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

[00:00:04] Speaker 00:
May it please the court.

[00:00:05] Speaker 00:
My name is Sir Wally Keady, and I represent the appellant in this matter, Thomas Matone.

[00:00:10] Speaker 00:
Your honors, would you like a brief review of the relevant factual background?

[00:00:14] Speaker 02:
I think we're good there.

[00:00:15] Speaker 02:
There's some interesting issues.

[00:00:16] Speaker 02:
I just get right to the issues in this one.

[00:00:18] Speaker 00:
Yes, your honor.

[00:00:22] Speaker 00:
Your honors, Mr. Matone respectfully requests this court finds that the trial court erred and abused his discretion when it unreasonably denied Mr. Matone's motion to continue his trial.

[00:00:34] Speaker 00:
The trial court was aware that Mr. Matone's mother was in end-of-life care in the ICU and subsequently passed away during the trial.

[00:00:46] Speaker 00:
This unfortunate event affected Mr. Matone's decision on whether to testify, thus depriving him of his constitutional rights to a fair trial, the right to testify and present a defense, and due process of law.

[00:01:03] Speaker 03:
So can I ask, it seems like the discussion about going to see, I mean, this is obviously a very tragic situation, but no one knew that she was going to die when the discussion first happened in the court.

[00:01:16] Speaker 03:
And at that point, it seemed like they were anticipating that maybe she'd still be alive at the end of trial and even visit then.

[00:01:21] Speaker 03:
It was sort of discussed both ways.

[00:01:23] Speaker 03:
And so given that, I'm not sure how it was an abusive discretion for the district court to think, well, he can visit later.

[00:01:30] Speaker 00:
Thank you for that question, Judge Freeland.

[00:01:32] Speaker 00:
And I think I should clarify that point.

[00:01:34] Speaker 00:
Now, the note that Ms.

[00:01:36] Speaker 00:
Merton received, the same note that defense counsel then gave to the government, indicated that she was in end-of-life care and could pass away at any minute.

[00:01:45] Speaker 00:
I think the any minute makes it clear that she could die at any minute.

[00:01:51] Speaker 00:
And within 24 hours, in fact, she did die.

[00:01:56] Speaker 00:
Now, did I sufficiently answer your question, Your Honor?

[00:01:59] Speaker 03:
Yeah, I just, I mean, if that's true, I'm not sure why they were talking about visiting at the end of trial.

[00:02:04] Speaker 00:
Yes, I believe that they were hoping that Mr. Matone could visit her at the end of trial, as my understanding is trial is expected to last no longer than three to five days.

[00:02:17] Speaker 00:
Here it began on May 9th and he was convicted on May 13th.

[00:02:20] Speaker 00:
So I thought, I believe that they were hoping that that'd be sufficient time for him to make it.

[00:02:26] Speaker 00:
However, just like in Flint, unfortunately, he did not.

[00:02:31] Speaker 02:
I see in the record, I'm looking at page 878, which is in the transcript where this occurred, and I do see the reference to the note.

[00:02:37] Speaker 02:
I have a note from a nurse.

[00:02:39] Speaker 02:
Is a copy of the note in the record?

[00:02:43] Speaker 00:
i didn't i don't recall actually seen like uh... sometimes it's a quarter actually have the note right to the record i don't believe so your honor i believe that the note was tendered orally to the court but provided via email to the government

[00:02:59] Speaker 00:
Now, in terms of standards of review, a decision to deny a motion to continue trial made on the first day of trial was reviewed for absence of discretion, as Judge Freeland pointed out.

[00:03:13] Speaker 00:
Now, a trial court clearly abuses its discretion.

[00:03:15] Speaker 00:
A denial of the continuance was arbitrary or unreasonable.

[00:03:20] Speaker 00:
And in United States v. Flint, this circuit established four factors to be used when determining whether a district court erred and abused its discretion.

[00:03:29] Speaker 00:
Now those four factors are one, the defendant's diligence preparing for trial.

[00:03:33] Speaker 00:
Two, the likelihood that a continuance would serve its stated purpose.

[00:03:39] Speaker 00:
Three, the inconvenience to the court and opposing party.

[00:03:42] Speaker 00:
And four, the harm the defendant suffered as a result of the continuance.

[00:03:46] Speaker 03:
Can I ask about the last one?

[00:03:48] Speaker 03:
So is there evidence that he was planning to testify?

[00:03:51] Speaker 03:
I mean, I know now you're saying that he would have, but can we tell that from the record?

