[00:00:00] Speaker 04:
Good morning, ladies and gentlemen.

[00:00:02] Speaker 04:
Welcome to the Ninth Circuit.

[00:00:04] Speaker 04:
Before we hear argument in the first argued case, we want to take a moment to submit the case of Fallon versus O'Malley.

[00:00:14] Speaker 04:
That case is hereby submitted.

[00:00:17] Speaker 04:
We will now hear argument in the case of Wright versus United States.

[00:00:21] Speaker 04:
And I believe Mr. Hartzell, you're up first.

[00:00:24] Speaker 02:
Thank you, Your Honor.

[00:00:25] Speaker 02:
Tom Hartzell on behalf of Zonia Wright, who is, can you hear okay here?

[00:00:29] Speaker 01:
Not very well.

[00:00:30] Speaker 01:
There's a control on the, what do you mean, you can make it a little taller and get the microphone to you.

[00:00:36] Speaker 01:
There you go.

[00:00:39] Speaker 02:
How about now?

[00:00:40] Speaker 01:
Much better.

[00:00:41] Speaker 02:
Tom Hartzell on behalf of Zonia Wright, the appellant in this case, and I'd like to reserve two minutes for rebuttal if that's necessary.

[00:00:50] Speaker 04:
Keep your eye on the clock and we'll try to help you.

[00:00:52] Speaker 02:
I will.

[00:00:54] Speaker 02:
As an example,

[00:00:55] Speaker 02:
of what the government is arguing here.

[00:00:58] Speaker 02:
Yesterday, on my way from Tucson to Phoenix, I got a phone call, and I didn't answer, and I went to voicemail, and my phone automatically transcribed it to a text message, and it was this.

[00:01:15] Speaker 02:
Hey, this is Mary from Walmart, a pre-authorized purchase of PlayStation 5 with special edition Impulse 3D headset is being ordered from your Walmart account.

[00:01:26] Speaker 02:
for an amount of $919.45.

[00:01:28] Speaker 02:
To cancel your order or to connect with one of our customer support representatives, please press 1.

[00:01:37] Speaker 02:
This is a scam.

[00:01:38] Speaker 02:
This is a telephone scam.

[00:01:40] Speaker 02:
I don't have a Walmart account.

[00:01:42] Speaker 02:
If I pressed 1, no doubt they'd be asking for my credit card information, and that suddenly I'd find myself notably poorer.

[00:01:50] Speaker 02:
But what's amazing about this is now,

[00:01:53] Speaker 02:
This phone call came sometime between Tucson and Phoenix, and I didn't see it on text message until I arrived in Phoenix.

[00:02:02] Speaker 02:
Had I been driving to New Mexico or to see my daughter in San Diego and then, you know, didn't look at it.

[00:02:09] Speaker 04:
Mr. Hartzell, with respect, I get your point about the scam attempt that you had.

[00:02:16] Speaker 04:
But in this case, the government looked at literally thousands of names across 47 states

[00:02:23] Speaker 04:
275 of which were Arizona residents.

[00:02:28] Speaker 04:
So it's not just in a vacuum, it's within a context.

[00:02:32] Speaker 04:
It is true there was no evidence presented by the government of actually connecting with these people, but they were Arizona residents, Arizona phone numbers, and there were lots of them.

[00:02:43] Speaker 04:
Doesn't that make a difference for purposes of our analysis?

[00:02:48] Speaker 02:
Only a venue.

[00:02:49] Speaker 02:
The point I was making that wherever I stopped for the night and read my message, according to the government's theory, venue would lie in that district.

[00:02:57] Speaker 04:
Isn't venue what you're talking about here?

[00:02:59] Speaker 02:
Venue is what I'm talking about, exactly.

[00:03:02] Speaker 01:
So when do you think placing a phone call can be an overt act?

[00:03:07] Speaker 01:
I gather from the example you've been giving us that you think if you receive a voicemail, that's not sufficient, but do you think there are instances where

[00:03:16] Speaker 01:
a co-conspirator makes a phone call to a jurisdiction, and that phone call would be sufficient to establish a venue, and under what circumstances would that be the case?

[00:03:27] Speaker 02:
Absolutely.

