[00:00:00] Speaker 03:
United States versus Lacona 25-1033.

[00:00:02] Speaker 03:
Defense counsel will make her appearance and then proceed please.

[00:00:10] Speaker 01:
Good morning, Your Honors.

[00:00:11] Speaker 01:
May it please the Court, my name is Chassica Hsu and I represent the Appellant Charles Lacona.

[00:00:17] Speaker 01:
The primary issue in this appeal is that Mr. Lacona was convicted of a crime with which he was not charged.

[00:00:25] Speaker 01:
It's clear that the government was concerned about its federal jurisdiction from the outset.

[00:00:30] Speaker 01:
Instead of alleging and proving that the application and loan proceeds cross state lines, they argued somewhat unconventionally that the SBA's payment alone processing fees constitute interstate wires.

[00:00:43] Speaker 01:
And more importantly, to establish an interstate nexus for money laundering, the government put on evidence showing the Cadillac Mr. Lacona purchased in Colorado actually came from Michigan.

[00:00:56] Speaker 01:
But nothing in the indictment notified Mr. Lacona of this.

[00:00:59] Speaker 01:
The indictment does not allege the Cadillac had out-of-state origins or provide any allegation about how his purchase of the Cadillac crossed state lines.

[00:01:09] Speaker 01:
You're talking about the money laundering transaction?

[00:01:11] Speaker 01:
That's right, your honor.

[00:01:12] Speaker 03:
Well, it says monetary transaction and monetary transaction is defined in the statute as an interstate transaction.

[00:01:20] Speaker 03:
So why isn't that sufficient to be on notice that it is an interstate transaction indictment says monetary transaction.

[00:01:28] Speaker 01:
That's a fair question, Your Honor, and I know that's an argument that the government raised, but that, you know, using the word, the magic words, monetary transaction doesn't establish that Mr. Lacona was on fair notice of the charges against him or on notice of evidence.

[00:01:45] Speaker 03:
And why does it not?

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Because our case law, and that would seem to apply to this situation, is case law that says that ordinarily all you have to do in the indictment is list the elements of the statute.

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You don't have to have a speaking indictment.

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You don't have to define the terms in the indictment.

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You just have to say this is what you're charged with.

[00:02:06] Speaker 03:
I assume you're familiar with that case law, right?

[00:02:09] Speaker 01:
That's right, Your Honor.

[00:02:10] Speaker 01:
The problem, though, is here is that County is completely silent about the jurisdictional nexus.

[00:02:16] Speaker 01:
They didn't have to lay out every single detail, but the indictment, for instance, doesn't expressly incorporate or reference the statutory definition.

[00:02:23] Speaker 03:
If it had defined monetary transaction, are you saying you wouldn't be making this argument?

[00:02:30] Speaker 01:
That's right, Your Honor.

[00:02:31] Speaker 01:
If it had said simply monetary transaction in or affecting interstate commerce.

[00:02:37] Speaker 03:
Okay, let's go with the first part.

[00:02:40] Speaker 03:
If it had defined monetary transaction, you wouldn't be making this argument.

[00:02:44] Speaker 03:
What authority do you have that suggests that every term

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And I'm talking about critical terms now, jurisdictional terms.

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Let's just narrow the focus there.

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They have to be defined.

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I mean, it is a term of the statute.

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And Mr. Lacona can go look at the statute through his lawyer and find out what that term means.

[00:03:05] Speaker 03:
Why is anything more required?

[00:03:09] Speaker 01:
I think under this circuit's case law, you've said again and again that indictments are supposed to be read using ordinary English and common sense because its ultimate purpose is to notify defendants of the crimes charged.

[00:03:27] Speaker 01:
is not a lawyer.

[00:03:28] Speaker 01:
He's not going to understand that, you know, monetary transaction is defined under 18 U.S.C.

[00:03:33] Speaker 01:
Section 1957 F1 as incorporating in or affecting interstate or foreign commerce.

[00:03:40] Speaker 03:
He knows he's charged with 1957.

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And in 1957, monetary transaction is an internet means an interstate transaction.

[00:03:50] Speaker 03:
And I didn't hear the answer to my question.

[00:03:53] Speaker 03:
What is your best case that says that this argument has any legs at all?

