, what date it's from.

[00:09:37] Speaker 04:
And that even fails the minimal indicia of reliability that this court

[00:09:41] Speaker 04:
has demanded in cases like United States versus Franklin, what you need for sentencing evidence.

[00:09:46] Speaker 02:
Again to the details, our en banc decision in Lucas, should we now apply preponderance of evidence standards?

[00:09:53] Speaker 04:
Preponderance of evidence for any factual findings underpinning

[00:09:56] Speaker 04:
the guideline enhancement.

[00:09:57] Speaker 04:
But here we have several claimed legal errors, the amount of proof that the government supplied us with the North Carolina transaction.

[00:10:04] Speaker 04:
And then the district court also never properly defined what exactly was the jointly undertaken criminal activity for purposes of the loss calculation.

[00:10:14] Speaker 04:
And that is error here.

[00:10:16] Speaker 04:
That's legal error because it's unclear how transactions that occurred in North Carolina with a different ATM card, a different bank,

[00:10:22] Speaker 04:
could have possibly implicated the jointly undertaken activity.

[00:10:27] Speaker 01:
But didn't the North Carolina person had their mail sent to these mailboxes?

[00:10:32] Speaker 04:
So the only evidence that I could find in the record was there was mail forwarding from the North Carolina transactions to Las Vegas.

[00:10:42] Speaker 04:
But based on my review of the record, there was no evidence that an actual bank card was sent to

[00:10:49] Speaker 04:
Las Vegas.

[00:10:49] Speaker 04:
In fact, all of the transactions occurred in North Carolina and the government never offered evidence at sentencing connecting Mr. Obayando to those transactions there.

[00:10:58] Speaker 04:
And this was over a hundred thousand dollars which drove a lot of the loss amount and loss calculation here.

[00:11:04] Speaker 04:
Now briefly on the other two individuals, the government, the district court was confused as to reimbursement so then the government and the district court both misidentified the basis for loss.

[00:11:14] Speaker 04:
They never

[00:11:15] Speaker 04:
expressly claimed that the banks themselves lost money, rather they claimed the individuals lost money, but then the record revealed that these individuals were reimbursed, which means that they cannot qualify for loss enhancement purposes under the guidelines.

[00:11:29] Speaker 04:
If there's no other further questions, I'd like to reserve the rest of my time.

[00:11:33] Speaker 02:
Thank you.

[00:11:44] Speaker 03:
Good morning.

[00:11:45] Speaker 03:
May it please the court.

[00:11:46] Speaker 03:
Peter Walkingshaw on behalf of the United States.

[00:11:49] Speaker 03:
I'd like to take the issues presented by the defendant in reverse order with the court's permission, unless there are any immediate questions.

[00:11:55] Speaker 03:
With respect to the loss calculation, I'd like to first note that FAM, the case cited by the defendants in their briefs regarding whether or not an individual is a victim for purposes of loss calculation, has to do with an enhancement that deals with the number of victims.

[00:12:11] Speaker 03:
But it really elides or sidesteps the question of,

[00:12:15] Speaker 03:
The last question is was money taken in the event of actual loss or in the case of attempted loss was money attempted to be taken.

[00:12:25] Speaker 03:
So the question of whether or not the withdrawals made from North Carolina.

[00:12:29] Speaker 03:
Ultimately, we're down to the loss of the banks or individuals.

[00:12:32] Speaker 03:
It's kind of immaterial.

[00:12:33] Speaker 01:
So walk through the evidence that shows that the $100,000 plus is connected to this scheme.

[00:12:42] Speaker 03:
Right.

[00:12:42] Speaker 03:
So your honor is correct that Mr. Handy, the victim who lived in Tennessee, but the withdrawals were made in North Carolina, had his mail forwarded to Kakoo Ridge.

[00:12:52] Speaker 01:
How do we know that?

[00:12:54] Speaker 03:
It was submitted as part of a statement attached to the government's sentencing brief.

[00:12:58] Speaker 03:
And I'll note at this point, it was never contested at sentencing during the sentencing memos that these individuals did not suffer these losses.

