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Case number 24-3107, the United States of America versus Vincent Forrest appellant.

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Mr. Coburn for the appellant, Mr. Burney for the appellee.

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Good morning, counsel.

[00:00:13] Speaker 02:
Good morning, Mr. Coburn.

[00:00:14] Speaker 02:
Please proceed when you're ready.

[00:00:15] Speaker 00:
Thank you so much.

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May it please the court, Barry Coburn for the appellant, Vincent Forrest.

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We have only, I should have noted with the court's permission, we'd like to reserve one minute for rebuttal.

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We have only one issue in this appeal, and that issue is the sufficiency of the evidence.

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Just preliminarily, there was an argument that was made by the government, I think in a footnote in its brief, relating to whether or not that argument has been preserved.

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There are several cases with respect to that question.

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There's a doctrine.

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relating to this notion that if a Rule 29 motion is made below and there's a specific argument made, then if you make a different specific argument on appeal, that may be plain error.

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And I don't know that I need to or should spend much time on that right now, but our contention is that there's really no daylight between the argument that we made below, which referred specifically to the general orders and statutes that were alleged in the indictment that Mr. Forrest had violated versus the argument that we made here, which I believe

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first of all, specifically encompasses that.

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And secondly,

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to the extent it refers to corruptness, the element of corruptness in bribery and as it relates to the conspiracy count, it's the same thing.

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I mean, whether or not the statute or general order is violated, that's what makes, according to the government's theory below, that's what makes the conduct corrupt, hence constituting bribery.

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So is it correct, Mr. Coburn, that when you made your, or when trial counsel made the motion for judgment of acquittal on the bribery and conspiracy,

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count.

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He said, with respect to the other counts, particularly conspiracy and bribery, our argument is that there's insufficient evidence to prove that he violated an official duty.

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That seems like a different argument than what's being made now.

[00:02:08] Speaker 00:
That is essentially the argument your honor just presented that the government made in the footnote I referenced.

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I don't think it's different.

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In other words, from my point of view, the notion of the alleged violation of an official duty, like I said, that's what constitutes corruptness.

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First of all, I think we actually do refer.

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in our opening brief to a violation of official duty.

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But aside from that, I mean, the focus certainly is on this question of whether or not the conduct below is provably corrupt.

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But that's the gravamen of it.

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That's what's at the heart of the notion of corruptness, at least as alleged.

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put the court and the other parties on notice of what you're arguing so that they can respond accordingly, both before the trial court and before this court.

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And it seems like the thrust of your arguments are different before the trial court versus this court, one being lack of knowledge, center, et cetera, and the other being specifically focused on official duty.

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I mean, certainly the way it's captioned, at least with respect to the question of corruptness in this court, we didn't use that word.

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I actually did a word search for it.

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So with respect to the argument that we made at the close of the government's case in chief, I don't believe the word corrupt appears in it.

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And so I take the court's point.

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Certainly with respect to that, it's phrased differently.

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But in terms of the actual substance of it, and I should, by the way, note, Your Honor, that I was the trial counsel below.

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I was.

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So my contention is that in terms of substance, in terms of sort of conveying the concept, it's essentially the same.

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That the thing that makes the conduct corrupt as alleged in the indictment is the alleged violation of a couple of different general orders.

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and a couple of different statutes that are referenced.

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And so to the extent we argue below that there was no provable violation of those things, it is sort of IE.

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It's essentially the same as contending a lack of proof of corruptness.

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Turning then to the issue itself, substantively, whether or not there was sufficient evidence below, our contention, and I think I should start my argument by conceding something, which is that the most difficult fact that we have, which actually is referenced, I think, by the government only with respect to the false statements count,

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has to do with an exchange that occurred between Mr. Forrest and two law enforcement officers when he submitted to a voluntary interview before he was charged.

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And during the course of that exchange, there is, and I could find it if necessary, but there's sort of a lengthy question that's put by one of the investigators relating to contact information.

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So he's asked whether did you provide blank contact information or something else to anyone else while you were reviewing this series of accident reports?