[00:03:27] Speaker 02:
A phone call between districts can be sufficient to establish venue, and the case is cited by the government and that I referred to, too, in the briefs.

[00:03:36] Speaker 02:
For example, in Gonzales, there's a confidential informant in one district speaking to what became of it.

[00:03:42] Speaker 01:
So is your position that somebody has to answer the call on the other end and

[00:03:46] Speaker 01:
they have to have a communication?

[00:03:48] Speaker 02:
They not only have to answer the phone and have communication, there has to be an act in furtherance of the conspiracy.

[00:03:56] Speaker 00:
Answering the phone... Just as you described your own situation, in the context of a phone scam, why isn't just placing the call the act in furtherance of the conspiracy?

[00:04:08] Speaker 00:
Well, it is an act in furtherance of the conspiracy from where the call was made.

[00:04:13] Speaker 00:
So then that comes back to Judge Beatty's question of

[00:04:16] Speaker 00:
Is your point that the call has to be answered?

[00:04:19] Speaker 00:
And you were going to say it's more than answered.

[00:04:21] Speaker 00:
And that can't be right in a phone scam situation because there's no other reason for making the phone call other than furtherance of the scam.

[00:04:29] Speaker 00:
So it seems to me that the hinge point here is, is it, is the overt act placing the call or is the overt act that the call connects?

[00:04:37] Speaker 02:
The overt act is placing the call from the district in which it was dialed.

[00:04:42] Speaker 02:
If somebody's calling from the District of Arizona to Northern District of California, the venue is in the District of Arizona from where the call was made.

[00:04:52] Speaker 01:
But could it ever be in the district where the call was received?

[00:04:56] Speaker 01:
And under what circumstances?

[00:04:58] Speaker 02:
Under the circumstances that somebody answers, that somebody interacts with the caller.

[00:05:03] Speaker 01:
So let's back up the hypothetical a little bit.

[00:05:07] Speaker 01:
One of the co-conspirators makes the phone call.

[00:05:09] Speaker 01:
They have their script.

[00:05:10] Speaker 01:
They're going to try to defraud an elderly person.

[00:05:14] Speaker 01:
The person answers.

[00:05:16] Speaker 01:
The caller starts the spiel, and the person receiving the call hangs up.

[00:05:21] Speaker 01:
Is that enough?

[00:05:22] Speaker 01:
Did they have to talk to them, or is it enough that they answered the phone and hung up?

[00:05:26] Speaker 02:
Within the answering, the phone answering district, that's not enough to be an overt act of furtherance of the conspiracy.

[00:05:32] Speaker 01:
What's your best case to support that?

[00:05:35] Speaker 02:
Well, all of the cases that were cited here, there's not a single case that involves a telephone call or a telephone merrily ringing.

[00:05:44] Speaker 01:
Every case that the government... I mean, you are drawing certain inferences from the evidence, but we're reviewing this for sufficiency of the evidence, which means we're viewing it in the light most favorable to the government.

[00:05:55] Speaker 01:
We have testimony that there were a few hundred Arizona numbers and testimony that the co-conspirator

[00:06:01] Speaker 01:
called every number, that was his practice, because they paid for these phone numbers, so they call every number on the list.

[00:06:06] Speaker 01:
So you're saying a reasonable juror could not conclude that somebody answered one of those calls?

[00:06:11] Speaker 02:
Well, we're disagreeing at a much more basic point, Your Honor.

[00:06:15] Speaker 02:
I am not saying it's a sufficiency of the evidence review.

[00:06:18] Speaker 02:
This is a de novo review.

[00:06:20] Speaker 02:
It's a legal question whether venue is established in the District of Arizona.

[00:06:25] Speaker 01:
I mean, yes, the government... But there's case law that says that when it's a question of fact for the jury,

[00:06:31] Speaker 01:
The jury is deciding by preponderance, and it's a question of fact.

[00:06:34] Speaker 01:
So now we have the jury made a factual determination that were properly instructed, and we're reviewing the sufficiency of whether that could support their conclusion that there was venue.

[00:06:45] Speaker 02:
Well, Your Honor, I have tried to answer that question last night in case you might have asked it, and in the case that

[00:06:55] Speaker 02:
I just mentioned to my opponent this morning, United States of Sullivan, 797 F3rd, 623, a Ninth Circuit case.