[00:13:07] Speaker 03:
the subject of debate at sentencing was whether or not these losses were reasonably foreseeable to mister obiando such that they fit within the definition of something arising from uh... jointly undertaken criminal activity so your your his his mail was forwarded uh... to kakurage yes one of the two las vegas mailboxes uh... that the defendants in this case and we knew was his was there a mail forwarded uh...

[00:13:36] Speaker 01:
you know, sort of designation on his mail account, or also do we know that physical pieces of mail of his went to Las Vegas?

[00:13:44] Speaker 03:
So Mr. Handy submitted a written statement that was attached to the government sentencing amendment, which he describes that he was repeatedly notified that his mail was forwarded to an address in Las Vegas, and then he was contacted a number of times by Bank of America

[00:14:00] Speaker 03:
saying that someone was trying to open up a new account in his name, in which he said, I don't want to allow this, but nonetheless, one was eventually opened.

[00:14:08] Speaker 03:
So the basis for the account of what happened to Mr. Handy is from his statement that was submitted as part of the government's sentencing memorandum.

[00:14:17] Speaker 03:
I would just put forward that the statement is inherently reliable.

[00:14:21] Speaker 03:
It tracks the scheme quite carefully.

[00:14:23] Speaker 03:
It submits several case numbers, both for Bank of America and a police report number.

[00:14:31] Speaker 03:
Mr. Handy and his wife repeatedly made attempts to thwart the theft of Mr. Handy's identity and unfortunately were ultimately unavailable.

[00:14:40] Speaker 03:
But again, this was an item that was not contested at any point during sentencing.

[00:14:45] Speaker 00:
Council, just to be clear, we're talking about two different things here with loss amount.

[00:14:50] Speaker 00:
First of all, the loss calculation and the sentencing enhancements, right?

[00:14:54] Speaker 00:
Under 2B1.1.

[00:14:55] Speaker 00:
Certainly.

[00:14:57] Speaker 00:
That's the Mr. Handy loss, and your position is that even if the court excludes other losses to other victims, Mr. Handy's loss alone would qualify for that enhancement, correct?

[00:15:10] Speaker 03:
That is our position, Your Honor.

[00:15:11] Speaker 03:
I believe, and I'm sure the defense counsel will correct me if I'm wrong, but Mr. Handys is really the one that seems to be the most at issue, given that it took place the furthest from Las Vegas, and he had by far the largest loss.

[00:15:25] Speaker 03:
His was $100,000 out of 137.

[00:15:28] Speaker 03:
So essentially, the question for this court is whether or not Mr. Handy's loss is properly attributable to Mr. O'Rourke's conduct.

[00:15:36] Speaker 03:
We submit that it is.

[00:15:37] Speaker 00:
But that's really, I believe that- So if this court accepts that proposition, then we get to the reasonably foreseeable analysis by the district court.

[00:15:46] Speaker 00:
And that really bears on the issue of restitution, does it not?

[00:15:50] Speaker 03:
uh... well it's not part of the restitution tesla i think it certainly goes to whether or not it is is fair your honor which is really the sole issue for debate between the parties given the plane error standard and uh... you know as we knowledge are brief the restitution order it is legally erroneous the the

[00:16:07] Speaker 03:
The statute only provides for restitution in cases where the losses are part of a broader scheme.

[00:16:13] Speaker 03:
It wasn't objected to below, and so it's our position that it's simply not unfair to require Mr. Obayando to repay victims from a scheme, even if not formally charged, a scheme that he participated in and that caused these losses.

[00:16:26] Speaker 01:
And maybe not unfair in a cosmic sense, but I don't know why you wouldn't just agree on the restitution piece of this.

[00:16:33] Speaker 03:
Your Honor, to be honest, I feel incumbent upon my position to advocate for the victims here.

[00:16:43] Speaker 03:
And beyond that, I think our briefs speak for themselves.

[00:16:45] Speaker 00:
Why weren't the sentencing objections cover this?

[00:16:49] Speaker 00:
In other words, you say it's plain error, but it was objected to in the pre-sentence report.

[00:16:57] Speaker 03:
The pre-sentence report.

[00:16:58] Speaker 03:
So it's part of the informal pre-sentence report objections.