[00:03:56] Speaker 00:
Now, Your Honor, unfortunately, we cannot clearly discern that from the record, and thank you for that question.

[00:04:02] Speaker 00:
However, as a trial attorney myself, it is the government's burden to put on their case, and it's our burden to dismantle that brick wall or to make sure that they cannot dismantle that brick wall of unreasonable doubt.

[00:04:14] Speaker 00:
Now it's often prudent to inform our client, the defendant, that you do have the exclusive right to decide to testify or not testify.

[00:04:23] Speaker 00:
However, strategically, it can also be determined when the government rests its case in chief.

[00:04:31] Speaker 00:
If the testimony of the defendant is necessary or it's not because the government has not met their burden, why open the defendant up to potential waiver of the Fifth Amendment rights?

[00:04:42] Speaker 00:
Now, unfortunately here, the death of his mother occurred during the government's case in chief.

[00:04:49] Speaker 00:
Mr. Matone was clearly and understandably distraught at the fact that, because of his actions, he is now in trial, fighting for his life, and he cannot say goodbye to the person who gave him that life.

[00:05:07] Speaker 00:
Now, the Cloan Court made clear that the

[00:05:13] Speaker 00:
I apologize, Your Honor.

[00:05:14] Speaker 00:
Your question was to the denial of prejudice of Mr. Tonan's right to present a defense.

[00:05:18] Speaker 00:
Now, the court made clear that the prejudice standard is less stringent than the clear showing of actual substantial prejudice.

[00:05:26] Speaker 00:
The standard that would apply would be, well, the court should focus the inquiry to the extent to which the grieve party's right to present his defense has been affected.

[00:05:37] Speaker 00:
As a trial attorney, I personally would hesitate to put anyone on the stand because as we well know, just because you prep them left and right does not mean under the stress and pressure of being before a tribunal, 12 jury members, and the public

[00:05:54] Speaker 00:
they could go, as we say, left.

[00:05:57] Speaker 00:
However, here, I think that decision was even harder to make because you now have a defendant who is grieving, who's suffering a traumatic event.

[00:06:11] Speaker 00:
And that aspect, that pain hanging over his head would have made that decision extremely, extremely more difficult to go forward on.

[00:06:24] Speaker 01:
Are you saying that but for this incident involving his mother, he would have taken the stand?

[00:06:34] Speaker 00:
No, Your Honor, I'm not saying that conclusively.

[00:06:36] Speaker 00:
I'm saying that strategically, that determination would have been allowed to be made but for the death of his mother.

[00:06:45] Speaker 01:
So you're saying, but for the death of his mother, you couldn't take the stand because I think you said he was unsuitable to take the stand at that point.

[00:06:56] Speaker 00:
I would agree that he was unsuitable to take the stand because of the death of his mother.

[00:07:00] Speaker 00:
However, I would just like to remind the court that a defendant is not required to take the stand in this defense.

[00:07:07] Speaker 00:
So it would be hard for me to say, but for the death of his mother, he would have certainly taken the stand because there's other factors that could have determined that as well.

[00:07:16] Speaker 01:
You're saying that deprived him of the choice then?

[00:07:18] Speaker 00:
Excuse me, Your Honor.

[00:07:19] Speaker 01:
It deprived him of the choice.

[00:07:21] Speaker 00:
Yes, Your Honor.

[00:07:22] Speaker 00:
It deprived him of his choice to make a clear, intelligent, well-founded decision.

[00:07:27] Speaker 00:
He is dealing with, I think, one of the most traumatic things anyone could go through, the death of their parent.

[00:07:33] Speaker 00:
Now he's also on trial, federal trial, fighting for his life before 12 jurors.

[00:07:40] Speaker 00:
He's asked the court for permission to continue the hearing.

[00:07:43] Speaker 00:
And as we read in the record, the judge denied that.

[00:07:48] Speaker 00:
Now all of that is hanging over his head in a one week trial.

[00:07:52] Speaker 00:
I've done trial for two months sometimes.

[00:07:54] Speaker 00:
That gives you the space and time to make decisions a lot less rushed, if you will.

[00:08:01] Speaker 01:
Is there anything in the record other than the facts about his mother's situation that supports your contention that he was deprived of the choice?

[00:08:11] Speaker 00:
The only part of the record I think that leads to

[00:08:15] Speaker 00:
that lends an answer to your question, I believe, is where the sitting judge mentioned right during the jury instructions, I believe that was right after Kevin Thomas testified, that sitting here, I can see that this has been on, something to the effect of this has been on your mind or this has been over you.

