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Case number 24-3029, United States of America versus Ngozi Pole Appellant.

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Ms.

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Stern for the Appellant, Mr. Sinha for the Appellee.

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Good morning, Council.

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Ms.

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Stern, please proceed when you're ready.

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Thank you, Your Honor.

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Good morning, and may it please the Court.

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Ilana Stern on behalf of the Appellant Ngozi Pole.

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The court should reverse the district court's denial of Mr. Pol's motion for a new trial on the basis of ineffective assistance of counsel.

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Because the government effectively concedes constitutionally deficient performance by counsel in this case, I would like to focus my comments today on the prejudice prong of the Strickland analysis.

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Specifically, I would like to address two issues.

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First, trial counsel's failure to object to Mr. Mulganigy's testimony that was admitted in violation of federal rule of evidence 408, and second,

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Trial counsel's failure to object to the government's use of Mr. Poll's oath of office in its closing arguments.

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Both of these errors went to the critical issue in this case.

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Mr. Polls' state of mind.

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Mr. Mulganicky's testimony went directly to this critical question, and trial counsel's failure to object was prejudicial for two reasons.

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First, under this court's opinion in Davis, this testimony is precluded.

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Under Davis, Federal Rule 408 violative testimony, admitted in error, is grounds for vacater and remand.

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In Davis, strikingly similar, though arguably less damaging testimony regarding an offer to repay a contested sum was admitted over objection.

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And there, the government, as in Mr. Pol's case, used that evidence to prove the defendant's guilt, which this court determined was prohibited under federal rule of evidence 408.

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Where it wasn't sufficiently clear whether rule 408 testimony may have affected the outcome, this court vacated and remanded.

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And we submit that the same result should obtain

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In this case here, Mr Mulganicky's testimony was arguably more damaging than the testimony admitted an error in Davis because Mr Mulganicky was permitted to testify not only about the fact that Mr Paul had offered to repay this amount of money to quote,

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get this all behind him.

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But further, Mr. Mulganicki was permitted to testify about the effect that this offer had on him.

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He was permitted to testify that this was the last straw in his mind as to whether Mr. Pol had taken this money.

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And he further testified that he couldn't imagine that someone who had an honest right to that money would offer to repay it.

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That didn't make sense.

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For prejudice purposes, which you're hopefully going to address, we have to take into account

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that evidence in light of all the evidence, right?

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That's correct, Your Honor.

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And what you're focused on now is the damage and capacity of this particular statement on its own.

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But in relation to all the evidence that's submitted on the relevant elements, you would have to show that there's a reasonable probability that the result would have been different.

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Absolutely, Your Honor.

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And we believe that this erroneously admitted testimony rises to that level, really, for a few reasons.

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So first, Mr. Mulganicky testified as the government's lead and star witness.

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So this was on the first day of Mr. Pol's trial.

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And all of the evidence that came in thereafter was really in the shadow of this damaging testimony about conclusive evidence of Mr. Pol's guilt.

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And then the government reminded the jury in its closing arguments

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about this meeting that occurred between Mr. Moganicki and Mr. Pol, where Mr. Craig was also present, and reminded the jury that this meeting was the moment that Mr. Pol was caught.

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So this was critical evidence in the government's case.

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And it went not only to Mr. Pol's offer to repay this money, but to his consciousness of guilt, which was the critical question before the jury.

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Did he have the requisite state of mind?

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Did the closing argument specifically talk about the offer to repay?

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It did not specifically recite or rerecite that evidence, your honor, but it did refer back in at least three places to that critical meeting in January 2007 about which Mr. Mulganicky was testifying when this testimony came in without without objection.

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and the government at pages 1937, 1946, and 1947 of the record refer back to that as the moment that Mr. Poll was caught.

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So the government obviously placed great weight on this testimony and on Mr. Mulganicky as a witness.

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He was critical to the government's case.

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He was the last chief of staff for whom Mr. Poll worked when he served in Senator Kennedy's office.

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Saying that it's the moment that he was caught is a lot different than saying

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It was the moment that he confessed guilt, right?

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I understand the distinction, Your Honor, but I would submit that it was the substance of Mr Mulganicky's testimony that this was the moment.

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that Mr. Pol effectively confessed his guilt, was conscious of his guilt.

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And under Davis, we know that such testimony is plainly inadmissible where it goes to the defendant's consciousness of guilt.

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In Davis, this court explained- Well, the way that they knew that he was caught was when he confirmed that he actually did what they suspected him of doing, not him saying, I'll repay you.

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I mean, that wasn't dispositive.

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is to whether he was caught or not, it was him agreeing that yes, he had made these transactions and he made them without authority.

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challenge a bit, Your Honor, the characterization that Mr. Poll made them without authority, because Mr. Poll, the question before the jury was whether Mr. Poll had a reasonable belief that he would have been able to issue these spend down bonuses to get Senator Kennedy's office budget as close to zero as possible every fiscal year, which he understood to be his mandate.

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And there was conflicting testimony about that January 2007 meeting and about what exactly Mr. Poll may have said about the reasons

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for this money.

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So by way of example, Mr. Craig also testified at Mr. Poll's trial.

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And when questioned, Mr. Craig explained that one of the reasons that Mr. Poll had given was that he was reimbursing himself for expenses.

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and that he had issued these bonuses in order to spend down the budget, which he understood was his mandate as Senator Kennedy's office manager.

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He understood that was Senator Kennedy's wish, and he had limited oversight and limited guidance in how to do that during his tenure as Senator Kennedy's office manager.

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And Mr. Craig also offered some testimony that conflicted with Mr. Mulvaney's version of events when Mr. Craig explained that Mr. Pohl had not, in fact, actually said that he had given these bonuses

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or made these transactions in order to compensate himself in a way that he felt he would have made more, for example, in the private sector.

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And that was consistent with Mr. Pol's testimony when he testified at trial, when he also said, you know, I never said that.

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I said, absolutely not.

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Could I have made more in the private sector?

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I understand that the evidence wasn't all, I guess, I understand that there were,

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you know, the most conflicting evidence, and one could argue different inferences from the evidence.

