[00:00:04] Speaker 03:
First, Council, am I pronouncing your client's name correctly?

[00:00:08] Speaker 00:
Mr. Yuvari.

[00:00:09] Speaker 03:
Yuvari, okay.

[00:00:10] Speaker 03:
Whenever you're ready, Council.

[00:00:22] Speaker 00:
Good morning, Your Honors.

[00:00:23] Speaker 00:
May it please the Court.

[00:00:25] Speaker 00:
Lauren Tory on behalf of Appellant Anthony Yuvari.

[00:00:27] Speaker 00:
I'd like to reserve five minutes for rebuttal, and I'll watch my time.

[00:00:31] Speaker 00:
Prosecution of this case was flawed from the outset.

[00:00:34] Speaker 00:
I'd like to focus on three issues in our briefing.

[00:00:37] Speaker 00:
First, the statute of limitations waivers that they're invalid because they are not knowing or voluntary.

[00:00:44] Speaker 00:
Second, the district court provided an erroneous offense instruction.

[00:00:48] Speaker 00:
And finally, the government's Brady violation in this case impaired the defense strategy.

[00:00:54] Speaker 02:
What was the third one?

[00:00:56] Speaker 00:
The government's Brady violation, Your Honor.

[00:00:57] Speaker 02:
Brady, okay.

[00:01:01] Speaker 00:
Turning first to the statute of limitations in this case, they were invalid here because they were not knowing and voluntary.

[00:01:09] Speaker 00:
We know this in this case because the court requires that waivers be entered with the full awareness of the rights

[00:01:19] Speaker 00:
that are involved and the consequences of abandoning those rights.

[00:01:23] Speaker 03:
So, counsel, let me ask you, if we were to find, hypothetically, that the limitations agreements were clear on their face, the waiver agreements, and clearly in terms of what they say,

[00:01:42] Speaker 03:
did what the government claims they did and what the district court and the magistrate judge found they did.

[00:01:50] Speaker 03:
What else would the government need to prove if the government proved the language did what they said it did and that your client signed this

[00:02:01] Speaker 03:
with the assistance of counsel.

[00:02:04] Speaker 03:
And because we're not here dealing with ineffective assistance of counsel claim, what beside the language of the agreement and that your client was represented by counsel and was competent and not generally incompetent, what else would they have to show?

[00:02:21] Speaker 00:
What's missing within these waivers, Your Honor, is that he understood the consequences of relinquishing these rights, of signing these waivers.

[00:02:27] Speaker 00:
While the language includes the knowing and voluntary express language in the agreement, this court's precedent in United States versus Lowe says when it's analyzing if something is knowing and voluntarily made, the court is looking at the record as a whole.

[00:02:41] Speaker 03:
OK, then let me ask you, because

[00:02:45] Speaker 03:
I'm having trouble understanding why this language doesn't clearly say what the government says it means.

[00:02:52] Speaker 03:
I'll go to what I think is the first one at ER 152, where it says that the period between January 15 and May 15 shall be excluded from any calculation of the statute of limitations regarding these specific offenses.

[00:03:07] Speaker 03:
I reserve the right to challenge on any other ground.

[00:03:10] Speaker 03:
Why doesn't that clearly do what the government says it does?

[00:03:15] Speaker 03:
What's ambiguous about that?

[00:03:16] Speaker 03:
What doesn't it inform your client?

[00:03:20] Speaker 00:
And so, Your Honor, I note that my challenge is that it's knowing involuntary and ambiguity are separate and distinct.

[00:03:26] Speaker 03:
But your answer was, I thought, that it didn't clearly tell your client the consequences.

[00:03:35] Speaker 03:
And I'm trying to figure out what is it that it didn't tell him?

[00:03:40] Speaker 00:
We have the declaration that Mr. Yuvari provided with his motion and in that declaration it states that he did not know what the waiver meant, the rights that he was waiving.

[00:03:51] Speaker 03:
But you had, I thought my prior question was

[00:03:55] Speaker 03:
What more does the government have to show?

[00:03:58] Speaker 03:
And I thought what you said was the language itself doesn't inform your client of the consequences.

[00:04:04] Speaker 03:
And I'm having trouble with that because I think the language that I read does inform him.

[00:04:09] Speaker 03:
So I'm asking you, based on the language of the waiver, what is missing there?

[00:04:17] Speaker 00:
The language of the waiver does not explicitly explain when the statute of limitations begins.

[00:04:26] Speaker 00:
The consequences involved in relinquishing these rights, which in this case for count one, the government had one month left to indict on count one.

