[00:00:00] Speaker 01:
Good morning, your honors.

[00:00:01] Speaker 01:
May it please the court.

[00:00:03] Speaker 01:
David Anikyariko for the appellant, Mr. Pasha.

[00:00:07] Speaker 01:
I'd like to reserve four minutes, please.

[00:00:14] Speaker 01:
Mr. Pasha is entitled to a new trial with 12 impartial jurors or to a new sentencing hearing.

[00:00:22] Speaker 01:
I'm going to focus on four of the claims, but if the court has any questions about the others, I'll be glad to answer them.

[00:00:28] Speaker 01:
Those are the bias juror, the identity theft counts, and the sentence enhancements for charitable organization and intended loss.

[00:00:41] Speaker 01:
Turning first to the bias juror, which is argument one of Appellant's opening brief, there's no reasonable dispute that Juror Fox's pretrial statements were disqualifying.

[00:00:53] Speaker 01:
His traumatic history of discrimination and violence against him was triggered

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He was angry and he dismissed the defense as a scapegoat without yet hearing any evidence.

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He said he couldn't be fair.

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The only question is whether his purported 180 degree turnaround was reliable enough to protect Pasha's constitutional right.

[00:01:18] Speaker 01:
And here it plainly wasn't.

[00:01:22] Speaker 01:
The juror saying the magic words isn't enough when the circumstances are unreliable.

[00:01:29] Speaker 01:
By the same token, when a judge makes findings under unreliable circumstances, those findings are unreliable.

[00:01:36] Speaker 00:
Mr. Anikariko, I guess I'm trying to pinpoint a juror bias claim here.

[00:01:43] Speaker 00:
It'd be structural error.

[00:01:47] Speaker 00:
When did it occur?

[00:01:49] Speaker 00:
I think one of the puzzling things about

[00:01:54] Speaker 00:
the way this unfolded is that the district court, that came up after voir dire, then I think before the juror was seated, is that right?

[00:02:09] Speaker 00:
And then a weekend passed and then the juror was seated as an alternate without any further follow-up, is that right?

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And then later on,

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After the pause in the trial on Tuesday, on the Wednesday, the juror comes off of the alternate and enters in.

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And of course, whether, I think you'd agree with me, whether the juror is an alterter or not doesn't change the analysis.

[00:02:38] Speaker 00:
Is that right?

[00:02:42] Speaker 00:
Most of our cases, as far as I can tell, nearly all of the cases, let us know if it's different, involve the curative colloquy and the assurance, whatever the status of that assurance is, comes at the same time.

[00:02:59] Speaker 00:
It's during voir dire, the district court will pull the juror aside, conduct the follow-up, and if there's an assurance that does the trick, it happens then, and if there's not, it doesn't happen then.

[00:03:11] Speaker 00:
What are we to do and where is your assertion of kind of where the error occurred here?

[00:03:15] Speaker 00:
Was it the fact that the juror was seated after this initial problematic colloquy at all?

[00:03:24] Speaker 00:
What does the curative statement afterwards a few days later mean?

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How should we parse this for purposes of our bias analysis?

[00:03:33] Speaker 01:
Your structural error occurred at the time that the juror was allowed on to the jury as an alternate.

[00:03:39] Speaker 01:
As as your honor noted all the case law involves curative statements before the juror is led on to the jury and this is a structural error.

[00:03:49] Speaker 01:
It's concerned about this.

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The circumstances that are created here show exactly why the juror shouldn't have been admitted in the first place because after that

[00:04:00] Speaker 01:
the circumstances under which he gave his purported assurance become unreliable.

[00:04:06] Speaker 00:
OK.

[00:04:07] Speaker 00:
Now, what do we do with the fact that some of our cases, I believe, and it happens, sometimes actual bias only manifests much later, even in deliberations.

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And yet, again, tell me if you're wrong, but I think there are at least some circumstances in which

[00:04:29] Speaker 00:
a juror can provide assurance after having been seated on the jury.

[00:04:36] Speaker 00:
And so why wouldn't that reopen the second colloquy to being curative, notwithstanding the fact that the juror was seated?

[00:04:43] Speaker 01:
Even if it did, Your Honor, the circumstances here show clear error at the time that this juror was moved from an alternate to a seated juror.

[00:04:53] Speaker 02:
Why is that?

[00:04:54] Speaker 02:
Because I mean, he's

[00:04:56] Speaker 02:
The juror says, no, I don't.

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I have no hesitancy about my ability to set aside my prior views and be fair and impartial.

[00:05:04] Speaker 02:
So what?

[00:05:05] Speaker 02:
Yeah, what?

[00:05:05] Speaker 02:
I mean, what's the problem?

[00:05:06] Speaker 01:
There are several reasons, Your Honor.

[00:05:08] Speaker 01:
The first is that the first thing that the judge said was, Mr. Fox, you're now on the jury.

[00:05:14] Speaker 01:
So he had just been ordered by a federal judge to be on the jury.

[00:05:18] Speaker 01:
And the human impulse under those circumstances is to not want to refuse this order from the federal judge.

[00:05:24] Speaker 00:
Why does that matter?

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I mean, we have, I think, in at least one of our cases, we suggest and kind of dictate that human element.

[00:05:32] Speaker 00:
But have we ever held that that happens?

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I mean, of course, the district court proceedings are suffused with power relationships between the judge and the jury and the parties.