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My point is that you are saying that when the government, in closing argument, emphasized this meeting and described it as the meeting is the time when he was caught, it was a meeting that they just essentially characterized it as really like an intervention.

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and where they confronted him with what had been done and tried to get his explanation for what had been done, and ultimately concluded that that wasn't a satisfactory explanation in their minds.

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So all of that, none of that necessarily has anything to do with whether he agreed to repay the money.

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I understand the distinction, Your Honor, but I would submit that the whole of Mr. Mulganicky's testimony was in the shadow of this early testimony that happened on the first day of trial about this offer to repay, which he said was conclusive evidence of Mr. Poll's guilt.

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And yes, a lot happened in that meeting, and there was confronting Mr. Poll about the spend down bonuses and where this money had gone.

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Um, but ultimately, uh, the critical moment, um, was when Mr. Poll offered to repay to quote, get this all behind him.

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Um, and Mr. Mulganicky said, well, that was, that was the last straw.

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That was the moment that he became convinced that there, there was no good explanation for this.

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Um, and that he couldn't imagine that someone who had an honest right to the money would make such an offer.

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And critically under Davis, such testimony is plainly inadmissible and trial counsel's failure to object to that testimony.

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was constitutionally ineffective assistance.

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And it was prejudicial because we don't know whether it's such inadmissible evidence entered into the jury's consideration here.

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What we do know is that there was substantial conflicting evidence in this case.

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The district court explicitly said as much at Mr. Pol's sentencing.

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The district court said there was conflicting evidence, conflicting testimony presented every day of the trial.

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There was scarcely a fact that was not in dispute.

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This is at page 2386 and 87.

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of the record on Mr. Paul's sentencing transcript.

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So there was a lot for the jury to weigh.

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It was up for the jury to consider credibility of witnesses to weigh conflicting evidence and come to a verdict.

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And we also know in this case that the jury struggled to do that.

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We have juror notes that say, we're having trouble reaching a unanimous verdict.

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Can we come back unanimous on certain counts and not on others?

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And so in light of this record, we would submit that it's not entirely clear that the jury, in fact, convicted Mr. Poll based on evidence that was validly and properly before it.

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And for the reasons explained in our briefs and for the reasons discussed today, I realize that I'm out of time.

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We respectfully request that the court reverse the district court's denial of Mr. Poll's motion for a new trial on the basis of ineffective assistance of counsel.

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Can you direct us to any case where one evidentiary error is sufficient to find prejudice under the district.

[00:10:44] Speaker 01:
Um, I'm not aware of a case where where one evidentiary.

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Davis, I submit, was a distinguishable case because there was an objection there.

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Castle did try to keep out this Rule 408 violative testimony.

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And so that was a harmless error analysis that the court performed.

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It was not a Strickland prejudice analysis.

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I am aware of cases, and we cite them in our briefs, where there were similar prosecutorial misstatements in closing arguments, which also occurred here regarding Mr. Pohl's oath of office and other evidentiary issues that did amount

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Um, um, to prejudice.

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Um, and, and, and where a remand was, was, was the outcome.

[00:11:33] Speaker 05:
Thank you, Mr. We'll give you a little time for rebuttal.

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Thank you, your honor.

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Interesting.

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Good morning, your honors.

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May it please the court of your son on behalf of the United States.

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Paul's claims of ineffective assistance of counsel here lack merit because Paul cannot carry his burden of showing there's actual prejudice to him in this case.

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Paul's own words and actions show this.

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Paul himself admitted in multiple email communications that what he was giving was bonus proposals or suggestions or recommendations.

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In a memo to Mogul Nikki, Paul said that my role in this office is to give recommendations for bonuses, which the chief of staff must then approve.

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Paul must have known he didn't have authorization for these bonuses.

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He gave them to himself for amounts much larger than were ever approved, and often before any approval discussions were even held.

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And Paul repeatedly lied to chiefs of staff about these bonuses.

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He provided them spreadsheets that gave fake numbers that did not reflect the much higher bonuses he actually gave himself.

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He told McGunnick at one point that he had received between around $2,000 and $5,000 in bonuses last year when he had in fact received two $13,000 bonuses.

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And during the January meeting, he gave these shifting and conflicting excuses for why he had given himself these bonuses.

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My friend on the other side mentioned Davis multiple times.

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Davis did not discuss harmlessness.

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The government didn't raise harmlessness in that case.

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So it doesn't speak to the prejudice question in this case.

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My friend on the other side also mentioned multiple times that

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It's not clear if the jury considered this.

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She didn't know if the jury had thought this was important or not.

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To the extent that this is her burden to show prejudice, that just means Paul hasn't carried his burden here.

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And indeed, Paul testified at trial, and the jury was free to disbelieve him and consider that evidence as substantive evidence of his guilt.

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Was he confronted with the statement that he offered to repay union trust termination, or did it come up at all?

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It did not, Your Honor.

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I apologize.

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It did not, Your Honor.

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This was mentioned on the first day of trial briefly and was never mentioned again.

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My friend on the other side has mentioned this was brought up during closing argument, as Your Honor noted.

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The government brought up the January meeting to discuss polls shifting and conflicting answers for why he had given himself this money.

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But it never mentioned his offer to repay.

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And indeed, this similar argument was raised in a district court, and district court found it misleading for this very reason.

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This testimony here wasn't a lynchpin of this case.

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What this case was really about was Paul's own statements and actions, saying, I don't have authorization to do this without Chief of Staff approval, himself giving himself these bonuses at a time when he could never have had approval for them.

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And then, of course, lying repeatedly to cover up his scheme.

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What do you think the government was referring to in closing argument when they drew the jury's attention back to the initial meeting?

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The government was discussing polls, his excuses for why he gave himself this money.

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The first was that he was reimbursing himself, and the second was that he was trying to spread the money around to get to zero.

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So the government said this was, you know, polls said these things, they don't actually make sense if you look at the record here.

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They don't make sense when you look at polls repeated lies, but the government never mentioned the offer to repay again.