[00:04:36] Speaker 00:
Mr. Yuvari was not aware of that.

[00:04:39] Speaker 00:
Also, we know based on this record that it was ambiguous as to how the time was calculated between the first and second waivers.

[00:04:47] Speaker 00:
We have the defense, the government, and the district court calculating these dates differently.

[00:04:55] Speaker 04:
I mean, I guess I have the same trouble that Judge Bennett was articulating in understanding what the ambiguity is here.

[00:05:02] Speaker 04:
First of all, the second paragraph of the waiver does say when the statute begins, it says, it runs six years from the date of the last act that constitutes the commission of the offense.

[00:05:16] Speaker 04:
And then, so you, whenever that is,

[00:05:20] Speaker 04:
You run six years, except that you exclude the period between January 15th and May 15th, and you don't count that in counting out the six years.

[00:05:30] Speaker 04:
Maybe you could take us through how else you might read that so that it would suggest a different calculation.

[00:05:40] Speaker 00:
So the defense read this as the expiration deadline, at least if we set aside any arguments about revival between the first and second waiver, that the end date was August 15th.

[00:05:53] Speaker 00:
However, even if we

[00:05:56] Speaker 00:
assume that exclude did mean toll in this case.

[00:06:02] Speaker 00:
The problem with this waiver is that first, it's not specific enough as to the conduct.

[00:06:08] Speaker 00:
The waiver mentions the statute itself and a six years from the date of the last act.

[00:06:13] Speaker 00:
The problem is that it's unclear as to when the last act begins, which returns the government is including within this waiver and investigating for the purposes of indictment.

[00:06:26] Speaker 00:
Additionally, it's missing that he understood the consequences, Your Honor.

[00:06:30] Speaker 00:
I think that's a more directed answer to your initial question about even if the consequences, even if Your Honor believes that the consequences are adequately explained, there isn't any information here that he understood those consequences.

[00:06:43] Speaker 04:
question.

[00:06:48] Speaker 04:
Is there a dispute that he understood that when the statute

[00:07:01] Speaker 00:
I would point your honor to Mr. Uvari's declaration in which he states that he was never informed what the waiver meant and the rights that he was waiving.

[00:07:09] Speaker 03:
So counsel, you know, I'm having trouble seeing why we should get to Mr. Uvari's declaration or what I would consider the parole.

[00:07:20] Speaker 03:
But if I were going to get to the parole, what I would get to would be ER 139, which starts with an email from, I believe, Mr. Yuvari, where he says to his lawyer,

[00:07:37] Speaker 03:
So I am confused as to where the negotiating is.

[00:07:41] Speaker 03:
They sent an offer two months into the tolling agreement.

[00:07:46] Speaker 03:
This is vis-a-vis the second waiver.

[00:07:48] Speaker 03:
So this is Mr. Yuvari using the term tolling agreement.

[00:07:54] Speaker 03:
which suggests if I were going to get to the parole that he knew exactly what was happening and he's not happy because he thought he was going to walk scot-free and not get indicted at all and his lawyers aren't doing a good job.

[00:08:07] Speaker 03:
But where does that suggest when he uses the word tolling agreement that he didn't understand precisely what was going on?

[00:08:18] Speaker 00:
Here in this case, Your Honor, we can't be sure that he understood what the terms holding meant based on this email.

[00:08:23] Speaker 00:
But I would, again, point the court to United States versus Lowe, where this court's precedent says, aside from the parole evidence, is that this court looks at the whole record when reviewing waivers and whether they're knowing and voluntary.

[00:08:36] Speaker 00:
So the district court below, at a minimum, should have granted an evidentiary hearing to

[00:08:44] Speaker 00:
dive into the information that was provided in the declaration, and then the government would have had an opportunity to meet its burden to show that these waivers were knowing and voluntary and that they were valid.

[00:08:58] Speaker 00:
For these reasons, Your Honor, we'd request first that the court vacate on counts one or two, or in the alternative, send this back for a hearing in the first instance.

[00:09:10] Speaker 00:
I'm going to turn it over to you.

[00:09:10] Speaker 00:
Thank you.

[00:09:11] Speaker 00:
Thank you.

[00:09:11] Speaker 00:
Turning next, your honors to the erroneous jury instruction.

[00:09:13] Speaker 00:
Let's you're on a 70 questions about the statute.

[00:09:14] Speaker 00:
Limitations waivers.

[00:09:18] Speaker 00:
The jury instruction on the offense elements in this case.

[00:09:23] Speaker 00:
Was erroneous for 2 reasons.

