[00:00:00] Speaker 01:
Good morning, everyone.

[00:00:01] Speaker 01:
Welcome to the Ninth Circuit.

[00:00:04] Speaker 01:
We have Judge Granoldo with the Eastern District of Texas sitting with us for second day in a row, so we thank him for his service.

[00:00:12] Speaker 01:
We're going to get started in just one moment, counsel, but let me put on the record the number of cases that have already been submitted on the briefs and record, and then we'll get to the one case that's set for argument this morning.

[00:00:25] Speaker 01:
Cucunubo Perez versus Bondi, Serda Castillo and Postome Serda versus Bondi, Gonzalez versus Bondi, Rivera versus McHenry have all been submitted on the briefs and record.

[00:00:41] Speaker 01:
So that then leads us to U.S.

[00:00:44] Speaker 01:
versus Iguamba and Duru.

[00:00:51] Speaker 01:
Hope I'm pronouncing those names correctly.

[00:00:53] Speaker 01:
You may proceed when you're ready, counsel.

[00:00:55] Speaker 04:
One of your honors Todd burns on behalf of Mr. Goomba and Mr. Duru's counsel and I have agreed to split our time ten minutes apiece.

[00:01:03] Speaker 04:
My hope is to save two minutes for rebuttal.

[00:01:05] Speaker 01:
All right.

[00:01:06] Speaker 01:
I'll try to help you out.

[00:01:07] Speaker 04:
I want to begin with the identity theft conviction against Mr. Goomba.

[00:01:13] Speaker 04:
And the government proceeded on a possession theory, not a use theory, against Mr. Iguamba.

[00:01:18] Speaker 04:
And as a reminder, the facts involved that Mr. Iguamba received a text with the Chase account number in it, which the government alleged is a means of identification.

[00:01:28] Speaker 04:
There's no indication that he kept or possessed that text beyond receiving it.

[00:01:32] Speaker 04:
There's certainly no indication he ever used it or did anything with it.

[00:01:35] Speaker 04:
That's why the government proceeded with the possession theory.

[00:01:38] Speaker 04:
Under those facts, under Duru and this court's opinion of Sepian, it's impossible to say that the possession for maybe a split second, maybe longer, of that account number was the key mover or at the crux of the criminality of the account.

[00:01:58] Speaker 05:
How long was the possession of it?

[00:02:00] Speaker 04:
They don't have any evidence with respect to that.

[00:02:02] Speaker 04:
What we know is that a few days later, Mr. Iro provided Mr. Iguamba a different account number.

[00:02:11] Speaker 04:
And also, a couple days after Mr. Iguamba received that Chase account number, he was communicating by text with Mr. Iro.

[00:02:18] Speaker 04:
And Mr. Iro said, look, these aren't serious people because they were asking to get the account information.

[00:02:23] Speaker 04:
You should leave them.

[00:02:24] Speaker 04:
So it seems a fair inference that he didn't possess it for very long, if at all, but the evidence just doesn't show anything.

[00:02:32] Speaker 01:
Why does that matter, counsel?

[00:02:34] Speaker 01:
The jury instructions, we're on plain error review?

[00:02:40] Speaker 04:
No, this is the, what I'm arguing right now is a sufficiency claim, but there is a jury instruction claim as well.

[00:02:45] Speaker 04:
So there's just no evidence to establish the crooks element that was set out in Dubin and that this court has dealt with in the possession context in Ofsepian.

[00:02:53] Speaker 04:
They have to show that the possession was at the crooks

[00:02:57] Speaker 04:
of the count two massive wire fraud conspiracy and there's no evidence here to support that the possession had any effect.

[00:03:04] Speaker 01:
Right.

[00:03:04] Speaker 01:
I see an overlap in your two arguments, because for me, given the nature of the scheme, I am struggling to understand why the possession of the means of identification doesn't go to the crux of the criminal conduct.

[00:03:17] Speaker 04:
Because it didn't affect the alleged wire fraud at all.

[00:03:20] Speaker 04:
That's why the government spends its entire answering brief arguing use, and then its 28-J letter argues use.

[00:03:26] Speaker 04:
But that's based on other people's use, that other people used account numbers to try to lull victims into sending their information.

[00:03:33] Speaker 04:
Mr. Iguamba didn't do, there's no evidence he did anything with the account information.

[00:03:37] Speaker 04:
There's no evidence he did anything other than receive it.

[00:03:40] Speaker 04:
So it couldn't possibly be a key driver of the criminality involved in Count 2.

[00:03:45] Speaker 04:
The government's never even tried to make an argument as to how it would be.

[00:03:48] Speaker 04:
They just dodged it, constantly arguing generically use and maybe use this to Mr. Duru.

[00:03:53] Speaker 04:
But Mr. Iguamba is charged with possession.

[00:03:58] Speaker 01:
On the theory of possession, right?

[00:04:00] Speaker 04:
What's the offense of possession that the 1028 a has three offenses use possession and I believe the third one is transfer.

[00:04:07] Speaker 04:
So they cite for example parviz which came out recently that's a use case.

[00:04:12] Speaker 04:
Ofsepian is directly on point.

[00:04:15] Speaker 04:
It's a possession case.

[00:04:16] Speaker 04:
In Ofsepian, the government actually tried to come up with the theory as to how the possession could have somehow been a driver of the criminality.

[00:04:23] Speaker 04:
They said, well, they're hanging on to this person's identity in case they get audited later as part of Medicare, Medicaid fraud, so they've got it available.

[00:04:31] Speaker 04:
The court rejected that.

[00:04:32] Speaker 04:
The government's offered no theory here as to how Mr. Aguumba's perhaps split-second possession of the account information.

[00:04:40] Speaker 04:
It's questionable whether that's even possession.

[00:04:42] Speaker 04:
based on the evidence.

[00:04:43] Speaker 03:
What kind of guidance does Dubin, the Supreme Court in Dubin, give us for what at the crux means?

[00:04:50] Speaker 04:
Well, they say it has to be the key mover of the criminality of the underlying offense, which here is the massive wire fraud conspiracy charge.

[00:04:58] Speaker 04:
I don't know how you could say that Mr. Aguimbas' split-second, perhaps, possession of the account information could be the key mover of anything with respect to the account to wire fraud.

[00:05:13] Speaker 04:
I would like to shift gears.

[00:05:14] Speaker 01:
On the account to wire fraud, does the government rely at all on an aiding and abetting theory?

[00:05:18] Speaker 04:
Not from my client.

[00:05:22] Speaker 04:
I'd like to shift gears to the insufficiency on the wire fraud related to the lack of evidence on the agreement.

[00:05:33] Speaker 05:
Before you get to that, could you address the intended loss issue?

[00:05:39] Speaker 05:
Sure.

[00:05:39] Speaker 05:
Because in my mind, I'm not sure you raised the objection below, did you?

[00:05:45] Speaker 04:
Yes.

[00:05:46] Speaker 04:
How?

[00:05:46] Speaker 04:
Well, they challenged, they said there's no loss to the victims here and they submitted, you know, basically a forensic kind of analysis.

[00:05:53] Speaker 05:
Right, but that's just to the, an objection similar to what they did in Hackett where they objected to the way in which the calculation was made in terms of the numbers and what not, but there they said it's a plain error review.

[00:06:13] Speaker 05:
Why shouldn't it be plain error in this case?

[00:06:15] Speaker 04:
Well, in Hack It, and let me try to get to the page number where I've got this...

[00:06:23] Speaker 04:
And Hackett, one of the things they specifically noted is that Hackett didn't object to the use of the attended loss provision nor advocate for loss calculations based on the actual losses to the victims.

[00:06:35] Speaker 04:
Correct.

[00:06:36] Speaker 04:
Here, Mr. Guamba's counsel clearly advocated for calculating loss.