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And he answers no unambiguously to that question.

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So I think that's kind of the central issue that we have to deal with.

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Because from my own point of view, and certainly it's not my intention to make the government's argument for them by any means, but there's at least an argument

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that if that statement is false, provably false, then it applies actually not just to the false statement count, but also to a conspiracy and bribery.

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Because, I mean, then there would be like sort of knowledge of wrongfulness and an attempt to conceal

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And so I think I have to just kind of start by conceding that.

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The key fact for us is that we don't view that statement in context, in the context of the exchange he had with law enforcement as inculpatory.

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And the reason is because Mr. Forrest testified, and certainly I should acknowledge, I mean, a jury has an absolute right to find a defendant or any witness incredible.

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I agree with that.

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No question about it.

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But here, his testimony about this question is the only evidence of record.

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He says he thought, he says it was his understanding that what was being referenced during the course of this conversation with law enforcement

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was information that's, he uses different words, sensitive, confidential, private.

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Now, if there were something in the record to contradict that proposition, either in the exchange he had with law enforcement or anywhere else, then I concede we'd have a serious problem in this appeal.

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So let me point you to the record.

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About his testimony and there was a question from the.

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I guess the law enforcement officers and I can understand how somebody could be in your position and then also think that this isn't that big a deal as far as giving out just traffic crash information to somebody else.

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And the answer was, that's a big deal because one, it's a violation of somebody's privacy.

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I don't want somebody, definitely a law enforcement officer, to be taking a report from me and for whatever reason, that going with third party.

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I mean, I don't even like telemarketers calling my freaking phone.

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This is your client.

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And then he was asked, so to provide somebody's private information, you know, I mean, it's a stretch, if you will.

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Question, so you understand it's against the law to do that, right?

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Answer, right, I understand that part.

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Question, it's illegal.

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Answer right.

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Doesn't that very plainly show that he knew that this was illegal and unlawful and he shouldn't be doing that?

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I actually have that very segment right in front of me, right here, from the transcript of his interview with law enforcement.

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And my contention is that it's actually the opposite.

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That what's going on here during the course of this conversation is that he is essentially confirming the substance of his trial testimony, which is that he thought

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that only to the extent information in the possession of the District of Columbia Metropolitan Police Department, only to the extent that information is private, is confidential, is wrongful to disclose it.

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The use of the word private in the segment that Your Honor just read, and actually there are a few other segments.

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I think what Your Honor just read is on joint appendix, or rather, I'm sorry, supplemental appendix.

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No, it's joint appendix page 251.

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I think you said Mr. Coburn.

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I wouldn't want somebody taking a report from me, and for whatever reason, not going to a third party.

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He doesn't differentiate.

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It's just taking a report.

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And the question was just about crash information.

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That particular question and answer does not use the word privacy.

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I agree with that.

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But in context, my submission to Your Honor is that he has to be talking only about private information.

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He draws this distinction

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between um and he actually in his own mind you know has a sort of a somewhat um uh dated recollection of the you know the the police department first of forms by number right so he's talking about the pd 251 which is um public information according to his understanding his testimony

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and the PD 252, which is nonpublic information, which that's the information which he testifies he believes is private slash confidential.

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And he uses that terminology throughout the interview.

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Just like your honor said, violation of privacy and then on page

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252 of the Joint Appendix.

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He says, I'm, you know, and he said it refers to and confidentiality or for whatever reason.

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He refers on the same page to somebody's private information.

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And then again, right after he uses those words, private information, he is asked by one of the officers, do you understand it is?

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um against the law to do that right and the that in that sentence refers to what he says just a moment ago referring to private information which according to his lexicon the way he thinks about it that's the information in the pd 252 not in the 251 have to show that i understand your argument your argument is that he thinks

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everything's public anyway.

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And he has a different view of what all is out there in the public domain anyway.

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He thinks, I don't mean to interrupt your honor, but he thinks what's in the 251 is public and that that can be disclosed and there's no rule against it.

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He thinks what's in the 252, which includes contact information,

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other contact information, he thinks that's nonpublic and he can't disclose that.