[00:09:25] Speaker 00:
First, it was well and in the alternative either.

[00:09:28] Speaker 00:
It was a constructive amendment

[00:09:38] Speaker 00:
adding in conduct that included subsection two of that statute, or if we look at this from the perspective of an implied theory of aiding and abetting, it was an inaccurate statement of law.

[00:09:51] Speaker 03:
You agree, though, that the government does not have to elect in the indictment vis-à-vis aiding and abetting, right?

[00:10:00] Speaker 03:
That that's automatically included, and whether there's anything about aiding and abetting in the indictment or not, the government can always ask the trial judge to instruct on aiding and abetting.

[00:10:10] Speaker 03:
That's correct, Your Honor.

[00:10:12] Speaker 00:
But here, turning directly to aiding and abetting, if we are assuming that it's applied in this case, and we do concede that it can do that, the language that was added to this completed offense instruction was that

[00:10:27] Speaker 00:
it could have caused or authorized another person to sign and file the return.

[00:10:33] Speaker 00:
The problem with this is that in blending two distinct theories of liability, aiding and abetting in the completed offense, the court failed to include the mens rea attached to that aiding and abetting liability.

[00:10:45] Speaker 00:
And what I'm talking about specifically is that he knew the return that was being signed and filed had false information as to a material matter.

[00:10:56] Speaker 00:
when we look at the model.

[00:10:58] Speaker 04:
And why is that?

[00:10:59] Speaker 04:
I mean, so aiding and abetting is described in 18 U.S.C.

[00:11:06] Speaker 04:
2A.

[00:11:07] Speaker 04:
But 2B, which seems maybe more directly relevant here, describes whoever willfully causes an act to be done, which if directly performed by him or another would be an offense against the United States, is also punishable as a principle.

[00:11:24] Speaker 04:
If we think of it as proceeding on that theory, if he caused the filing of the return, then the mens rea that's required is just willfulness and the jury was instructed that it had to find that he acted willfully.

[00:11:38] Speaker 04:
So why would that not be adequate?

[00:11:40] Speaker 00:
It's inadequate because it lacks information of knowledge of false information as to a material matter.

[00:11:47] Speaker 00:
So willful action is, I think, a separate matter when we're talking about whether or not he intended that the crime be completed.

[00:11:58] Speaker 00:
Him causing another person to sign and file the return is not an offense under the statute.

[00:12:03] Speaker 00:
He has to know that it has false information in the return because this is a tax perjury statute.

[00:12:13] Speaker 04:
Was the jury given a definition of willfulness?

[00:12:18] Speaker 00:
Yes, it was, Your Honor.

[00:12:19] Speaker 00:
However, it did not encompass this particular knowledge that I'm describing.

[00:12:25] Speaker 00:
When we look at the model instructions, the model intended that aiding and abetting and this completed offense be provided as separate instructions.

[00:12:35] Speaker 00:
Here, in mixing the two,

[00:12:39] Speaker 00:
It's possible that the jury could have reached a verdict without finding that necessary knowledge that I'm describing as to the false information in the return.

[00:12:48] Speaker 00:
Because the district court adds on this aiding and abetting language to the very end of the instructions without properly connecting it to that mens rea.

[00:13:00] Speaker 00:
For these reasons we ask that this court reverse because this was the only instruction that was provided as to any of the elements for counts one through four.

[00:13:10] Speaker 00:
that we have been able to provide.

[00:13:11] Speaker 00:
Turning finally to the Brady violation that we raise in our briefing.

[00:13:16] Speaker 00:
In this case, the government failed to provide and disclose information that was favorable and material to mystery of art.

[00:13:26] Speaker 00:
The evidence that we're describing is that they felt to reduce the IRS system populated and

[00:13:39] Speaker 00:
Count one encompassed multiple W2G forms.

[00:13:44] Speaker 00:
And in failing to provide this information, mid-trial, and I would also note for this court that we are under a different materiality review when we look at United States versus cloud because this was a mid-trial violation that was found.

[00:14:00] Speaker 00:
So this court isn't looking at this from the perspective of whether this violation was outcome determinative.

[00:14:05] Speaker 00:
It's not a retrospective test.

[00:14:07] Speaker 03:
I have trouble understanding how the information you said you didn't learn to mid-trial is exculpatory.

[00:14:16] Speaker 03:
So it has to be exculpatory, right?

[00:14:18] Speaker 00:
Or impeaching, Your Honor.

[00:14:19] Speaker 03:
Okay.

[00:14:19] Speaker 03:
So how is it either?

[00:14:22] Speaker 00:
In this case, it's exculpatory because it went to their good faith reliance defense.