[00:03:59] Speaker 01:
I think it would be the more general case I would cite in our opening brief about how indictments need to be read in ordinary English and common sense.

[00:04:13] Speaker 03:
OK.

[00:04:14] Speaker 03:
Let me focus then on count.

[00:04:17] Speaker 03:
I think it's two and three.

[00:04:21] Speaker 03:
Those are the wire fraud counts, I believe, and those counts relate to, I think your argument was in part that there was no evidence, well, that it was unusual, one, that they chose to use the lending fees for purposes of showing an interstate nexus.

[00:04:40] Speaker 03:
But and then I think in your argument was that in fact the completion of the scheme took place, I took this from your brief, when the completion of the scheme took place after the first wire, right?

[00:04:57] Speaker 01:
That's right, Your Honor.

[00:04:58] Speaker 03:
Okay, the deposit of the money in the bank.

[00:05:02] Speaker 01:
That's right, Your Honor.

[00:05:03] Speaker 01:
So counts one and count two are the wire fraud counts.

[00:05:06] Speaker 01:
OK.

[00:05:08] Speaker 03:
I misspoke.

[00:05:09] Speaker 03:
I'm sorry.

[00:05:10] Speaker 03:
I said count three.

[00:05:11] Speaker 03:
But OK, one and two, we've got that.

[00:05:13] Speaker 03:
Well, if there were two applications for PPP loans, how could the completion of the scheme have taken place when the money hit your client's bank on the first loan?

[00:05:28] Speaker 03:
There were two applications.

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So why would the scheme be over?

[00:05:32] Speaker 01:
Well, we respectfully submit that these were two separate schemes.

[00:05:36] Speaker 01:
Under United States v. Redcorn, once the funds are deposited, the scheme is complete.

[00:05:43] Speaker 01:
And any subsequent enjoyment, his spending of it, is just using his ill-gotten gains.

[00:05:50] Speaker 01:
It's not necessarily a continuation of the scheme.

[00:05:53] Speaker 03:
But that's not what the government charged in one and two.

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It's not talking about him going on a prologue.

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What it's talking about

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Let me posit it this way.

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It would seem that it has to be essentially in furtherance of an essential component of the scheme.

[00:06:11] Speaker 03:
Well, the bank getting lending fees, if the bank didn't get lending fees, he gets no PPP money, right?

[00:06:18] Speaker 03:
The bank is not going to fund the PPP money if they don't get lending fees, right?

[00:06:24] Speaker 03:
Right.

[00:06:24] Speaker 03:
Well, then why is that not an essential part of the scheme that in fact

[00:06:29] Speaker 03:
the bank that this transaction takes place with the SBA and the Treasury so he gets his money.

[00:06:37] Speaker 01:
Yeah, I mean, on our appeal, our argument is, I think that was advocated very strenuously by defense counsel in the lower court.

[00:06:47] Speaker 01:
I think our position here on appeal is that it wasn't reasonably foreseeable to Mr. Lacona that the SBA loan processing fees would come out of state.

[00:07:00] Speaker 01:
When all of his interactions were with in-state bank folks,

[00:07:05] Speaker 03:
Well, what's your is your argument is your argument if I just heard you correctly, your argument here is different than your argument in the district course.

[00:07:14] Speaker 03:
So, you're you're operating under plane error.

[00:07:16] Speaker 03:
Is that right then?

[00:07:20] Speaker 01:
For the.

[00:07:23] Speaker 03:
What we're talking about is Count 1 and 2 and what the interstate commerce component of that is.

[00:07:28] Speaker 03:
And I was asking you about the notion that it would have been a part of his wire fraud scheme, that it would have been part of the completion of the scheme.

[00:07:39] Speaker 03:
The wire would have been

[00:07:41] Speaker 03:
an essential part of the scheme or in furtherance of an essential part of the scheme that the lending fees were paid.

[00:07:47] Speaker 03:
Your response, as I understood it, was, well, we're not focusing on that.

[00:07:50] Speaker 03:
That was what they argued below.

[00:07:52] Speaker 03:
That's not what we're focusing on.

[00:07:54] Speaker 03:
What we're focusing on is whether the interstate wire was reasonably foreseeable.

[00:07:58] Speaker 03:
And so my follow-up question is, if you're making a different argument than was made below, then if you don't invoke plain error, you've got a problem.