[00:06:42] Speaker 05:
Can you cite the record for that?

[00:06:43] Speaker 05:
I'm not sure I saw that.

[00:06:46] Speaker 04:
I don't have the record site handy, but in a nutshell, he said there is no loss to any victim.

[00:06:52] Speaker 04:
There's no showing that anyone lost any money here.

[00:06:54] Speaker 04:
There's really no showing as to the background fraud.

[00:06:57] Speaker 05:
But there's a difference between objecting to the measure of it versus the way in which it's calculated.

[00:07:04] Speaker 05:
I mean, I guess there's a difference, I'm thinking.

[00:07:07] Speaker 04:
Well, he objected to applying that adjustment.

[00:07:09] Speaker 04:
Now, of course,

[00:07:11] Speaker 04:
It's claims that are preserved, not arguments.

[00:07:13] Speaker 04:
And I would suggest that Hackett's acknowledging that arguing that there is no loss here so that the adjustment shouldn't be applied is objecting to the adjustment.

[00:07:21] Speaker 04:
And whether or not you construe the arguments made here is

[00:07:25] Speaker 04:
as different arguments.

[00:07:27] Speaker 05:
Well, don't you think that that's what – that's kind of what they did in Hackett, though, in that case?

[00:07:32] Speaker 05:
They made the same objection that apparently you all made below, but in that case, what the court in Hackett tells us is that's plain error review.

[00:07:44] Speaker 04:
Well, I just quoted the part of Hackett that I think suggests otherwise, but I'd just jump past that and say, look, under Supreme Court case law, it's pretty clear that if there is a plain error based on the time of appellate review, that the third and fourth prong of plain error review when it's guidelines error rather than trial error is pretty much a given.

[00:08:04] Speaker 04:
And that's...

[00:08:09] Speaker 04:
And the two Supreme Court cases are eluding me.

[00:08:11] Speaker 04:
They've been aside in the last five years.

[00:08:13] Speaker 04:
They pretty much said, look, when you're dealing with guidelines there, it's a lot easier to correct than trial error.

[00:08:17] Speaker 04:
And so pretty much we're going to find that the third and fourth prong has been met.

[00:08:21] Speaker 04:
So even if the court applies plain error review, and particularly in light of the impact of the sentence here, I think plain error review would be met.

[00:08:28] Speaker 04:
I would like to say something on the intended loss thing before I wrap up here so I don't step on my client.

[00:08:34] Speaker 04:
co-counsel's time.

[00:08:37] Speaker 04:
There's a legal argument as to why intended loss shouldn't apply, but there's also the factual argument.

[00:08:43] Speaker 04:
And the factual argument is based on the fact that they have to show that Mr. Guimba purposely sought to inflict loss, and not just that he knew that loss might be inflicted on someone.

[00:08:54] Speaker 04:
The background information as to any fraud is basically just that Mr. Guimba's saying, hey, there are some unknown people who are engaged in some

[00:09:01] Speaker 04:
fraudulent activity that's undefined maturity of which is unknown That might want these accounts to transfer the money into that certainly cannot establish that he himself Purposely sought to inflict the law so the court doesn't even need to get to the legal error question But if you knew the purpose of the bank accounts was to launder money that was stolen from people how could that not have been his purpose and

[00:09:25] Speaker 04:
Well, see, that raises an interesting question.

[00:09:28] Speaker 04:
Is it to launder money, or is it to receive the money from the fraud?

[00:09:32] Speaker 04:
They've kind of blended the two together.

[00:09:34] Speaker 04:
But he has to purposely seek to inflict the loss.

[00:09:37] Speaker 04:
So let's say, for example, we'll take the laundering approach that your honor took.

[00:09:41] Speaker 04:
Other people somewhere else inflict the loss.

[00:09:44] Speaker 04:
It's their purpose to inflict the loss.

[00:09:46] Speaker 04:
He has no purpose to inflict it.

[00:09:47] Speaker 04:
He doesn't actually do anything to himself to inflict it.

[00:09:50] Speaker 04:
He knows that a loss is going to be inflicted, which under Manitow and under the guidelines adjusted and based on the 10th Circuit Manitow's case is not enough.

[00:10:01] Speaker 04:
At that point, he's just arranging to receive the money.

[00:10:03] Speaker 04:
He hasn't purposely inflicted the loss on anybody.

[00:10:07] Speaker 01:
That's slicing it really thin, counsel.

[00:10:09] Speaker 04:
That's the law.

[00:10:11] Speaker 04:
It's the language in Manitou.

[00:10:13] Speaker 04:
It's what the Sentencing Commission has adjusted so that we don't get into thought crimes.

[00:10:18] Speaker 04:
Oh, he intended, he hoped that loss would be inflicted on someone.

[00:10:21] Speaker 04:
Did he purposely inflict the loss?

[00:10:26] Speaker 04:
If there are no questions, I have nothing to add.

[00:10:28] Speaker 01:
Well, let me see.

[00:10:29] Speaker 01:
Don't worry about the clock for now.

[00:10:30] Speaker 01:
Let me make sure that all of my colleagues' questions get answered.

[00:10:34] Speaker 03:
Well, I'm sorry, briefly.

[00:10:37] Speaker 03:
The identity theft enhancement under 2B1.1, what's your position on whether we need to consider the commentary on what the meaning of victim for that is?

[00:10:49] Speaker 03:
Is this on the number of victims?

[00:10:50] Speaker 04:
Yes.

[00:10:52] Speaker 04:
Well, I think either way the government loses because the guideline says victim, 10 or more victims.

[00:10:59] Speaker 04:
The guideline commentary says victim means someone who suffered monetary loss.

[00:11:04] Speaker 03:
Do we need to look at the commentary?

[00:11:05] Speaker 03:
Isn't the term victim pretty clear?

[00:11:07] Speaker 04:
I think victim is consistent with the commentary that a victim of fraud offense is someone who suffered monetary loss.

[00:11:13] Speaker 04:
The government's counter argument is, oh, victims should include an attended victim.

[00:11:18] Speaker 03:
Well, or someone whose identity has been stolen.

[00:11:21] Speaker 03:
Why wouldn't that alone make them a victim?

[00:11:23] Speaker 04:
Oh, but that commentary that they cite to there say someone whose identity has been used, and there's no indication that Mr. Igunba used anyone's identity.

[00:11:34] Speaker 04:
What they're talking about there then is the evidence found on his computer, not his communications with Iroh and Aroha, and there's some evidence that he obtained some information related to people, but there's no evidence that he used any of that in any way.

[00:11:47] Speaker 03:
Your position is that the information must have been used in order for the person to be a victim?

[00:11:53] Speaker 04:
That's what the guideline provision, that's what the commentary says.

[00:11:56] Speaker 03:
Well, that's what the commentary says.

[00:11:57] Speaker 04:
Yes.

[00:11:58] Speaker 04:
Okay.

[00:11:58] Speaker 04:
But if you don't consider it, then we're just back to victim and the offense here.

[00:12:04] Speaker 04:
it says victim of the offense and the offense here is wire fraud and I think when people think of fraud being a victim consistent with Miller is that you are deceived and cheated and there is no evidence that any of those people related to the the evidence is found on his computer were deceived or cheated in any way.

[00:12:25] Speaker 04:
There's no evidence he did anything with that information to harm anyone in any way.

[00:12:33] Speaker 01:
Alright, thank you.

[00:12:36] Speaker 01:
I'll put two minutes back on the clock when you stand up for rebuttal.

[00:13:06] Speaker 00:
Good morning, Your Honors.

[00:13:07] Speaker 00:
My name is Anne Voitz, and I represent Mr. Durow in this appeal.

[00:13:11] Speaker 00:
We've raised a number of issues in the brief, but at argument I'd like to focus on three, although I'm certainly happy to answer any questions that the Court has.