[00:14:28] Speaker 00:
They could have argued that it was either faulty entry by the accountant or that there was a glitch in the IRS software when what they call printing the form.

[00:14:39] Speaker 03:
Wasn't your client's entire defense that was presented to the jury that he had no idea that there was any false information in the return at all?

[00:14:50] Speaker 00:
Yes, Your Honor.

[00:14:51] Speaker 00:
However, the test isn't whether it would change the theory that the defense was pursuing.

[00:14:59] Speaker 00:
The test is whether it would bolster the defense, whether it was favorable, and in this case, it was extremely valuable.

[00:15:06] Speaker 00:
Because here, we had witnesses that testified that the W2G forms were fake, or that the forms were forged.

[00:15:16] Speaker 00:
And the government, in opening, stated,

[00:15:18] Speaker 00:
that Mr. Yuvari sent in fake documents that were supposed to be from these companies that withheld the money.

[00:15:24] Speaker 00:
Again, an opening statement, the government states that Mr. Yuvari had fake W2Gs attached that were supposed to be from these companies.

[00:15:33] Speaker 00:
But all of those documents were fake.

[00:15:35] Speaker 00:
At all of these instances, the defense could have relied on this information to

[00:15:40] Speaker 00:
explained that Mr. Yuvari wasn't the individual inputting this data in the W2G forms.

[00:15:47] Speaker 00:
He wasn't forging information that the accountant was entering this information.

[00:15:52] Speaker 03:
I thought it was part of his defense that it was the accountant.

[00:15:57] Speaker 00:
Yes, Your Honor, but this would have bolstered that because they didn't have the information as to how the W2G forms

[00:16:05] Speaker 00:
to the return itself.

[00:16:09] Speaker 00:
But now with this information, the defense is now has knowledge that it's inputted by the accountant.

[00:16:24] Speaker 00:
That is extremely valuable to that defense that it is in good faith reliance on the

[00:16:34] Speaker 00:
Finally, your honors.

[00:16:37] Speaker 00:
Because we are under this distinct test about whether or not this evidence is of value, and it clearly went directly to cross-examination questions that could have been made, a different opening statement that could have been made, and even pretrial decisions to call an expert on IRS software, we meet the burden under United States versus cloud.

[00:17:00] Speaker 00:
For these reasons, we ask the court to dismiss count one or that a mistrial should have been granted by the district court.

[00:17:06] Speaker 00:
I'd like to reserve the remainder of my time.

[00:17:07] Speaker 03:
Yes, thank you, counsel.

[00:17:11] Speaker 03:
All right, we'll hear from the government.

[00:17:24] Speaker 01:
Good morning.

[00:17:25] Speaker 01:
May it please the Court.

[00:17:26] Speaker 01:
Peter Walkinshaw on behalf of the United States.

[00:17:28] Speaker 01:
Unless the Court has immediate questions, I'd like to take the issues the appellant raised in opening argument in reverse order, starting with the alleged Brady violation.

[00:17:37] Speaker 01:
And now I think there are two really separate issues within that that need to be untangled.

[00:17:43] Speaker 01:
The first is it is undisputed that the defendant bears the burden of establishing materiality

[00:17:49] Speaker 01:
for a Brady violation.

[00:17:50] Speaker 01:
And it's clear that when given the opportunity to do so, in this case, through post-trial motions, district court denied this motion without prejudice and gave the defense an opportunity to return with any purported expert that could have suggested that there were systematic errors or glitches in the IRA system, as it were alleged.

[00:18:10] Speaker 01:
No subsequent factual development of this issue was made at all at any point.

[00:18:15] Speaker 01:
And that's because there's simply nothing to it.

[00:18:18] Speaker 01:
When the district court made the determination that there wasn't enough before it to grant any relief to the defendant based on the disclosure of this information, it was correct at that time, and nothing changed in the ensuing period.

[00:18:32] Speaker 01:
With respect to the legal standard, I think we have a little bit of a disagreement as to the effect of Cloud and Bundy's commentary on this case.

[00:18:42] Speaker 01:
To borrow a phrase from those cases, it's a bit of an awkward fit here, where in Bundy and Cloud, those cases involve this court's review after relief had been granted to a defendant mid-trial.

[00:18:55] Speaker 01:
And so the trial didn't proceed as it would have.

[00:18:59] Speaker 01:
in the absence of the purportedly exculpatory evidence.

[00:19:04] Speaker 01:
But they say that Cloud and Bundy say it's awkward for this court to review in sort of a hypothetical retrospective as to what would have happened if the jury had proceeded to a verdict with things as they are absent the disclosure when it happened.