[00:08:07] Speaker 01:
Yeah, your honor.

[00:08:08] Speaker 01:
Sorry.

[00:08:09] Speaker 01:
Sorry if I was unclear about this.

[00:08:11] Speaker 01:
The defense counsel below did emphasize that it wasn't a central part of the scheme, but they also raised the argument that it wasn't reasonably foreseeable.

[00:08:19] Speaker 01:
And that just happens to be the argument on appeal that we are emphasizing.

[00:08:23] Speaker 01:
And let's talk about that for a second.

[00:08:25] Speaker 03:
South Dakota Bank.

[00:08:28] Speaker 03:
Federal government loan.

[00:08:30] Speaker 03:
it is clear that that loan is going to have to be funded in some way in connection with the federal government.

[00:08:38] Speaker 03:
Why isn't it reasonably foreseeable that at some point along the line, I know it was a Denver branch of the South Dakota bank, but it's a South Dakota bank, it's a PPP loan, and it's the SBA

[00:08:52] Speaker 03:
branch in Denver, but the SBA is also in DC.

[00:08:55] Speaker 03:
Why isn't it conceivable, entirely conceivable, that somewhere in that transaction, there's going to be an interstate wire?

[00:09:03] Speaker 03:
And to that point, just give me your best case on that.

[00:09:08] Speaker 01:
Yeah, Your Honor.

[00:09:09] Speaker 01:
I mean, I think everyone that Mr. Lacona was dealing with was in Colorado.

[00:09:14] Speaker 01:
I understand that TCB Bank, its main offices were in South Dakota, but when he applied, his loan application was submitted to his local bank.

[00:09:24] Speaker 01:
I think the evidence suggests, and I don't think the government has argued otherwise, that the actual funding of the money was

[00:09:31] Speaker 01:
Transferred interest date, which is probably why they're relying on the loan processing fees.

[00:09:39] Speaker 01:
There was just nothing to suggest that.

[00:09:45] Speaker 01:
that would make it reasonably foreseeable for Mr. Lacona to believe that this would have been an interstate wire communication.

[00:09:53] Speaker 03:
Well, let me back up one second, because this whole, our dialogue presupposes that that actually is a legal requirement.

[00:10:03] Speaker 03:
I mean, where is the basis for it being a, you have to have reasonable, it has to be reasonably foreseeable

[00:10:11] Speaker 03:
If I understand you correctly, wait a minute, reasonable foreseeability in this context goes to the interstate nature of the wire, right?

[00:10:20] Speaker 03:
That's right.

[00:10:21] Speaker 03:
And what basis is there to believe that's true?

[00:10:25] Speaker 03:
I mean, you cited two cases in your brief.

[00:10:27] Speaker 03:
I looked at those two cases and what those two cases related to is it's reasonably foreseeable that there was something somebody caused

[00:10:36] Speaker 03:
an interstate transaction to take place.

[00:10:39] Speaker 03:
That is different, it strikes me, from the question of whether it's reasonably perceivable that there was an interstate transaction.

[00:10:48] Speaker 03:
Those seem to be two different things.

[00:10:51] Speaker 01:
I mean, that could have just been my inartful arguing your honor.

[00:10:54] Speaker 01:
I mean, I think our position is that it's not reasonable foreseeable to Mr. Lacona that he caused an interstate wire.

[00:11:02] Speaker 01:
And where would that be?

[00:11:04] Speaker 03:
Where would that be the law?

[00:11:06] Speaker 03:
I mean, why is that the law?

[00:11:08] Speaker 03:
I mean, what are the best cases?

[00:11:10] Speaker 03:
The two cases you had in your opening brief?

[00:11:13] Speaker 01:
Yes, Your Honor, the PR versus United States 347 US 1 and United States V Andrews 681 S3D 509.

[00:11:25] Speaker 02:
In Pereira, as I understand it, and tell me if I'm misreading it, that it has to be reasonably foreseeable that there would be an interstate communication.

[00:11:40] Speaker 02:
Is that your understanding of Pereira?

[00:11:43] Speaker 02:
Yes, Your Honor.