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But what, why wouldn't the jury have

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concluded the same thing that Mr. Mogulnicki concluded, which is that if he offered to pay the money back, then obviously he knew he was not entitled to the money.

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So why wouldn't the jury have reached that conclusion after hearing that testimony?

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That was Mogulniki's opinion, but the jury, of course, was free to determine the significance of the offer to repay for themselves.

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A trial counsel here believed that this actually painted Pol in a positive light because it showed Pol acting in the best interest of the office.

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The district court, in its order, recognized that the jury here could have seen this as a positive thing, as Pol saying, this is my money, but I want to work well with the office.

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I'm happy to pay it back.

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Again, this is Pol's burden to show.

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The government didn't make that.

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If that were really apparent, then you would think that the government would have set a closing argument that they would have used that fact as something in their favor.

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And they obviously didn't understand the reasons the government would have done that, right?

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This was something that trial counsel believed, which is why trial counsel didn't feel the need to object to it.

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It's not clear the jury would have seen this as Paul obviously admitting his guilt.

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Indeed, it wasn't very important at all to Paul's guilt in this trial.

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As I mentioned, we didn't mention it ever again.

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What really was showing Paul's guilt here was the things he said and the things he did that showed he knew he didn't have authorization, but he still gave himself the money anyway and hid it from the chiefs of staff for years.

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Let me ask you about the restitution.

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I don't understand the government's position in attempting to distinguish Huey and Hugo.

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They seem directly contrary.

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with the award of restitution covering dates that were not in any indictment that the jury charged.

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And the jury was not told to look for a scheme.

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They were given specific dates.

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And that was all they found guilt on, those specific dates.

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And boy, when I went back and looked at Hugh and Hugo, and I realize there are some other circuits that seem to go.

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the other way, except in most of the cases that I read, they're distinguishable.

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There were dates that were different or whatever.

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They're not the same situation.

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It seems we've got a Supreme Court decision.

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Restitution can be given only for the laws caused by the specific conduct.

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That is the basis of the offense.

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The basis for the offense here was not a scheme.

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It was five dates.

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That's it.

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And we're talking about dates that are beyond the statute of limitation.

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On top of it, we'll distinguish this case from other cases.

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Out of the statute of limitation, the government made a mistake in charging.

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The jury did not see an indictment with more than the five dates.

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I don't know how you can read what the Supreme Court said and what we have said to allow you to seek restitution for dates that were not charged.

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You can't assume the jury found guilt there.

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during the trial.

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That's the same thing as charging.

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So a few points on that, Your Honor.

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Beginning with Huey and Udo, neither of those cases dealt with crimes that involved as an element of the crime scheme.

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And so those cases aren't entirely on point.

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But they are helpful.

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Here, what's important is the jury did find that Paul engaged in a scheme to defraud.

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Before we're talking about a scheme, first of all, part of this so-called scheme is out of the statute of limitations.

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Why list before the jury only five dates and nothing outside of the statute of limitations?

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That's the only thing the jury was confronted with.

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That's your mistake.

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So restitution calculations are made by the district court.

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The MVRA explains that the district court makes these findings by proponents of the evidence.

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And so the jury doesn't have to find.

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They're supposed to follow what the Supreme Court said, right?

[00:18:56] Speaker 02:
That's exactly right, Your Honor.

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We think we did that here.

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The jury here found it.

[00:19:00] Speaker 04:
I don't know how you can think that.

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restitution can be given only for the loss caused by the specific conduct that is the basis of the offense.

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The specific conduct that was the basis for the offense are five dates.

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There were other dates that were vaguely referenced but not charged, nothing before the jury, that were outside of the statute of limitations period.

[00:19:22] Speaker 04:
Maybe that caused prosecutor to hedge

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the bets, but in any event, they were not before the jury.

[00:19:30] Speaker 04:
I don't know how you can read Huey and say that, well, you can take into account all the possibilities, even though that was really not the case before the jury.

[00:19:42] Speaker 02:
I'll make a few points.

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The most important of which, I think, is that Huey predates the MVRA and the changes made in that statute.

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That statute clarifies that victims get restitution, and victims include those directly harmed by conduct in the course of a criminal scheme, which shows that restitution is given for conduct in the course of the scheme, whether that scheme falls out or whether that conduct falls outside the limitations period or not.

[00:20:09] Speaker 02:
And so that being said,

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Ugo says you can't reach uncharged events.

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So we're not reaching here uncharged wire fraud counts.

[00:20:19] Speaker 02:
It doesn't matter whether the wire fraud counts could have been charged or not, because what we're reaching here is polls conduct as part of the scheme that occurred.

[00:20:28] Speaker 04:
The jury was not asked to find scheme or no scheme.

[00:20:31] Speaker 04:
That's not the question.

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That was before the jury.

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The jury has five dates.

[00:20:35] Speaker 02:
The jury was asked to find a scheme, Your Honor, and that scheme is the element of a crime.

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And so here, the elements of the wire fraud are there's a scheme to defraud.

[00:20:43] Speaker 04:
The scheme that the jury thought it was considering included five dates.

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That's it.

[00:20:47] Speaker 02:
Well, those were executions of the scheme, which is a separate element of the wire fraud count.

[00:20:52] Speaker 04:
Yeah, I'm glad you're smiling at that, because I don't think that's a winning response.

[00:20:57] Speaker 04:
You said there's a scheme, and what's the scheme?

[00:21:00] Speaker 04:
Five dates.

[00:21:01] Speaker 04:
That's it.

[00:21:02] Speaker 02:
You know, I think those are actually supposed to guess about the rest.

[00:21:05] Speaker 02:
So the jury finds a scheme, and it finds the executions of the scheme that happened on or about those five dates.

[00:21:11] Speaker 02:
But the determination of what conduct falls within the scheme is for the district court to make under the MVRA.

[00:21:16] Speaker 02:
Section 3664E explains district court makes fact findings that determine the scope of the scheme and the amount of restitution, which is what happened here.

[00:21:24] Speaker 02:
Here the jury found a criminal scheme.

[00:21:26] Speaker 04:
The statute says the district court judge can find guilt on the basis of something that was never considered by the jury.