[00:07:03] Speaker 02:
That case held that de novo review applied for the denial of a Rule 29 motion, and that then went to the jury, but it was still de novo review.

[00:07:15] Speaker 02:
It's not a sufficiency of the evidence case, like did the guy shoot the gun?

[00:07:19] Speaker 02:
This is a legal question about whether venue lies in a particular district.

[00:07:25] Speaker 02:
that is subject to de novo review.

[00:07:27] Speaker 02:
Now, I mean the factual underpinnings of this, of whether even a phone number in Arizona was called is pretty paper thin.

[00:07:40] Speaker 02:
If you recall the factual basis for this whole appeal,

[00:07:45] Speaker 02:
We have Danny Malcolm who had the lead list.

[00:07:47] Speaker 02:
So he said it was his habit to call all the numbers.

[00:07:50] Speaker 02:
We had Agent Ibrahim who said that he spot checked the list of people and said some of the people listed as living in Arizona are real people.

[00:07:59] Speaker 02:
He couldn't go so far as to say they actually reside in Arizona.

[00:08:04] Speaker 02:
He couldn't say that the phone numbers were working phone numbers.

[00:08:07] Speaker 02:
He spot checked maybe one, maybe five, maybe 10 people, didn't write a report on this.

[00:08:12] Speaker 02:
and said, these people, some of these people are real people.

[00:08:16] Speaker 02:
But he couldn't even say that they were in Arizona.

[00:08:19] Speaker 02:
So we have that, and I mean, as anyone who's lived in Arizona, Judge Bobby, would know that people who have sufficient means don't spend the year in Arizona.

[00:08:30] Speaker 02:
These are older people, retired people, who, snowbirds, who even if they made a 520 phone number ring, even if somebody answered it, there's not one ditter-proof.

[00:08:42] Speaker 02:
that that number was in Arizona.

[00:08:43] Speaker 02:
It's simply an Arizona number.

[00:08:45] Speaker 02:
The government didn't bother to go out and support this.

[00:08:50] Speaker 02:
Now, with the court's permission, unless you have any more immediate questions, I'll reserve my last, you know, minute and 45 seconds for rebuttal.

[00:08:56] Speaker 04:
Please do.

[00:08:58] Speaker 04:
Please do.

[00:08:58] Speaker 04:
Thank you.

[00:09:01] Speaker 04:
Very well.

[00:09:01] Speaker 04:
Let's hear from the government.

[00:09:03] Speaker 04:
Mr. You say Menti, is that correct?

[00:09:17] Speaker 03:
Good morning, Your Honors, and may it please the Court.

[00:09:19] Speaker 03:
My name is Corey Manta, and I'm representing the United States from the Tucson U.S.

[00:09:23] Speaker 03:
Attorney's Office.

[00:09:25] Speaker 03:
This Court should affirm the defendant's jury trial convictions.

[00:09:27] Speaker 04:
Can you talk to him just a little bit?

[00:09:29] Speaker 04:
There's a big courtroom, and it gets lost sometimes.

[00:09:32] Speaker 03:
Absolutely.

[00:09:34] Speaker 03:
Thank you, Your Honor.

[00:09:35] Speaker 03:
This Court should affirm the jury trial convictions of the defendant for conspiracy to commit money laundering.

[00:09:41] Speaker 03:
Under the limited and deferential review of the jury's guilty verdict,

[00:09:46] Speaker 03:
there is sufficient evidence for the jury to reasonably find venue by preponderance of the evidence.

[00:09:52] Speaker 03:
In this case, the jury was properly instructed on venue, so the verdict is subject only to the standards of Jackson and Neville's deferential.

[00:10:00] Speaker 04:
Counsel, before we get to the Jackson standard, which of course is a little different than the venue situation, your opposing counsel makes two points that I'd appreciate your response to.

[00:10:11] Speaker 04:
Number one, what is the standard of review that we consider here for purposes of

[00:10:16] Speaker 04:
whether venue is proper.

[00:10:18] Speaker 04:
Is it de novo or is it something different?

[00:10:21] Speaker 03:
The case law indicates that it's de novo.

[00:10:23] Speaker 03:
Moran Garcia stands for that point.