[00:11:44] Speaker 02:
So then, as I understand it, your argument is, well, not whether or not Mr. Lacona actually foresaw it,

[00:11:58] Speaker 02:
or actually foresaw that there were going to be these particular transmissions from the South Dakota bank, et cetera.

[00:12:05] Speaker 02:
But the hurdle, I think, that you're owning up to, as I understand it, is that the standard is whether or not it was a fact-finder could reasonably foresee

[00:12:23] Speaker 02:
that there would be an interstate communication somewhere.

[00:12:28] Speaker 02:
And as long as there is, if someone could reasonably foresee, for example, that there would be a transmission from the home bank to the branch bank, then I think you're acknowledging that you couldn't prevail under that scenario.

[00:12:44] Speaker 02:
Your argument is that you couldn't reasonably foresee that there'd be any interstate communication.

[00:12:52] Speaker 02:
That's right, Your Honor.

[00:12:53] Speaker 02:
Thank you.

[00:12:54] Speaker 00:
Is that an, are you saying that, I mean, objectively, I'm not sure how you can possibly get that.

[00:13:00] Speaker 00:
I mean, he himself, he used an online app.

[00:13:03] Speaker 00:
He used DocuSign to do a supplemental documentation.

[00:13:07] Speaker 00:
He communicated via email.

[00:13:12] Speaker 00:
The bank, TCF, listed its location on the promissory note as South Dakota.

[00:13:17] Speaker 00:
You know, I mean, objectively, how could he not

[00:13:22] Speaker 00:
Understand there would be interstate communications and he put those in motion.

[00:13:27] Speaker 00:
He didn't have to know the details.

[00:13:29] Speaker 00:
All he had to do is put it in motion and reasonably foresee it.

[00:13:34] Speaker 01:
Yeah, I mean, I think, I mean, his use of the Internet alone is insufficient and I think.

[00:13:42] Speaker 01:
You know, all those factors are important, but we would be speculating about.

[00:13:46] Speaker 00:
He didn't just use the internet.

[00:13:48] Speaker 00:
He created and signed using DocuSign and online document.

[00:13:52] Speaker 00:
That's different than the case that you cited where they were literally just looking at an internet on a website.

[00:13:59] Speaker 00:
He didn't just use, didn't view the internet.

[00:14:02] Speaker 00:
He, he affirmatively utilized it for transmitting documents and signatures.

[00:14:08] Speaker 00:
That's different than these cases that you cited.

[00:14:11] Speaker 01:
Right.

[00:14:11] Speaker 01:
But I mean, respectfully, I don't think using DocuSign necessarily implicates anything.

[00:14:17] Speaker 00:
Again, you're looking at things subjectively.

[00:14:19] Speaker 00:
I'm saying objectively.

[00:14:20] Speaker 00:
All he had to do was put it into motion.

[00:14:22] Speaker 00:
Let me ask another question going back to count three.

[00:14:25] Speaker 00:
I think there's a significant preservation issue there.

[00:14:29] Speaker 00:
You didn't argue for plain error.

[00:14:31] Speaker 00:
And you didn't make this point you're making now below.

[00:14:34] Speaker 00:
And the government pointed out

[00:14:41] Speaker 00:
trying to remember something pre-appeal, the government pointed out, was it the bail or the?

[00:14:48] Speaker 00:
At some point they pointed out that this would be a plain error issue.

[00:14:51] Speaker 00:
Yeah, they pointed out very specifically this would be a plain error issue because you didn't raise this constructive amendment argument that you're making now below.

[00:15:01] Speaker 00:
So you had every reason to understand that this would be plain error that we would be looking at, but you didn't argue it in your initial

[00:15:10] Speaker 00:
opening brief.

[00:15:13] Speaker 01:
Yes, I'm running out of time, but I respectfully request leave to just answer.

[00:15:18] Speaker 01:
Of course, answer.

[00:15:23] Speaker 01:
We disagree with the government on whether this issue was properly preserved.

[00:15:27] Speaker 01:
I think we've, in our acquittal motion, we raised several times issues of constructive amendment and... On count two, but not on count three.

[00:15:41] Speaker 01:
We also raised the issue, you know, the fact that the indictment was completely silent on count three for federal nexus.

[00:15:52] Speaker 00:
That's not the same as arguing a constructive amendment, which is what you're arguing now.