[00:21:34] Speaker 04:
I don't think so.

[00:21:35] Speaker 02:
The judge isn't finding guilt here, Your Honor.

[00:21:37] Speaker 02:
The judge is finding whether or not the conduct that Paul engaged in was part of the criminal scheme for which the jury already found guilt.

[00:21:45] Speaker 03:
Was the jury instructed on what the scope of the scheme was as far as from this date to that date or any other limitations?

[00:21:58] Speaker 02:
It wasn't.

[00:21:59] Speaker 02:
It was given a limited verdict form that only included these five dates.

[00:22:02] Speaker 02:
And that's partly because Paul asked the jury not to be given the indictment, because Paul believed the indictment had a lot of extra information that he didn't want the jury to see.

[00:22:10] Speaker 02:
The answer is no.

[00:22:12] Speaker 04:
The jury did not, to my colleague.

[00:22:13] Speaker 04:
The answer is no.

[00:22:14] Speaker 04:
Correct.

[00:22:15] Speaker 02:
Correct.

[00:22:16] Speaker 02:
So the jury didn't have those dates before them, partly because of Paul's insistence the jury not be shown the indictment in the jury room.

[00:22:25] Speaker 02:
But what matters here is that the jury found that Paul engaged in a scheme to defraud.

[00:22:30] Speaker 02:
And the district court then found at the hearing that this was all part of the same criminal scheme, all opposed to that same scheme for which he was charged and convicted.

[00:22:39] Speaker 02:
And because of that, the inquiry requires an institution for that conflict.

[00:22:42] Speaker 03:
So let's suppose Paul, prior to Senator

[00:22:46] Speaker 03:
Kennedy had also worked for another senator in investigating this.

[00:22:54] Speaker 03:
They found that he had been doing this for 25 years.

[00:23:02] Speaker 03:
None of that was put before the jury, but that sentencing in the district judge, on the government's request, look at

[00:23:13] Speaker 03:
All of that going back 25 years and say restitution because it's all part of the same scheme.

[00:23:21] Speaker 02:
It depends on a number of factors.

[00:23:23] Speaker 02:
If the government has to charge it in the indictment, the indictment, of course, sets the outer limits.

[00:23:27] Speaker 02:
But if the indictment charges the outer limits, then as long as the district court or the government has a burden to prove this by proponents of the evidence, so as long as the district court makes the findings by proponents of the evidence that false conduct was part of the same scheme for the entire 25 years, then the government can get restitution for that.

[00:23:43] Speaker 02:
And in fact, it's required by the NVRA.

[00:23:46] Speaker 02:
And we cite some cases in our brief on page 54, I believe, that go back 15 or 17 years.

[00:23:52] Speaker 02:
The limitation on restitution is really about the defendant's conduct.

[00:23:56] Speaker 02:
The longer and broader the defendant's term of scheme is, the more the NVRA requires that he pay.

[00:24:03] Speaker 05:
How do we understand the parameters of the scheme?

[00:24:05] Speaker 05:
What tells us what the parameters of the relevant scheme are?

[00:24:10] Speaker 02:
So the other limits are in the government's indictment, because he can only be

[00:24:14] Speaker 02:
tried restitution for what he has been charged for.

[00:24:16] Speaker 02:
And once the indictment limits the beginning and the end of the scheme, then the district reports back findings by proponents of the evidence determine what conduct was within that scheme.

[00:24:27] Speaker 03:
And here, how did the indictment describe the scheme?

[00:24:30] Speaker 02:
It's beginning in 2003 and ending in 2007 when... That's not what the jury saw.

[00:24:36] Speaker 02:
No, the jury did not see that.

[00:24:37] Speaker 02:
The government argued this in closing argument and there was evidence in the trial about that.

[00:24:42] Speaker 02:
The jury was simply asked to find a scheme

[00:24:44] Speaker 04:
And that jury was not the jury was asked about five dates.

[00:24:48] Speaker 04:
That's what the genomes don't change the fact the jury was asked about five dates.

[00:24:52] Speaker 04:
That's it.

[00:24:53] Speaker 04:
And you want to make as the district court want to make scheme cover anything, whether or not the jury considered it.

[00:25:00] Speaker 04:
And what's really kind of astonishing here, it's out of the statute of limitations.

[00:25:06] Speaker 02:
We say to numerous cases in

[00:25:09] Speaker 02:
on page 54 of our brief.

[00:25:10] Speaker 02:
Other courts have found this.

[00:25:11] Speaker 02:
This is the Parnell case.

[00:25:12] Speaker 04:
I mean, I can run you down most of those, and they're distinguishable.

[00:25:17] Speaker 02:
I think what's important here is that the jury finds a criminal scheme.

[00:25:20] Speaker 02:
And the MVRA says, after that, it's for the district court to determine what the restitution is by determining, as part of that, what conducts fall.

[00:25:27] Speaker 04:
You keep saying the jury found a scheme that didn't.

[00:25:29] Speaker 04:
The jury found guilt on five occasions.

[00:25:34] Speaker 04:
That's all they were presented.

[00:25:36] Speaker 02:
One of the elements of guilt for wire fraud, Your Honor, we may just simply disagree on this, but one of the elements of wire fraud is that there was a criminal scheme.

[00:25:43] Speaker 05:
The next element of- I guess the question is, at least in my mind, is I think you're right that the jury has to find a scheme to convict on wire fraud.

[00:25:52] Speaker 05:
So the word scheme is used in the jury instruction.

[00:25:54] Speaker 05:
I take it it was here.

[00:25:55] Speaker 05:
It was.

[00:25:55] Speaker 05:
But that doesn't necessarily tell us that the jury is finding the same scheme that was encompassed by the indictment.

[00:26:03] Speaker 05:
So as I understand the theory, it's that

[00:26:06] Speaker 05:
The jury has to find some scheme to convict a wire fraud.

[00:26:10] Speaker 05:
And that scheme could be a scheme that's confined to the particular incidences of fraud that are put to the jury.

[00:26:18] Speaker 05:
So it could be a scheme that envelops five specific incidents.