[00:13:19] Speaker 00:
In particular, I'd like to focus on the multiple conspiracies instruction, the 1028A issue, and then the minor role adjustment at sentencing.

[00:13:27] Speaker 00:
If I might begin with the multiple conspiracies instruction.

[00:13:30] Speaker 05:
Council, I'm sorry, if you wouldn't mind going to the crux question, and here's my question to you.

[00:13:39] Speaker 05:
Here, the fraudsters did use Duro's account to successfully defraud someone through this romance scam.

[00:13:48] Speaker 05:
So isn't Duro's account information right at the heart of wire fraud?

[00:13:53] Speaker 00:
I don't think so.

[00:13:54] Speaker 00:
And to the question that the panel asked earlier about what crux means under Dubin, Dubin said, it has to be something that's not an ancillary feature.

[00:14:02] Speaker 00:
It has to be more than a causal connection.

[00:14:04] Speaker 00:
It has to go to what is fraudulent and deceptive.

[00:14:07] Speaker 00:
And I think here there are two issues.

[00:14:08] Speaker 00:
One, although the government has defended this on an aiding and abetting theory, the instructions didn't require them to find that someone else

[00:14:14] Speaker 00:
had used it.

[00:14:16] Speaker 00:
So the jury could also have convicted based on what they thought Mr. Juru himself had done.

[00:14:21] Speaker 00:
And that is a fundamental problem here.

[00:14:23] Speaker 00:
When it goes to the crux, again, the fact of who the bank account was wasn't what was at the heart of it.

[00:14:30] Speaker 00:
The heart was Mr. Featherstone, who engaged with the victim DJ, represented himself as someone engaged in romance.

[00:14:37] Speaker 00:
So while the bank account was

[00:14:41] Speaker 00:
a vehicle, and it was ancillary to it.

[00:14:44] Speaker 00:
It was not the core of the fraud.

[00:14:46] Speaker 00:
The fraud was Mr. Featherstone representing to DJ that he was in love with her, that he needed this money, and the banking out was simply a vehicle, a way of doing that.

[00:14:57] Speaker 05:
Thank you.

[00:14:58] Speaker 01:
You're looking at the question in a fairly narrow way, but as to conspiracy charges, the crux of the conspiracy charges is the agreement itself, right?

[00:15:09] Speaker 01:
So does it matter whether someone actually used it?

[00:15:13] Speaker 01:
As long as the possession or use of the means of identification goes to the heart of the agreement, doesn't that satisfy Durbin?

[00:15:22] Speaker 00:
I don't think so, Your Honor.

[00:15:23] Speaker 00:
And first, the government, although they alleged it as a possession, use, and transfer case, the core of it was really about use.

[00:15:31] Speaker 00:
And that's how they argued it in closing.

[00:15:34] Speaker 00:
But as I said, the instructions, while they would have allowed for a conviction on aiding and abetting theory, they didn't require it.

[00:15:39] Speaker 00:
The instructions said that you had to find a person, which could include Mr. Durow, had to use their identification.

[00:15:45] Speaker 00:
The fundamental problem with that is both across issues.

[00:15:47] Speaker 01:
You said the core of it.

[00:15:49] Speaker 01:
That's not the way it was charged.

[00:15:51] Speaker 01:
Admittedly, I didn't go through carefully the government's closing instructions, but as I read the indictment and the charges, it really is about a big group of people conspiring to commit wire fraud and carry out

[00:16:06] Speaker 01:
multiple ways of defrauding people, essentially.

[00:16:09] Speaker 01:
And what I heard you saying, I want to make sure I understand your argument, is that the government narrowed their case to just the use of means of identification during the course of the trial and in closing.

[00:16:20] Speaker 01:
That's what you're saying.

[00:16:21] Speaker 00:
I think they did, but I think even if they had not, it still doesn't go to the crux.

[00:16:25] Speaker 00:
The bank account, in this particular case, the core of the fraud, even if we reduce it to the who, the who that really mattered here was Mr. Featherstone or the individuals who were having contact with the victims.

[00:16:36] Speaker 00:
Mr. Drew, whose involvement was tangential and simply provided a bank account,

[00:16:39] Speaker 03:
Under his own name that fails under 1028 a for a whole host of reasons not least because it is not identity theft to use your own identity And that collapses as it wasn't the victim told that the bank account was Anthony Featherstone's That's why the victim sent the money to that account And why isn't that enough to show that mr. Dewar aided and abetted the the use of that account?

[00:17:04] Speaker 00:
I think because, I will confirm what they said in the record, but my understanding is that if you look at what was actually argued, what they said was that it was just the creation of the account.

[00:17:16] Speaker 00:
And so what the government said, they did so without legal authority because they used it and possessed it and transferred it in connection with the scheme to defraud.

[00:17:22] Speaker 00:
And the aiding and abetting again focused simply on this idea that could be in relation to.

[00:17:28] Speaker 00:
So the jury wasn't required to find that.

[00:17:30] Speaker 00:
So we have two challenges here.

[00:17:31] Speaker 00:
We have both the sufficiency challenge, like Mr. Aguamba, but we also have the jury instruction challenge.

[00:17:37] Speaker 00:
And we think that both were adequately raised in this case.

[00:17:41] Speaker 00:
If I might also address the multiple conspiracies instruction, because I think that goes in part to the question.

[00:17:46] Speaker 00:
The other problem here, and this was squarely preserved, this was raised by both defense counsel, was that there was, as the government effectively admitted when they put on testimony that this was a bow tie conspiracy, they didn't have the evidence that this was a single conspiracy.

[00:18:03] Speaker 00:
or even two separate ones, money laundering and wire fraud.

[00:18:07] Speaker 00:
In fact, if you look both at the fact that Mr. Iguamba, his only connections were with middlemen who Mr. Duru had nothing to do with.

[00:18:14] Speaker 00:
Mr. Duru, by contrast, had contact with only one middleman, again, who Mr. Iguamba had no connection with.

[00:18:21] Speaker 00:
These were a whole host of conspiracies that were essentially piled together.

[00:18:24] Speaker 00:
And as the government's own agent testified, it was a bow tie.

[00:18:27] Speaker 00:
But a bow tie doesn't meet the requirement that you actually have a rim around a conspiracy.

[00:18:32] Speaker 00:
It simply doesn't.

[00:18:33] Speaker 00:
And here, they raised the request for the multiple conspiracy instruction.

[00:18:37] Speaker 00:
It was squarely preserved.

[00:18:38] Speaker 00:
The court denied it without explaining why.

[00:18:40] Speaker 00:
And that violated their right to... Right.

[00:18:42] Speaker 01:
Can you talk a little bit more about what you think is evidence of multiple conspiracies, because the fact that they don't know each other

[00:18:51] Speaker 01:
to me isn't dispositive at all in determining whether it's one conspiracy or not.

[00:18:57] Speaker 00:
Sure, I'd be happy to.

[00:18:57] Speaker 00:
So, first off, generally with the censor room, there has to be something that connects these, and here their argument was that there was nowhere.

[00:19:04] Speaker 00:
They said there was a bow tie, so that there was a central core, but nothing connecting the spokes.

[00:19:09] Speaker 00:
and that there's no evidence that Mr. Dew, for example, knew of the full scope, that his understanding of the conspiracy was that his benefits depended on its success as a whole.

[00:19:19] Speaker 00:
I would also point to the fact that when they talked about the activities with his brother,

[00:19:27] Speaker 00:
which came significantly later, which had no connection with the events with DJ.

[00:19:30] Speaker 00:
The government described that in close.

[00:19:33] Speaker 00:
They said it was a pivot, which suggested, again, this is a separate set of activities that aren't connected to each other sufficiently to be a single conspiracy, let alone the conspiracy that was actually charged in.