[00:17:01] Speaker 03:
I believe it was, Your Honor, but it wasn't raised before the district court.

[00:17:06] Speaker 02:
And for the restitution under the MVRA, I think the bulk of it, 90,000 of it, came from three other offenses.

[00:17:14] Speaker 02:
Why weren't those charged?

[00:17:16] Speaker 02:
Just out of curiosity.

[00:17:20] Speaker 03:
I'm sorry.

[00:17:20] Speaker 02:
I don't quite follow.

[00:17:22] Speaker 02:
I think the restitution amount under the MVRA, I think, were restitution for people who, for offenses that were not charged, right?

[00:17:31] Speaker 03:
Yes.

[00:17:32] Speaker 03:
Well, they certainly weren't charges to Mr.

[00:17:35] Speaker 03:
Yes, they're there.

[00:17:37] Speaker 03:
It's uncharged conduct.

[00:17:38] Speaker 02:
Yes.

[00:17:38] Speaker 02:
So I mean, why weren't those charged?

[00:17:40] Speaker 02:
I mean, obviously, if they were charged, you get conviction on those, and you can get, you know, there wouldn't be an issue here about restitution.

[00:17:45] Speaker 03:
You know, Your Honor, I'm not entirely sure.

[00:17:46] Speaker 03:
I believe, you know, that once the scheme was discovered, the government, and I have to step a little bit outside the record here, but the government set forth to identify victims of the scheme.

[00:17:56] Speaker 03:
Not all of that happened right away.

[00:17:58] Speaker 03:
You know, beyond that, I don't have a lot more insight as to the particulars of the charging decisions.

[00:18:04] Speaker 03:
unless there are any other questions regarding the uh... the sentencing issues i'd like to move on to the uh... let's just close out the sentencing issues so on the reasonably foreseeable part of the fully close the loop on that fair enough your honor so if you look at and i believe this is on page twenty six of the record this is where the district courts analysis is and what the district court says is

[00:18:32] Speaker 03:
crimes arising from and I'm paraphrasing here slightly, but crimes arising from mail forwarded to Cacoo Ridge and Splendid Manor Court were within the scope of the criminal activity that Mr. Obayado and his co-conspirator engaged in.

[00:18:47] Speaker 03:
These victims, the three identified, resulting in the $137,000, beyond Dr. Erte, all had their mail forwarded to

[00:18:57] Speaker 03:
Kakarich or Splendid Manor Court.

[00:18:59] Speaker 03:
And if you're running an identity theft scheme, it is plainly foreseeable that the people whose mail you have fraudulently forwarded to obtain their personal information to steal their identity will have their identity stolen.

[00:19:14] Speaker 03:
The fact that the withdraws against their accounts or the accounts that are fraudulently set up happen in other states is somewhat immaterial in that the point of the enterprise

[00:19:24] Speaker 03:
is to set up fraudulent accounts to steal these people's money.

[00:19:27] Speaker 03:
So the idea that it's somehow unforeseeable that Mr. Arbeando, given that he was stealing mail from Splendor Manor Court and using an ATM card that was sent to Kakur Ridge, which is the other mail, unattended mailbox that

[00:19:40] Speaker 03:
I believe there was some discussion and opening argument that he was unconnected to.

[00:19:45] Speaker 03:
Dr. Erdy's card was sent to Kakarich, and Mr. Arbogando was subsequently photographed using it in an ATM.

[00:19:53] Speaker 03:
It's the government's position that it's simply plainly foreseeable that people who had their mail fraudulently forwarded to these addresses and then had their identity stolen

[00:20:03] Speaker 01:
Would have been foreseeable to someone participating in that scheme that that would occur and the implication is that mr. Handy was Lost his identity due to this scheme is the timing.

[00:20:16] Speaker 03:
Yes Yes, so his his as noted by the district courts again, I would refer the court to the discussion on the record in pages 26 and 27 and

[00:20:26] Speaker 03:
He had his mail forwarded to these address roughly during the time in which Mr. Arbeando and Mr. Ariowari were engaged in the theft and identity theft schemes.

[00:20:37] Speaker 00:
How do we find on this record that the court adequately addressed all of the factors that are outlined in the sentencing guideline 1B1.3A?