[00:26:21] Speaker 05:
The indictment could encompass 20 incidents, because it dates back 15 years behind that.

[00:26:27] Speaker 05:
So the scheme that's found by the jury could be more confined than the scheme.

[00:26:31] Speaker 05:
The scope of the scheme that's found by the jury could be more confined than the scope of the scheme that's encompassed by the indictment.

[00:26:37] Speaker 05:
And I think that just has to be true.

[00:26:40] Speaker 05:
But your submission is, that's OK.

[00:26:43] Speaker 05:
Because as long as the indictment covers the larger scheme,

[00:26:47] Speaker 05:
anything within that larger scheme can be included as part of restitution, even if it's larger than the scheme that the jury found in determining that there was wire from isn't that your is that your position is basically right, your honor.

[00:26:59] Speaker 02:
Yes.

[00:27:00] Speaker 05:
So then so then your position has to be.

[00:27:02] Speaker 05:
It isn't just to follow on to Judge Edwards questioning.

[00:27:06] Speaker 05:
It isn't that the jury found

[00:27:09] Speaker 05:
the scheme that would support the restitution award, it's that the jury found a scheme.

[00:27:14] Speaker 05:
That scheme may be a narrower scheme than the one that would support the restitution award.

[00:27:18] Speaker 05:
That doesn't matter.

[00:27:19] Speaker 05:
Because as long as the scheme that's in the indictment supports the restitution award, that's all that matters from the government's perspective.

[00:27:26] Speaker 02:
That's correct.

[00:27:27] Speaker 02:
As long as the district court makes findings under the MVRA, that scheme and indictment matches what he finds to be part of the scheme, and that's all that matters.

[00:27:34] Speaker 05:
So it would be the restitution award is supported by a scheme that ranges, or at least can be supported by a scheme that ranges beyond the scope of the scheme that's found by the jury.

[00:27:45] Speaker 02:
That's theoretically possible.

[00:27:46] Speaker 02:
Of course, we don't know what the jury found.

[00:27:47] Speaker 02:
But yes, the indictment limits the outer scope of the scheme.

[00:27:50] Speaker 02:
And then the district court makes findings for restitution, which can include conducting the course of the scheme that maybe the jury didn't consider or think about.

[00:27:57] Speaker 05:
And then it seems like there would be, and I think we noticed this in our prior opinion, there could be an Apprendi issue about the jury's findings supporting the scope of the scheme that leads to the restitution award.

[00:28:12] Speaker 02:
Paul hasn't raised that in his brief, and so I think that's been abandoned and waived, and this court shouldn't consider it.

[00:28:17] Speaker 02:
That being said, every court to have considered that issue has found that there is no apprendi issue.

[00:28:20] Speaker 02:
Apprendi limits judge-made fact findings that raises statutory maximum.

[00:28:25] Speaker 02:
Any restitution has no statutory maximum.

[00:28:28] Speaker 02:
It's a variable amount that changes based on the defendant's conduct.

[00:28:32] Speaker 05:
And do you understand there to be an argument in this case before us that the jury didn't find the relevant?

[00:28:39] Speaker 05:
Put aside the apprendi issue just for now.

[00:28:41] Speaker 05:
I think that's a gloss on this.

[00:28:42] Speaker 05:
that although the jury found a scheme, they didn't find the relevant scheme that would support the restitutionary award.

[00:28:51] Speaker 02:
I don't see that raised in the defendant's brief, Your Honor.

[00:28:53] Speaker 02:
I don't think that's before this court.

[00:28:55] Speaker 02:
And so I don't think this court needs to consider that.

[00:28:57] Speaker 02:
But I think even if that were before this court, as long as the jury found a scheme here, it's the district court under the MVRA to find, by proponents of the evidence, what conduct fell within that scheme.

[00:29:07] Speaker 02:
And if it does, the MVRA requires restitution for that conduct.

[00:29:12] Speaker 05:
But the district court didn't report to find that the scheme found by the jury encompassed all of the conduct dating back before the statute of limits, right?

[00:29:24] Speaker 05:
Because the district court didn't think that it had to do.

[00:29:27] Speaker 02:
The court said that all of the conduct was part of the scheme that was charged and convicted, but the court didn't say the jury found necessarily a scheme this long.

[00:29:35] Speaker 02:
The district court couldn't know that.

[00:29:37] Speaker 05:
Right, because the jury, we don't know exactly the parameters of the scheme that the jury found.

[00:29:41] Speaker 05:
We know that they found a scheme.

[00:29:42] Speaker 05:
Correct.

[00:29:42] Speaker 05:
We don't know the parameters of that scheme because they didn't have evidence about the full scheme that was alleged in the indictment before it, so we can't know.

[00:29:49] Speaker 05:
That's correct, Your Honor.

[00:29:51] Speaker 02:
And the jury wasn't asked to do that.

[00:29:52] Speaker 02:
That wasn't something that the jury needed to be asked about.

[00:29:54] Speaker 02:
And so the jury found the five executions of the scheme, but it didn't actually make findings about the length of the scheme.

[00:30:00] Speaker 02:
And part of that is because, of course, the indictment wasn't sent back with the jury showing all the extra evidence that Paul didn't want the jury to know about because it was outside the limitations period.

[00:30:11] Speaker 03:
So you say that as long as

[00:30:16] Speaker 03:
the scheme described in the indictment, that restitution can be ordered for all acts that fall within the scheme described in the indictment, right?

[00:30:30] Speaker 03:
That's correct.

[00:30:31] Speaker 03:
Is that from the MVRA text, or where does that come from?

[00:30:37] Speaker 02:
That essentially comes from Huey and Udo and the line of cases that say that.

[00:30:42] Speaker 02:
The restitution must be for the crime of charge and convicted.

[00:30:45] Speaker 02:
And so if it hasn't been charged in the indictment, it can't be encompassed with the restitution order.

[00:30:48] Speaker 04:
Even though the jury's never seen the indictment.

[00:30:52] Speaker 02:
That's correct, Your Honor.

[00:30:52] Speaker 02:
As long as he was charged with it and its conduct underlying the crime he was convicted for, Huey allows that.