[00:19:44] Speaker 00:
the indictment.

[00:19:45] Speaker 00:
And that is one of the fundamental purposes of giving a multiple conspiracies instruction, is to make sure that if someone is convicted, they're actually convicted of the crime with which the grand jury returned an indictment.

[00:19:56] Speaker 00:
If I might, I see I'm running short on time, if I might address the issue of the minor role adjustment.

[00:20:01] Speaker 00:
Sure.

[00:20:01] Speaker 00:
Because again, that was one that was raised by the Mr. Dewar's counsel.

[00:20:06] Speaker 00:
And the district court rejected it without explanation, didn't even address the fact that it was raised.

[00:20:12] Speaker 00:
We think that that is error under clinch for the failure to explain, and it was also failure and error in terms of the result, because it is something that should have been given here.

[00:20:21] Speaker 00:
If you look at Dominguez-Caicedo, it talks about the three steps that the court should take, none of which it took here.

[00:20:27] Speaker 00:
So it's to look at all the identity, all the individuals for whom there's sufficient evidence.

[00:20:31] Speaker 00:
In this case, there were many, many, many defendants who were indicted.

[00:20:35] Speaker 00:
And despite the government's argument that it should only concern it that this court should only concern itself with those who are convicted In fact, this court has been clear that it is not limited What it has to look at is was there sufficient evidence of others involvement and their comparative degree of culpability So what what exactly did the district judge say with respect to this objection said nothing?

[00:20:57] Speaker 03:
Well, how did he overrule it?

[00:20:59] Speaker 03:
He just didn't apply.

[00:20:59] Speaker 00:
He just didn't apply.

[00:21:00] Speaker 00:
He adopted Yes ours was it discussed at sentencing.

[00:21:04] Speaker ?:
I

[00:21:05] Speaker 00:
It was discussed when they compared, for example, Mr. Dewar's counsel raised the sentence that one of the middlemen got, raised the sentences that others had gotten and talked about Mr. Dewar's comparatively minimal role.

[00:21:20] Speaker 00:
And it was also raised because it was addressed in the addendum to the PSR, so it was also raised in an objection to the PSR.

[00:21:26] Speaker 00:
I think that that was more than sufficient to raise the issue, and the court simply didn't address it.

[00:21:30] Speaker 00:
The court didn't even address the 3553A factors until the government asked it to, and even then did so in passing.

[00:21:36] Speaker 00:
Okay.

[00:21:36] Speaker 00:
We think that that's not enough under clench, but even if it had, there's no way to justify it on this record where Mr. Dewey's involvement was so tangential, so limited in time compared to the scope of the conspiracy, so limited in terms of the number of victims involved.

[00:21:49] Speaker 00:
The only one here who was specifically addressed was DJ.

[00:21:53] Speaker 00:
And so we think under that it was error and this court should vacate a sentence I see I'd like to reserve I think the one minute I have left of my time if I might I'll give you two minutes back.

[00:22:03] Speaker 00:
Thank you

[00:22:22] Speaker 02:
Good morning, Your Honors.

[00:22:23] Speaker 02:
Sue bye for the United States.

[00:22:26] Speaker 02:
The defendant's challenges to their 1028A convictions must fail because the jury instruction provided at trial was not error, much less plain error.

[00:22:35] Speaker 05:
Well, hold on.

[00:22:36] Speaker 05:
Dubin was decided after and the model jury instruction was then amended to include the crux language.

[00:22:43] Speaker 05:
Why not send it back to the district court, have the jury make a decision as to whether or not that possession or the use of it

[00:22:54] Speaker 05:
was at the crux of the criminal conduct.

[00:22:57] Speaker 02:
Simply put, the evidence was sufficient to sustain the conviction and satisfy the crux standard.

[00:23:03] Speaker 02:
And there is no reasonable probability that the verdict would have been different given that the crux standard was supported by ample evidence at trial, evidence that was undisputed.

[00:23:13] Speaker 05:
Hold on.

[00:23:14] Speaker 05:
So the jury was given an instruction saying that it could be related to, not just at the crux of, but related to,

[00:23:23] Speaker 05:
the criminal conduct related to is kind of broader you would agree with would you agree with that's that's a little broader than at the crux or at the center though that may be true your honor this Ninth Circuit case in Conti is clear

[00:23:39] Speaker 02:
that the analysis here hinges on whether or not there would have been a reasonable probability that there would have been a difference even assuming the crux element, crux standard is an element.

[00:23:49] Speaker 05:
So why isn't there a reasonable probability that that would happen by a jury, by any one juror?

[00:23:54] Speaker 02:
Yes, Your Honor.

[00:23:55] Speaker 02:
First and foremost, there was ample evidence supporting the fact that the means of identification that formed the basis for the 1028A convictions were central to accomplishing the object of the wire fraud conspiracy.

[00:24:07] Speaker 05:
Walk me through that with Duru.

[00:24:09] Speaker 02:
Yes, Your Honor.

[00:24:10] Speaker 02:
So with respect to Duru, he was charged with aiding and abetting another individual's 1028A violation.

[00:24:18] Speaker 02:
So in that case, there was a principle which included co-defendant Igbokwe who testified at trial, and the aider and abetter was defendant Duru.

[00:24:26] Speaker 02:
Co-defendant Igbokwe testified at trial, and the evidence presented at trial, including his testimony and corroborating documentary and other testimony, supported the fact that every element was met with respect to defendant Igbokwe.

[00:24:40] Speaker 02:
and his use, transfer, and possession of defendant Duru's PD Enterprise Wells Fargo account, which formed the basis for the 1028A conviction as to Duru.

[00:24:51] Speaker 02:
In that case, that included the Crux standard.

[00:24:54] Speaker 02:
There was no dispute at trial that the fact that the U.S.-based accounts were central

[00:24:59] Speaker 02:
to accomplishing the object of the conspiracy.

[00:25:03] Speaker 02:
So, for example, the lies that were told to the victims online was that this money was going towards somebody who was either based in the United States or a business that was based in the United States.

[00:25:13] Speaker 02:
So, given that particular situation and the modus operandi of the conspiracy, the fact that these U.S.-based accounts, including the U.S.-based account that is the basis of Duru's 1028A conviction,

[00:25:26] Speaker 02:
was central to achieving the object, ultimately tricking the victims into sending the money, believing the lies that they were told, was absolutely central.

[00:25:37] Speaker 02:
And this was indeed the Ninth Circus holding in Parvis.

[00:25:40] Speaker 03:
That the fact that a medical practitioner... Does it matter though that DeRue's account wasn't actually used?

[00:25:45] Speaker 03:
As I understand it, well it was used I guess initially.

[00:25:48] Speaker 03:
The victim sends the money to his account thinking it's Anthony Featherstone's account and then the bank wires it back or sends it back.

[00:25:55] Speaker 03:
How does that affect the analysis?

[00:25:57] Speaker 02:
Not at all, Your Honor, for the following reason.

[00:26:00] Speaker 02:
The conviction was based on a use, possession, or transfer.

[00:26:04] Speaker 02:
Igbokwe committed all three, and Defendant Duru aided and abetted with the criminal intent as to all three.

[00:26:12] Speaker 02:
And he did so in the following ways based on the evidence at trial.

[00:26:14] Speaker 02:
First, co-defendant Nick Bokwe explained and testified at trial that he explained the fraud scheme and the money laundering scheme to defendant Duru.

[00:26:24] Speaker 02:
Duru then, in response, registered a fake business in the name of PD Enterprise.

[00:26:29] Speaker 02:
Then, he used that documentation

[00:26:31] Speaker 02:
to open a bank account, both the Bank of America account and the Wells Fargo bank account, that is the basis of this conviction, for the purpose of giving it to everybody who needed it.