[00:08:36] Speaker 00:
If you would like, I can give you those exact words.

[00:08:40] Speaker 02:
I think what the government's going to say, so I want to get your take on it while I've got you here, is the government's going to say, well, in other cases like this, I don't know, Klone or Klein, however you pronounce that case, the one we asked you guys to talk about, that there was more of a record, kind of getting to Judge Reyes' point, there was more of a record showing prejudice.

[00:08:57] Speaker 02:
And they're going to get up here and say, the defendant hasn't shown any prejudice based on how the trial court handled here.

[00:09:04] Speaker 02:
Can you address the prejudice issue?

[00:09:07] Speaker 02:
The same question Judge Reyes asked, but in terms of prejudice, walk us through what we can look to in the record to say, hey, this is like clone.

[00:09:17] Speaker 00:
Yes, Your Honor.

[00:09:19] Speaker 00:
First and foremost, in terms of clone, I think it applies here as well.

[00:09:25] Speaker 00:
The court directly said it is self-evident that an individual's demeanor would be affected by the knowledge that his son was on the brink of death.

[00:09:33] Speaker 00:
The demeanor of someone testifying, as Chloe indicated, is paramount important to the jury finding their credibility.

[00:09:41] Speaker 00:
Now, here in Matone, sadly as a result of trial courts and now the brief continuance, Ms.

[00:09:47] Speaker 00:
Matone was significantly distracted and tormented.

[00:09:52] Speaker 00:
And consequently, under a realistic appraisal of psychological tendencies and human weakness, there's no doubt that Ms.

[00:09:59] Speaker 00:
Matone suffered from an unstable and traumatized mindset as a result of the denial and was therefore unsuitable to take the stand.

[00:10:06] Speaker 02:
but no that's that's a i i get where you're going here was there anything and i know you were not the trial attorney you're doing a great job memorizing the record that which is very hard to do but i didn't see anywhere in the in the trial record where defense counsel in trial made the point you just made that you made it very eloquently right here i don't want i didn't see anywhere the trout that that that trial attorney saying your honor look you gotta understand my client is right now yes your honor and i think it's clear that

[00:10:36] Speaker 00:
I articulate and I deliver my points with a little bit more.

[00:10:41] Speaker 00:
oomph, than trial counsel did.

[00:10:44] Speaker 00:
I think that is very clear, even in how trial counsel asked for the continuance.

[00:10:50] Speaker 00:
For example, Your Honor, I may not want to be here today, but I need to be here today.

[00:10:56] Speaker 00:
And I feel if trial counsel had made that distinction, if she had made that distinction before the judge, we would not be sitting, perhaps we would not be sitting or standing where we are today.

[00:11:07] Speaker 00:
However, the one thing a transcript doesn't do

[00:11:11] Speaker 00:
is give us an indication of body language, that vibe in the courtroom.

[00:11:16] Speaker 03:
But like, should counsel have asked for a mistrial?

[00:11:18] Speaker 03:
I mean, or something?

[00:11:19] Speaker 03:
Like, should counsel have said, look, I would like to put my client on the stand right now, but I can't because of this thing that happened with his mother.

[00:11:25] Speaker 03:
I'd like a mistrial.

[00:11:29] Speaker 00:
Perhaps counsel could have done that, but like I said in Cloan, I believe it's self-evident that the death of someone's mother would affect their demeanor and their mental ability to be present.

[00:11:39] Speaker 00:
And going back to my point about being articulation and the oomph, I think that if we look at how trial counsel even worded the motion to continue, there's something that's not reflecting the transcript.

[00:11:49] Speaker 00:
Perhaps she was a little bit more intimidated by the judge, perhaps she did not want to risk

[00:11:56] Speaker 00:
annoying the judge because as a trial attorney, I know that if I piss off the judge, excuse my French, that's not going to affect me, that's going to affect my client.

[00:12:06] Speaker 00:
And I do believe that trial counsel did a fantastic job during this trial because as we saw, he was not found guilty on all the counts.

[00:12:13] Speaker 00:
Now, our hindsight bias, of course, would lead us to hope that Mrs. Lee had done something differently, but unfortunately, we are where we are today based off the facts that appear in the transcripts.