[00:30:59] Speaker 02:
And then the MVRA, of course, explains that it includes restitution for conduct throughout the course of the scheme.

[00:31:05] Speaker 05:
Is he charged and convicted?

[00:31:08] Speaker 02:
He has to be convicted for a scheme.

[00:31:10] Speaker 02:
So part of the conduct is, was he convicted of a scheme here?

[00:31:13] Speaker 02:
It's a scheme-based defense, and that's what matters under the MVRA.

[00:31:16] Speaker 05:
I thought you said in describing where we get this from Hugo and Udo that those cases talk about the scheme that was charged and convicted.

[00:31:26] Speaker 02:
I may not be clear about my language, but it has to be the conduct underlying the offense, I should say.

[00:31:30] Speaker 02:
That's what the language that Huey uses.

[00:31:34] Speaker 02:
And so conduct underlying the offense has to be, of course, charged in the indictment.

[00:31:37] Speaker 02:
But once it's charged in the indictment, then the district court can make fact findings to determine what conduct, by punis of the evidence, he believes falls within that scheme.

[00:31:47] Speaker 05:
So could a district court do the following?

[00:31:48] Speaker 05:
Could a district court say the scheme alleged in the indictment covers 20 acts?

[00:31:55] Speaker 05:
The scheme presented to the jury covers five of those 20 acts.

[00:31:58] Speaker 05:
I find that the scheme that was necessarily found by the jury in rendering the conviction was confined to those five acts.

[00:32:05] Speaker 05:
So that's what was found beyond a reasonable doubt.

[00:32:07] Speaker 05:
But I find by a preponderance of the evidence that the scheme charged

[00:32:11] Speaker 05:
covers 20 acts.

[00:32:13] Speaker 05:
And I mean, I guess the government could present evidence and sentencing that says that all those acts were proven by a proponent of the evidence.

[00:32:19] Speaker 05:
And so by a proponent, that entire scheme existed.

[00:32:22] Speaker 05:
And therefore, I'm ordering restitution as to all the 20 acts.

[00:32:26] Speaker 02:
The court could do that, Your Honor.

[00:32:27] Speaker 02:
I think the court has to do that under the MVRA, because the MVRA says, if you're a victim, you get restitution, and then says, victims are people who are harmed by a criminal scheme, by the course of conduct in the criminal scheme.

[00:32:38] Speaker 04:
Didn't we say in poll one, the government can always ask the district court to craft a verdict that ensures the jury is able to make factual findings sufficient to support a particular amount of restitution?

[00:32:53] Speaker 02:
This court said that, and then it said, or if there's no Apprendi problem, it can simply have the jury make the appropriate fact findings.

[00:32:58] Speaker 02:
The court there.

[00:33:00] Speaker 02:
There was no fact finding.

[00:33:03] Speaker 02:
Judge.

[00:33:03] Speaker 02:
I'm sorry, I missed.

[00:33:04] Speaker 04:
Sorry.

[00:33:05] Speaker 04:
No, no.

[00:33:06] Speaker 04:
There was no such fact finding.

[00:33:08] Speaker 02:
The court did find here that all of- Jury.

[00:33:12] Speaker 02:
The jury didn't make this fact finding.

[00:33:13] Speaker 04:
Oh, right.

[00:33:14] Speaker 04:
Because the jury didn't know it had more than five events before.

[00:33:17] Speaker 02:
But based on this court's language in poll one, the court said either that or assuming no Apprendi problem, which this court should assume for this case as well since it hasn't been raised, the government can ask the court to make these fact findings.

[00:33:30] Speaker 02:
And so the government did that.

[00:33:32] Speaker 02:
The court did find that all of poll's bonuses here were part of the same criminal scheme.

[00:33:37] Speaker 02:
and so order restitution for all of them.

[00:33:39] Speaker 03:
What would be wrong with the rule that said, look, if you intend to ask for restitution beyond specific acts that the jury find, then in your scheme construction, you say you must find that there's a scheme from date one to date two, and you just set forth the date.

[00:34:08] Speaker 02:
For the jury.

[00:34:09] Speaker 03:
For the jury.

[00:34:11] Speaker 03:
What would be wrong with requiring that?

[00:34:14] Speaker 02:
I think a couple of things.

[00:34:15] Speaker 02:
The first is that Huey says that restitution is a creature of statute.

[00:34:18] Speaker 02:
And the statute here, the MVRA says, these are findings that are made by a judge by proponents of the evidence.

[00:34:24] Speaker 02:
And so a jury doesn't have to actually make the finding about the length of the scheme here.

[00:34:27] Speaker 02:
That's a finding for the court to make by proponents of the evidence.

[00:34:31] Speaker 02:
And so it'd be strange to have a jury make a finding on a reasonable doubt that a judge would actually have to make them up by a lower standard.

[00:34:39] Speaker 02:
The second problem is I think there's a lot of defendants, well I think it was one of them, who doesn't want the jury to think about how long running this scheme was.

[00:34:46] Speaker 02:
And so I think defendants would have problems with that as well.

[00:34:49] Speaker 02:
But I think the biggest problem here is that it would run sort of counter to the language of the MVRA.

[00:34:55] Speaker 05:
And just to clarify, the statement in our prior opinion was that the government can always ask the district court to draft a verdict form that ensures the jury is able to make factual

[00:35:04] Speaker 05:
finding sufficient to support a particular amount of restitution, or assuming no apprendi problem for the court to resolve factual disputes.

[00:35:11] Speaker 05:
I think you might have said jury on the second one, but we hypothesized that the court.

[00:35:17] Speaker 02:
I apologize.

[00:35:18] Speaker 02:
I meant the court, yes.

[00:35:20] Speaker 02:
And so the court, I think, was giving two options based on whether there was an apprendi problem here.

[00:35:25] Speaker 02:
Again, there's been no Apprendi issue raised.

[00:35:27] Speaker 02:
And so the court's findings here are sufficient under this court's decision in poll one to find that the scheme encompassed all of those conducts.