[00:10:27] Speaker 04:
Oh, it is de novo review then, right?

[00:10:28] Speaker 03:
That's correct.

[00:10:29] Speaker 04:
You agree with the opposing council?

[00:10:30] Speaker 03:
I agree.

[00:10:31] Speaker 03:
I agree.

[00:10:31] Speaker 04:
Okay.

[00:10:32] Speaker 04:
All right.

[00:10:32] Speaker 04:
So we got de novo review.

[00:10:34] Speaker 04:
Your opposing council says that the government really didn't back up that any of these 275 names were in fact Arizona residents or

[00:10:46] Speaker 04:
that there were even Arizona phone numbers, I suppose.

[00:10:51] Speaker 04:
What's your response to that?

[00:10:53] Speaker 03:
I would disagree with that point.

[00:10:54] Speaker 03:
The government submitted the lead list, which contained the roughly 275 Arizona phone numbers and residences.

[00:11:03] Speaker 03:
The IRS special agent testified that he spot checked those lead lists and in the numbers that he checked, those belong to real people in Arizona.

[00:11:14] Speaker 00:
Is there any evidence about those numbers being landlines versus cell numbers?

[00:11:18] Speaker 03:
In the record, no, Your Honor.

[00:11:22] Speaker 03:
I do not recall any information about whether the numbers were cell phones or landlines, I should say.

[00:11:32] Speaker 03:
And I don't believe that the lead lists that the government submitted in its SCR make that point or distinguish between those facts.

[00:11:43] Speaker 04:
Obviously, we're talking about a conspiracy here.

[00:11:46] Speaker 04:
Is the government's proof in this case, specifically the IRS agents spot-checking this list, the fact that it's part of a conspiracy, is that enough for de novo review for us to sustain venue here?

[00:12:03] Speaker 03:
Absolutely, Your Honor, especially when it's viewed in the lens of Jackson Neville's, in terms of the limited and deferential review of the jury's verdict.

[00:12:12] Speaker 03:
The jury made, assessed the conflicting evidence in this case, drew reasonable inferences from the record, and ultimately disagreed with the defendant's argument that venue had not been established.

[00:12:26] Speaker 03:
And indeed, the parties argued at length in their closing arguments.

[00:12:31] Speaker 03:
about the venue issue.

[00:12:33] Speaker 03:
The defense suggested that the evidence, the government's evidence did not prove, sufficiently prove venue.

[00:12:41] Speaker 03:
Through its guilty verdict, it implicitly rejected that argument in deliberations that lasted for about three hours.

[00:12:49] Speaker 00:
So the government- Well, counsel, something that's just sort of stuck out to me about this record is that during the course of the trial, the trial judge mentioned, I don't know that you've-

[00:13:01] Speaker 00:
you know, satisfied venue and gave the government an opportunity to address that.

[00:13:05] Speaker 00:
And I believe the government's response was, we don't need to do anymore.

[00:13:09] Speaker 00:
So I guess my question is, why didn't the government do more when the district court specifically called out, you might have an issue here?

[00:13:17] Speaker 03:
I would agree with the court's summary of those sidebars.

[00:13:20] Speaker 03:
The government pointed out that the standard was a preponderance standard for establishing venue.

[00:13:27] Speaker 03:
And I believe in one of those sidebars, the question was,

[00:13:30] Speaker 03:
The district court asked the government, the prosecutor, whether the case agent could be asked a question about did his investigation start with one of the Arizona victims who testified in an unrelated case.

[00:13:47] Speaker 03:
But in that earlier sidebar, the government explained that that

[00:13:51] Speaker 03:
the defendants, it was the government's position that the defendants had withdrawn from the conspiracy before that point.

[00:13:58] Speaker 03:
So actually the factual question that the district court asked wasn't really available, that witness wasn't available to testify in Miss Wright's prosecution.

[00:14:12] Speaker 03:
So in terms of... Presumably you could have presented more detail about

[00:14:20] Speaker 00:
these 275 Arizona numbers or something about that.

[00:14:23] Speaker 03:
And the government chose not to.

[00:14:27] Speaker 03:
Well, in terms of the record, again, Your Honor, the government presented confirmation evidence from the special agent, and when she spot-checked that information in the lead list, confirmed that those folks were real people in Arizona.