[00:12:25] Speaker 00:
uh... your honors unless you have further questions would like me to touch on the other three factors which i believe way heavily in favor of mister tone i was over the rest of my time it was a reserve actually thank you are thank you counsel

[00:12:46] Speaker 04:
Good morning, and may it please the court.

[00:12:47] Speaker 04:
I'm Hannah Horsley, appearing on behalf of the United States.

[00:12:51] Speaker 04:
I think all of the court's questions here go directly to the problem with this record and the problem that the district court was faced with here.

[00:12:59] Speaker 04:
And of course, this court has to look only at the facts that were known and presented to the district judge at the time the decision was made.

[00:13:07] Speaker 04:
So all of this speculation now about what might have been what

[00:13:12] Speaker 04:
the defendant may have been suffering, what feelings this had, but this caused on his ability to make the decision whether to testify are simply not reflected anywhere in the record.

[00:13:24] Speaker 04:
Not only at the time the request was made did he say anything about this weighing on him or the psychological consequences or his decision to testify,

[00:13:34] Speaker 04:
but at multiple times throughout the trial.

[00:13:36] Speaker 04:
So not only at the point as Judge Friedland referenced of when he may have chosen to testify, there was nothing at that point.

[00:13:44] Speaker 04:
The defense put on one witness and then rested.

[00:13:47] Speaker 04:
No discussion at all about whether this was a fact or his decision not to testify.

[00:13:52] Speaker 04:
The next day when they were going into the jury instruction conference,

[00:13:58] Speaker 04:
the district court said will be taking out the instruction about the defendant testifying.

[00:14:02] Speaker 04:
There's no reference to it at that point.

[00:14:05] Speaker 04:
Later that day, the defense asked for the defendant to be allowed to

[00:14:10] Speaker 04:
not be present for the jury instruction conference, which was just with counsel in the court, so that he could go prepare for making travel arrangements for the service.

[00:14:20] Speaker 04:
This was the first point at which the defense counsel let the judge know that she had in fact passed away the night before, and she asked for the opportunity

[00:14:31] Speaker 04:
again, for him to be able to travel at the end of the week to get to the funeral service.

[00:14:36] Speaker 04:
And the judge said, no problem.

[00:14:37] Speaker 04:
We will definitely accommodate that.

[00:14:39] Speaker 04:
So he, at the time, he requests to pass on the jury instruction conference.

[00:14:44] Speaker 04:
And then, again, on the very last morning, the court was still deliberating.

[00:14:47] Speaker 04:
On Friday morning, the jury had two questions.

[00:14:51] Speaker 04:
And so they were in the courtroom.

[00:14:52] Speaker 04:
And again, defense counsel said if the verdict's not backed by one, he'd like, he wanted to waive his appearance for the taking of the verdict, and the judge agreed to that, and the government had no objection to that.

[00:15:04] Speaker 04:
that didn't have to happen in this case, unlike in Clown, because the verdict came back in time.

[00:15:09] Speaker 03:
So we're in a situation where... Sorry, can I shift your focus?

[00:15:12] Speaker 03:
I'd like to ask about the 404B issue in this case.

[00:15:15] Speaker 03:
Okay.

[00:15:15] Speaker 03:
So can you explain what the propensity-free chain of reasoning was supposed to be for the jury on the 2012 conviction?

[00:15:25] Speaker 04:
Yes.

[00:15:27] Speaker 04:
It was clearly set forth as being relevant to intent, to knowledge, and to lack of mistake.

[00:15:34] Speaker 04:
And it was already anticipated at that point.

[00:15:35] Speaker 03:
But can you explain how?

[00:15:37] Speaker 03:
Tell me what they knew about the 2012 conviction and what they could reasonably infer from it.

[00:15:42] Speaker 04:
So they knew that the 2012 conviction involved a high-yield investment program, that the defendant had pled guilty to wire fraud and had admitted in the plea petition that he

[00:15:54] Speaker 04:
Deceived people to obtain their money made false Pretenses to obtain the money And that the defense at this point was likely to be That they were all scammed by mr. Yang that the defendant didn't have an intent to defraud and was himself Scammed by Yang and so they made the point and this is at 1 er 31

[00:16:18] Speaker 04:
This was highly probative especially of knowledge and lack of mistake that he wasn't going into this blindly that he had this prior experience just Not going in blindly I mean, so what what did they tell me a little bit more?

[00:16:33] Speaker 03:
Did they know anything more about the 2012 conviction?

