[00:00:00] Speaker 04:
Thank you, Your Honor. James Thompson on behalf of Appellant Alan Gessen.

[00:00:07] Speaker 04:
I'd like to reserve five minutes of my time for rebuttal, if I might, Your Honor.

[00:00:11] Speaker 04:
There are three arguments that I would like to discuss with the court today, and that is the sufficiency of the evidence with respect to the issue as it relates to the testimony of Agent Rizzo, the admission of Agent Rizzo's testimony, and lastly, the venue issue. in the Northern District as it was determined in light of the United States Supreme Court's case recent decision.

[00:00:37] Speaker 04:
With respect to the first argument, Mr. Gesson did not intend or agree that a murder be committed. All of the evidence that was introduced in this case was consistent with Mr. Gesson having sought the deportation or the removal of his property. partner.

[00:00:57] Speaker 01:
Counsel, we're looking at the evidence in the light most favorable to the United States, yes? Yes. And I mean, the way I read the transcript, certainly a reasonable reading of the transcript is that your client originally wanted to have somebody bribed so that his wife would be deported. But then the transcript looks to me easily understandable as that changed.

[00:01:27] Speaker 01:
He wanted a quicker, easier, cheaper, more permanent solution to the problem. And why couldn't, in the light most favorable to the government, the jury conclude that what he and Rizzo were talking about were murdering the wife as opposed to deporting her?

[00:01:50] Speaker 04:
With the testimony of Agent Rizzo, It may be that there's sufficient evidence. But the testimony of Agent Rizzo is what's key to the determination of the case.

[00:02:02] Speaker 03:
What do we do with your client's admission on cross-examination that he would do anything in order to regain custody of his children?

[00:02:12] Speaker 04:
Well, okay, on cross-examination, he said what he said. But the agreement that was made on June 2nd and June 22nd, Between Agent Rizzo and Mr. Gesson.

[00:02:22] Speaker 02:
The problem with your argument right there, though, is that the jury is entitled to consider all the evidence, correct?

[00:02:28] Speaker 04:
That's correct.

[00:02:29] Speaker 02:
Even when he testified to on cross-examination?

[00:02:31] Speaker 04:
Yes, but without Agent Rizzo's testimony.

[00:02:35] Speaker 02:
Well, assume for a moment that the agent's testimony was properly admitted, then what?

[00:02:40] Speaker 02:
And the jury could easily conclude what Judge Bennett was suggesting.

[00:02:45] Speaker 04:
Well, if the court determines that Agent Rizzo's testimony is completely admissible...

[00:02:50] Speaker 04:
And that would go to the sufficiency of the evidence standard. And under Jackson, we have the burden of assuming that everything has been decided. Then I would turn to venue.

[00:03:03] Speaker 04:
Because venue would be the issue that would be present.

[00:03:06] Speaker 02:
So why did the court err in admitting the agent's testimony?

[00:03:09] Speaker 04:
Because the agent could not testify as to what Mr. Gessen was thinking.

[00:03:16] Speaker 04:
The words murder...

[00:03:19] Speaker 04:
murder for hire, intent to kill, kill, were never used in any of the conversations or signal messages between Mr. Gessen and Agent Rizzo.

[00:03:32] Speaker 03:
But Mr. Thompson, we have previously authorized and permitted case agents to testify where there were coded conversations using euphemisms because nobody wants to have that sort of stuff recorded.

[00:03:52] Speaker 03:
And so we allow the agents to help the jury understand the conversation by explaining what the terminology meant or was understood to mean by the other party to the conversation.

[00:04:06] Speaker 04:
But in those cases that are, you know, GATT for gun or Brown for heroin, you know, heroin or Burrito for pound or kilogram, whatever.

[00:04:17] Speaker 03:
But what's the difference between using the word project for our agreement to hire a killer to do away with my wife?

[00:04:26] Speaker 04:
Because in those other cases, those words are commonly used and they are determined by listening to hours upon hours of of wire transcripts or other conversations.

[00:04:40] Speaker 03:
But the jury has the tape recordings of the conversations. And this gets back to the question we were asking you earlier as to why can't the jury infer, having listened to the actual words and the intonations of your client, that when he used the word project, he meant, I want my wife killed.

[00:04:59] Speaker 04:
The jury could have done that. What the jury was denied doing is making that determination because Agent Rizzo got up and said that these things mean certain things.