[00:20:47] Speaker 03:
Well, Your Honor, the Discord did explicitly discuss the fact that there were three factors if it listened at length to argument from the parties regarding those factors.

[00:20:57] Speaker 03:
I mean, really, the finding that's necessary here for the Court to make is that the loss was within the scope of jointly undertaken criminal activity.

[00:21:05] Speaker 00:
Did the Court make that finding?

[00:21:08] Speaker 03:
It did, Your Honor.

[00:21:08] Speaker 03:
Again, I would refer the Court to pages 26 and 27 of the record.

[00:21:13] Speaker 03:
The defense is effectively saying that there needs to be a bit of a magic words test for the three factors here.

[00:21:19] Speaker 03:
And I just don't see any support for that in the case law.

[00:21:22] Speaker 00:
I think it's rather- As I read the transcript, the court said, looking at 1B1.3, the only thing I have trouble with is the reasonable foreseeability.

[00:21:32] Speaker 00:
Is the third factor, I believe.

[00:21:33] Speaker 00:
The court never articulated the factors and said, I find this is jointly undertaken criminal activity.

[00:21:40] Speaker 03:
I believe a slightly earlier in the transcript I have to look at it again your honor but I believe it's

[00:21:48] Speaker 03:
I believe it's plain from the record that the court is looking at the three factors, that what the parties were discussing, it discusses, the court mentioned that there are three factors, and it's really the only third one that requires lengthy explanation.

[00:21:59] Speaker 03:
So I think it's readily inferable from the record here what the court was doing.

[00:22:02] Speaker 03:
It's not like other cases where there's simply no basis for the court to understand how the court came to its conclusion.

[00:22:08] Speaker 03:
I think the court's explanation is on page 26, and I think it's plainly clear as to what it was doing there.

[00:22:15] Speaker 03:
I'd like to, unless there are any other questions, I'd move on to the 404B issue.

[00:22:21] Speaker 03:
So the fact that

[00:22:22] Speaker 03:
Mr. Obayando was participating in a male theft and identity theft scheme and that the government charged discrete acts within that scheme does not mean that the jury cannot hear about the broader scheme in which Mr. Obayando was engaged.

[00:22:36] Speaker 03:
The jury is entitled to hear the context in which the charged offenses took place.

[00:22:41] Speaker 03:
And here it was necessary for the jurors to hear

[00:22:48] Speaker 03:
about the extent to which Mr. O'Banner was stealing from the Splendid Manor Court mailbox because it answers the question of how was he able to get an access identity card like the fraudulently issued

[00:23:01] Speaker 03:
ATM card under Dr. Erdie's name.

[00:23:03] Speaker 03:
It also answers the question of, well, did he know whether or not he had permission to use this card or not?

[00:23:10] Speaker 03:
Well, obviously didn't, because he was participating in a scheme to steal people's mail, obtain their personal identifying information, and thereby open up accounts in their name so that he could defraud them.

[00:23:23] Speaker 03:
Now, there's a repeated suggestion by the defense that somehow the

[00:23:28] Speaker 03:
references to other male thefts is either is prejudicial and in some respects it is prejudicial because all the government's evidence in criminal cases is prejudicial.

[00:23:40] Speaker 03:
It tends to prove that a defendant

[00:23:43] Speaker 03:
is involved in a criminal act, but the question is, is the prejudice unfair?

[00:23:49] Speaker 03:
So is it inviting the jury to make a decision based on emotions or something that's plainly irrelevant to the charged crime and the elements of the offense?

[00:23:59] Speaker 03:
And here, the context matters.

[00:24:02] Speaker 03:
In order for the jury to understand, well, how did he get this ATM card?

[00:24:05] Speaker 03:
It needed to understand that he was involved in a ongoing mail theft scheme.

[00:24:12] Speaker 01:
And... Wasn't there... I mean, the photographs were supportive of that, but there was other evidence of that also.

[00:24:18] Speaker 03:
That's true, Your Honor.

[00:24:19] Speaker 03:
And I think there's really no reason why both those things weren't valid.

[00:24:23] Speaker 01:
Well, but it just kind of goes to your point as to whether this was necessary from the standpoint of giving context, because someone could respond saying that there was other evidence of context here.