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But how does that move the needle kind of rule wise in our analysis?

[00:05:47] Speaker 01:
In the Gonzalez case, this court held that

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A juror's assurance is given significant weight, but it's not dispositive.

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And that's because jurors are human.

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They're frequently reluctant to admit their bias.

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So you have to look at the context and any doubts must be resolved against seating the juror.

[00:06:07] Speaker 02:
So is there something in particular about the context here other than the judge saying, you know, you're you're on the jury that makes the juror statement not trustworthy or not or something that wasn't curative?

[00:06:22] Speaker 01:
Yes, Your Honor.

[00:06:23] Speaker 01:
In addition to that, we also have the defendant then

[00:06:27] Speaker 01:
confronted and cross-examined juror Fox about his bias and told Fox directly that he didn't want him on the jury.

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Now the human impulse in that circumstance, that uncomfortable circumstances to try to smooth that over and say, no, there's no problem here.

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It's going to be fine.

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We also have that the juror had now been influenced by the prosecution's evidence so far.

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Jurors, as the case law recognizes, jurors are supposed to be kept away.

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That's the purpose of having voir dire before

[00:06:57] Speaker 01:
any evidence is shown to the jury.

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And furthermore, the jury had already invested his time in this case.

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And he was now incentivized to just stay and see it through.

[00:07:09] Speaker 01:
This court's Katchezian case at page 1030 talks about the investment the jurors feel in their role and their commitment to seeing the process through.

[00:07:20] Speaker 01:
So that's yet another circumstance making it unreliable.

[00:07:24] Speaker 00:
So in that case, I think we said,

[00:07:26] Speaker 00:
This will be a question I have for your friend as well, that although it didn't involve the similar circumstances and whether you can always come back to cure the bias, which I think is the way that this would have to work, it says, although that wasn't the case in Khatetsian, they said that that plan wouldn't work for these reasons.

[00:07:47] Speaker 00:
But it wasn't really a direct holding that such plans can't work.

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It's judicial recognition of the difficulty of these circumstances and the unreliability of the circumstance.

[00:07:59] Speaker 00:
Well, I guess, you know, I think in terms of our cases in trying to be very respectful of the jury and the jury's critical role here, why couldn't the district court have taken, again, I think on clear error review, a statement that I'm fine now and repeated assurances

[00:08:24] Speaker 00:
Enough, this was a, this juror was loquaciously candid.

[00:08:31] Speaker 00:
Maybe more so we've seen in some other cases.

[00:08:35] Speaker 00:
But in the district court's shoes, we've got assurance, which is what we've said we've needed.

[00:08:43] Speaker 00:
So why doesn't that dissipate all the other noise about the concerns?

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And how would we, if we decide something different, how do we put that in a rule in the context of

[00:08:58] Speaker 00:
an assurance usually being enough so that a district court can move on with the trial.

[00:09:04] Speaker 01:
Two further points there, Your Honor.

[00:09:05] Speaker 01:
First of all, we have to look at what the juror said because right there interspersed with his purported assurances was that he continued to show the true impact that it had on him when he said in the midst of those assurances, hearing that was so abrasive.

[00:09:22] Speaker 01:
It brought up a lot of bad issues that had happened in the past.

[00:09:25] Speaker 01:
Trauma came up that I wasn't expecting to deal with.

[00:09:28] Speaker 01:
He spoke again about having bottles thrown at his head.

[00:09:32] Speaker 01:
The entire time you were talking, that's all it was, discrimination against the Islamic faith.

[00:09:37] Speaker 01:
So it shows that this is still very much on his mind.

[00:09:40] Speaker 01:
And secondly, in none of the government cited cases, did the juror make comments so angry and dismissive towards the defense as juror Fox did?

[00:09:51] Speaker 01:
He said there was no way he could let it go because of his neurodivergence and because of his history of discrimination and violence.

[00:10:01] Speaker 01:
And then make an alleged 180 turnaround.

[00:10:03] Speaker 01:
None of the cases are like that.

[00:10:06] Speaker 01:
So the ardently expressed

[00:10:09] Speaker 01:
bias in this case makes it different than the other cases where courts have allowed subsequent assurances to ameliorate the situation but counsel you when you began your argument you.

[00:10:22] Speaker 04:
You said that he showed actual bias during the war dear isn't it.

[00:10:28] Speaker 04:
fair or more accurate to say he showed some possible implied bias then the statements he made uh... that go to actual bias occurred after he was seated and then we have all the colloquy where he he sort of disavows that but i don't see from the initial voir d or anything that jumps out that much so can you focus on that portion of the record to

[00:10:56] Speaker 04:
point to us what you believe was actual bias from his comments about law enforcement generally, bluebacks, blue, that kind of thing.

[00:11:09] Speaker 04:
What was it that you believe was actual bias before he was seated?

[00:11:15] Speaker 01:
After those comments that your honor is talking about, there were all of everything he said about having bottles thrown at his head, about having been discriminated against as a gay and transgendered person,

[00:11:27] Speaker 01:
And he was so angry that was after the weekend.

[00:11:30] Speaker 01:
I have to disagree your honor.

[00:11:33] Speaker 01:
He talked about things before and after the weekend before he was seated and after he talked about having bottles thrown his head.

[00:11:40] Speaker 01:
He said he was festering in his head and he wouldn't be able to let it go.

[00:11:43] Speaker 01:
This all happened before the weekend and the judge said well you're coming back on Monday.