[00:05:11] Speaker 01:
But they weren't denied it because your client testified exactly what you're saying. So they heard from your client who took the stand and said we weren't talking about murder, right?

[00:05:23] Speaker 01:
Yes. And they heard the agent and they listened to the tape.

[00:05:28] Speaker 01:
I mean, when I look at the tape here and look at some of the language with if there was, where your client said, I mean, at 229 SCR, if there were a cheaper way to get rid of her, that would be good too. And while it's conceivable, the jury could believe that that meant what they were talking about before, which is the deportation, but they're talking about a change. And then your client also says, my secret concern, SCR 230, My secret concern is I need to be sure that we cannot possibly do this in front of the kids.

[00:06:12] Speaker 01:
So what was the believable explanation for that not referring to a violent act?

[00:06:22] Speaker 04:
Because, well, a violent act, I'll talk about in a second, but a cheaper way.

[00:06:30] Speaker 01:
No, I'm talking about what was it? where he said, I need to make sure that we cannot possibly do this in front of the kids.

[00:06:40] Speaker 04:
Yes, I understand. And I'll answer that in the context of the cheaper way as well. The first conversation was about deportation, unlawful deportation. And then Mr. Gesson said, if there is a cheaper way, then how about we do it something else?

[00:06:54] Speaker 03:
That doesn't explain the statement, my secret concern is my need to ensure that we cannot possibly do this in front of the kids. He can't be referring to deportation.

[00:07:03] Speaker 04:
No, he's referring to removal, taking this individual out of the country and removing them to another country. That's the cheaper way.

[00:07:14] Speaker 03:
That's your argument, but the jury could have determined from that statement and the other evidence taken cumulatively that what he was talking about was don't kill her in front of the kids.

[00:07:26] Speaker 04:
Yes, they could have, except for with Agent Rizzo's interpretation of that statement, it then becomes that he was going to kill her. When asked his understanding of a cheaper way to get rid of her, Agent Rizzo replied, Mr. Gessen was asking if there is a way to have her killed.

[00:07:47] Speaker 03:
Why can't the jury make that inference from the words that he used without need of the agent's testimony?

[00:07:54] Speaker 04:
That's fine. Without the agent's testimony, then let the jury decide the case. But with the agent's testimony... At every opportunity, he answered his understanding of Mr. Gessen's remarks, his thinking of what Mr. Gessen is thinking, the question permanent dead.

[00:08:13] Speaker 03:
Mr. Thompson, back to my earlier question. We allow this testimony in drug cases where the undercover DEA agent explains to the jury, you know, the various euphemisms that drug dealers use to talk about their product.

[00:08:30] Speaker 04:
Yes. And Agent Rizzo did not have any experience in murder for hire cases. And there was no other testimony.

[00:08:37] Speaker 02:
Agent Rizzo was part and parcel of the whole conversation from the get go.

[00:08:42] Speaker 04:
Yes, but he did.

[00:08:43] Speaker 02:
He dealt with with guests and all along, but only for a total of like four hours. Doesn't make any difference. They had a conversation, didn't they?

[00:08:53] Speaker 04:
Yes. But he is saying that. I had this conversation, and based upon my limited knowledge of this individual, I know what he's thinking so that when he says cheaper way, he means have her killed. When he says more definite, he means permanent dead. He can't say that. My wife may be able to say what it is that I'm thinking, but this man had less than four hours communication, and he had no experience in any other murder-for-hire cases.

[00:09:24] Speaker 04:
Whereas the cases you're talking about, the use of code, the DEA agents that are involved are enmeshed in the drug language, the drug culture, and everything else.

[00:09:33] Speaker 03:
Every case agent has a first case. Excite me one case where we have said, well, because it was the case agent's first case, he's not allowed to make that testimony.

[00:09:45] Speaker 04:
But there needs to be some sort of independent basis.

[00:09:48] Speaker 01:
for knowing that this word, cheaper way, means have her killed. And the same argument you're making about when he talks about, when there's the, on Signal and in the transcripts, the discussion of would he be okay with collateral damage, meaning the boyfriend. Are you also saying that the agent wasn't allowed to explain to the jury what collateral meant in that context?

[00:10:16] Speaker 04:
What I'm saying is Agent Rizzo could not testify as to Mr. Gessen's thoughts, his thinking, and that's what was allowed in this case. I am not saying that the jury couldn't make its own determination of these events, but without the interpretation, without the directive that, no, I'm telling you, ladies and gentlemen, what that means is killed.