[00:16:35] Speaker 03:
I'm actually not even sure you said this high-yield thing I'm not even sure that is actually something they knew it seems like they knew that it was an investment fraud and

[00:16:44] Speaker 04:
They did know it was an investment fraud.

[00:16:47] Speaker 04:
I thought it was clear at that point that it was a high yield.

[00:16:51] Speaker 03:
I don't know where that is.

[00:16:52] Speaker 03:
I mean, maybe I'm missing it, but it seems like they knew he was convicted of investment fraud because that's basically what the indictment says.

[00:16:59] Speaker 03:
And then that's what they had, as far as I can tell.

[00:17:03] Speaker 04:
Okay.

[00:17:05] Speaker 04:
But the argument was that it was not for propensity, and they made it very clear this is not for propensity, it's not for character, it's to prove intent.

[00:17:11] Speaker 03:
Well, they were told you can only consider it for intent, but I'm not sure what they even make of it.

[00:17:16] Speaker 03:
Tell me how they could have properly used it for intent, given that all they knew was it was an investment fraud.

[00:17:23] Speaker 04:
This court allows the introduction of prior convictions that involve some kind of deceit.

[00:17:29] Speaker 04:
It doesn't have to even be the same crime if it's probative of a material point.

[00:17:36] Speaker 04:
And as this court recognized in McCollum, which is at 732 F.

[00:17:39] Speaker 04:
2nd, 1419, this is from 1984,

[00:17:44] Speaker 04:
A prior act can be probative of intent because the fact that the defendant had an unlawful intent at the time of the prior act makes it less likely that he had lawful intent when he performed the acts that are charged in the present case.

[00:17:58] Speaker 03:
So when you're looking at two wire fraud cases... I don't have that case in front of me, but what you just read sounds... How is that not saying because he's a bad person, he had a bad intent once, so he has a bad intent again?

[00:18:08] Speaker 03:
I'm not sure.

[00:18:09] Speaker 03:
It's not like a method.

[00:18:11] Speaker 03:
It's not like knowledge.

[00:18:12] Speaker 03:
I mean, what is that that you just said?

[00:18:15] Speaker 04:
I'm reading from the case, which is, I think, a way of articulating that if you knew better the first time and had clearly intended to commit wire fraud, the fact that you're now charged with wire fraud and

[00:18:32] Speaker 04:
know what fraud involves, it's probative of the fact that you have a prior conviction for wire fraud.

[00:18:37] Speaker 04:
And I think importantly here are the knowledge and lack of mistake components of this as well.

[00:18:43] Speaker 02:
Let me ask you, counsel, so as I understand it, what was introduced to the jury on the 404B was a copy of the South Carolina indictment.

[00:18:49] Speaker 02:
That's correct.

[00:18:50] Speaker 02:
And that defense counsel obviously objected to 404B but did not object to the form of that being introduced, correct?

[00:18:56] Speaker 02:
That's correct.

[00:18:57] Speaker 02:
Now as I read the indictment, paragraph three of the Scheme in Artifice, which is that ER is a little tough to read because it keeps getting stamped over each other.

[00:19:06] Speaker 02:
I think it's ER 107.

[00:19:08] Speaker 02:
It says that the defendants did falsely state to the potential investors that the investment trading program was risk-free, that the investor's money could not be lost, and that the rate of return was guaranteed and FAR in excess of normal investment returns.

[00:19:21] Speaker 02:
That's the high risk or that's the high rate, but you were looking for the high rate return language.

[00:19:26] Speaker 02:
I think that's what you're referring to.

[00:19:28] Speaker 02:
That's correct.

[00:19:29] Speaker 02:
Now, the indictment in this case

[00:19:31] Speaker 02:
The Seattle case has a paragraph that is very similar language, almost identical.

[00:19:36] Speaker 02:
It's kind of standard DOJ charging language for these types of cases, if I recall correctly.

[00:19:42] Speaker 02:
Is that the link that they were trying to make, those two paragraphs effectively?

[00:19:46] Speaker 04:
Yes.

[00:19:46] Speaker 04:
But it was the exact same kind of conduct and the exact same kind of misrepresentations about the nature of the investment.

[00:19:54] Speaker 01:
Was the indictment the only information that the jury was given about this, the evidence concerning this prior conviction?

[00:20:01] Speaker 04:
No, Your Honor.

[00:20:02] Speaker 04:
The plea petition was also admitted into evidence as an exhibit.

[00:20:06] Speaker 04:
And there was limited testimony about the conviction itself from the FBI case agent.