[00:14:43] Speaker 03:
And the evidence that was presented met the preponderance standard

[00:14:47] Speaker 03:
as the jury reasonably concluded in this case.

[00:14:50] Speaker 00:
So can I parse that a little bit because your friend on the other side says that might have spot checked it and found out that they were real people, but that that spot check didn't actually identify their location.

[00:15:00] Speaker 00:
Do you disagree with that?

[00:15:02] Speaker 00:
I mean, we have an Arizona number and you have real people.

[00:15:07] Speaker 00:
Is there something about what the agent did that established that the real people were in Arizona?

[00:15:13] Speaker 03:
At the time of the phone call?

[00:15:14] Speaker 03:
At the time of the phone calls?

[00:15:16] Speaker 03:
Correct.

[00:15:16] Speaker 03:
There's nothing in the record to indicate that.

[00:15:19] Speaker 03:
But in terms of what the jury found, it resolved the inferences, any conflicting inferences in the record, and favored the government.

[00:15:27] Speaker 03:
It exercised its common sense and determined that at least one of the 275 people listed on those lead lists had been contacted by the conspiracy.

[00:15:39] Speaker 00:
Would that matter if that one person was not in Arizona physically?

[00:15:44] Speaker 00:
What would the government's position be there?

[00:15:46] Speaker 03:
If they were not present in Arizona at the time of the phone call, it would have to, well, Gonzalez, this court's decision in Gonzalez speaks to venue regarding phone calls in terms of where the call is made and received.

[00:16:02] Speaker 03:
So in terms of Gonzalez, if a

[00:16:05] Speaker 03:
potential victim was, if there was proof that the potential victim was out of the state, I don't believe that that would meet the standard, at least in terms of the receiving district for Arizona.

[00:16:15] Speaker 00:
Then your argument here just has to be based on inference and probabilities.

[00:16:18] Speaker 00:
And I'm not saying that in a disparaging way, but I'm just trying to nail down.

[00:16:22] Speaker 00:
That is the government's position, that we had enough for a common sense judgment to be that at least somebody was in Arizona because we've got a lot of Arizona numbers.

[00:16:30] Speaker 03:
Absolutely, Your Honor.

[00:16:30] Speaker 03:
And the jury was instructed and it was legally

[00:16:34] Speaker 03:
authorized to consider circumstantial evidence in this case.

[00:16:37] Speaker 03:
So the conspirators' routine practice of calling every single number on that lead list was highly probative evidence on the issue of venue.

[00:16:49] Speaker 03:
In terms of the jury's deliberations, they found that that met the, in terms of its fact-finding, concluded or found that that was sufficient evidence of venue in the District of Arizona.

[00:17:01] Speaker 04:
So is the government's position, I gather, then, that because the jury was instructed on this issue and it made a finding that Jackson is the controlling precedent?

[00:17:12] Speaker 03:
Absolutely, Your Honor.

[00:17:13] Speaker 03:
Jackson, Nevels, Roca, all those cases, and again, those apply a very, even though a de novo standard applies, under the Jackson, Nevels standards, very high deference is given to the jury's verdict, especially in a case like this where they're properly instructed, they made a fact

[00:17:31] Speaker 03:
specific fact-finding and rejecting the defendant's argument's opposing venue and convicted the defendant.

[00:17:38] Speaker 00:
Can I follow up on one other point that we were discussing with your opposing counsel, and that is, is the government's position that there just had to be a call placed to a number that's based in Arizona or that the call had to be answered?

[00:17:51] Speaker 03:
At trial, the government argued in its closing argument that the answering was the important point, but in terms of, I wasn't,

[00:18:01] Speaker 03:
The defendant, and I couldn't find any case law that would prohibit a venue in Arizona or a receiving district just based on that call, but I would say that at trial specifically, the government argued that it was the act of picking up the phone and answering the scripted calls that that was the important point for the venue analysis.

[00:18:22] Speaker 04:
But that's inferred, I gather, in this case, because there was no evidence that somebody actually did pick up the phone.

[00:18:28] Speaker 04:
Is that correct?

[00:18:29] Speaker 03:
It would be, Your Honor, absolutely.

[00:18:31] Speaker 03:
There was no victim testimony that someone in Arizona had picked up the phone.