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So his argument when he testifies, and also I think it's totally consistent with what's in the interview, is that the 252 information, it's wrongful to disclose that the 251 information is public anyway, according to his understanding.

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And for you to prevail, you have to show that no rational jury could conclude

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that his understanding of that effect was not consistent with what he actually felt.

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I guess that's right.

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My submission is that the problem the government has is that there's actually no contrary evidence.

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I mean, there's his testimony, which on that point in terms of his understanding is unrebutted.

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Again, like I said, the jury did not have to accept his testimony.

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They could look at him and say, I think you're incredible, and I don't believe you, and so on.

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But there is no actual evidence contradicting him.

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There is no evidence contradicting the proposition that he thought at the time that the 251 information is public anyway, and so anyone can disclose it to anyone else.

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The 252 information is confidential within the meaning of that word, which he uses repeatedly, repeatedly throughout his interview with law enforcement.

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Contact information for accident victims.

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He thinks that that's

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That's the type of public information you can disclose?

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And that was the rub at trial, exactly, Your Honor.

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I mean, when we talk about the government's theory, and I anticipate Mr. Bernie is going to say when he is at the podium, the government's theory is that contact information is like name, address, phone number.

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That information, according to Mr. Forrest's testimony, is in the 251.

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So that is.

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just public information.

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Anybody could walk into the Metropolitan Police Department, pay, I think, $20 and get the 251.

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The 252 is confidential.

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That has other contract information.

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As a matter of fact, is that in the 251 versus the 252?

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As a prosecutor, I believe that was in the 252.

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I was too, and I have to confess and I'll remember the answer to that question as I stand here.

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But his testimony and the statement that he made to law enforcement is consistent with the proposition that the information he gave to Ms.

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DePaola was public and hence- And they were communicating by encrypted app?

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They were.

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And in one instance?

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He tells her that he told his supervisors that he had to catch up on some paperwork LOL.

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He does.

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And there's also another instance in which he says something like, if I remember the verbiage correctly, I'm not trying to get hot with it, something to that effect.

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And our contention is that, again, just in terms of whether or not a reasonable juror could have found guilt beyond a reasonable doubt here.

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I mean, that notion is at least as consistent with the proposition that he's doing something here that's not

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like what he's supposed to be doing as he sits in the office.

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I mean, it's not in his job description to be looking at accident reports out of idle curiosity or doing other things that a supervisor might deem to be time-wasting.

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And so his statement about that, the one that Your Honor just cited and also not trying to get hot with it, is my submission is at least as consistent with the proposition that he's just not trying to get in trouble because of that.

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as opposed to doing something that he knows.

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At least it's consistent.

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It doesn't get you all the way home because if there's two consistent ways of looking at it, then that doesn't mean that no rational jury could have disbelieved the version that you'd like.

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I was in this court about three weeks ago, actually before Judge Pan on a different panel,

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and the same issue arose.

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And my understanding is that if there's a fact and it's consistent with two inferences, and let's say they're equally compelling, one inference is non-inculpatory and another inference is inculpatory, that that's legally insufficient to sustain a conviction.

[00:15:01] Speaker 04:
That there has to be evidence- Have any authority for that?

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Because the standard is you view all the evidence in the light most favorable to the verdict.

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Unquestionably, Your Honor.

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Which means if there are two ways of looking at it, you look at it the inculpatory way.

[00:15:12] Speaker 00:
Well, I'm not sure that's right.

[00:15:14] Speaker 00:
I mean, I think, um, I don't, I don't, I don't.

[00:15:17] Speaker 04:
Face, Mr. Cooper.

[00:15:17] Speaker 00:
No, no, no.

[00:15:18] Speaker 00:
Understood.

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There is case authority on it.

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And I feel awful about not having that case with me today.

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But my understanding is that the way the case authority operates is that there has to be evidence essentially moving a fact finder in the inculpatory direction.

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It doesn't have to be, it doesn't bring this case, Mr. Coburn, when you know that we talked about this, that's your last argument.

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If you have that case, you need to bring it.