[00:11:47] Speaker 01:
Although all those comments took place before.

[00:11:52] Speaker 00:
Are you making an implied bias claim?

[00:11:58] Speaker 01:
No, Your Honor, this is actual bias.

[00:11:59] Speaker 01:
It's the existence of circumstances that lead to an inference that a person couldn't act with entire impartiality.

[00:12:08] Speaker 01:
At a minimum, there was a doubt, which had to be resolved against the juror.

[00:12:13] Speaker 00:
If we agree with you on the bias claim, do we need to reach any of the other

[00:12:23] Speaker 00:
Issues sufficiency instruction and anything else is there anything else there that we ought to be providing the district court to move forward with?

[00:12:32] Speaker 01:
It would be good to advise the district court about the sentencing issues If those come up, but no your honor basically structural error means a new trial in this case

[00:12:42] Speaker 00:
And there are no, so sometimes if there are errors assigned to the indictment or other earlier stages, we might have to reach that.

[00:12:55] Speaker 00:
But none of the issues here you're containing are issues that we would have to reach given where the structural error you assign occurred.

[00:13:03] Speaker 01:
There is one that comes to mind, which is the jury instructions issues on the witness tampering.

[00:13:09] Speaker 01:
That would be

[00:13:10] Speaker 00:
An error that the judge wouldn't want to repeat was that preserved I Mean it with respect to the jury instruction.

[00:13:22] Speaker 00:
I guess I believe I believe not your honor okay, so that would be reviewed for plain error.

[00:13:27] Speaker 00:
That's right, okay?

[00:13:31] Speaker 01:
I'll next turn to the identity theft argument two of the opening brief and

[00:13:37] Speaker 01:
Using Mansour's and Wilson's names on some of the loan applications is what these identity theft convictions were based on.

[00:13:44] Speaker 01:
In Dubin, the Supreme Court said that too many fraud crimes are also charged as identity theft when the use of a person's identity was only incidental.

[00:13:56] Speaker 01:
The defendant is already being punished for the fraud.

[00:13:58] Speaker 01:
We don't also slap him with a mandatory two consecutive

[00:14:03] Speaker 01:
years in prison for aggravated identity theft unless identity use was at the crux of the fraud.

[00:14:09] Speaker 01:
And in this court's very recent Motley case, the court reiterated that identity use has to be critical to the success of the fraud.

[00:14:21] Speaker 00:
Why isn't this closer to Parvis?

[00:14:26] Speaker 01:
Because in Parvis,

[00:14:29] Speaker 01:
The forged doctor's note was critical to getting the passport granted in absentia.

[00:14:35] Speaker 00:
Could the defendant here have been eligible for the loans if he used his name?

[00:14:43] Speaker 01:
Yes, he could, Your Honor.

[00:14:44] Speaker 01:
And that's a red herring that I want to clear up.

[00:14:46] Speaker 00:
OK.

[00:14:47] Speaker 00:
Please do.

[00:14:51] Speaker 01:
he did not need their names on the loans because the rule was one business, one loan, not one person, one loan.

[00:14:59] Speaker 00:
But if, I guess, if again, now we're talking about sufficiency and so if the government's theory here is that he did that to conceal the

[00:15:14] Speaker 00:
alleged shell game that he was playing to get these other loans, then it was, wouldn't it?

[00:15:20] Speaker 00:
If his name appeared on three different corporations, that would have arose suspicions.

[00:15:26] Speaker 00:
And again, the question is just whether the evidence is sufficient to show that that was the reason he used it, isn't it?

[00:15:33] Speaker 01:
Your Honor, in Motley,

[00:15:36] Speaker 01:
The situation was the same that we have here and Motley reversed, which was using someone else's names on applications for a government program.

[00:15:46] Speaker 01:
He didn't need their names.

[00:15:49] Speaker 01:
And that's the question is whether it's critical to the success, not whether it facilitated it, but whether it is critical to the success.

[00:15:56] Speaker 01:
And here there was no evidence that he couldn't obtain these loans by using his own name.

[00:16:02] Speaker 01:
The government mentions that he had a criminal record

[00:16:05] Speaker 01:
But the defendant's criminal record wasn't a problem when he received already a PPP loan.

[00:16:11] Speaker 01:
So that's another red herring.

[00:16:15] Speaker 01:
The question is whether his use of the names was critical.

[00:16:17] Speaker 01:
And in this case, it wasn't.

[00:16:18] Speaker 01:
There was no evidence that he couldn't have done it on his own.

[00:16:26] Speaker 01:
I'll speak briefly about the intended loss sentencing issue.

[00:16:31] Speaker 01:
The common sense meaning of loss is having lost something.

[00:16:36] Speaker 01:
And under Kaiser, the common sense plain text meaning of guidelines is what the court follows.

[00:16:42] Speaker 01:
It's the very first rule of statutory construction.

[00:16:45] Speaker 01:
There's no rational argument that loss means loss that never occurred.

[00:16:49] Speaker 00:
Haven't we held loss as ambiguous?

[00:16:52] Speaker 01:
The only published case in which this court has held that, and there is a split on this issue, but this court has not issued a holding on the intended loss question.

[00:17:02] Speaker 01:
In the Yaffa case, which I believe Your Honor is referring to, they said that

[00:17:07] Speaker 01:
Loss was ambiguous enough for a particular context, which was that if you can't tell how much was actually lost, you can use gain, the defendant's gain, as an alternative measure of the victim's loss.