[00:35:35] Speaker 05:
Clearly, if there was an Apprendi issue, if you're wrong about the Apprendi issue, then obviously what happened here can't be sustained.

[00:35:42] Speaker 05:
Because the jury, we'd have to know that the jury found, beyond a reasonable doubt, that the scheme encompassed a full range of events.

[00:35:49] Speaker 02:
I think that's right, Your Honor.

[00:35:50] Speaker 02:
Again, there's been no Apprendi issue raised here.

[00:35:52] Speaker 02:
We don't think Apprendi applies for reasons I've discussed.

[00:35:56] Speaker 02:
But there's an Apprendi issue.

[00:35:57] Speaker 02:
This is a different case entirely.

[00:35:59] Speaker 02:
There, of course, isn't one here.

[00:36:00] Speaker 02:
And so the question simply is whether the course of conduct included the harms that the court considered within the scheme that jury had.

[00:36:09] Speaker 05:
So for the purpose of our case, if the government were to prevail on this issue, we wouldn't have to say that the government is right, that there's no Apprendi problem.

[00:36:19] Speaker 05:
That's correct.

[00:36:20] Speaker 05:
We could assume a world in which there isn't an Apprendi problem, but leave open whether there, in fact, is a requirement that the jury make the findings about the parameters of the scheme.

[00:36:30] Speaker 05:
In which event, this case, had the Apprendi issue been raised and preserved, would come out differently.

[00:36:37] Speaker 05:
That's exactly right, Your Honor.

[00:36:38] Speaker 05:
That's exactly right.

[00:36:39] Speaker 03:
So I'm trying to make sure I understand the government's position in how you construed a statute.

[00:36:46] Speaker 03:
Let's suppose the jury had been instructed that the scheme was in 2004 and 2005.

[00:36:56] Speaker 03:
And so that was the instruction that was given to the jury.

[00:37:03] Speaker 03:
Maybe it was done inadvertently, but that's the instruction that was given.

[00:37:09] Speaker 03:
And so when they return their guilty verdict, that's the scheme that they found.

[00:37:15] Speaker 03:
Is it your position that it doesn't matter?

[00:37:20] Speaker 03:
The district court at sentencing could still order restitution beyond 2004 and 2005?

[00:37:29] Speaker 02:
I think it is, Your Honor.

[00:37:32] Speaker 02:
I think the idea is that the jury found a criminal scheme by a certain standard, which is beyond a reasonable doubt.

[00:37:39] Speaker 02:
But the district court standard is lower, the proponents of the evidence.

[00:37:42] Speaker 02:
And so even if the jury didn't find this,

[00:37:44] Speaker 02:
the district court still could.

[00:37:46] Speaker 02:
And so as long as the indictment includes that within the indictment, the district court could find under 36, 64.

[00:37:53] Speaker 04:
Even if the jury was instructed, are you answering the question my colleague asked?

[00:37:57] Speaker 04:
The jury was instructed.

[00:38:00] Speaker 04:
The scheme that occurred in 2004 and 2005, that's consistent with what the jury had already seen.

[00:38:05] Speaker 04:
And you're saying even in that situation, you can go outside of those dates into a period not covered

[00:38:15] Speaker 04:
doesn't meet the statute of limitations, never presented to the jury, and in the instruction before they begin deliberations, they're told it's only 2004 and five.

[00:38:27] Speaker 02:
That's correct, Your Honor.

[00:38:28] Speaker 02:
They're two different increments.

[00:38:29] Speaker 02:
Who says that?

[00:38:30] Speaker 02:
I mean, it's this argument we're making now based on the text of the MVRA.

[00:38:35] Speaker 03:
But the text of the MVRA, you tell me if I'm reading it.

[00:38:42] Speaker 03:
So 3663A and then let's look at A2.

[00:38:48] Speaker 03:
Is that the relevant text?

[00:38:49] Speaker 03:
That's correct, Your Honor.

[00:38:51] Speaker 03:
It says, victim means a person directly and proclamantly harmed as a result of the commission of an offense

[00:39:04] Speaker 03:
for which restitution may be ordered.

[00:39:07] Speaker 03:
So what does it mean, harmed as a result of the commission of an offense?

[00:39:14] Speaker 03:
If the offense was defined for the purposes of my last hypo as a scheme from 2004, 2005,

[00:39:27] Speaker 03:
Isn't it a different offense to order restitution for things that happened outside of that time period?

[00:39:37] Speaker 03:
How is that the same offense?

[00:39:40] Speaker 02:
I think what matters here is that there are different standards.

[00:39:42] Speaker 02:
And so the jury may have found unreasonable doubts that the offense went from 2004, 2005.

[00:39:49] Speaker 02:
But the district court finds by a lower standard that the scheme went longer than that.

[00:39:52] Speaker 02:
I think it's a different question for a different fact finder, which is the main issue here.

[00:39:56] Speaker 03:
So you're trying to liken this to like acquitted conduct or something, where it can still be considered at sentencing as long as there is some binding.

[00:40:08] Speaker 03:
I'm just trying to understand

[00:40:10] Speaker 03:
understand exactly how you think we should construe this statute and understand the word commission of an offense.

[00:40:22] Speaker 02:
I think there's a few points.

[00:40:24] Speaker 02:
I think one of the changes the MVRA made after Huey was that it used to just say an offense, and it was changed to commission of an offense, which courts have said tries to broaden the reach of the statute.

[00:40:36] Speaker 02:
And the second thing I'll say is that the MVRA says a victim is any person directly harmed by the defendant's criminal conduct in the course of the scheme.

[00:40:45] Speaker 02:
And because it's a different inquiry, the jury has to find the crime, but the district court finds restitution purposes, a restitution for restitution purposes.

[00:40:53] Speaker 02:
The district court can make findings that are broader than the district court had, excuse me, than the jury had to make.

[00:40:59] Speaker 05:
I think to me, and I don't have the full statutory language in front of me, but I see it on,

[00:41:05] Speaker 05:
excerpts quoted at page 51 at least, it speaks in terms of an offense involving as an element a scheme, and then a victim is any person directly harmed by the defendant's criminal conduct in this course of the scheme.