[00:19:21] Speaker 01:
Well, in this case, the case did proceed to a jury verdict.

[00:19:26] Speaker 01:
to a conclusion, to a conviction.

[00:19:28] Speaker 01:
And so in that respect, it's not really any different from the ordinary case in which this court assesses Brady violations.

[00:19:38] Speaker 01:
But the government would submit that this isn't really the case to refine the standard.

[00:19:43] Speaker 01:
The only plausible manner in which this information could have helped the defense is if there were, in fact, some evidence to suggest

[00:19:54] Speaker 01:
that computer errors could have generated the fraud that he perpetrated in this case.

[00:20:00] Speaker 01:
And under any standard, there's no evidence to support this.

[00:20:05] Speaker 01:
I believe on examination of the witnesses regarding the WGGs, they noted things like incorrect mailing addresses, things like this avenue instead of street for the addresses for the Benning companies.

[00:20:24] Speaker 01:
And I think it's also worth noting, as we relied heavily in our brief,

[00:20:28] Speaker 01:
Mr. Yuvari sent the IRS a letter in which he loudly and clearly declared, I e-filed this document.

[00:20:36] Speaker 01:
I requested a more than half a million dollar refund, and I would like it.

[00:20:42] Speaker 01:
So there's really no question this was some sort of technical glitch or error.

[00:20:45] Speaker 01:
Talking about the August 29, 2017 letter?

[00:20:48] Speaker 01:
That's correct, Your Honor.

[00:20:49] Speaker 01:
So there's really no question as to this being some sort of mix-up or technical glitch.

[00:20:54] Speaker 01:
This is part of a clearly proven intentional fraud on the part of Mr. Yuvar, which carried on for years.

[00:21:01] Speaker 01:
And unless there are any questions on the Brady issue, I think at this point I'll move on to the jury instruction portion.

[00:21:08] Speaker 01:
As I believe Judge Miller correctly noted, the jury was given a willfulness instruction, both in the sense that it was given a definition of what willfulness was.

[00:21:19] Speaker 01:
I believe that can be found at 2ER 280 in the record.

[00:21:24] Speaker 01:
And it let the jury know that he needed to know that federal tax law imposed a duty on him

[00:21:30] Speaker 01:
And with some material admitted, he intentionally and voluntarily violated that duty.

[00:21:36] Speaker 01:
And the language of the jury instruction that was given clearly tracks the text of 18 USC section two, subsection B. Now, while appellant asked for a instruction that mirrors subsection A's aiding and abetting theory of liability, that wasn't the theory that the government pursued at trial.

[00:21:56] Speaker 01:
And giving the jury that construction would have only served to confuse it.

[00:21:59] Speaker 01:
So we would submit that the jury instruction that the defendant effectively demands before this court would have been inappropriate given the evidence that was used to trial.

[00:22:13] Speaker 04:
Your friend on the other side suggested that the willfulness instruction didn't necessarily capture the requirement of his knowledge of the falsity of the return.

[00:22:23] Speaker 04:
Can you address that?

[00:22:24] Speaker 01:
Yeah, Your Honor, again, the willfulness was defined under the willfulness instruction as saying that he knew that federal tax law is basically the highest level of culpability.

[00:22:34] Speaker 01:
He had to know that he was intentionally and voluntarily violating the law.

[00:22:38] Speaker 01:
And in this case, the only way that that could have been done was by through submitting false information.

[00:22:42] Speaker 01:
It is also true that in the elements of the offense,

[00:22:50] Speaker 01:
The first element was Mr. Ovari signed and filed the tax return that he knew contained false information as to a material matter.

[00:22:57] Speaker 03:
Although that language is not put back in the sentence beginning, the government can establish that Mr. Ovari signed and filed, right?

[00:23:08] Speaker 01:
That's correct, Your Honor.

[00:23:11] Speaker 01:
But it does say that effectively if you break the first element instruction up into sort of two separate elements.

[00:23:19] Speaker 01:
First, that he signed and filed.

[00:23:22] Speaker 01:
And then lower down it gives sort of a definition of what that can mean.

[00:23:28] Speaker 01:
But the element still contains the instruction that he knew contained false information as to material matter.

[00:23:33] Speaker 03:
So the government's argument with regard to this point is that reading the instructions in context, including the willfulness instruction, that no one could reasonably

[00:23:45] Speaker 03:
read the sentence beginning on line 26 of ER 24 as not including that state of mind.