[00:17:21] Speaker 01:
But Yaffa specifically said that it wasn't deciding the issue of intended loss.

[00:17:25] Speaker 01:
So this is very much an open question in this circuit's published authority.

[00:17:33] Speaker 01:
The government mentions

[00:17:35] Speaker 01:
And some of the cases that have come out the other way on the split mention, well, how do we account for relative culpability between defendants if we don't include intended loss?

[00:17:45] Speaker 01:
And the answer is that the guidelines already take care of that.

[00:17:47] Speaker 01:
They don't ask the court to.

[00:17:49] Speaker 01:
torture the meaning of the plain text of the guideline, they allow a court to vary from the guidelines range if relative culpability isn't taken into account, if there are circumstances that make this particular case worse.

[00:18:03] Speaker 01:
So we don't need to, as I said, torture the plain meaning of the word loss.

[00:18:09] Speaker 01:
Another point that the case law and the government has tried to make is that the relevant conduct rule of section 1B1.3

[00:18:18] Speaker 01:
Also includes harm that was the object of the acts, but this is only a general rule.

[00:18:23] Speaker 01:
It doesn't supplant the specific guidelines.

[00:18:30] Speaker 01:
The examples wouldn't make sense if it did.

[00:18:32] Speaker 01:
For example, the guideline that punishes a large capacity magazine on a firearm wouldn't make any sense if

[00:18:39] Speaker 01:
You could say that, well, the defendant intended to possess one, but he didn't actually possess it.

[00:18:44] Speaker 01:
He's still guilty of possession of a large capacity magazine.

[00:18:48] Speaker 01:
Or the example of enhancement for 10 or more victims.

[00:18:52] Speaker 01:
If there were only eight victims, but the person intended two more victims, that enhancement would not apply because of the relevant conduct rule.

[00:19:02] Speaker 01:
There were only eight.

[00:19:03] Speaker 01:
There weren't 10.

[00:19:08] Speaker 01:
Regarding the charitable organization, I see that I'm nearly out of time, so I'll just say that it was the government's burden to prove that all 501c3 organizations are charities, or to show that All Hands on Deck was registered as a charity, as a charitable organization under 501c3, as compared, for example, to an educational organization.

[00:19:30] Speaker 01:
And there's lots of evidence in the materials that the government cites about the educational mission of All Hands on Deck.

[00:19:37] Speaker 01:
So the government had the burden

[00:19:38] Speaker 01:
to prove it, and it entirely failed that at the sentencing.

[00:19:43] Speaker 02:
OK.

[00:19:43] Speaker 02:
Thank you.

[00:19:43] Speaker 02:
I'll give you three minutes for rebuttal.

[00:19:45] Speaker 01:
Thank you, Your Honors.

[00:19:45] Speaker 01:
Thank you.

[00:20:02] Speaker 03:
Good morning, Your Honors, and may it please the Court.

[00:20:05] Speaker 03:
Ross Mazur on behalf of the United States

[00:20:08] Speaker 03:
This court should affirm the judgment in full, including the eight counts challenged on appeal out of 44, the finding of no actual bias, and the decisions on the guidelines and on restitution.

[00:20:21] Speaker 03:
So let me turn to the four issues that opposing counsel addressed.

[00:20:25] Speaker 03:
Starting with the juror, the record just doesn't show actual bias.

[00:20:29] Speaker 03:
The juror fully engaged, actively participated in voir dire, flagged his emotional response immediately for the judge when it came up,

[00:20:38] Speaker 03:
And after giving some time to reflect on it, came back to court, explained his earlier comments.

[00:20:44] Speaker 03:
and repeatedly committed to be fair and impartial in deciding the case.

[00:20:49] Speaker 02:
So it seems to me that the jurors' later comments were quite equivocal in kind of all our decision in Kiccesi.

[00:20:59] Speaker 02:
And he says that he had a scratch in the back of his head, that he had to remember over the weekend what he'd had to do in the past to overcome the issues that he's dealing with.

[00:21:10] Speaker 02:
He states again that all he was hearing from the defendant was discrimination, and that things get stuck in his head for a while.

[00:21:16] Speaker 02:
So why didn't that all present a reason to still really be concerned that the juror was holding on to this bias that he had expressed earlier?

[00:21:26] Speaker 03:
Well, some of those comments came when the judge invited the defendant, giving the opportunity to ask more specific questions of the juror, specifically about, well, what did I say in the first place to trigger you?

[00:21:41] Speaker 03:
and how exactly did you get over it?

[00:21:43] Speaker 03:
So only in that context did the juror try to explain what he was thinking in the first place and what he was thinking now.

[00:21:52] Speaker 03:
It's not realistic to think that the juror on Friday is willing to express in a very candid and forthright way his reservations about his own potential bias and then

[00:22:08] Speaker 03:
early the next week, as defense counsel suggests, that he's simply going to do a 180 and kind of bow to the pressure of staying on the jury.

[00:22:18] Speaker 03:
I'll also note that at the beginning of the second colloquy, the judge admonished the juror for the equivalent of three transcript paragraphs about the critical importance of being completely candid about his ability to be impartial.

[00:22:34] Speaker 03:
And unlike

[00:22:37] Speaker 03:
I think every case that I'm familiar with where this court has reversed an actual bias claim that you're unequivocally committed in response to repeated questioning that he could fairly impartially evaluate the evidence.