[00:15:42] Speaker 00:
I agree.

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It's my mistake and I'm at fault there.

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I should have brought it.

[00:15:46] Speaker 00:
I agree.

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I don't think we cited it actually in this brief and should have done that as well.

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The case that sets the standard of review that allows you to prevail for your client.

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Point taken.

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I mean, certainly, we cited cases on the general proposition of, and of course, Judge Pan is 100% right.

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The evidence is reviewed in the light most favorable to the government.

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We can't contest that.

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That's absolutely true.

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But if you have a piece of evidence which is equally susceptible to an inference that's inculpatory versus uninculpatory, my submission is that that's like no evidence at all.

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It doesn't push the fact-tinder in one direction or the other.

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It's not inculpatory.

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It's neutral.

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And neutral evidence cannot sustain a verdict.

[00:16:35] Speaker 02:
OK, let me make sure my colleagues don't have additional questions for you.

[00:16:39] Speaker 02:
Thank you.

[00:16:39] Speaker 02:
Thank you very much.

[00:16:48] Speaker 01:
So, Bernie.

[00:16:49] Speaker 01:
Good morning may please support Kevin burnish United States.

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I just like to start by clarifying that appellants brief.

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seems to only challenge his mens rea in this case.

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And I think there was some confusion when Mr. Coburn was making his oral argument as to whether he was challenging, whether Mr. Forrest had an official duty at all to maintain this information.

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And in our view, that is not presented to this court.

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He has not made that argument here.

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So the only question here is whether he has acted corruptly, which was the focus of Mr. Coburn's arguments.

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And that goes to his mens rea.

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And so the question really then is, is there sufficient evidence that Mr. Forrest knew that he could not do this?

[00:17:43] Speaker 04:
So why were you so equivocal about the standard of review here?

[00:17:47] Speaker 04:
Because before the district court, he argued

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public duty or official duty and now he's arguing mens rea.

[00:17:55] Speaker 04:
Shouldn't that clearly be a plain error standard review and why is that relegated to a footnote without any real argument as to.

[00:18:03] Speaker 04:
as to choosing the better standard of review for you.

[00:18:06] Speaker 01:
Right.

[00:18:06] Speaker 01:
I think the evidence in this case is so strong from our point of view that it doesn't really matter whether this court looks at it plainer or otherwise.

[00:18:15] Speaker 04:
That may be true, but still, just for the sake of getting it right and understanding what we're supposed to be doing here, it struck me as curious that you would put that in a footnote and not actually take a position.

[00:18:25] Speaker 01:
Sure.

[00:18:25] Speaker 01:
Well, let me also be fair to, I do think it is plain error, but let me be fair to the arguments that were made below just in the interest of getting it right.

[00:18:34] Speaker 02:
So just to be clear, you also said in the footnote, arguably, right?

[00:18:37] Speaker 02:
Arguably, yes.

[00:18:39] Speaker 02:
It wasn't even a definitive statement relegated to a footnote.

[00:18:43] Speaker 02:
It was a non-definitive statement relegated.

[00:18:45] Speaker 01:
That's right.

[00:18:45] Speaker 01:
But let me explain why that is just in full candor to the court and to make sure we are getting it right.

[00:18:49] Speaker 01:
So the reason why I think it's arguable is because, as was noted during Mr. Coburn's argument, the vast majority of his Rule 29 motion, especially if you look at his motion before the defense case, is about this question of official duty.

[00:19:04] Speaker 01:
And that would be a very specific argument, right?

[00:19:07] Speaker 01:
But then,

[00:19:09] Speaker 01:
after the defense case, after Mr. Forrest testifies, he then says, and this is on supplemental appendix 233, he's going to renew his rule 29 motion, and he's just going to submit as to all counts.

[00:19:24] Speaker 01:
And that sort of general comment, I'm just sort of submitting as to all counts, I understand this court's case law to say that could preserve a challenge, right?

[00:19:34] Speaker 01:
But

[00:19:35] Speaker 01:
I think here where the context is that the vast majority of Mr. Coburn's argument below is about whether there's an official duty at all.