[00:26:43] Speaker 02:
And that everybody was referring to the myriad of other fraudsters involved in this conspiracy.

[00:26:48] Speaker 02:
And so he not only opened that account, but then sent that account information, including the account number and the name, to

[00:26:56] Speaker 02:
defending Igboque, and then the two coordinated about sending that account information to the various other fraudsters so that it could be made available to receive any fraud money that could be coming in.

[00:27:07] Speaker 02:
So throughout all of this process, and that doesn't even include the specific actions he took with respect to one of the victims who testified at trial, Denise J.

[00:27:17] Speaker 05:
I'm just concerned that this information was not given to the jury and that the jury could make the decision of whether or not you're right, right?

[00:27:24] Speaker 05:
I mean, I think you make a compelling argument, but that's the kind of argument that you'd want to make to the jury with the jury instruction, the correct jury instruction.

[00:27:37] Speaker 05:
That's sort of what I'm having a problem with.

[00:27:41] Speaker 01:
Your Honor, respectfully- We're on plain error review on that question.

[00:27:45] Speaker 02:
Yes, yes, absolutely, Your Honor.

[00:27:47] Speaker 02:
And so to answer your question directly, we believe we did make that argument.

[00:27:51] Speaker 02:
So in the closing argument, government counsel stated that these bank accounts were important because they helped to trick the victims into sending money, believing that the lies that they were told matched up with the information provided in the bank account.

[00:28:07] Speaker 02:
Furthermore, the jury instruction was accurate as to the aiding and abetting.

[00:28:10] Speaker 02:
Contrary to defense counsel's proposition, there was no concern really based on the instruction that defendant Duru would have been convicted of being the principal in this scheme.

[00:28:23] Speaker 02:
The instruction was very clear that this was under abating and abetting theory.

[00:28:28] Speaker 02:
And as to Your Honor's point also, yes, we are under plain error review.

[00:28:32] Speaker 02:
And critically, the defendants have the burden of proving prejudice, that their substantial rights were affected.

[00:28:39] Speaker 02:
Based on the ample evidence provided at trial, the accurate jury instruction provided as to this count, as to both defendants, and the fact that government counsel made this point in the closing argument, there is simply no reasonable probability that the outcome would have been different had the specific description of the element during in relation to the wire fraud conspiracy, specifically the Crux standard, had been provided.

[00:29:03] Speaker 03:
I'm tracking you with respect to Duro, but Iguumba is, I think, a little differently situated, given that he possessed that Chase account, the 50-27 Chase account, after the specific fraud that we're looking at.

[00:29:19] Speaker 03:
His situation seems closer to the defendant of Sepian.

[00:29:24] Speaker 03:
What's your response to that?

[00:29:25] Speaker 02:
Your Honor, respectfully, we do not think that the record supports that proposition.

[00:29:29] Speaker 02:
And I would like to correct the prior statements that might have been made, or the suggestion that Agumba possess this account in a fleeting manner.

[00:29:37] Speaker 02:
To be clear, he possessed this account while he was facilitating

[00:29:42] Speaker 02:
a $2 million fraud that was actively ongoing.

[00:29:46] Speaker 02:
So the possession was based on a text message exchange that was dated June of 2017.

[00:29:52] Speaker 02:
The cell phone from which these text messages were retrieved was seized by the government on or about August 2019.

[00:30:03] Speaker 02:
So, and this was testified to at trial by Special Agent Kimberly Anderson, who said that that was when the text messages, that's when the phones were seized at the time of the takedown and arrest of the various defendants in this case.

[00:30:15] Speaker 02:
So that means evidence at trial showed that Defendant Agumba possessed, first of all, this account for at least a period of two years.

[00:30:23] Speaker 02:
Furthermore, critically to your point about the contemporaneousness, about when he possessed the account with the ongoing fraud, the order of operation went as follows.

[00:30:33] Speaker 02:
Defendant Agumba became aware that there was a fraud scheme that may have led to a $2 million fraud money dropping into a bank account.

[00:30:42] Speaker 02:
When he became aware of that, he specifically contacted co-defendant Valentine Iroh and said that he needed a Chase bank account that could receive $2 million.

[00:30:52] Speaker 02:
In response, co-defendant Iroh then sent the bank account number, as well as other bank account information, to Defendant Agumba and said, go ahead.

[00:31:03] Speaker 02:
After that exchange, in the same tax chain, the two conferred about the appropriate percentage cut that they would each take to compensate them for their roles in this conspiracy.

[00:31:15] Speaker 02:
And after they had an extended exchange about the appropriate percentage cuts that they would agree to, they agreed to use the account and then keep in touch.

[00:31:24] Speaker 02:
And it is in this exchange, during this exchange, while the fraud was active and ongoing,

[00:31:30] Speaker 02:
that defendant Agumba received that bank account from defendant Eero.

[00:31:35] Speaker 03:
This is the 5027 account.

[00:31:37] Speaker 02:
Yes.

[00:31:37] Speaker 02:
Yes, it is, Your Honor, in the name of Minerva Tumentre.

[00:31:40] Speaker 02:
And this is when he received that account for the purpose of passing it on to the fraudster, who would then give it to the victim so that the money could be deposited in that account.

[00:31:50] Speaker 05:
That didn't happen.

[00:31:52] Speaker 02:
There is no evidence in the record that it did, that the fraud was successfully completed.

[00:31:56] Speaker 02:
However, we don't believe that that is necessary to sustain the conviction.

[00:32:01] Speaker 02:
for the 1028A violation and that is because the crime simply does not require completion or success.

[00:32:08] Speaker 02:
The crime is the possession, possession of the account information which there clearly was contemporaneously with the ongoing fraud and in a way that was central to persuading the victim to send the money to complete that fraud.

[00:32:24] Speaker 03:
Was the 5027 account information given to the victim?

[00:32:28] Speaker 02:
There's no evidence in the record to show that it necessarily would have been given to the victim.

[00:32:33] Speaker 05:
But once again... And wouldn't that be necessary for it to be the crux?

[00:32:36] Speaker 02:
Not necessarily, Your Honor, because, again, the crime here was the possession in connection with the wire fraud conspiracy.

[00:32:44] Speaker 02:
To be convicted of wire fraud conspiracy, the fraud scheme need not be successful.

[00:32:48] Speaker 02:
And so completion or any further substantial step was not necessary given all the evidence presented at trial, namely that defendant Nick Bokwe, in order to further this wire fraud conspiracy, sought out

[00:33:01] Speaker 02:
and acquired that specific US bank account information for the purpose of effectuating a successful wire fraud scheme.

[00:33:09] Speaker 02:
Under those circumstances, it does go to the heart.

[00:33:11] Speaker 02:
It is central to accomplishing the object.

[00:33:14] Speaker 02:
And that is exactly what this court decided in Parvis, where the fact that the letter was signed by a medical professional was an important part of achieving the ultimate outcome.

[00:33:26] Speaker 03:
Well, but the evidence in that case, as I understand it,

[00:33:29] Speaker 03:
Defendant would not have received the child's passport absent the letter.

[00:33:33] Speaker 03:
Here, I mean, I hear what you're saying about the fraud doesn't necessarily need to be complete, but we're stuck with the at the crux language that the Supreme Court has given us.

[00:33:44] Speaker 03:
And, you know, what does that mean in a scheme where the fraud wasn't complete?

[00:33:49] Speaker 02:
Well, Dubin's language is actually helpful.

[00:33:52] Speaker 02:
The standard is whether or not it was used in a deceitful or fraudulent manner, or possessed in a deceitful and fraudulent manner, in this case with the Gumba.

[00:33:59] Speaker 02:
And it was possessed in a deceitful and fraudulent manner because it was possessed with the intent to deceive, with the intent to defraud, with the intent to perpetrate the fraud scheme and to help it become successful.