[00:18:36] Speaker 03:
The government's argument is based on, again, circumstantial evidence and appropriate deference to the jury's finding that at least one of the 275 people on those lead lists had been contacted.

[00:18:49] Speaker 04:
Does it matter that this was a conspiracy?

[00:18:52] Speaker 03:
Absolutely, Your Honor.

[00:18:53] Speaker 04:
That's the key for the government, is it not?

[00:18:55] Speaker 03:
Yes, and indeed, the indictment didn't charge the substantive money laundering counts.

[00:19:00] Speaker 03:
I see that I'm running out of time.

[00:19:01] Speaker 03:
Does the panel have any further questions?

[00:19:04] Speaker 04:
That's for my colleagues.

[00:19:05] Speaker 04:
I think not.

[00:19:06] Speaker 03:
In summary, I would respectfully request this court to affirm the defendant has failed to meet her high hurdle to overturn the jury's verdict.

[00:19:14] Speaker 03:
Thank you.

[00:19:15] Speaker 04:
Thank you.

[00:19:17] Speaker 04:
All right.

[00:19:18] Speaker 04:
Mr. Herzl, you have a little bit of rebuttal time.

[00:19:21] Speaker 02:
Thank you, Judge Smith.

[00:19:25] Speaker 02:
The IRS agent, Ibrahim, never checked a single phone number.

[00:19:30] Speaker 02:
In my opening brief, and in the excerpts of record, there's his testimony, and I asked him, I said, and you said, you took a look at these numbers, I think you said they were real numbers, right?

[00:19:42] Speaker 02:
And he responded, I said they were real people in Arizona.

[00:19:46] Speaker 02:
And I asked him about a report, about the extent of his investigation, whether he ever spoke to anybody.

[00:19:53] Speaker 02:
And in fact, all he did was spot check.

[00:19:55] Speaker 02:
And we don't even know what a spot check is, that they were real people in Arizona.

[00:20:01] Speaker 02:
What I want to emphasize to the court.

[00:20:05] Speaker 04:
Let me ask you this, as you just heard and you know from your exchange of briefs, the government's position is that because this is a conspiracy,

[00:20:16] Speaker 04:
And given the Jackson standard, given the fact that the jury was instructed on this, that an inference is enough.

[00:20:23] Speaker 04:
What's your response to that?

[00:20:27] Speaker 02:
There can be circumstantial evidence to prove venue.

[00:20:32] Speaker 02:
I cited one case about driving through the Southern District of California to reach Tijuana.

[00:20:38] Speaker 02:
There can be circumstantial evidence, but in this case, the government didn't meet its burden

[00:20:44] Speaker 02:
in establishing that.

[00:20:45] Speaker 02:
And inference can be drawn that, yes, maybe Malcolm did call numbers in Arizona.

[00:20:51] Speaker 02:
But beyond that, I don't believe that just calling the numbers, as the government pointed out in its brief, I mean, that evidence can be shown that one of the co-conspirators called.

[00:21:04] Speaker 02:
There's no evidence that anyone answered or furthered.

[00:21:07] Speaker 04:
Again, I guess I get your point.

[00:21:10] Speaker 04:
But what troubles me that 275 people,

[00:21:14] Speaker 04:
We're talking about one, two, three, eight.

[00:21:16] Speaker 04:
But 275 people with Arizona numbers, even if nobody picked it up, why couldn't the jury infer that venue would be met?

[00:21:28] Speaker 02:
Well, they did infer that, and I disagree with it.

[00:21:30] Speaker 04:
What's the problem with that?

[00:21:32] Speaker 02:
It's a legal standard.

[00:21:34] Speaker 02:
And when I'm appealing more than the jury verdict is the judge denial of the Rule 29 motion, that is where it should have been granted and the case needed to be dismissed

[00:21:43] Speaker 02:
for lack of venue.

[00:21:45] Speaker 04:
Okay, unfortunately for you, your time is up.

[00:21:47] Speaker 04:
Let me ask my colleagues whether either has additional questions.

[00:21:51] Speaker 04:
Well, thank you both for your argument.

[00:21:52] Speaker 04:
We appreciate it.

[00:21:53] Speaker 04:
The case just argued is submitted.