[00:41:22] Speaker 05:
So the scheme and a scheme refer to the same scheme.

[00:41:25] Speaker 05:
So if the offense involves as an element a scheme, and that only deals with what's in the indictment as opposed to the scheme found by the jury,

[00:41:36] Speaker 05:
then I take it it could be the case that if the jury acquits on a wire fraud count, then under your view, the government could still say, well, the offense involves a scheme.

[00:41:50] Speaker 05:
And the person directly harmed by the criminal conduct in the course of that scheme is a scheme that we can show by a preponderance of the evidence, even though the jury acquitted on the existence of the scheme beyond a reasonable doubt.

[00:42:03] Speaker 02:
That's correct, Your Honor.

[00:42:05] Speaker 02:
Of course, none of this happened here.

[00:42:06] Speaker 02:
He was found guilty on all six counts.

[00:42:08] Speaker 02:
And the indictment did list the entire scheme that we received restitution for.

[00:42:11] Speaker 02:
But that's correct.

[00:42:12] Speaker 05:
But I think the fact is, if we assume that the scheme that was put before the jury is narrower than the scheme that's in the indictment, then that breaks down to the same thing as, ultimately, as the jury finding the existence, the jury declining to find the existence of the scheme that the indictment alleges.

[00:42:32] Speaker 02:
I think it's partly right.

[00:42:33] Speaker 02:
I don't think the scheme put before the jury was less than the scheme in the indictment.

[00:42:36] Speaker 02:
I think the jury wasn't asked to make findings in the verdict form based on everything that's in the indictment.

[00:42:42] Speaker 02:
But the information from the indictment beginning in 2003 was presented to the jury.

[00:42:46] Speaker 02:
The jury saw exhibits discussing polls actions in 2003 and 2004.

[00:42:50] Speaker 02:
And the government's closing argument mentioned the $75,000 poll stole, which is the entirety of the amount from 2003 to 2015.

[00:42:58] Speaker 02:
or including 2007.

[00:42:59] Speaker 02:
So the jury here is presented with evidence of the entire scheme.

[00:43:06] Speaker 05:
Right, but we don't know the scope of the scheme that the jury in fact found because it wasn't required to define the parameters of the scheme in order to convict a fire fraud.

[00:43:14] Speaker 02:
That's correct, yes.

[00:43:15] Speaker 04:
And the verdict form is limited to five events.

[00:43:18] Speaker 02:
It's limited to the five executions of the scheme that were charged here.

[00:43:26] Speaker 02:
I'm happy to answer more questions, Your Honors, but there are no more.

[00:43:29] Speaker 04:
You're happy?

[00:43:30] Speaker 02:
I'll rest on a reset if there are no more questions.

[00:43:35] Speaker 02:
Thank you very much.

[00:43:36] Speaker 05:
Thank you, Mr. Sina.

[00:43:40] Speaker 05:
Ms.

[00:43:40] Speaker 05:
Stern, we'll give you two minutes for rebuttal.

[00:43:43] Speaker 01:
Thank you, Your Honor.

[00:43:43] Speaker 01:
I'd like to briefly address three points that the government raised in its argument.

[00:43:50] Speaker 01:
First, as to this idea that the failure to object to Mr. Mogulnicki's Rule 408 violative testimony was somehow strategic by trial counsel and that maybe this was positive because it painted Mr. Polin a positive light.

[00:44:07] Speaker 01:
That's completely contradicted by the declaration that trial counsel submitted in connection with the evidentiary hearing that occurred on remand in this matter.

[00:44:17] Speaker 01:
Trial counsel explained in his declaration explicitly

[00:44:20] Speaker 01:
that there was no strategic reason for his failure to consider federal rule of evidence 408 and to object to this testimony.

[00:44:26] Speaker 01:
He simply didn't consider the application of this rule during Mr. Pol's trial.

[00:44:31] Speaker 01:
And that's in the record at 2814 to 15.

[00:44:34] Speaker 01:
He also testified consistently at the evidentiary hearing in this matter when he said that if he had known that rule 408 prohibited this testimony, he would have had it taken out.

[00:44:46] Speaker 01:
And I believe that's in the record at page 3067.

[00:44:49] Speaker 01:
So the second point I'd like to make is that the government mentioned actual prejudice to Mr. Cole.

[00:44:57] Speaker 01:
My colleague briefly addressed some of the evidence in the record.

[00:45:00] Speaker 01:
The point here, respectfully, is that there was conflicting evidence in the record that the jury had to weigh.

[00:45:06] Speaker 01:
The jury had to consider

[00:45:07] Speaker 01:
competing testimony and determine whether Mr. Pohl possessed the requisite state of mind.

[00:45:13] Speaker 01:
That was the critical issue.

[00:45:15] Speaker 01:
And then third, I'd like to address this idea that there was only one evidentiary issue that prejudiced Mr. Pohl.

[00:45:23] Speaker 01:
There were at least two.

[00:45:24] Speaker 01:
And those are not just Mr. Mulganicki's rule 408 violative testimony, but the government's use of Mr. Pohl's oath of office in its closing argument.

[00:45:32] Speaker 01:
That was evidence that was never admitted at trial.

[00:45:34] Speaker 01:
It was plainly inadmissible.

[00:45:36] Speaker 01:
And it also went directly to this question of Mr. Pol's state of mind, so it should never have been before the jury.

[00:45:42] Speaker 01:
And those compounding errors of improper evidence, in our view, infected Mr. Pol's trial and our basis to reverse the district court's denial of Mr. Pol's motion on the basis of ineffective assistance of counsel.

[00:45:57] Speaker 01:
And I see that I'm out of time, so I thank the court for its attention.

[00:46:01] Speaker 05:
Thank you, counsel.

[00:46:02] Speaker 05:
Thank you to both counsel.

[00:46:04] Speaker 05:
Ms.

[00:46:04] Speaker 05:
Stern, you are appointed by the court to represent the appellant in this matter, and the court thanks you for your assistance.

[00:46:09] Speaker 01:
Thank you so much, Your Honor.