[00:10:39] Speaker 01:
But wasn't the question, the actual questions to the agent, Agent Rizzo, what was your understanding? Yes. So Agent Rizzo talked about what his understanding was of the conversation that he was a part of. Your client talked about what your client's understanding was of the conversation to which he was a party in which there were some coded terms. And the jury chose who to believe beyond a reasonable doubt. So the agent, I mean, since we're talking about explicitly what was in the transcript, the question wasn't.

[00:11:16] Speaker 01:
to the agent, what was Mr. Gessen thinking? The question was, what was your, Agent Rizzo's understanding, right? I'm looking at, I'm not sure I have the ER numbers right, but maybe 733, 734.

[00:11:34] Speaker 04:
But when the court, when it mattered, the court instructed the jury that Agent Rizzo is testifying to what he believed Mr. Gessen thought.

[00:11:44] Speaker 04:
His understanding of what occurred is different than his saying what Mr. Gessen is thinking. Mr. Gessen can say, I was thinking these things, and that's what I said when I talked to Agent Rizzo. Agent Rizzo can say, I was saying these things, and this is what I meant when I said them. What Agent Rizzo cannot do and was allowed to do was to say that, and I understand that Mr. Gessen was thinking killing.

[00:12:19] Speaker 04:
What page are you on? 4ER599 is the instruction.

[00:12:24] Speaker 01:
But you're not referencing the testimony.

[00:12:28] Speaker 04:
This was the court's instruction.

[00:12:31] Speaker 03:
Counsel, can you turn to the venue? Yes. My understanding of the record is that Gessen first...

[00:12:40] Speaker 03:
discussed this issue of having his wife murdered in exchange for money at the Boca Raton meeting, and that thereafter he exchanged signal messages with Agent Rizzo between June 6th and 20th, when Agent Rizzo was in San Francisco.

[00:13:00] Speaker 03:
And that was the defendant's first use of interstate commerce facilities, coupled with the intent to have his wife murdered. So why does that not support venue in the Northern District of California?

[00:13:13] Speaker 04:
Well, the travel to Florida was interstate commerce.

[00:13:18] Speaker 03:
But if he had already traveled before he got there and had not yet formed the intent, the next use would have been the interstate facilities of exchanging signal messages, would they not?

[00:13:31] Speaker 04:
Only to set up the next meeting, which occurred in New York. And in New York is when he traveled interstate to get to New York.

[00:13:40] Speaker 03:
But those are acts that occurred between the Northern District of California and wherever he was in sending the signal.

[00:13:47] Speaker 04:
But that's only because the agent says send them here or make the wire transfers there.

[00:13:53] Speaker 03:
I mean, otherwise what you have is an agent being able to... That doesn't eliminate the interstate nature of the communication. That's the problem I'm having with your argument.

[00:14:00] Speaker 04:
I understand. But if the agent is the one that says send it to this location, then the agent in any continuing offense... could determine what jurisdiction would lie. Because the agent could say, send it to New York. The agent could send it to Alaska.

[00:14:14] Speaker 01:
And your client could say no.

[00:14:17] Speaker 04:
But the client does not know that that changes venue. The client knows that he is working out the deportation or removal of his partner.

[00:14:28] Speaker 01:
Well, the jury was instructed that to find venue, they had to find that something was in furtherance, right?

[00:14:36] Speaker 01:
Yes. And?

[00:14:38] Speaker 01:
I don't know whether it was you or prior counsel argued to the jury that, and I'm looking at ER 1325, that there was insufficient evidence of this.

[00:14:51] Speaker 01:
And the jury decided that there was evidence that acts in the Northern District were in furtherance of the plan, right? That's what counsel argued.

[00:15:04] Speaker 01:
But the argument was, There wasn't enough, and the jury decided there was. The jury decided that there were San Francisco events that were in furtherance.

[00:15:12] Speaker 04:
Right, but the recent United States Supreme Court case, which goes back to Johnson, talks about the sending of the items, not the receipt of the items. So in that case, the dentures were mailed from one state to another, and it was the use of the mails that was keyed. It wasn't where they were sent. It's not where they went.