[00:34:11] Speaker 02:
And in Dubin, that is all that is required when the underlying predicate crime is one of fraud, as it was here for a wire fraud conspiracy.

[00:34:23] Speaker 01:
Turning next is the question whether it's helpful to carry out an object of the conspiracy or is the question that it's helpful to carry out the agreement to Commit an object of the conspiracy so it's a conspiracy charge yes, and and what's what's criminal about it is an agreement to basically accomplish one of the objects that's laid out

[00:34:48] Speaker 01:
And then, you know, I don't think anybody's disputing that overt acts were committed along the way.

[00:34:53] Speaker 02:
Precisely, Your Honor.

[00:34:54] Speaker 02:
The predicate crime here for the 1028A conviction was not substantive wire fraud.

[00:34:58] Speaker 02:
It was indeed wire fraud conspiracy.

[00:35:01] Speaker 02:
And therefore, the fact that it went towards helping the accomplish of the agreement to commit the wire fraud, the conspiracy is sufficient.

[00:35:09] Speaker 02:
And given that the predicate was conspiracy, this account was absolutely central to helping to accomplish the object of that conspiracy, regardless of whether or not it was successful.

[00:35:19] Speaker 01:
Can you address Ms.

[00:35:22] Speaker 01:
Voight's point about multiple conspiracies?

[00:35:25] Speaker 01:
Because in a big one like this, sometimes it gets very confusing.

[00:35:29] Speaker 01:
Sometimes there are little conspiracies within the conspiracy.

[00:35:32] Speaker 01:
So as I understand her argument,

[00:35:36] Speaker 01:
The government's argument is that this was a bow tie, so the fact that there may be a central hub doesn't necessarily make this one conspiracy rather than multiple conspiracies.

[00:35:46] Speaker 01:
How do you respond to that?

[00:35:48] Speaker 02:
The evidence at trial proved that the spokes were connected, and here is why.

[00:35:56] Speaker 02:
that one of the jury instructions provided.

[00:35:58] Speaker 02:
So the defendant's theory of the case, if it were such that the spokes are not connected, the jury instruction regarding the Lapierre scope and benefit tests cover that theory.

[00:36:06] Speaker 02:
And they cover the theory by saying that if you have communications, if the defendant has communications with one individual, doesn't know about the rest, however, has reason to believe

[00:36:17] Speaker 02:
that that person that they are communicating with is also talking to other conspirators and the defendant has reason to know that the benefit that individual would receive

[00:36:27] Speaker 02:
depended in part based on the success of the entire venture, that is sufficient to be convicted of that conspiracy.

[00:36:34] Speaker 02:
And the evidence at trial was ample.

[00:36:37] Speaker 02:
With respect to Defendene Gumba, he talks about in his messages how he's talking to the fraudsters.

[00:36:43] Speaker 02:
And though he doesn't communicate directly with any money mover, he surely knows that they exist given the fact that he is looking for these accounts.

[00:36:51] Speaker 02:
And from the middleman, including Valentine Nero,

[00:36:54] Speaker 01:
But does the government have to prove that Duru specifically was the money mover for the schemes that ECUMBA was involved in?

[00:37:03] Speaker 01:
Not just a generic scheme within the conspiracy that may have had other participants.

[00:37:11] Speaker 02:
No, Your Honor.

[00:37:13] Speaker 02:
The case law is clear in the Ninth Circuit that each individual does not need to be aware of all of the other conspirators in the conspiracy or every part of the conspiracy.

[00:37:22] Speaker 02:
In fact, in order to be entitled to a multiple conspiracies instruction, there must be some evidence presented at trial that the defendants were involved in a separate, unrelated, independent agreement compared to the overall charge conspiracies.

[00:37:36] Speaker 02:
That was simply not the case here.

[00:37:38] Speaker 02:
All of the evidence related to

[00:37:40] Speaker 02:
the overall wire fraud and the money laundering conspiracies.

[00:37:44] Speaker 02:
This argument that they may have played a smaller role because they were involved in a sub agreement but didn't know about every single part of the conspiracy or every other conspirators simply isn't sufficient to undercut the conspiracy conviction because such knowledge is not required.

[00:37:59] Speaker 02:
And here specifically the scope and benefits test encompasses why that is the case and the evidence showed

[00:38:07] Speaker 02:
that each defendant, defendant Duru and defendant Iguamba, knew or had reason to know that there were other conspirators involved, including the ones that they did not speak to.

[00:38:16] Speaker 05:
I want to ask you a question about the sentencing issues and the 10-victim enhancement.

[00:38:23] Speaker 05:
With regards to those, can you indicate where you find 10 victims in the record for Iguamba and for Duru?

[00:38:31] Speaker 05:
Because I couldn't.

[00:38:33] Speaker 02:
Yes, Your Honor.

[00:38:34] Speaker 02:
Specifically, we'd be happy to provide the excerpts of record citations, but if I may describe them generally.

[00:38:40] Speaker 02:
With respect to Agumba, in his laptops that was seized in 2019, at the time he was arrested, those laptops contained victim report information, victim reports that were downloaded as a result of having infected victim computers with malware, specifically the malware that was found on his computers at the same time, including the low-key bot malware,

[00:39:03] Speaker 02:
in the NanoCore Remote Access Trojan Malware.

[00:39:06] Speaker 02:
Expert testimony at trial by Special Agent Greg Walker went to this fact that these report... But I need you to focus me on what the actual loss was.

[00:39:18] Speaker 05:
That's what I need you to focus me on.

[00:39:19] Speaker 02:
Yes, on the victim reports at the bottom of the page, and the government's briefs provide some citation to this, at each victim report there were 15 victim reports included, and each of them included a host of different information, including the name that was on the user account of the computer that was infected with the malware, and in many cases the specific account information

[00:39:40] Speaker 02:
like account usernames and passwords that were stolen from that victim computer.

[00:39:46] Speaker 02:
And at the bottom of that report it says total number of information and there were at least 10 reports where that number was one or more, where the specific identifying information was stolen.

[00:39:58] Speaker 02:
It lists in that report specifically some email addresses as well as passwords of various different accounts.

[00:40:05] Speaker 05:
Right.

[00:40:05] Speaker 05:
Still let me ask you the question again.

[00:40:06] Speaker 05:
Yes.

[00:40:07] Speaker 05:
Where's the actual loss?

[00:40:09] Speaker 05:
Tell me what you see as the actual loss so that I understand your argument.

[00:40:13] Speaker 02:
Yes.

[00:40:13] Speaker 02:
The actual loss is the information, the private information from those computers that were infected with the malware.

[00:40:20] Speaker 05:
The possession of private information is the actual loss that the government claims is actual loss.

[00:40:27] Speaker 02:
Yes, Your Honor.

[00:40:28] Speaker 02:
Yes, Your Honor.

[00:40:29] Speaker 05:
And in this case, we believe that the plain language of the... Do you have a case to support that position?

[00:40:34] Speaker 02:
We rely on the plain language of the meaning of victim, Your Honor, as this enhancement is applied.

[00:40:40] Speaker 05:
Do we go to the notes for that?

[00:40:42] Speaker 02:
No, Your Honor, because there is no genuine ambiguity as to the word victim.

[00:40:46] Speaker 02:
Surely in cases, the fact that your personal information was stolen would constitute, would qualify you as a victim.

[00:40:54] Speaker 02:
I think that the commentary guidelines actually highlights why it

[00:40:58] Speaker 02:
it shouldn't be applied because the ordinary common meaning of victim includes people who may not have suffered monetary loss.

[00:41:06] Speaker 02:
That is especially also the case when we're talking about a conspiracy here once again.

[00:41:11] Speaker 05:
And so... So just so that I understand, your view is the possession of the information that is private should be considered actual loss.