[00:15:58] Speaker 01:
I mean, and even if the court, um, even if we were to take it as true, which we don't concede, um, this court has discretion to review the issue under plain error.

[00:16:08] Speaker 01:
And, um, and a constructive amendment is reversible per se because it affects a defendant's substantial rights.

[00:16:16] Speaker 01:
And so we'd argue alternatively, even under the plain error standard, um, you know, that the court reverse.

[00:16:23] Speaker 01:
All right.

[00:16:23] Speaker 01:
Thank you.

[00:16:26] Speaker 03:
Thank you.

[00:16:27] Speaker 03:
Any other?

[00:16:27] Speaker 03:
Okay, thank you, Council.

[00:16:30] Speaker 03:
We'll hear from the government then.

[00:16:32] Speaker 04:
Thank you, Your Honor.

[00:16:33] Speaker 04:
Kyle Brenton on behalf of the United States.

[00:16:36] Speaker 04:
I'll just start right in on the waiver of this constructive amendment on count three arguments.

[00:16:44] Speaker 04:
If you look to what Mr. Lacona argued in his motion for acquittal below.

[00:16:48] Speaker 04:
He argues that there was a constructive amendment of the wire fraud counts, counts one and two, and I mean, generously, he argues that.

[00:16:55] Speaker 04:
I think it's pretty sparse in that motion, even as the wire fraud counts.

[00:16:59] Speaker 04:
He, in fact, lists those by number on page, in note eight of his motion on page 728 of volume one, but not count three.

[00:17:06] Speaker 04:
So there was no argument made.

[00:17:08] Speaker 04:
He did make a separate sufficiency argument as to jurisdictional nexus on money laundering, but that's not the same argument.

[00:17:15] Speaker 04:
And to the extent he points to the district court's orders saying, oh, it talked about interstate nexus and money laundering, that was addressed to the sufficiency point, not the constructive amendment arguments.

[00:17:24] Speaker 02:
Well, can I probe that a little bit, Mr. Brenton?

[00:17:28] Speaker 02:
Now, it seems to me the defense counsel is

[00:17:32] Speaker 02:
is certainly arguing that there was a construction of the amendment on count three, the money laundering count, but it seems to me that there are significant parts of a brief that are questioning the existence of an interstate nexus for jurisdiction, the sufficiency of the indictment

[00:17:51] Speaker 02:
on the money laundering count.

[00:17:53] Speaker 02:
And it seems to me that you're acknowledging that that was what she had argued in district court, but isn't that also part of her argument to us today?

[00:18:05] Speaker 02:
The sufficiency of the indictment on the internet, on the interstate jurisdictional requirement on money laundering?

[00:18:12] Speaker 04:
Well, Your Honor, I don't agree with that.

[00:18:14] Speaker 04:
I believe that Mr. Lacona, I think we have to look carefully at the arguments he's making here.

[00:18:19] Speaker 04:
I think on count three, he is arguing that there was a constructive amendment that occurred because the indictment did not contain factual allegations of an interstate commerce nexus and the evidence at trial did.

[00:18:31] Speaker 04:
So that's his first argument.

[00:18:33] Speaker 04:
His second argument is a sufficiency argument about the sufficiency of the evidence of jurisdictional interstate commerce nexus on the wire fraud counts as to counts one and two.

[00:18:46] Speaker 04:
So I think that's his second argument.

[00:18:49] Speaker 04:
Then we have his constructive amendment argument about a single scheme on the wire fraud counts again.

[00:18:55] Speaker 04:
Then we have prosecutorial misconduct and then the question of whether the money laundering counts can survive if the wire fraud counts fail.

[00:19:02] Speaker 04:
Those are the arguments I see him making on appeal.

[00:19:05] Speaker 04:
I do not see that he's made a sufficiency of the evidence arguments as to interstate nexus on money laundering.

[00:19:14] Speaker 04:
I think his complaint about the money laundering count in the indictment, I agree with your honor, is fundamentally a complaint that the indictment was some way insufficient, but that's not what he's actually arguing.

[00:19:25] Speaker 04:
What he's actually arguing on appeal was that there was a constructive amendment, which is really an entirely different concept.

[00:19:31] Speaker 02:
They are different concepts, and she certainly does argue they don't think pages 6, 12, and 14, but do you happen to have her opening brief in front of you?