[00:15:38] Speaker 01:
It's where they were sent. I don't see anything in that Supreme Court case which says that if you're sending, if you're wiring $50,000 to San Francisco, that that doesn't make San Francisco a venue for this type of crime. Can you point to any language in the case that says if, for example, you stipulate it, that the money was wired to SF, right?

[00:16:06] Speaker 01:
Yes. And is there anything in the recent Supreme Court case that you're citing which, in the words used by the court, would stand for the proposition that that's not enough to establish venue for this type of crime in SF?

[00:16:20] Speaker 04:
I think by its upholding Johnson and talking about Johnson and the fact that it is where the items were sent from the controls, not where they were received, the dentures in that particular case. And so the money transfers were made from Boston. So venue lies in Boston, not in San Francisco.

[00:16:41] Speaker 01:
I read the case differently, but you're out of time. We'll give you three minutes for rebuttal.

[00:16:45] Speaker 04:
Thank you very much.

[00:16:46] Speaker 01:
Unless any of my colleagues have any further questions now. No, no, no.

[00:17:15] Speaker 00:
Good morning. May it please the court, Elizabeth Barringer for the United States.

[00:17:20] Speaker 00:
There was sufficient evidence in this case to support the jury's finding on both guilt and on venue, and there was no reversible evidentiary instructional error. I would first like to address Agent Rizzo's testimony, and I have three points about that testimony. First is that the standard review.

[00:17:39] Speaker 00:
When you go through the examples that the defendant provides on page 41 through 46 of his brief, Only three of those, there was a contemporaneous objection, one of which was sustained. And that objection that was made was made on different grounds of speculation. It was not based on the grounds that were raised on appeal, which is under Rule 701. So based on that, we're in plain error land. Second, the testimony was properly admitted, as the panel has recognized, under this court's precedent in both Gadsden and And Seamus, a listener's understanding of ambiguous terms, whether it's an agent or whether it's another percipient witness, it doesn't matter.

[00:18:19] Speaker 00:
That understanding of those ambiguous terms helps the jury decide what the defendant is intending to communicate. And that's well-established precedent. And how do we know that this is such a well-established precedent? Is that the defendant did the exact same thing during his testimony. We have many times ER 1065, 1073, 1094.

[00:18:41] Speaker 00:
1097 to 1103, 1108, all of those situations in which Gessen is saying what he thought Rizzo was conveying.

[00:18:49] Speaker 01:
And this is a case in which all of the parties... Well, that's slightly different, counsel. I mean, I take your point about the possibility of plain error, and we weren't really focusing on that with the conversations with your friend. But I mean, it's a little bit different when the person whose mens rea is at issue and all circumstantial evidence relating to their mens rea can be considered by the jury in deciding whether they had the required specific intent. So for them to testify with regard to a conversation that they were a part of as to their understanding as it bears on their mens rea is a little bit different than if there were actual testimony from the agent.

[00:19:35] Speaker 01:
What was John thinking? What was Sally thinking? That's a little bit different, I think.

[00:19:42] Speaker 00:
Two responses to that. I don't think the rules of evidence draw a distinction between lay opinions about the defendant or lay opinions just in general. It's just a general rule about lay witness.

[00:19:51] Speaker 01:
But it's not actually so much an opinion when the defendant is talking about what his state of mind was and was his belief and that he didn't have the specific intent to form an agreement to kill his wife. And he's talking about his conversation and he's asked, What did what did Agent Rizzo intend? What did you take he was conveying to you? I mean, that's direct evidence of his mens rea, not so much an opinion of what Rizzo was thinking as opposed to the way he took it, because that's direct evidence of his center.

[00:20:26] Speaker 01:
Right.

[00:20:26] Speaker 00:
That's a fair point. But I that's not exactly what Agent Rizzo was testifying to. It's a small nuance is that he was saying. what his understanding of what the defendant was saying.

[00:20:37] Speaker 01:
I agree that the testimony is different, but I would say that even if Agent Rizzo's testimony were objectionable, that wouldn't mean the defendant's was because it's not being offered for exactly the same thing. And one, it's being offered for the jury's help in understanding what was going on. In the other, it's direct evidence of the defendant's center.

[00:21:06] Speaker 00:
I don't know. I mean, of course, it is ultimately to prove the defendant's center. But I think that that small nuance of a listener explaining some ambiguous phrase, which is supported in case law, is slightly different than the agent just saying, when he said this, he meant this. And nine times, the district court clarified for the jury. I counted nine times where the district court said, Agent Rizzo, even though he said this, he's only testifying based on his understanding of the conversation.