[00:41:22] Speaker 02:
That is true, Your Honor.

[00:41:23] Speaker 02:
It should be considered actual loss and also, of course, there was additional information that would constitute intended loss as well when he infected those computers.

[00:41:31] Speaker 02:
But yes, Your Honor, that is correct.

[00:41:33] Speaker 02:
That is the government's position.

[00:41:35] Speaker 01:
Do you have to show actual loss or either actual loss for people whose means of identification were used with that lawful authority?

[00:41:42] Speaker 01:
Either, Your Honor.

[00:41:43] Speaker 02:
Under either theory, the government would prevail.

[00:41:44] Speaker 01:
Is the government limiting itself to just actual loss or is the government also relying on that second part?

[00:41:49] Speaker 02:
The government is also relying on both.

[00:41:51] Speaker 02:
Yes, Your Honor.

[00:41:52] Speaker 05:
Not just actual loss, but... Can you explain to me how that's the case?

[00:41:56] Speaker 02:
Yes, Your Honor.

[00:41:56] Speaker 02:
So the specific information stolen also goes to the means of identification.

[00:42:00] Speaker 02:
So also when you look at the victim report, and I don't want to list specifically the victim information here in this particular setting, but it does include specific email addresses, specific passwords.

[00:42:12] Speaker 02:
And Special Agent Greg Walker testified at trial that these were the types of information that you were able to use to log in to these victim accounts.

[00:42:22] Speaker 05:
So for example, the- Is there any evidence that happened?

[00:42:25] Speaker 02:
that the actual logins happened?

[00:42:27] Speaker 02:
No, Your Honor, but we don't believe that's necessary in order for you to become a victim when your information was stolen, clearly with the purpose of ultimately accessing, without your authorization, these private, sensitive bank email accounts.

[00:42:41] Speaker 01:
So the evidence seems a little bit more compelling on the question of number of victims for

[00:42:47] Speaker 01:
versus Duru.

[00:42:49] Speaker 01:
Can you go through Duru and the 10 victims or more?

[00:42:53] Speaker 01:
What evidence do you have that is more than 10 victims?

[00:42:56] Speaker 02:
Yes, Your Honor.

[00:42:57] Speaker 02:
The government does note in its answering brief that five of those victims did suffer actual loss and this is supported by the financial records and including the MoneyGram and Western Union transactions where his identification is associated with the amount of money he picked up.

[00:43:16] Speaker 05:
Counsel, I can count nine.

[00:43:17] Speaker 05:
Give me the ten.

[00:43:18] Speaker 02:
Yes.

[00:43:19] Speaker 02:
We do note that the remainder of the victims were targeted.

[00:43:22] Speaker 02:
They did not suffer actual loss in those cases.

[00:43:25] Speaker 02:
That being said, the government's position, once again, is that the meaning of victim is clear.

[00:43:30] Speaker 02:
And here, they were victims of the conspiracy, not the substantive fraud, necessarily.

[00:43:36] Speaker 01:
So on that, do you have to rely on aiding and abetting theory?

[00:43:39] Speaker 02:
No, Your Honor, we need not, because actually in these particular cases, these victims were all identified in connection with defendant Duru's specific communications in connection with the conspiracy, not necessarily the 1028A aiding and abetting charge.

[00:43:54] Speaker 01:
So on that theory, every member of the conspiracy, regardless of how significant the role, is then responsible for all the victims identified within that conspiracy under the government's theory?

[00:44:03] Speaker 02:
Not necessarily, Your Honor.

[00:44:05] Speaker 02:
The government actually could have attributed many more victims to defendant Duru, but it chose to limit itself to the victims about whom the defendant Duru specifically discussed in these messages and tried to collect money from.

[00:44:19] Speaker 02:
And sometimes we had financial records that supported that those actual losses occurred, and sometimes there weren't those records.

[00:44:26] Speaker 02:
However, in those six cases where those financial records did not materialize, the victims were still targeted as part of this wire fraud and money laundering conspiracy.

[00:44:36] Speaker 02:
because he specifically discussed with co-conspirators helping to receive that fraud money and then to move it around for the purpose of hiding where the money came from.

[00:44:45] Speaker 02:
As a result, if we're counting victims of the charged conspiracies and the conspiracies for which Defendant Du was convicted of.

[00:44:52] Speaker 05:
Looking at the guidelines, specifically note for, and this is at the crux of my problem,

[00:45:01] Speaker 05:
When I look at the sentence enhancement, note 4E says, and I'll move on to subsection, double I says, in order to find the 10 or more victims, you look at any individual whose means of identification was used unlawfully or without authority.

[00:45:24] Speaker 05:
So how is that the case?

[00:45:28] Speaker 02:
Yes, Your Honor.

[00:45:29] Speaker 02:
Simply put, we need not turn to that commentary note or any commentary note, and here is why.

[00:45:34] Speaker 02:
Not only is the word victim not genuinely ambiguous, but other portions of the sensing guidelines help to illuminate that these intended victims should be encompassed.

[00:45:44] Speaker 02:
So, for example, in Section 1B1.3A3, discussing the scope of relevant conduct, it includes not only the harm resulting from the offense, but harm that is the object

[00:45:56] Speaker 02:
the object of the offense, of the actions or inactions.

[00:46:00] Speaker 02:
And here, so the guidelines, and this is the guidelines, not a commentary note.

[00:46:04] Speaker 02:
So the guidelines clearly contemplate in situations like calculating harm or victims, the object of the crime.

[00:46:12] Speaker 02:
And here, the object of the crime was potentially targeting these individuals for the purpose of stealing their property or stealing their money or identification.

[00:46:23] Speaker 02:
Because the guidelines is clear between the plain meaning of victim combined with the plain meaning of object of the offense as outlined in 1B1.3A3, we believe that the commentary notes need not be referred to.

[00:46:37] Speaker 02:
That being said, even if the court were to find that in some cases the guidelines language were genuinely ambiguous with respect to at least the loss amount, the commentary note would support the government's position as well, since it defines loss as the greater between actual loss and intended loss.

[00:46:56] Speaker 01:
All right, thank you.

[00:46:57] Speaker 01:
Our question took you over time, but let me make sure that my colleagues' questions have all been answered.

[00:47:02] Speaker 01:
Thank you very much.

[00:47:03] Speaker 01:
Let's put three minutes on the clock for each appellant.

[00:47:06] Speaker 04:
Thank you.

[00:47:07] Speaker 04:
Judge Mendoza, the government in its answering brief relied on exactly that note that you just read, 4E, and I responded to that, and that was on

[00:47:20] Speaker 04:
Page 90 and 91 of their brief, and I responded to the reply brief, and I said it was wrong for exactly the reason you just said.

[00:47:26] Speaker 04:
I think they've not only waived their counterargument now, but they've led me down the wrong path, so I'm responding to the wrong argument that, by the way, was raised in about a half a line, like several other arguments in this respect.

[00:47:38] Speaker 04:
A lot of times the court won't even consider arguments that are raised so briefly.

[00:47:41] Speaker 04:
I responded to it, now they're jogging to a different path.

[00:47:44] Speaker 04:
I don't think that that's a viable way to approach this process.

[00:47:51] Speaker 04:
that the 1028A offense.

[00:47:54] Speaker 04:
The government pretends that there is some sort of clear picture into some $2 million fraud that Mr. Iguamba was involved in.

[00:48:02] Speaker 04:
That is just not true.

[00:48:03] Speaker 04:
What the evidence of that is a series of text changes between Mr. Iguamba and Mr. Iroh.

[00:48:08] Speaker 04:
It starts off with Mr. Iguamba saying, Nwana, find chase wire 2M.

[00:48:13] Speaker 04:
that the agent construes is that someone's looking for a $2 million account Chase to receive some funds.