[00:22:52] Speaker 03:
I think that the purpose behind rehabilitation is that in any actual bias claim, there's going to be something that jurors says that might indicate some concern.

[00:23:04] Speaker 03:
But judges have discretion to ask additional questions and rehabilitation just recognizes that jurors are going to come in with their own beliefs, their own experiences.

[00:23:15] Speaker 03:
And the question isn't whether they're acting on a blank slate.

[00:23:18] Speaker 03:
The question is whether they can put those aside and just decide the case based on the evidence.

[00:23:24] Speaker 03:
And I think the record unambiguously here shows that that this juror could do that.

[00:23:30] Speaker 00:
Why isn't

[00:23:33] Speaker 00:
at least one spot to look for the relevant error here.

[00:23:37] Speaker 00:
It is just unlike our other cases that the work of rehabilitation and any curative comments that came didn't happen during voir dire.

[00:23:50] Speaker 00:
The juror was seated and I guess I just don't find it ambiguous.

[00:23:56] Speaker 00:
I mean I set aside the deep seated concern of this use of

[00:24:03] Speaker 00:
what the juror calls this kind of discrimination scapegoating.

[00:24:07] Speaker 00:
And the fact that he said they're turning a small thing into a big thing, law enforcement.

[00:24:13] Speaker 00:
So there's a thing.

[00:24:14] Speaker 00:
So there is a thing.

[00:24:16] Speaker 00:
A juror says that there's a crime here.

[00:24:23] Speaker 00:
And rather than get on top of that and try to remedy and see whether you could get a curative statement so the trial can move forward the following week,

[00:24:32] Speaker 00:
sent away, the juror is seated?

[00:24:37] Speaker 00:
I don't see how that alone is an error, and if it is error, I guess, can you help me try to understand how colloquy, after the presentation of evidence has begun, can cure that?

[00:24:51] Speaker 03:
Well, when the juror said there is a thing, he was parroting the defendant's comments at the end of our dear, where the defendant said, law enforcement takes one small thing I did wrong,

[00:25:01] Speaker 03:
and stretches it to make me look like Hitler's cousin.

[00:25:04] Speaker 03:
So the juror was picking up on a voir dire that, because Mr. Kollar was pro se, really went far beyond the bounds of just testing impartiality.

[00:25:14] Speaker 03:
And that's what he was responding to.

[00:25:16] Speaker 03:
And to a certain extent, I think if the defendant wanted

[00:25:23] Speaker 03:
try to present some of his case in voir dire.

[00:25:26] Speaker 03:
He's a little bit stuck with the possibility that the juror is going to react to that.

[00:25:30] Speaker 00:
I certainly don't envy the district court's position of having the defendant doing voir dire, and as you said, quite extensive and unusually substantive voir dire, and then following confronting the juror with respect to the bias.

[00:25:45] Speaker 00:
But I guess why shouldn't that not caution for

[00:25:50] Speaker 00:
more circumspection rather than less and a quicker response rather than putting it off until the next Wednesday.

[00:26:00] Speaker 03:
So on the question about timing, the juror really participated fully and actively in voir dire and gave no cause for concern.

[00:26:10] Speaker 03:
He indicated that he was receptive to any defense based on discrimination and that he was

[00:26:16] Speaker 03:
if anything, a little bit hostile to law enforcement, talking about ideas like Blue Blacks Blue.

[00:26:21] Speaker 03:
He was receptive to the defendant's themes.

[00:26:26] Speaker 03:
But after he was sworn, at the end of a very long Friday, after he was sworn, he came up to the judge and said, I didn't think this would be an issue, but at the very end of voir dire, the defendant said some things that triggered me.

[00:26:40] Speaker 03:
And he was probably referring to when Collar talked about

[00:26:46] Speaker 03:
events going back a long way, J. Edgar Hoover, the FBI killing Malcolm X, quote everything that's going on with Donald Trump, police officers being charged with murder around the country, and so forth.

[00:26:58] Speaker 03:
And the jurors said, I reacted to this.

[00:27:01] Speaker 03:
Now, I don't think it's, in terms of the timing question, it was at the end of a long Friday,

[00:27:06] Speaker 03:
The judge said, we explored this during voir dire, and the juror agreed, you know, I didn't have a problem with this.

[00:27:12] Speaker 03:
And so I think it was reasonable, or at least permissible, given the judge's significant discretion in this area, to ask the juror to come back the following week, and then to conduct an additional colloquy.

[00:27:24] Speaker 00:
I guess I'm trying to figure out where this fits with respect to our cases.

[00:27:29] Speaker 00:
Again, let me know if I'm missing one, but we're usually looking at the

[00:27:34] Speaker 00:
the bias issue arising and then the cure occurring in the same colloquy, have we had a case?

[00:27:43] Speaker 00:
Can you point to a case?

[00:27:44] Speaker 00:
And what should we be looking at for this idea that after, if it's actual bias, after that bias is expressed, that you can seat the juror, go to a day of evidence, and then come back to it later on in the trial, that that would work.

[00:28:01] Speaker 00:
I mean, have you seen,

[00:28:03] Speaker 00:
Suggestive, I'm not sure that we've seen this case either way, but what's the best fit for a circumstance like that where it's not nipped in the bud in the first colloquy?