[00:19:42] Speaker 04:
The benefit of being in my office is that I do, Your Honor.

[00:19:46] Speaker 02:
That's a pretty nice office you've got there according to your background.

[00:19:51] Speaker 04:
Don't come knocking in this room when there's not an argument, because you may find me working.

[00:19:56] Speaker 02:
I guess I'd say the same thing about my office too.

[00:20:01] Speaker 02:
Page 12, she says, but the government did not properly allege an interstate nexus to support the munnering laundering charge.

[00:20:09] Speaker 02:
And later on that page, carry over to 13, the indictment did not allege that lender one was an FDIC insured banking institution.

[00:20:22] Speaker 02:
Nor did it allege that the bank from which the bank check was drawn was out of state from Colorado, nor did it allege that the Cadillac alleged to be the subject of the loaner encounter was manufactured or assembled out of state.

[00:20:35] Speaker 02:
None of these references on pages 12 and 13 are talking about a change from what was alleged in the indictment.

[00:20:44] Speaker 02:
I thought that those were the content

[00:20:49] Speaker 02:
uh, what was really pertaining to the sufficiency indictment.

[00:20:52] Speaker 02:
I mean, that's, that's, that's how she frames those, those points.

[00:20:56] Speaker 02:
So, um, it's not a test.

[00:20:59] Speaker 02:
I'm not asking you to speak off the cuff about those two references, but I, but I will tell you, that's what caused me to think, well, maybe your argument on page on, uh, count three wasn't just constructive amendment, but, uh, but also maybe it was sufficient to the indictment.

[00:21:15] Speaker 04:
Well, Your Honor, I think I have two responses to that.

[00:21:18] Speaker 04:
I would say my first response, if you go back to page 10, which has the argument heading that everything you've just discussed comes under, it's count three colon expanding the indictments.

[00:21:29] Speaker 04:
That's then followed by about three pages of case law on constructive amendments.

[00:21:34] Speaker 04:
I agree.

[00:21:34] Speaker 04:
I find it confusing that in the midst of a constructive amendment argument, they're trying to argue the sufficiency of the indictment.

[00:21:40] Speaker 04:
I think that's a reason to reject that argument.

[00:21:43] Speaker 04:
I also think they didn't argue the sufficiency of the indictment below.

[00:21:47] Speaker 04:
I mean, they argued the sufficiency of the trial evidence, but not sufficiency of the indictment.

[00:21:52] Speaker 04:
They never raised a challenge to the indictment itself.

[00:21:55] Speaker 04:
And so that too would be waived.

[00:21:58] Speaker 02:
Okay.

[00:21:59] Speaker 04:
I mean, and as this discussion demonstrates, even what council has proposed happened here would not have been a constructive amendment.

[00:22:08] Speaker 04:
A constructive amendment occurs when the indictment alleges one set of facts and the evidence at trial and in the government's closing shows an alternative set of facts that may have been the basis for the jury to convict.

[00:22:20] Speaker 04:
That's just not even what they're claiming happened here.

[00:22:23] Speaker 04:
This is an argument as Chief Judge Holmes noted about,

[00:22:27] Speaker 04:
a claim that maybe the indictment needed to define a statutory term that it used.

[00:22:31] Speaker 04:
And that's just, it wasn't raised below.

[00:22:33] Speaker 04:
It's not cognizable under this court's law.

[00:22:36] Speaker 04:
So turning to the sufficiency of the evidence on the jurisdictional elements of the wire fraud counts, this argument too, I think is a non-starter.

[00:22:46] Speaker 04:
I think it's a non-starter under Weiss, this court's decision in Weiss primarily, where the court said that the government need not prove that the defendant have knowledge

[00:22:56] Speaker 04:
that the specific wire transactions charged in the indictment would follow.

[00:23:00] Speaker 04:
The government only needs to prove that the defendant could reasonably foresee that his fraudulent activity would result in the use of a wire fraud communications facility.

[00:23:10] Speaker 04:
So when it comes to the jurisdictional wire, the government has a great deal of latitude in what wires to charge.

[00:23:17] Speaker 04:
We relied below on the Fourth Circuit's decision in the Taylor case, which talks about these jurisdictional nexus elements and how they don't have mens rea requirements at all.