[00:48:21] Speaker 04:
The IRO responds with the Chase account.

[00:48:24] Speaker 04:
The next day, Iguamba writes back and they say, these people want online access to their account.

[00:48:28] Speaker 04:
Well, that's just nonsense, right?

[00:48:29] Speaker 04:
They're not going to get online access to their bread and butter accounts for doing this sort of thing.

[00:48:34] Speaker 04:
The next day, Iguamba writes and says, I never heard from the London guys, presumably the Nwana who wants the 2M.

[00:48:41] Speaker 04:
But some other guys want an account, and they want online access.

[00:48:46] Speaker 04:
Eero responds, leave them, sir.

[00:48:48] Speaker 04:
They're not serious.

[00:48:50] Speaker 04:
That's the evidence with respect to some $2 million fraud that Mr. Iguemba, according to government, is in the thick of.

[00:48:57] Speaker 04:
It's nonsense.

[00:48:58] Speaker 04:
It may well be, it seems quite likely, that they're trying to rip off a guamba by getting access to some account.

[00:49:03] Speaker 04:
Not that there's actually any fraud going on in the background.

[00:49:06] Speaker 04:
But we really don't know.

[00:49:06] Speaker 04:
We just don't know.

[00:49:07] Speaker 04:
Now, the government related to that conduct, they asked for possession instruction.

[00:49:15] Speaker 04:
That is at CR 1187 at 67.

[00:49:19] Speaker 04:
The judge gave a possession instruction, 6ER 1180 to 81.

[00:49:24] Speaker 04:
At trial, even under the old relation-type standard, the government couldn't even make an argument as to how Mr. Agumbo's possession of that account number for some unknown amount of time related to the wire fraud conspiracy.

[00:49:39] Speaker 04:
And instead, this is at the root of the prosecutorial misconduct claim, they argued that someone else's use of that account in some totally unrelated context with which Mr. Agumbo was not involved at all

[00:49:51] Speaker 04:
made Mr. Iguamba guilty of the possession offense.

[00:49:55] Speaker 04:
And that is at

[00:49:58] Speaker 04:
6ER11041105.

[00:50:00] Speaker 04:
And this is a possession.

[00:50:02] Speaker 04:
This is not a possession conspiracy.

[00:50:05] Speaker 04:
It's a possession offense.

[00:50:06] Speaker 04:
How was his possession of that account for some brief unknown period of time related to something in the background that may have been a fraud?

[00:50:14] Speaker 04:
It may have not.

[00:50:15] Speaker 04:
Who knows?

[00:50:16] Speaker 04:
How is that at the crux of the massive wire fraud conspiracy charged account 2?

[00:50:21] Speaker 04:
There is no plausible argument for that.

[00:50:24] Speaker 04:
zero.

[00:50:25] Speaker 04:
And that is a sufficiency claim, and that is reviewed for plain error.

[00:50:29] Speaker 04:
I'm sorry, that is reviewed for de novo.

[00:50:32] Speaker 04:
But as far as the jury instruction claim, even if you review it plain error, the government's argument with respect to this issue at trial was that Mr. Iguamba was guilty of possession based on someone else's totally unrelated use of the account.

[00:50:46] Speaker 04:
That's just flat out wrong.

[00:50:47] Speaker 04:
That was flat out wrong under the law at the time.

[00:50:49] Speaker 04:
It's flat out wrong now.

[00:50:50] Speaker 04:
It was grossly misleading to the jury to suggest that it didn't prejudice Mr. Iguamba, belies common sense.

[00:50:57] Speaker 04:
Of course it did.

[00:50:58] Speaker 01:
All right.

[00:51:00] Speaker 01:
Thank you very much, counsel.

[00:51:15] Speaker 00:
I might address three points in the battle.

[00:51:18] Speaker 00:
First, with respect to the 1028A claim, I'd like to start by saying I think there are two issues that are being sort of conflated.

[00:51:24] Speaker 00:
One, whether Mr. Durer's use of his own identity could be the basis for the 1028A conviction.

[00:51:28] Speaker 00:
And second, the idea of whether this goes to the crux.

[00:51:32] Speaker 00:
And the Supreme Court specifically rejected the idea that in relation to could be this sort of capacious language that it was argued and charged as below.

[00:51:40] Speaker 00:
And I'd like to read, if I could quickly, what the government said in closing.

[00:51:43] Speaker 00:
It said, it's enough that the bank account was used in connection with a criminal purpose, and here the criminal purpose was the wire fraud conspiracy.

[00:51:50] Speaker 00:
That's at ER-1105.

[00:51:52] Speaker 00:
It said, and they did so without legal authority because they used it and possessed it and transferred it in connection with the scheme to defraud, as well as overall wire fraud.

[00:52:01] Speaker 00:
That's at ER 1107.

[00:52:03] Speaker 00:
That is not the sort of crux requirement that the Supreme Court required in Duven.

[00:52:08] Speaker 00:
It's not what the current model instruction reflects.

[00:52:10] Speaker 00:
And in fact, what the court told the jury, and this is at ER 1178, was that it required simply, I'm sorry, that is ER 1180,

[00:52:21] Speaker 00:
that it simply required that the person did so during and in relation to the offense of conspiracy.

[00:52:26] Speaker 00:
That is simply not the sort of crux requirement that the Supreme Court articulated that was required.

[00:52:30] Speaker 00:
And to Judge Mendoza's point, that is something that should have gone to the jury.

[00:52:33] Speaker 00:
It didn't, and therefore this court should reverse.

[00:52:36] Speaker 00:
The fact that this was prosecuted under an aiding and abetting three doesn't preclude that because the court told them that they could be, that Mr. Drew could be convicted even if he did not personally commit the act, not only if he did not personally commit the act.

[00:52:49] Speaker 00:
With respect to the multiple conspiracies instruction, if I could address a point, the test here, because we've preserved the issue, under Terran Palma, if it is possible, so just is it possible for a jury to find that there were two different conspiracies that existed, then the district court has to give the instruction.

[00:53:05] Speaker 00:
It's not is it more likely than not.

[00:53:07] Speaker 00:
It's not the same as a sufficiency challenge.

[00:53:10] Speaker 00:
The question is, is it possible?

[00:53:11] Speaker 00:
And the answer here is yes.

[00:53:13] Speaker 00:
And if this court looks at the factors set forth in Barbaro, the nature of the scheme, the identity of the participants,

[00:53:18] Speaker 00:
the quality and frequency and duration of the contacts and the commonality of the time and the goals.

[00:53:25] Speaker 00:
Remember, this, of course, was a scheme that apparently included business enterprise compromise, malware, romance fraud.

[00:53:32] Speaker 00:
There was very little core to that.

[00:53:34] Speaker 00:
And to Judge Nguyen's question initially, it does require that there be some connection between the spheres.

[00:53:40] Speaker 00:
If the spokes function independently and the only core is the middleman, as it was here, and as the government's own agents' testimony confirmed,

[00:53:47] Speaker 00:
then the multiple conspiracy instruction should have been given, and that should have been an issue for the jury to decide.

[00:53:53] Speaker 00:
Finally, with respect to the 10 victims, we just note that we think that that was simply not met here.

[00:53:58] Speaker 00:
We think the math doesn't add up to 10 victims.

[00:54:00] Speaker 00:
We also think the math doesn't add up on the intended loss, and we think that Mr. DeRue should have gotten a minor victim adjustment, and that the court should have addressed those issues.

[00:54:09] Speaker 00:
The court has no further questions.

[00:54:10] Speaker 00:
I see I have five seconds, and I will sit down.

[00:54:12] Speaker 00:
Any questions?

[00:54:15] Speaker 01:
All right, thank you very much all counsel for your very helpful Arguments in this case the matter is submitted and will be in recess until tomorrow morning All rise This court for this session stands adjourned