[00:28:14] Speaker 03:
Well, the Gonzales case in 2018, there are two Gonzales cases involved a bias claim that came up mid-trial where Joria had a very strong reaction to some of the evidence that was hostile to the defense.

[00:28:26] Speaker 03:
And after indicated she couldn't be impartial at all, but after further questioning said that she could in this court,

[00:28:32] Speaker 03:
Affirmed, but just to, you know, clarify that the timing in this case, the, you know, after voir dire concluded, the jurors were all seated, including the juror at issue in this case.

[00:28:43] Speaker 00:
Not that it was as of Friday or first thing Monday seated on Friday.

[00:28:48] Speaker 00:
So this, this, the first colloquy happened after he was seated.

[00:28:52] Speaker 03:
Yes.

[00:28:53] Speaker 03:
So the, the colloquy that, you know, give rise to this concern happened after the jurors were already.

[00:28:58] Speaker 03:
Seated so there was no possibility of doing it before then it was you know at the end of a long day of or dear the you know the judge Permissibly exercised his discretion to ask the juror to recurrent return the next week You know this was not mid-trial the juror had heard opening statements and two short witnesses and and you know that was it out of a three three-week trial and You know there was a further colloquy

[00:29:24] Speaker 03:
I also think that even though I believe the unequivocal assurance in this case, I really don't think this is a close case, but the court doesn't actually have to reach the merits if it can hold that the claim was actually waived.

[00:29:39] Speaker 04:
Because after the second... Before we get to that, counsel, can you give us your view on Eastman Kodak, whether this is analogous to that?

[00:29:49] Speaker 04:
I'm trying to...

[00:29:52] Speaker 04:
sort of mirrors the timing, and I'd like your views on that.

[00:29:58] Speaker 04:
And now it gives to what?

[00:29:59] Speaker 04:
Eastman Kodak, the Ninth Circuit case in Eastman Kodak.

[00:30:02] Speaker 04:
Didn't that come up after the jury was seated?

[00:30:06] Speaker 03:
That sounds right to me, but I just don't recall the timeline in that case.

[00:30:10] Speaker 03:
Yeah, that may be another example.

[00:30:13] Speaker 03:
All right, go ahead.

[00:30:16] Speaker 03:
And the court doesn't have to reach the merits, because I think the issue was waived.

[00:30:20] Speaker 03:
After the second colloquy,

[00:30:22] Speaker 03:
the juror was so convincing that even Kollar could only say that, well, I acknowledge that he just said he was impartial.

[00:30:29] Speaker 03:
My objection is that if something else comes up, something else comes up that I say and it re-triggers his emotions, I don't think he can put that aside.

[00:30:38] Speaker 03:
So the objection was really future-oriented about the possibility that something could arise during the trial that could, something else that could re-trigger the juror's emotions.

[00:30:49] Speaker 03:
And when near the close of trial,

[00:30:51] Speaker 03:
I guess that's not all he said.

[00:30:54] Speaker 00:
I'm going to continue the objection.

[00:30:56] Speaker 00:
I don't believe that he can put that aside currently.

[00:30:59] Speaker 00:
Then he says, if something else comes up, whatever his emotions, I don't think he can put it to the side.

[00:31:06] Speaker 00:
But I get clear error that we weren't there, that the district court was.

[00:31:11] Speaker 00:
I don't take the government to be suggesting, at least on the defendant's terms of the bias, that if he were biased towards the scapegoating or the use of

[00:31:33] Speaker 00:
that theme that that wouldn't be sufficiently pertinent to the trial.

[00:31:39] Speaker 00:
I mean, the defendant throughout

[00:31:42] Speaker 00:
Delivered on what he promised in his opening like voir dire in his opening and his questions.

[00:31:50] Speaker 00:
I mean this this this theme of being Oppressed by law enforcement because of his religious and racial identity pervaded the trial and that isn't that exactly what the jurors said he had a problem with the defendant scapegoating and

[00:32:07] Speaker 03:
I don't think so, Your Honor.

[00:32:10] Speaker 03:
I think the rehabilitation should end this issue.

[00:32:15] Speaker 03:
But even if you take the first colloquy on its own, I don't think it establishes actual bias.

[00:32:21] Speaker 03:
The jury doesn't give an entirely logical argument about what triggered him and how that biased him against the defendant.

[00:32:31] Speaker 03:
But you see two themes, and really in both colloquies.

[00:32:34] Speaker 03:
One is that something about the discussion

[00:32:37] Speaker 03:
of discrimination triggered a lot of his own memories of discrimination and violence.

[00:32:42] Speaker 03:
They were different from the type Kohler was describing.

[00:32:46] Speaker 00:
But he said, I didn't know that was going to be the actual defendant's stance.

[00:32:50] Speaker 00:
That he took that to be the defendant's defense.

[00:32:54] Speaker 03:
So I think this is the second theme.

[00:32:56] Speaker 03:
Most of it was just about his own reactions.

[00:32:58] Speaker 03:
And when he came back, he said, look, I thought about it.

[00:33:01] Speaker 03:
I remembered these were my own issues.

[00:33:03] Speaker 03:
I remembered I had gotten over that.

[00:33:05] Speaker 03:
That's what I had to do.

[00:33:06] Speaker 03:
But the second theme, I think, was that the juror perceived that the entire defense, all of the defense, and this is what he keeps emphasizing, would be discrimination.

[00:33:16] Speaker 03:
And it wasn't.