[00:19:46] Speaker 01:
That is really the specific grounds on which he was moving for acquittal.

[00:19:52] Speaker 01:
So that's why I say it's arguable.

[00:19:54] Speaker 01:
I think if you really read his arguments,

[00:20:00] Speaker 01:
to vote many, many pages to this argument that there's no official duty relying on the general orders.

[00:20:05] Speaker 01:
But it is this brief remark on supplemental appendix 233 that could arguably preserve it for him.

[00:20:12] Speaker 01:
So I just wanted to be candid with the court of why we phrased our footnote that way.

[00:20:15] Speaker 01:
But again, I don't think it matters.

[00:20:17] Speaker 01:
I don't think this court needs to go down that road because there is so much evidence that Mr. Forrest did know that he couldn't do this and was therefore acting corruptly.

[00:20:26] Speaker 01:
And I would just focus on four main things.

[00:20:29] Speaker 01:
His admissions to the FBI, and I'm happy to discuss any of these in more detail, but his admissions to the FBI

[00:20:34] Speaker 01:
which were already discussed ad nauseum with Mr. Coburn.

[00:20:38] Speaker 01:
The contents of the messages, which were referenced briefly, which is he's not trying to be hot with it.

[00:20:43] Speaker 01:
He's trying to hide it from his command.

[00:20:45] Speaker 01:
He said he's doing paperwork, LOL.

[00:20:47] Speaker 01:
Remember, he's viewing these reports on his day off, which is very strange to begin with.

[00:20:52] Speaker 01:
The fact that he's responding to some unencrypted messages with encrypted messages

[00:20:57] Speaker 01:
So DePaul is sending him just normal text messages, he's responding with encrypted messages indicating he wants to hide this conduct from others, and the fact that he's taking payment in cash, which is harder to trace.

[00:21:09] Speaker 01:
And when you add up all of that, I mean, I think it's extremely hard to say that no rational fact finder could know, could say that Mr. Forrest was acting abruptly here.

[00:21:22] Speaker 01:
I just want to, I guess, maybe make one point about his admissions to the FBI because I think they are so important, both as to the false statement count, but as I think Mr. Coburn acknowledged, also the bribery count.

[00:21:34] Speaker 01:
And I think Judge Pan has already pointed this out, but just to be clear about it, on JA-251, the FBI begins this whole discussion by saying, I could understand why maybe you don't think it's a big deal as far as giving out just traffic crash information to somebody else.

[00:21:55] Speaker 01:
And then he says, it is a big deal because it's a violation of somebody's privacy

[00:22:01] Speaker 01:
So Mr. Colburn has made a big deal of this word private.

[00:22:05] Speaker 01:
He's using the word private when he's discussing stuff in his testimony or when he's discussing stuff in the interview.

[00:22:11] Speaker 01:
He is linking the two right here on JA-251.

[00:22:15] Speaker 01:
He is acknowledging that providing any traffic crash information to a third party is violating their privacy.

[00:22:22] Speaker 01:
It is not private.

[00:22:24] Speaker 01:
So I don't think that the mere use of the word private, even if it appears elsewhere in the interview, negates his admissions here.

[00:22:33] Speaker 01:
I also want to just talk very briefly about PD 251 and PD 252.

[00:22:41] Speaker 01:
That and we discussed this in a footnote in our brief that is not clearly established at trial.

[00:22:47] Speaker 01:
What that means, how it relates to electronic reports, how it relates to Mr. Forrest use of electronic reports.

[00:22:53] Speaker 01:
In fact, the internal affairs officer at MPD states that they have not used those forms since around 2006.

[00:23:00] Speaker 01:
because they used them when they were printed out, but now they have the electronic database.

[00:23:05] Speaker 01:
Certainly there is no evidence as to, including from Mr. Forrest himself, as to how those terms, PD 251 and 252, affect his use of traffic crash reports.

[00:23:18] Speaker 04:
Just out of curiosity, isn't the confidential information on the 252

[00:23:23] Speaker 01:
I don't think is entirely clear from the record because I think the internal affairs officer basically testifies that these terms are obsolete, right?