[00:20:11] Speaker 01:
And did the plea have a factual basis?

[00:20:15] Speaker 04:
Only to the extent it said using false pretenses to obtain the money.

[00:20:22] Speaker 02:
That last sentence.

[00:20:24] Speaker 02:
Thank you for asking the question, because it was a little confusing to figure out what exactly was presented to the jury.

[00:20:28] Speaker 02:
So we have the indictment.

[00:20:29] Speaker 02:
We have the plea petition.

[00:20:31] Speaker 02:
There's that last paragraph in the plea petition where the defendant handwrites something.

[00:20:34] Speaker 02:
Yes.

[00:20:35] Speaker 02:
That's what you're referring to.

[00:20:35] Speaker 04:
Yes.

[00:20:36] Speaker 04:
And the testimony of the FBI agent about it.

[00:20:40] Speaker 04:
And really what was the most important use of it at trial was that the defendant never told the victim that he had this prior conviction.

[00:20:47] Speaker 04:
It was one of the many omissions as part of the pattern of misrepresentation here about the risks associated with it, all of the vetting that purportedly died about the investment.

[00:20:57] Speaker 03:
Wait, I'm sorry.

[00:20:58] Speaker 03:
I thought it was offered to show his intent.

[00:21:01] Speaker 03:
What did you just say about it?

[00:21:03] Speaker 03:
How do you think it was used?

[00:21:04] Speaker 04:
Well, it was offered to show intent.

[00:21:05] Speaker 04:
knowledge and lack of mistake, that they weren't scammed by Yang, that he knew better.

[00:21:11] Speaker 04:
But it was pointed out, and I think part of its relevance here is that this is one of the things that the defendant had done and knew about and raised his suspicions of Yang along with many other things that he never told the defendant.

[00:21:29] Speaker 03:
And that was argued to the jury that he should have told the, he should have told?

[00:21:33] Speaker 04:
It was raised in both cross-examination of some of the government's witnesses and argued to the jury.

[00:21:43] Speaker 01:
When the jury is instructed on that evidence coming in, was it instructed that this is coming in for two reasons, one is intent, the other is to show the lack of disclosure?

[00:21:54] Speaker 04:
Well, the court gave a limiting instruction both when it came in and at the close of evidence that it was for three purposes, intent, knowledge, and lack of mistake.

[00:22:03] Speaker 03:
So this idea that he should have disclosed it was not one of the purposes it was allowed for.

[00:22:07] Speaker 03:
I'm sorry.

[00:22:07] Speaker 03:
The idea that he should have disclosed the prior conviction to the victims is not one of the purposes.

[00:22:13] Speaker 03:
No.

[00:22:15] Speaker 02:
So I guess I'm confused, because at the Motion to Eliminate hearing, the government said it was not offering it to show failure to disclose.

[00:22:22] Speaker 02:
Did that change during trial?

[00:22:24] Speaker 02:
Because I distinctly remember them discussing it.

[00:22:28] Speaker 02:
And then they're like, well, we won't do that, actually.

[00:22:30] Speaker 02:
We're actually going to introduce it just for 404B.

[00:22:32] Speaker 02:
So you're saying that it was argued to the jury that he had an affirmative duty to disclose this?

[00:22:37] Speaker 04:
I'm hesitant to commit to that.

[00:22:40] Speaker 04:
I view it as... I don't have a hard copy.

[00:22:45] Speaker 02:
I'm sorry.

[00:22:46] Speaker 04:
Closing argument in front of me.

[00:22:48] Speaker 02:
You might want to just double-check that and you can always 28-J afterwards to confirm that because my understanding is that that was discussed at the motions to eliminate our hearing, but then was... They said they were not going to do that.

[00:23:00] Speaker 02:
I actually had a discussion with my law clerk about how they possibly could have done it, but they didn't.

[00:23:06] Speaker 02:
So I thought this case was just a straight 404B case.

[00:23:09] Speaker 02:
So yeah, obviously, if it was an affirmative misrepresentation case, then that completely changes the analysis.

[00:23:14] Speaker 02:
But yeah, so if you could just double check.

[00:23:16] Speaker 04:
OK, I will confirm that, and I'll file a 28J if I need to.

[00:23:20] Speaker 03:
I do think the court is correct.

[00:23:23] Speaker 03:
So if you're a juror, what are you supposed to think about this?

[00:23:27] Speaker 03:
Can you just explain it again?

[00:23:28] Speaker 03:
I'm really still having trouble understanding.