[00:33:17] Speaker 03:
And after all, if a juror is hostile to the idea that the defense is going to

[00:33:24] Speaker 03:
that the only theme of the defense will be law enforcement discrimination writ large.

[00:33:31] Speaker 03:
I don't think that shows actual bias, but the defense wasn't like that.

[00:33:39] Speaker 03:
Among other things suggested that you know the PPP applications were complicated so his misstatements may have been good made in good faith He blamed other people for some of the criminal conduct One young woman Cretisha Holden who was really a victim of collars, but to you know participated in in some of the illegal activity He talked about does it does it matter though?

[00:34:00] Speaker 00:
I guess and where we said that it if he's really biased

[00:34:04] Speaker 00:
against only a little bit of the defendant's case.

[00:34:08] Speaker 00:
Don't we hold jurors to a higher standard?

[00:34:10] Speaker 03:
We do, but he wasn't biased against a little bit of the defendant's case.

[00:34:14] Speaker 03:
In fact, during his voir dire responses, he was giving a civics lesson about historical discrimination against black organizations and black churches by law enforcement.

[00:34:25] Speaker 03:
What he was hostile to was the idea that the entire defense, all of the defense, could come down to discrimination, that there was nothing more to it.

[00:34:34] Speaker 03:
And that wasn't the defense.

[00:34:35] Speaker 00:
Which statement do you have in mind for his understanding that his bias is predicated on it being the only defense as opposed to the theme that he's sounding?

[00:34:50] Speaker 03:
I'm sorry, Your Honor.

[00:34:51] Speaker 03:
I don't have the specific statements in front of me.

[00:34:53] Speaker 03:
But I think in both the first and second colloquy,

[00:34:56] Speaker 03:
In the second colloquy, he's even trying to remember what Kolar had said, because most of it for him is about his own personal reactions.

[00:35:06] Speaker 03:
In trying to remember, he says, I just thought it was all that came out was discrimination, and there was nothing but that.

[00:35:12] Speaker 03:
And he was absolutely receptive to the idea that there is a lot of discrimination against the black community.

[00:35:19] Speaker 03:
That was something he brought up himself.

[00:35:21] Speaker 03:
and flagged it as a potential pro-defense bias in his voir dire.

[00:35:27] Speaker 03:
So he wasn't even taking the remarks in the initial colloquy on their own.

[00:35:31] Speaker 03:
They didn't demonstrate actual bias.

[00:35:33] Speaker 00:
Mr. Masur, I guess the same question I asked your friend, if there is structural error here, do we reach any of the other issues?

[00:35:44] Speaker 00:
Is the government asking us to reach any of the other issues?

[00:35:47] Speaker 03:
No, I don't see a need to reach out the other issues if there's structural error here.

[00:35:51] Speaker 00:
I didn't see, maybe I missed it, that the government provided a 20HA in response to the Motley case.

[00:35:59] Speaker 00:
What's the government's position on the aggravated identity theft in that case?

[00:36:07] Speaker 00:
So the Motley case was, I think,

[00:36:11] Speaker 00:
published a week or two ago, and it dealt with a fraud involving relatives, and it distinguished Parvez in some of the other cases under Dupin.

[00:36:25] Speaker 03:
Yeah.

[00:36:26] Speaker 03:
I mean, in this case, the defendant impersonated and purported to take actions on behalf of Montserrat Bay and Byron Wilson by forging their signatures.

[00:36:36] Speaker 03:
and on the PPP applications, which is the standard articulated in Motley.

[00:36:44] Speaker 03:
I mean, this case is really like Gagarin, which is a case, a pre-Dubin case approved of by Motley where the defendant forged her cousin's signature on a life insurance application in the cousin's name to run a fraudulent scheme for getting advances.

[00:37:01] Speaker 00:
What's, I guess, the response to the sufficiency pieces?

[00:37:06] Speaker 00:
The government didn't show enough to show that the other people's names was essential to him getting the fraud because he could have gotten the loans with his own name.

[00:37:20] Speaker 03:
Well, in Gagarin, it was enough that the use of the signature obscured the defendant's own role in the fraudulent scheme and was thus central.

[00:37:30] Speaker 03:
But even though I think that's enough here, there was a lot more than that.

[00:37:34] Speaker 03:
I don't know if I can conclusively say that defendant's applications would have been denied, but in all likelihood, they would have been denied if he had put his own name.

[00:37:42] Speaker 03:
The SBA representative testified that the identity of the owner or the CEO was essential to processing a PPP application.

[00:37:52] Speaker 03:
Lying about it was disqualifying.

[00:37:53] Speaker 03:
And I can point to at least three reasons why the identity of the CEO or the signatory mattered.

[00:37:59] Speaker 03:
The first is to show who actually gets the money.

[00:38:01] Speaker 03:
Kolar put down the names of Montserrat Bay and Byron Wilson as the CEOs, but the FBI forensic accountant testified that the accounts linked to those companies went back to Kolar.

[00:38:11] Speaker 03:
So if those loans had been funded that were purportedly applied for by Montserrat Bay and Wilson, Kolar would have gotten that money.

[00:38:19] Speaker 03:
The second reason is to see if the owner was affiliated with any other companies.

[00:38:23] Speaker 03:
The SBA representative testified that this was critical.

[00:38:26] Speaker 03:
If Kohler had used his own name, the SBA would have seen the connection with Ehad, which had already received a loan, and at a minimum would have raised a lot of red flags.