[00:23:28] Speaker 02:
Well, nobody's arguing.

[00:23:29] Speaker 02:
Yeah, I saw that and I was a little confused about that argument because I don't think she's arguing that there's a mens rea requirement.

[00:23:35] Speaker 02:
I mean, the whole issue is Pereira, right?

[00:23:39] Speaker 02:
Reasonably foreseeability.

[00:23:41] Speaker 02:
I didn't see anything in her briefing, even in district court, to say that there was a Benz Ray requirement for the interstate jurisdictional requirement.

[00:23:49] Speaker 02:
So it's all about reasonable foreseeability.

[00:23:51] Speaker 02:
And I think she acknowledges that.

[00:23:53] Speaker 04:
Well, again, I think, Your Honor, we've got two arguments leading into one another.

[00:23:57] Speaker 04:
We've got the argument that the government did not sufficiently prove that the wires it charged moved interstate.

[00:24:05] Speaker 04:
non-starter, conceited.

[00:24:08] Speaker 04:
Then we've got the question, which I don't think the brief squarely raises, but we've heard it this morning, so I'm happy to address it, of whether the evidence suffice to show that he should reasonably have foreseen that some wire, interstate wire, would be used.

[00:24:21] Speaker 04:
I would go back to what the court has already discussed.

[00:24:24] Speaker 04:
Federal loan program, South Dakota bank, use of an online portal, use of DocuSign on a sufficiency standard, all of this

[00:24:34] Speaker 04:
is well above the standard necessary for a reason of a rational fact-finder to find that he could reasonably have foreseen.

[00:24:49] Speaker 02:
Ms.

[00:24:49] Speaker 02:
Brenton, I think you froze up.

[00:24:52] Speaker 02:
Oh.

[00:24:54] Speaker 00:
Yeah, we lost him.

[00:24:59] Speaker 04:
My apologies, your honors.

[00:25:01] Speaker 04:
It's been a long morning.

[00:25:02] Speaker 04:
Apparently my computer is as tired as I am.

[00:25:04] Speaker 03:
That's okay.

[00:25:07] Speaker 04:
I believe I was turning to the single scheme, multiple scheme arguments.

[00:25:12] Speaker 03:
Yeah.

[00:25:13] Speaker 04:
This, I think, also is foreclosed by Weiss.

[00:25:16] Speaker 04:
I mean, Weiss made clear that when the government articulates a scheme to defraud for the purpose of wire fraud, that scheme is not limited to a single act of fraud.

[00:25:26] Speaker 04:
The government can charge an overarching scheme encompassing multiple acts of fraud.

[00:25:30] Speaker 04:
There's no red corn issue here because ultimately red corn turned on whether the wire, whether the only wire that the evidence showed traveled interstate,

[00:25:42] Speaker 04:
was for the purpose of carrying out the scheme.

[00:25:47] Speaker 04:
That was not the case in Redcorn, based on the facts there.

[00:25:50] Speaker 04:
Here, the wires of the fee files alone absolutely were for the purpose, because as Your Honors noted, no fees, no loan.

[00:25:58] Speaker 04:
Also, under PPP loans, there are requirements for how the money is to be used.

[00:26:03] Speaker 04:
So how the money is dissipated, whether he, you know,

[00:26:07] Speaker 04:
spends it on payroll or spends it as in red corn on investments in Florida, that is part of the scheme, whereas it was not in red corn.

[00:26:17] Speaker 04:
So I think that the single scheme, multiple scheme, constructive amendment arguments also fails.

[00:26:24] Speaker 04:
I mean, I'm happy to address the prosecutorial misconduct and the money laundering, final money laundering argument.

[00:26:29] Speaker 04:
If the court has any questions, I think we're happy to stand on our briefs on those issues.

[00:26:35] Speaker 03:
I don't see any objection to that.

[00:26:39] Speaker 03:
So thank you, Council.

[00:26:41] Speaker 03:
And I don't think Ms.

[00:26:43] Speaker 03:
Sue had any time remaining.

[00:26:45] Speaker 03:
Are there any questions for her?

[00:26:47] Speaker 03:
Okay, case is submitted.

[00:26:49] Speaker 03:
Thank you very much.