[00:23:30] Speaker 04:
Okay, the defense here was that they didn't know any better, that they thought this was a real program and they weren't making misrepresentations about it to the victim.

[00:23:43] Speaker 04:
If you, among other things that showed his knowledge of the program and the misrepresentations he was making, it was argued that this is relevant to show his intent to defraud, his knowledge.

[00:23:57] Speaker 03:
No, no, but what, what?

[00:23:59] Speaker 03:
What is the jury supposed to understand about the past and then use that?

[00:24:02] Speaker 03:
How can you explain?

[00:24:04] Speaker 03:
What is this 2012 thing supposed to be in the jury's head?

[00:24:07] Speaker 04:
Well, just that it intends to prove a material point about whether he had an intent to defraud at the time he was making representations to the victims.

[00:24:16] Speaker 02:
I thought the theory was that in this situation, if Mr. McTown was saying, gosh, I had no idea Mr. Yang was a bad guy, it's like, well, no, you knew because

[00:24:29] Speaker 02:
you know promises of high-rate returns that are risk-free are not true, they're false.

[00:24:35] Speaker 02:
And the reason why you know they're false is because you've pleaded guilty to them being false.

[00:24:38] Speaker 02:
So that's why you knew when Mr. Yang came up, at least there was a warning to you that this was false.

[00:24:44] Speaker 02:
So in fact, you've been trained to know that these representations that Yang were making were false, and the reason why you were trained, because you pled guilty to it.

[00:24:52] Speaker 02:
I thought that was the reason why.

[00:24:54] Speaker 04:
And that was the reason, and that goes to knowledge and lack of mistake.

[00:24:58] Speaker 03:
Yang wasn't in the prior crime though, right?

[00:25:00] Speaker 03:
No.

[00:25:02] Speaker 03:
So he has to, the jury has to think that the fact that you once were part of a thing where you were promising high returns shows that now you know these aren't actually high returns even though he

[00:25:16] Speaker 03:
another witness thought it really was high returns in this case.

[00:25:18] Speaker 04:
Or when you saw all the other risk factors that were coming up in this case.

[00:25:22] Speaker 04:
I mean, he did know that in 2014, Yang had defrauded Jack Fuget, who testified in the trial, taken $40,000 from him, and disappeared and never returned the money.

[00:25:33] Speaker 04:
He did know that Ola Connie had made an investment in 2012 with Mr. Yang, never got his money for that.

[00:25:41] Speaker 03:
So all of that combined with- Those are arguments, I think, that this error, if it was an error, was harmless.

[00:25:46] Speaker 03:
I mean, I think there's a lot of evidence that he had intent.

[00:25:49] Speaker 03:
But I'm still just not sure how this 404B issue was correctly decided.

[00:25:57] Speaker 04:
Okay, and we have argued that if there's any error, it's harmless given all the other evidence of what the defendant did know and all the misrepresentations he made over the courts of this game.

[00:26:07] Speaker 04:
But I do think here the court gave it full consideration and it was not an abuse of discretion to admit the evidence he did.

[00:26:14] Speaker 03:
Did the district court know any more about that past crime than we can tell from this record?

[00:26:22] Speaker 04:
I don't believe so, Your Honor.

[00:26:24] Speaker 04:
At least not that it's on the record, and I wasn't involved below.

[00:26:29] Speaker 01:
And did his factual basis match up with everything alleged in the indictment?

[00:26:33] Speaker 01:
I'm sorry, could you?

[00:26:34] Speaker 01:
Did the factual basis line up with everything alleged in the indictment?

[00:26:37] Speaker 01:
Yes.

[00:26:38] Speaker 01:
Every allegation?

[00:26:39] Speaker 02:
Yes.

[00:26:41] Speaker 02:
Wait, just to be clear about that.

[00:26:43] Speaker 02:
You're talking about the South Carolina case.

[00:26:45] Speaker 02:
Yes.

[00:26:46] Speaker 02:
So the South Carolina case, there's just the one statement at the end.

[00:26:48] Speaker 02:
So I think we need to be careful.

[00:26:50] Speaker 02:
In the factual basis, he did not say, I adopt each and every paragraph of the indictment, correct?

[00:26:56] Speaker 02:
Correct.

[00:26:56] Speaker 02:
He just had the one.

[00:26:57] Speaker 02:
It was a pretty thin factual basis that was.

[00:27:02] Speaker 04:
Correct.

[00:27:02] Speaker 02:
OK.