[00:23:52] Speaker 01:
That's correct, Your Honor.

[00:23:54] Speaker 01:
It's really effectively, the sentence begins on line 26 is effectively a definition in some sense for what signing and filing can mean in this context.

[00:24:04] Speaker 03:
So I should know this and I apologize for not, but

[00:24:08] Speaker 03:
I'm going to ask you a question.

[00:24:10] Speaker 03:
I'm going to ask you a question.

[00:24:12] Speaker 03:
In the objections that the defendant advanced.

[00:24:14] Speaker 03:
Did advance an objection asking that willful that the word willfulness or something like it be inserted into the instruction beginning on line 26 of the are 24.

[00:24:33] Speaker 01:
I don't believe the objection was just to the inclusion of the language at all.

[00:24:37] Speaker 01:
That's my memory, though.

[00:24:38] Speaker 01:
I apologize.

[00:24:39] Speaker 01:
I don't recall the exact contents of the colloquy.

[00:24:43] Speaker 01:
But I do believe, Your Honor, is correct that that was not specifically inferred to.

[00:24:48] Speaker 01:
I don't wish to interrupt.

[00:24:51] Speaker 02:
If the court has... Hold on.

[00:24:53] Speaker 02:
Hold on.

[00:24:53] Speaker 02:
Hold on the time.

[00:24:55] Speaker 02:
I'm asking...

[00:24:56] Speaker 02:
Your two microphones be hooked up to my speaker here.

[00:24:59] Speaker 03:
Okay, why don't we we'll stop your clock running and why don't we take a Just stay there for the minute.

[00:25:07] Speaker 03:
We'll see if we can get our system back up.

[00:25:08] Speaker 02:
I can't hear them.

[00:25:10] Speaker 02:
I can hear him, but I can't hear them.

[00:25:26] Speaker 03:
I do have to note, Judge Baer, I've seldom been criticized for speaking too softly.

[00:25:32] Speaker 02:
When you're speaking away from me, that's what I don't get.

[00:25:34] Speaker 02:
You can't hook up there two microphones to this?

[00:25:48] Speaker 02:
I believe it is already coming through.

[00:25:50] Speaker 02:
It's not coming through, I'm telling you.

[00:25:52] Speaker 02:
I will call them.

[00:25:59] Speaker 03:
Judge bad business.

[00:26:01] Speaker 02:
Okay.

[00:26:02] Speaker 03:
Should we start again from over here?

[00:26:05] Speaker 03:
Can you hear Judge Miller?

[00:26:06] Speaker 03:
Can you hear me here?

[00:26:13] Speaker 03:
All right.

[00:26:14] Speaker 03:
Well, Judge Miller and I will try to speak up to and if you can't hear us, please let us know.

[00:26:18] Speaker 03:
Judge bad.

[00:26:20] Speaker 03:
All right.

[00:26:22] Speaker 01:
We'll start again.

[00:26:23] Speaker 01:
Okay, I thank your honor.

[00:26:26] Speaker 01:
Yes, so I apologize.

[00:26:28] Speaker 01:
I believe I answered your honor's question.

[00:26:30] Speaker 01:
You did.

[00:26:30] Speaker 01:
I didn't.

[00:26:30] Speaker 01:
I apologize.

[00:26:31] Speaker 01:
You did.

[00:26:32] Speaker 01:
And I would just follow up with the effect that, you know, while the government

[00:26:38] Speaker 01:
There is no instructional error here, but if any error alleged, it's clearly harmless in view of the defendant's subsequent adoption, ratification.

[00:26:49] Speaker 01:
His motivation, he was the only beneficiary of this fraud scheme.

[00:26:55] Speaker 01:
fairly egregious in that it claimed refunds based on tax payments made by companies that had no business with him and had never listed him as a customer and that he was the sole beneficiary of the fraud.

[00:27:07] Speaker 01:
So while there is no error here, even the error latch is clearly harmless.

[00:27:14] Speaker 01:
And unless there are any further questions, I would move on to the statute of limitations defense.

[00:27:21] Speaker 01:
I think it's fairly clear that the text of the waiver is unambiguous as opposed to magistrate and the district court found.

[00:27:32] Speaker 01:
I think really the only rub at this point is whether or not the sort of conclusory statements in Mr. Uvari's affidavit, if we get there, would be enough to warrant an evidentiary hearing.

[00:27:46] Speaker 01:
And they simply were not.

[00:27:48] Speaker 04:
And what is your understanding of what we look at in assessing whether it's knowing and voluntary?

[00:27:53] Speaker 04:
So if it is clear and unambiguous on its face, do we stop there or do we look at other surrounding circumstances?