[00:38:36] Speaker 03:
And lastly, the identity mattered to see if the applicant was otherwise disqualified.

[00:38:41] Speaker 03:
And here Kohler would have been.

[00:38:43] Speaker 03:
One of the questions on the forum asked about a criminal conviction in the past five years.

[00:38:47] Speaker 03:
Kohler had one, and he lied about it.

[00:38:51] Speaker 03:
Excuse me.

[00:38:52] Speaker 03:
Had he put his own name that would have been disqualifying for at least four of the accounts counts 29 through 32 because they were within the five-year period the fifth one wasn't count 33, but that that application was submitted after I had was under investigation and the the funded loan had been seized and

[00:39:12] Speaker 03:
And so it would have been flagged for that reason.

[00:39:14] Speaker 03:
Opposing counsel says the criminal conviction can't matter if the AHAD loan was funded and that loan was submitted in Kolar's name.

[00:39:24] Speaker 03:
The reason that that loan was funded was because Kolar lied on the application.

[00:39:28] Speaker 03:
That's at 12 ER 1928.

[00:39:31] Speaker 03:
So the identity of the CEOs was absolutely critical.

[00:39:35] Speaker 03:
This is not a case where the defendant just inflated the salaries of people who worked for that corporation.

[00:39:41] Speaker 03:
He took the names of two people that had nothing to do with oversight or family investment group and purported to make them the reputed CEOs of these companies.

[00:39:53] Speaker 03:
If the court would like, I can talk about either intended loss or charitable organization.

[00:39:58] Speaker 02:
That's all right.

[00:39:59] Speaker 02:
Thank you very much.

[00:40:00] Speaker 02:
If you want to take 30 seconds and just close up, you can.

[00:40:04] Speaker 03:
The government would ask you to affirm.

[00:40:06] Speaker 02:
Thank you very much.

[00:40:07] Speaker 01:
Thank you very much for the rebuttal time, Your Honors.

[00:40:22] Speaker 01:
Regarding the bias juror Structural error occurred at the moment that a juror with admitted bias was seated on the jury Well, but the juror was as we understand that the juror had already been seated Do you disagree with the timeline so so Vardar had had?

[00:40:42] Speaker 00:
Concluded they were seated in the juror the first colloquy happened after the seated or do you disagree with that?

[00:40:46] Speaker 01:
timeline That's not my recollection of the timeline your honor that he was

[00:40:52] Speaker 01:
well In any case the moment that he was allowed on to the jury or kept on a jury right after the moment that he admitted by us and was kept on the jury that was structural error and and the judge we know that That the judge was uncertain about him because the judge said well We all know we're gonna have to voir dear him again at this point.

[00:41:16] Speaker 01:
He should not have been on the jury and

[00:41:18] Speaker 01:
And there are good reasons for that.

[00:41:20] Speaker 01:
The jurors are supposed to be kept away from the evidence before they are seated on the jury.

[00:41:27] Speaker 01:
And sometimes things do come up during trial for the first time.

[00:41:35] Speaker 01:
There are cases where a juror's bias isn't exposed until something happens during the trial.

[00:41:41] Speaker 01:
That's the time when the juror is examined and if can make adequate assurances at that time, is allowed to remain on the jury.

[00:41:50] Speaker 01:
This juror with bias was allowed to be on the jury for a couple of days before he was allowed, moved from an alternate to a seated juror.

[00:42:04] Speaker 04:
Structural error occurred during that time was wasn't a juror in Eastman Kodak's allowed to to be seated for two days before that second questioning though I Am not familiar with this.

[00:42:16] Speaker 01:
No one's familiar with this case all right My apologies Furthermore even during the purported assurances right there interspersed with his

[00:42:30] Speaker 01:
Comments that he could be fair He was talking about how it was so abrasive to him to hear that how it brought up a lot of bad issues in the past Trauma came up that I wasn't expecting to deal with he talked again about bottles being thrown at his head because of who he was The entire time you were talking.

[00:42:47] Speaker 01:
That's all it was discrimination against the Islamic faith.

[00:42:50] Speaker 01:
It shows that this is still very much on his mind and And finally in in no case that the government cites

[00:43:00] Speaker 01:
I've been able to locate does a juror with this level of bias Then show a couple of days later that it has evaporated He's made a 180 turnaround.

[00:43:10] Speaker 01:
He's totally fine now and the appellate court is satisfied with that assurance Turning to the identity theft

[00:43:23] Speaker 01:
It's critical to recognize that Mr. Pascha did not forge signatures on these loan applications, and he had Wilson's and Mansour's authorizations.

[00:43:34] Speaker 01:
That was something that this court relied on in the Motley case.

[00:43:38] Speaker 01:
Mansour testified that he was the CEO of OS on paper.

[00:43:43] Speaker 01:
He said he authorized Pascha to sign the loan applications on his behalf, and the defendant had power of attorney, just like Ian Motley.

[00:43:51] Speaker 02:
Okay, you're out of time.

[00:43:53] Speaker 02:
Do either of you have any questions about this?

[00:43:55] Speaker 02:
Okay, I think we have your position on that.

[00:43:57] Speaker 01:
Thank you very much.

[00:43:58] Speaker 02:
We thank both counsel for their very helpful arguments in this case.

[00:44:01] Speaker 02:
This case is submitted and the court stands in recess for the day.

[00:44:05] Speaker 02:
Thank you.