[00:21:39] Speaker 00:
He does not know what's in the defendant's mind. And so that changes.

[00:21:43] Speaker 01:
So that is a little bit different than what your friend said the judge instructed the jury.

[00:21:47] Speaker 00:
Yes. And I point to the court to references on 580, 590, 597, 599, 605, 608.

[00:21:58] Speaker 00:
608-616. Those were all the times in which the court carefully instructed the jury and explained the purpose of the testimony, which was to explain Agent Rizzo's understanding. Any witness can come up who's a listener and explain his understanding. It allows the government to provide a framework, as this court said, in Freeman, a framework for how the jury might understand those ambiguous terms. So this is well within the what this court allows under 701 for a listener to explain to the jury.

[00:22:30] Speaker 01:
So, counsel, I don't want to... Oh, I am interrupting your argument, so I apologize. So I guess I shouldn't say I don't want to interrupt since that's exactly what I'm doing, and I apologize. But if you could get to your friend's comment or your friend's argument that the recent Supreme Court venue case means that Receipt of the money or the signal transmissions in San Francisco doesn't count to establish SF venue, and it's only the sending that does.

[00:23:04] Speaker 01:
Is that how you read the case?

[00:23:06] Speaker 00:
No, Your Honor. I believe that both Johnson and Abawama are discussing a different kind of case, which is a non-continuing offense, a point-in-time offense. This is much different. It's the use of an interstate commerce facility, which means there must be a sending and a receiving facility. And when that happens in two different jurisdictions, just like drug trafficking or wire fraud or how this court views any type of interstate activity, there's going to be jurisdiction on both sides of that interstate commerce situation.

[00:23:35] Speaker 01:
Is the United States aware of any case involving a similar type statute in the way you've described it that says the district of receipt doesn't count for venue, only the district of transmission counts for venue?

[00:23:51] Speaker 00:
No, Your Honor. And since Johnson, Congress has made it quite clear that these continuing offenses are treated differently in the amendments to 3237A. Congress inserted the word continuing, and of course it included that second paragraph to explain what it meant by continuing. So continuing offenses are different than point-in-time offenses where just the sending would be enough. It's the whole crime is committed both in the place of sending and receiving offenses. it would be very hard to make a principal distinction between murder for hire and wire fraud, which under this court's precedent is clearly the sending and the receiving.

[00:24:34] Speaker 01:
What would you make, your friend didn't address this in his oral argument, but in the briefs, the argument that because the crime in the government's telling was already committed before there were any wires sent to SF. That under the government's theory, there was this agreement during the conversation, and that was before the specific relied upon signal transmissions and wire transfers.

[00:25:14] Speaker 01:
The argument in the briefs that, and I think to the district judge, that that doesn't count because it's after the crime is already done. So how can that count to establish a venue for an already completed crime?

[00:25:27] Speaker 00:
I have a few responses to that. The first is that this is not a travel case. It was charged as a travel case, but the government abandoned that theory before trial when it submitted joint jury instructions. It only submitted the use of facility. It only argued the use of the interstate commerce facility to the jury. So the travel was irrelevant. to this case. The jury was never instructed that that was a part of the case or that they could consider that.

[00:25:49] Speaker 01:
But the argument, but I believe their argument was, as soon as this putative agreement to kill was reached, or that, I guess not the agreement reached, but that as soon as your client, as soon as this client intended that there to be a killing and arranged for it, that that was a completed offense and that none of the interstate commerce transmissions occurred after that. So how can that establish venue in SF?

[00:26:21] Speaker 00:
Well, first of all, I'm not aware of an interstate transmission. The only ones that were stipulated by the jury were the sending of the signal messages that set up the June 22nd meeting.

[00:26:30] Speaker 01:
Right, and the money.

[00:26:31] Speaker 00:
And the money. And that's the government's theory is that it was the money. So that's how... the argument went below. I'm not sure what interstate activity happened.

[00:26:41] Speaker 01:
But maybe I probably asked a bad question. So what I'm getting at is what I took their argument to be that even before the money was sent, the crime was completed.