[00:28:02] Speaker 01:
So I think there are surrounding circumstances that could

[00:28:06] Speaker 01:
that could merit a hearing, I think, in cases where perhaps a defendant didn't speak the language, and therefore there's reason to believe that they didn't understand the clear and unambiguous text.

[00:28:18] Speaker 01:
Perhaps if the defendant was under the influence of some sort of intoxicating drug, something that actually, if there was circumstances that would lead the court to believe or explain non-comprehension of simple unambiguous text, then perhaps

[00:28:32] Speaker 01:
looking past the waiver might be warranted, but this court's precedents make it clear that to get to an evidentiary hearing, a defendant needs to provide, or a movement needs to provide, definite, specific, and detailed allegations in their moving papers that would warrant a district court to believe that there really is an issue of fact.

[00:28:52] Speaker 01:
And what Mr. Yuvari did in his affidavit, he said,

[00:28:54] Speaker 01:
Well, I didn't know what it meant, but he doesn't give any explanation as to the source of his confusion or what his confusion actually encompassed.

[00:29:04] Speaker 01:
He says he wouldn't have signed it if he had known the consequences, but he doesn't say which consequences would have stopped him from signing the waiver.

[00:29:13] Speaker 01:
And in fact, he got what he bargained for.

[00:29:15] Speaker 01:
Well, ultimately, what Mr. Uivari wanted out of this process was a non-indictment that was not promised by the waivers, and even he doesn't argue that it was.

[00:29:24] Speaker 01:
He got the delay that he wanted.

[00:29:26] Speaker 01:
He got an opportunity for his lawyers to advocate to the government that indictment in this case was not warranted.

[00:29:37] Speaker 01:
But the consequence of not signing the waiver would have been an immediate indictment, which is something that he very clearly did not want.

[00:29:43] Speaker 01:
And so when the allegations here are wholly conclusory, they basically are just the final fact that the defendant would like this court to adopt.

[00:29:55] Speaker 01:
But if there's no basis to support the eventual conclusion that would be necessary to afford him any kind of relief, a hearing would have simply been a waste of time.

[00:30:05] Speaker 01:
in that it's not clear what he would have done aside from get up on the stand and say, I didn't know what this was and I would not have signed were it not for the consequences.

[00:30:14] Speaker 01:
But it's clear that he had a month to consider each of these waivers roughly before signing them, that he discussed them with his attorneys, that he speaks the language in which they were written and that they are written in simple and unambiguous language.

[00:30:27] Speaker 01:
And therefore, a hearing just simply, it's clear that these waivers aren't ambiguous, and nothing in Mr. Yuvar's affidavit warranted having a hearing.

[00:30:39] Speaker 01:
There's one matter I wanted to turn to very briefly, I think.

[00:30:46] Speaker 01:
Believe in the reply brief, there's something of an increased focus on Mr. Uvari's knowledge of the penalties that tax returns require and attestation that the statements are made under penalty of perjury, particularly with the sufficiency argument, but to a degree at the argument for the bar.

[00:31:07] Speaker 01:
with respect to the jury instruction as well.

[00:31:11] Speaker 01:
I'd just like to note that in the opening brief, we certainly took the sufficiency argument to go entirely to whether or not the signature, the electronic signature, could be valid.

[00:31:22] Speaker 01:
To the extent that there is any doubt that

[00:31:27] Speaker 01:
But there is an issue here.

[00:31:29] Speaker 01:
I would just note that included in the government's exhibits were personal tax returns from Mr. Uvare from the tax years 2007, 2008, and 2009 in which he hand signed them in ink right below a line attesting to the fact that the penalties are made under penalty of perjury.

[00:31:47] Speaker 01:
These were admitted as exhibits at trial, were presented to the jury.

[00:31:51] Speaker 01:
They were discussed before the jury at record pages 551 to 553.

[00:31:57] Speaker 01:
And they were discussed before the district court in terms of pre admittance in terms of their content and the fact that they contain this attestation at pages for 88 and for 90.

[00:32:06] Speaker 01:
Now, while I think this is very clearly.

[00:32:13] Speaker 01:
I want to, in an abundance of caution, offer to the court.

[00:32:16] Speaker 01:
If the court would like to see these documents, we're happy to file them as a supplement to the record.

[00:32:20] Speaker 01:
I apologize for not having done so earlier.

[00:32:24] Speaker 01:
We just didn't interpret that to be what the defense was arguing in the opening brief.

[00:32:28] Speaker 01:
But if the court doesn't see it as necessary, then we're certainly happy to rely on the record citations in the record.