[00:24:32] Speaker 01:
We didn't need these dark photographs.

[00:24:34] Speaker 03:
Well, Your Honor, I think it perhaps to the extent that there was other evidence that really bears on the probative value in the 403 Wang analysis.

[00:24:45] Speaker 03:
But I remind the court that the defendant

[00:24:50] Speaker 03:
continues to vociferously contest his identity as part of the mayhem.

[00:24:54] Speaker 01:
That's why it seems like a lot of your arguments are really more about whether 404B was met as opposed to whether we're just outside that rule.

[00:25:01] Speaker 03:
It certainly may be an easier way for the court to resolve this case, Your Honor, to determine that it was properly admissible under 404B to prove Mr. Obayando's identity in that while we certainly think, and again, we've taken the position that ultimately this evidence is harmless.

[00:25:17] Speaker 03:
regardless of an error alleged because of the positive identification that inspector Hudson made.

[00:25:23] Speaker 03:
But we do think it is it is strong evidence of it corroborates the identification that inspector Hudson made.

[00:25:29] Speaker 03:
Over the course over the lengthy course of the evening, which he followed Mr Obeonda from Splendid Manner Court.

[00:25:36] Speaker 03:
to the park where he discarded the stolen mail to the registered address on his driver's license while observing the car as he fled.

[00:25:44] Speaker 03:
And so I certainly would not disagree with the court that it is, I think, quite clear that this evidence, if 404B does apply, that this evidence was admissible under 404B both to establish Mr. Obayanda's identity as the mail thief

[00:26:01] Speaker 03:
but also to establish his intent with respect to the access device fraud charge.

[00:26:08] Speaker 03:
And I've got about 40 seconds.

[00:26:10] Speaker 03:
I'd like to briefly address McCollum.

[00:26:13] Speaker 03:
The defense says that this court's case in McCollum says that if identity is

[00:26:19] Speaker 03:
is contested, no other acts can come in.

[00:26:21] Speaker 03:
That's plainly not what McCollum says.

[00:26:23] Speaker 03:
What McCollum says is, when identity is the thing that the parties are really contesting, you can't bring in prior convictions or prior bad acts to prove intent, because that effectively puts the cart before the horse.

[00:26:35] Speaker 03:
If what the defendant is saying is, I didn't do this thing, then it's probably prejudicial for the governor to say, well, we know you intended to do the thing that you didn't do because you've done it in the past.

[00:26:46] Speaker 03:
But it's when the thing that is actually being contested is intent, which is true for the the access identity divide access device identity theft charge the aggravated any theft charge.

[00:26:58] Speaker 03:
then it is proper to bring in prior acts for intent.

[00:27:02] Speaker 03:
And we know that it doesn't preclude the government from introducing other acts to prove identity because that's the whole point of the Quinn test.

[00:27:11] Speaker 03:
Does it guarantee a reasonable likelihood that these two people did the same crime because they're sufficiently distinctive?

[00:27:18] Speaker 03:
And in this case, going into an otherwise unoccupied mailbox in a neighborhood full of vacant locks and houses under construction is plainly sufficiently distinctive to establish identity here.

[00:27:28] Speaker 03:
I apologize, I see that I'm over time.

[00:27:30] Speaker 03:
I'd be happy to answer other questions, but otherwise with that we will submit.

[00:27:33] Speaker 02:
Great, thank you.

[00:27:34] Speaker 02:
Thank you for your time.

[00:27:41] Speaker 04:
I want to focus on the loss issue with my rebuttal time.

[00:27:44] Speaker 04:
So first, plain error review does not apply below.

[00:27:47] Speaker 04:
Ms.

[00:27:48] Speaker 04:
Robillando consistently argued that the government had not proven loss amount.

[00:27:51] Speaker 04:
And under this court's cases, like United States versus Keraluk, all that's required is preserving a claim, not particular arguments under that claim.

[00:27:59] Speaker 04:
With respect to the proof for the North Carolina fraud, I think there's some interconnection both between the district court's misarticulation of the three factor test and the proof that the government offered here.

[00:28:10] Speaker 04:
So the only evidence that the government offered was a written statement.