[00:26:50] Speaker 00:
Well, again, this is a continuing offense. Several circuits have held that the unit of prosecution for a murder for hire, not this jurisdiction but other jurisdictions, is the murder plot. And so it's not the different – each wire transaction is the commission of the crime. It's the actual murder plot itself. So in this case, the government charged over a period of time, and that would include all of the wires that were transmitted. So it was continuing throughout all of the wires that were transmitted.

[00:27:23] Speaker 01:
So the government's theory is that it's acceptable to have venue because for venue purposes, the crime doesn't simply stop at the time that you could charge it, you get to fold all the activities in, including the money.

[00:27:39] Speaker 00:
Well, that's consistent with Rodrigo's Moreno, which is a kidnapping case. If the kidnapping case doesn't stop as soon as it gets to New Jersey, it continues until the kidnapping's over. And here the murder plot didn't end until Gessen was arrested. And so that's when the crime ended and was completed for purposes of completion. Go ahead.

[00:28:01] Speaker 03:
No.

[00:28:02] Speaker 03:
If we agree with you, Ms. Barringer, Do we need to publish on that issue to clarify the law?

[00:28:09] Speaker 00:
I mean, we have not had a case since Abawamo about distinguishing Abawamo from the narrow facts on which the Supreme Court decided until now. So it may be important to narrow it in the same way that the Supreme Court made clear to narrow its own decision. Justice Kagan was very clear about what Abawamo was doing and what it was not doing. It does not apply to continuing offenses. It does not apply to 3237 offenses. And this is a 3237 offense.

[00:28:39] UNKNOWN:
Okay.

[00:28:40] Speaker 02:
Counsel, could I take you to another issue that wasn't addressed by counsel in his argument?

[00:28:46] Speaker 02:
There was one other argument raised, which was the bad acts evidence. That is the prior, Mr. Gesson's prior kidnapping and whatnot.

[00:28:54] Speaker 00:
Yes. Yes.

[00:28:56] Speaker 00:
So the first thing I would say to that is. Would you address that? Yes. Yes, Your Honor. I'd be happy to. The.

[00:29:02] Speaker 00:
The government's theory all along, which the district court adopted, is that the most recent parental abduction, the one to Canada, was intrinsic to the offense. I believe that's well supported in the case law. That particular kidnapping and parental abduction was discussed at length in the recordings with the UC. The jury was aware of it. He provided his motive. He said he was really pissed off because he was jailed for it. So that aspect of it was intrinsic to the offense. It doesn't require a 404B analysis.

[00:29:32] Speaker 00:
As to the earlier parental abduction from Russia to the United States, that was admitted to prove the defendant's motive to commit the murder for hire, as well as to disprove this defense theory.

[00:29:44] Speaker 02:
His intent, kind of.

[00:29:46] Speaker 00:
His motive, his intent, because those were bound up together, as well as to disprove this defense theory, which we've been talking about, which is that he just intended to have her deported and not murdered. And if you... As the government argued in its closing argument, 1286, 1290, 1337 through 41, this whole idea was the theory of the government's case that there was this progression, that there was this progression from sort of this reverse deportation where he traps her in this other country and takes the kids on two occasion.

[00:30:20] Speaker 00:
Didn't work. Priscilla loved her kids, and she kept going after them. She hired very competent counsel, according to the record. She was able to...

[00:30:30] Speaker 00:
successfully navigate these international legal systems in order to rejoin her children. And so how do we explain what he meant by a more permanent solution? How do we explain his frustration in those recordings that that hadn't worked? That was because those kidnappings and those parental abductions and the failure of those immigration hurdles to work in the past explain why he took the more permanent solution in this case. So also the court took careful attempts to limit the extent of the testimony. It didn't let in an additional parental kidnapping, although the defendant did admit that during his direct examination about this third parental kidnapping.

[00:31:07] Speaker 00:
So it eventually did get before the jury, but it was excluded by the district court.

[00:31:13] Speaker 00:
It also carefully instructed the jury about these other acts. And if we think about what propensity means, You know, the fact that you do parental kidnapping doesn't make you more likely to commit a violent crime like murder. That wasn't the purpose of it. It was actually for another purpose, for a proper purpose, to help prove the elements of the offense. Thank you.

[00:31:35] Speaker 00:
And if the court doesn't have any additional questions for me, I would ask you to affirm the conviction in sentence.

[00:31:39] Speaker 01:
All right. Thank you, counsel.

[00:31:47] Speaker 04:
Thank you.