[00:27:03] Speaker 04:
But that is all that was presented at trial.

[00:27:05] Speaker 02:
But I think to answer your question, I think the answer is he did not say, yes, I agree with every paragraph in the indictment.

[00:27:10] Speaker 02:
It was a pretty thin read.

[00:27:12] Speaker 02:
That's correct.

[00:27:15] Speaker 04:
OK.

[00:27:15] Speaker 04:
If the court has no other questions, I'll submit the other matters on the briefs.

[00:27:20] Speaker 02:
All right.

[00:27:20] Speaker 02:
Thank you, counsel.

[00:27:21] Speaker 04:
Thank you.

[00:27:31] Speaker 00:
Your honors, earlier you asked me a question of if the court knew that Mr. Matone intended to testify.

[00:27:39] Speaker 00:
Now this discussion of the 404b element did remind me of a portion of the transcript.

[00:27:45] Speaker 00:
I'm specifically referring to the 1ER43 transcript of March 1st, 2022.

[00:27:52] Speaker 00:
I believe that was the 404b argument specifically.

[00:27:57] Speaker 00:
Now,

[00:27:58] Speaker 00:
My reading of the transcript indicates that the court understands the only strategy forward, if the 404B evidence is admitted, is for Mr. McTone to testify.

[00:28:08] Speaker 00:
Specifically, the court says the only possible defense, this isn't a whodunit.

[00:28:14] Speaker 00:
This is a I did not intend to defraud.

[00:28:17] Speaker 00:
There was a mistake or accident that occurred that I did not intend to see happen.

[00:28:22] Speaker 00:
I believe that right there, coupled with

[00:28:28] Speaker 00:
a question from Ms.

[00:28:29] Speaker 00:
Lee right before that indicating, well, that is assuming that he's going to testify, right?

[00:28:36] Speaker 00:
I think it's very clear to the court at that juncture that the defensive strategy would have to include Mr. Mottone testifying.

[00:28:45] Speaker 00:
So for all the reasons we've previously stated, as well as the reasons in our brief, we are asking you to vacate and vacate the conviction of Mr. Mottone in regards to this specific issue.

[00:28:59] Speaker 02:
Let me ask you while we've still got you here.

[00:29:01] Speaker 00:
Certainly.

[00:29:01] Speaker 02:
On the 404B issue, I looked long and hard to find any cases where a previous fraud conviction could not be introduced as 404B in a next fraud case.

[00:29:15] Speaker 02:
And I looked across the country.

[00:29:17] Speaker 02:
I couldn't find a single case where it had been held that was improper to introduce one fraud conviction in the next fraud conviction case.

[00:29:24] Speaker 02:
Can you help us here?

[00:29:25] Speaker 02:
Is there a case you can point us to and say, no, Judge Owens, you're wrong.

[00:29:28] Speaker 02:
Here's the case.

[00:29:29] Speaker 00:
No, Your Honor, while there's not a direct case I can point you to, I do think that the important distinction between the fraud elements from jurisdiction to jurisdiction is that in Mr. Matone's first conviction,

[00:29:43] Speaker 00:
The element was an or statement, as opposed to in this jurisdiction, it was an and statement.

[00:29:51] Speaker 00:
I would therefore say that the elements required to prove that charge would vary just enough that it would not have been sufficient to introduce it here.

[00:30:02] Speaker 00:
Additionally, in terms of your question earlier in regards to the indictment,

[00:30:06] Speaker 00:
As a federal practitioner, we're well aware that the indictment is not evidence against you.

[00:30:11] Speaker 00:
And as he signed on that bottom, he did not agree to every line of the indictment.

[00:30:15] Speaker 00:
Therefore, it was not a harmless error for the judge to introduce that indictment, to allow it to be used as evidence against him subsequently, and then not allow him to continue the trial in order to be able to testify in his own defense with a clear and stable mind.

[00:30:34] Speaker 02:
All right.

[00:30:35] Speaker 02:
Thank you very much, counsel.

[00:30:36] Speaker 02:
Thank you both for your briefing and your argument.

[00:30:37] Speaker 02:
This matter is submitted.

[00:30:39] Speaker 02:
Sir, is this your first argument in the Ninth Circuit?

[00:30:41] Speaker 02:
Yes.

[00:30:41] Speaker 02:
Well, we hope to see you again.

[00:30:42] Speaker 02:
Thank you.

[00:30:43] Speaker 02:
Hopefully with a little easier travel next time.