[00:28:13] Speaker 04:
Now, the government, my friend on the other side claimed that it's a statement by Mr. Handy, but that is not at all even true based on the record.

[00:28:20] Speaker 04:
So if you look at 2ER,

[00:28:21] Speaker 04:
107.

[00:28:23] Speaker 04:
The statement is not even signed by anyone and in fact refers to... Did you challenge this below though and to point out to make these arguments to the district court?

[00:28:31] Speaker 04:
We challenged the way that the government proved law so we focused on the argument about how the district court did not or how the government did not show it would met the three-factor test but we believe that that's all that's required under this court's case law in order to

[00:28:44] Speaker 04:
preserve the argument about the government's sufficiency of Peru.

[00:28:47] Speaker 01:
Well, but now we're talking about, you know, something that's more granular, saying, well, you know, this particular statement at ER 107, that's not sufficient because we don't know, you know, whatever your arguments are going to be on that.

[00:28:58] Speaker 01:
I don't think any of that was put before the district court.

[00:29:00] Speaker 04:
I don't think so because I think these issues are interconnected with one another.

[00:29:04] Speaker 04:
To show that something is within the jointly undertaken criminal activity, you have to show that the government has supplied evidence connecting to it.

[00:29:11] Speaker 04:
So the arguments below focused on the way that these actions occurred all the way in North Carolina, yet the government never showed that it actually related to or connected with the claims about how this loss related to a scheme that is related to actions in Nevada.

[00:29:27] Speaker 04:
So we think the connection between those arguments

[00:29:29] Speaker 04:
at least under this court's case laws.

[00:29:31] Speaker 01:
Are you disputing that his mail was set to be forwarded to Las Vegas?

[00:29:35] Speaker 04:
The evidence in the record is that his mail was set to be forwarded, but all the relevant actions took place outside of the state.

[00:29:42] Speaker 04:
So there's not even a clear connection between the mail forwarding and what actually happened or what transpired for Mr. Handy to have actually lost money here.

[00:29:51] Speaker 04:
And that's not articulated in the statements submitted by this anonymous individual to the sentencing court.

[00:29:57] Speaker 04:
And it's not at all clear that it occurred through ATM withdrawals, because if you look at the statement itself, it says $100,000 was transferred from the savings account.

[00:30:05] Speaker 04:
And it's not clear to me that you can even withdraw or take that much money from an ATM in order for this person.

[00:30:11] Speaker 04:
So there's no corroborating information about how the money was lost, how it relates to Vegas.

[00:30:16] Speaker 04:
And these were the thrust of the arguments that we made below in relation to the jointly undertaken activity.

[00:30:22] Speaker 04:
And we think that this, because this sort of evidence drove- I don't know if it's the rest of the argument.

[00:30:26] Speaker 01:
You know, I mean, it seems to me you were arguing this person had lost money in North Carolina.

[00:30:31] Speaker 01:
Here we are in, and we don't know how that credit card or debit card or whatever bank information got out there.

[00:30:37] Speaker 01:
I mean, that seemed to be more the tenor of the arguments we saw below.

[00:30:39] Speaker 04:
And I think that's just a variation of the argument that I'm making here.

[00:30:43] Speaker 04:
So the sufficiency or the inadequacy of the government's proof bears on the connection that it has to Las Vegas.

[00:30:49] Speaker 04:
So the arguments below were that it is simply too attenuated to the actions here in order for it to be attributable actual loss to the defendant.

[00:30:57] Speaker 04:
And because the government never supplied the specific proof establishing that sort of connection, that's the sort of interrelation between the argument we made below and the one we made here.

[00:31:07] Speaker 04:
But I think even then, the district court's failure, as you pointed out, Judge Cain, to even say the first two factors when it comes to the loss amount test, that is sufficient on its basis alone to remand for recalculation or reconsideration of the loss amount issue.

[00:31:21] Speaker 04:
And if the panel has no further questions, we ask this court to reverse and remand.

[00:31:25] Speaker 02:
Great.

[00:31:25] Speaker 02:
Thank you both for the helpful argument.

[00:31:27] Speaker 02:
The case has been submitted, and we are adjourned.