[00:31:50] Speaker 04:
The terms were not ambiguous. More definite, that route, do the full recon, and we just shifted gears could easily have been interpreted by the jury. They didn't need explanation. His understanding was transmitted in the testimony as guessing thoughts. He could testify as his understanding of events. In other words, my understanding of this occurring on that day is such. What he did was is take his understanding and turn it into what Gessen was thinking.

[00:32:25] Speaker 04:
And that's what's impermissible. So when asked his understanding of Mr. Gessen's statement more definite, he answered, permanent dead. He could have been asked, what's his understanding of the events that occurred? But when he's asked specifically about the statement and he then gives an answer of what Mr. Gessen is thinking, That's when it's gone too far.

[00:32:50] Speaker 03:
But, Counsel, you just put your finger on one piece of evidence, and that is the reconnoitering or the profile. He basically put together a hit package so that the jury could infer from that evidence that photographs of both the wife and the children, the schedule of their whereabouts on particular dates and where they would be, That wouldn't have anything to do with deportation, would it?

[00:33:18] Speaker 04:
No, but it would with involuntary removal. Having people come in, kidnap her, take her from one location, and take her out of the country.

[00:33:29] Speaker 03:
So now you're telling, was the defense theory that it was actually a kidnapping that he was talking about?

[00:33:35] Speaker 04:
There was deportation, and then you've just changed plans, went to the removal of her from the country.

[00:33:43] Speaker 03:
Not her killing. I didn't understand that from your brief. This is coming as a surprise to me.

[00:33:49] Speaker 04:
My apologies in writing whatever brief, but I'm pretty sure I have got removal in there. That's the step. That's why I was talking earlier about the violence. Why not have people there? Because they were going to take her.

[00:34:03] Speaker 02:
He was going to recruit somebody to kidnap her and take her out of the country.

[00:34:09] Speaker 04:
Exactly. And that's what could have been charged in this case. But it wasn't. What was charged was murder for hire. But the only way you get murder intent to kill or killing or anything else is by Rizzo's testimony. You don't get it from any of the facts. You don't get it from the conversations. You don't get it anywhere except from when Rizzo gets on the stand and says what he meant by that, because I know what he was thinking, is permanent debt.

[00:34:36] Speaker 03:
But, Mr. Thompson, if your position now is, Well, he was really talking about an illegal kidnapping, a transportation across international boundaries, and a physical removal from the United States, sort of resorting to self-help when USCIS is not going to do it for you. Can't the jury look at that, if that truly was his intent, and say, no, that's what he's saying now, but what we understood that he agreed to do was to pay this money to have her murdered?

[00:35:11] Speaker 04:
Again, as long as Agent Rizzo isn't adding the words he thought he was saying, kill.

[00:35:18] Speaker 01:
I'm sorry, counsel, are you saying that when you're, I'm not sure that this is actually relevant to the argument, but are you saying that your client actually testified at the trial that what he was talking about was having his wife kidnapped and forcibly removed out of the country.

[00:35:42] Speaker 04:
I cannot say right now what his testimony was in particular.

[00:35:47] Speaker 01:
Because I don't recall that.

[00:35:48] Speaker 04:
Right. What I'm saying is that the discussions between Agent Rizzo and Mr. Gessen was deportation, then we go to something different. That something different was the removal of the country. The very first thing he says is, When Agent Rizzo says to him, well, what is it? You've got a blank slate. What is it you want done? He says, I want me and my children in this country, and I want her moved to another country.

[00:36:19] Speaker 01:
I know we've taken up a lot of your time with questions. You're out of time. Do you have a final point?

[00:36:23] Speaker 04:
The recent Supreme Court case upholds Johnson. Johnson held that the mailing of the dentures from one state to another amounts to conduct use of mails in the state from which the dentures were sent, not in the state where they were going, the intended effects. Here, the sending of the money transfers or the signal messages or anything are from another location, not San Francisco. They came to San Francisco, does not matter.

[00:36:55] Speaker 04:
And the instruction that I gave, the court gave many instructions about what, the issue of Rizzo's testimony understanding on, and it's 4ER599, and when it mattered, the court instructed the jury that Rizzo is testifying to what he believed Mr. Gesson thought. And that's the error. All right.

[00:37:19] Speaker 01:
Thank you. Thank you, counsel. We thank both counsel for their arguments. The case just argued is submitted.