[00:23:33] Speaker 01:
So when we're talking about 252, it's all electronic.

[00:23:35] Speaker 04:
When I was a prosecutor a billion years ago, these were paper forms.

[00:23:39] Speaker 01:
right so before yes they might have been relevant right but now they are not used and even then I just want to again stress how irrelevant this is because the internal affairs officer testifies that the traffic crash information is kept to the extent it's kept on a numbered form at all on a PD 10.

[00:24:00] Speaker 01:
And if you look at the specific in general orders they reference PD tents.

[00:24:06] Speaker 04:
So it would probably be on both, though, because the 251 and 252, when they existed, were incident reports.

[00:24:12] Speaker 04:
So they would say what happened and who was there, and here's the contact information.

[00:24:16] Speaker 01:
Again, even going back to this prior regime and engaging with that, even then, the internal affairs officer testifies that a 251 is only created when there's a crime in relation to the traffic incident.

[00:24:30] Speaker 01:
And we know from the record, I think it's undisputed, that Mr. Forrest has viewed thousands and thousands and thousands of traffic crash reports.

[00:24:38] Speaker 01:
So it cannot be that with all these traffic crash reports, there's a PD-251 because there's a crime attached to every traffic accident in DC.

[00:24:47] Speaker 01:
So I don't want to belabor any of these points.

[00:24:51] Speaker 01:
I think the main point that I want to stress here is that the standard is that we view the evidence in the light most favorable to the government.

[00:24:58] Speaker 01:
And where we have a clear course of conduct where Mr. Forrest is accepting cash,

[00:25:04] Speaker 01:
large amounts of cash to give this information, this private information to a third party and he admits to the FBI that he knows he can't do that.

[00:25:12] Speaker 01:
He sends messages while he's committing defenses indicating that he knows he can't do that and that he's trying to hide it from his commander.

[00:25:21] Speaker 01:
He's sending it very encrypted messages and he's accepting it in cash so they can't trace him afterwards.

[00:25:26] Speaker 01:
I mean, certainly we think that a rational fact finder could find that he acted corruptly there.

[00:25:32] Speaker 01:
So if there are no further questions, we would ask that the convictions be approved.

[00:25:37] Speaker 01:
Thank you, counsel.

[00:25:41] Speaker 02:
Mr. Coburn, we'll give you the one minute that you asked for for rebuttal.

[00:25:44] Speaker 00:
Thank you very much.

[00:25:47] Speaker 00:
The issue, and I'm sure this is already obvious to the panel, but the issue from our standpoint is not one of correctness.

[00:25:53] Speaker 00:
In other words, Mr. Bernie is absolutely right.

[00:25:55] Speaker 00:
The testimony was that the PD-251-252 rubric was obsolete, that the PD-10 was the thing that was at issue, and there was a lot of testimony about two or three different general orders.

[00:26:11] Speaker 00:
That's not the issue from our standpoint.

[00:26:13] Speaker 00:
The issue is,

[00:26:15] Speaker 00:
whether or not there was evidence from which any fact finder could reasonably conclude that Mr. Forrest harbored the necessary intent, the corrupt intent.

[00:26:27] Speaker 00:
And his understanding about the 251, 252, and I was probably a prosecutor during the same time period, Judge Pan, but that was his understanding and that was unrebutted.

[00:26:37] Speaker 00:
I mean, he said, from my point of view, as clear as it could have been during the course of his exchange,

[00:26:45] Speaker 00:
I'm out of time.

[00:26:48] Speaker 02:
I think the point's made.

[00:26:53] Speaker 02:
Thank you, counsel.

[00:26:54] Speaker 02:
Thank you to both counsel.

[00:26:55] Speaker 02:
We'll take this case under submission.

[00:26:57] Speaker 02:
Mr. Coburn, you were appointed by the court to represent the appellant in this matter, and the court thanks you for your assistance.

[00:27:02] Speaker 02:
My pleasure.

[00:27:03] Speaker 02:
Thank you.