[00:32:34] Speaker 01:
But it's clear that that evidence is in there.

[00:32:37] Speaker 01:
And in the absence of any questions, I'd be happy to submit and request that this court affirm Mr. Uvare's sentence and convictions in full.

[00:32:49] Speaker 03:
All right, thank you, counsel.

[00:32:50] Speaker 03:
Thank you.

[00:32:53] Speaker 03:
The panel has some significant time left for rebuttal.

[00:33:13] Speaker 00:
Thank you, honors.

[00:33:15] Speaker 00:
A few points on rebuttal.

[00:33:16] Speaker 00:
First, as to the government's arguments for the Brady violation, we submit that CLOUD does refine the standard when it comes to mid-trial Brady violations that are discovered.

[00:33:29] Speaker 00:
It's very clear that when there is this mid-trial discovery, whether the evidence is favorable to the defense is the test.

[00:33:37] Speaker 00:
and whether the evidence either helps to bolster the defense's case or impeach the prosecutor's witnesses.

[00:33:44] Speaker 00:
We submit that this evidence did both in this case.

[00:33:49] Speaker 00:
Turning next to the erroneous jury instruction.

[00:33:55] Speaker 00:
Here, the language that was added to encompass an aiding and abetting theory of liability was insufficient because willfully signing and filing a return does not encompass all the elements of the offense of this case, or I'm sorry, of this case.

[00:34:12] Speaker 00:
statute.

[00:34:13] Speaker 00:
This is the tax perjury statute.

[00:34:16] Speaker 00:
This individual needs to understand and know that the information that's being filed is false information.

[00:34:22] Speaker 00:
Because it wasn't properly included when the district court blended these two distinctive theories in this instruction, it is erroneous.

[00:34:32] Speaker 00:
Additionally, as to this issue, because this is

[00:34:37] Speaker 00:
a constitutional error, given that the jury did not have an opportunity to find each element of the crime beyond a reasonable doubt.

[00:34:48] Speaker 00:
There has to be error that is harmless beyond a reasonable doubt.

[00:34:53] Speaker 00:
That can't be met with this instruction because a reasonable jury could have reached a verdict without finding that knowledge under an aiding and abetting theory, given the way this instruction is written.

[00:35:08] Speaker 00:
And lastly, turning to sufficiency.

[00:35:13] Speaker 00:
Our argument is twofold, that the T pin is not a valid signature, but even if we take the government's position and we assume that a T pin is a proper signature, the problem in this case is that

[00:35:29] Speaker 00:
there is no evidence that Mr. Yuvari knew it was being filed under the penalties of perjury, that he saw that language that was on the return because it was e-filed by his accountant.

[00:35:38] Speaker 00:
And we don't have a giraffe in this case, which is that form that the IRS requires be signed every time a return is filed by an e-filer when there is an accountant involved.

[00:35:50] Speaker 03:
This would be a different case.

[00:35:54] Speaker 03:
Isn't the August 29, 2017 letter from Mr. Yuvari where he says, I e-filed the original form 1040 for 2011, doesn't that go to that point?

[00:36:09] Speaker 00:
We submit that that's insufficient evidence because there's nothing in that letter that explains that he knew it was entered under the penalties of perjury and we know that this was filed.

[00:36:19] Speaker 03:
But don't we look at the evidence in a circumstance like this in the light most favorable to the United States with all inferences in their favor?

[00:36:28] Speaker 00:
Yes, Your Honor, that's correct.

[00:36:29] Speaker 03:
And doesn't IE filed

[00:36:32] Speaker 03:
taking into account the inferences in their favor, be that when he e-filed, he knew what he was e-filing?

[00:36:40] Speaker 00:
Well, the evidence is contrary to that when you look at the return itself, because there is what's called an ERO, and I might be mixing up those letters, PIN, which means that this was filed by his accountant.

[00:36:50] Speaker 00:
So when he's saying that I e-filed my return, it is his return, but it was prepared by an accountant and filed by his accountant through the IRS's software.

[00:36:59] Speaker 00:
And so here, there's no mentions of penalties of perjury in that letter.

[00:37:03] Speaker 00:
We can't be sure that he sought because it was filed by his accountant.

[00:37:07] Speaker 00:
And therefore, count one should be vacated.

[00:37:11] Speaker 00:
Thank you, Your Honors.

[00:37:12] Speaker 00:
All right.

[00:37:13] Speaker 03:
We thank counsel for their arguments.

[00:37:15] Speaker 03:
And the case just argued is submitted.