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Wilmington Trust Filing Retry 3-25-21
Wilmington Trust Filing Retry 3-25-21
Wilmington Trust Filing Retry 3-25-21
DAVID GIBSON,
ROBERT V. A. HARRA, JR.,
WILLIAM B. NORTH, and
KEVYN RAKOWSKI
Appellants
DAVID C. WEISS
UNITED STATES ATTORNEY
Whitney C. Cloud
Assistant United States Attorney
Chief of Appeals
Lesley F. Wolf
Assistant United States Attorney
1313 North Market Street
Wilmington, DE 19801
Attorneys for Appellee
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TABLE OF CONTENTS
INTRODUCTION ...................................................................................... 1
ARGUMENT ............................................................................................. 4
CONCLUSION ........................................................................................ 19
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TABLE OF AUTHORITIES
CASES
Baldwin v. University of Pittsburgh Medical Center,
636 F.3d 69 (3d Cir. 2001) ...................................................................... 9
United States v. Andrews, 681 F.3d 509 (3d Cir. 2012) .................... 16, 17
United States v. Brooks, 681 F.3d 678 (5th Cir. 2012) ............................. 6
United States v. Harra, 985 F.3d 196 (3d Cir. 2021) ...................... passim
United States v. Katzin, 769 F.3d 163 (3d Cir. 2014) ............................... 9
United States v. Lawrence, 405 F.3d 888 (10th Cir. 2005) ....................... 7
United States v. Nasir, 982 F.3d 144 (3d Cir. 2020) ......................... 13, 15
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United States v. Sussman, 709 F.3d 155 (3d Cir. 2013) ........................... 9
United States v. Syme, 276 F.3d 131 (3d Cir. 2002) ............................... 16
United States v. Zwick, 199 F.3d 672 (3d Cir. 1999) ........................ 13, 15
STATUTES
18 U.S.C. § 666 ........................................................................................ 13
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INTRODUCTION
ambiguity; the Court then applied this framework to the existing case,
and vacatur of Counts 1 and 2. Although the opinion clarifies the falsity
of the Court’s opinion necessitate correction for this case and for future
the role of the trial court in a manner inconsistent with precedent and
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States v. Harra, 985 F.3d 196, 215 (3d Cir. 2021). But the opinion goes
further to state that when the trial court determines that a reporting
jury, not the court. And relatedly, the opinion does not require a
any record evidence. This result makes the opinion an outlier among the
Second, the Court erred in its remedy. After announcing the new
falsity standard, the Court concluded that the government had not
was the only objectively reasonable one. The Court therefore reversed
the false statement convictions, Counts 4 through 19, and directed entry
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precedent, when the Court applies a new legal standard for the first time,
trial court at the defendants’ request. See, e.g., id. at 220 n.18.
Accordingly, the government requests that the Court revise the remedy
counts. In the final part of the opinion, the Court acknowledged that
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harmonize this part of the opinion with the core holding and with case
ARGUMENT
This case presented a new question for the Circuit as to the correct
the only reasonable one or that the defendant’s statement is false under
clear that “[a]t the outset of a trial, the judge must determine, as a
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to be decided not by the court, but by the jury. Id. at 217 (“while the judge
the opinion does not expressly require any threshold evidentiary showing
among other circuits in falsity cases and among the Third Circuit in other
The Court’s failure to afford the trial court any gatekeeping role in
what does and does not reach the jury is inconsistent with out-of-circuit
multiple interpretations, but that does not mean that there are multiple
demands that the jury evaluate its reasonableness, without any practical
2001) (“We also think it apparent that, if the evidence at trial gives rise
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Whiteside, 285 F.3d 1345 (11th Cir. 2002), which held that “the
of the law,” id. at 1351, most circuit courts have held that a defendant
Corp., 807 F.3d 281, 288 (D.C. Cir. 2015) (noting that the “interpretive
basis of record); United States v. Willson, 708 F.3d 47, 58 (1st Cir. 2013)
defendant failed to present any evidence “at trial that he actually held
the jury”); United States v. Brooks, 681 F.3d 678, 708 (5th Cir. 2012)
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888, 898 (10th Cir. 2005) (cabining the arguable ambiguity instructions
Clay, 832 F.3d 1259, 1299 (2016), for example, the court rejected
where evidence “shows that the defendants did not believe it, knew what
was required, and knew their answers were false.” Id. at 1298-99. As
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the trial court. 2 See, e.g., Purcell, 807 F.3d at 288; Prigmore, 243 F.3d at
18.
objective reasonableness is for the jury was misplaced. See Harra, 985
F.3d at 214 n.12 & 216 n.15. Those cases involved whether historical
2 As discussed infra, the defendants in this case actually agreed that the
trial court should make the determination of reasonableness. Indeed, in
August 2017, defendants sought to preclude expert testimony about these
practices and customs as improper legal opinions under Berckeley Inv.
Grp., Ltd. v. Colkitt, 455 F.3d 195, 218 (3d Cir. 2006), and the court
agreed. United States v. Wilmington Trust Corporation, 15-cr-23-RGA,
ECF Nos. 381 & 559 (D. Del.). The defendants maintained this view prior
to jeopardy attaching. Only after the trial court ruled as a matter of law
that the regulations were unambiguous and that the defendants’
interpretation was unreasonable did the defendants argue that the
question of objective reasonableness must be presented to the jury.
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facts that generally are for the factfinder. Cf. United States National
Bank v. Village at Lakeridge, 138 S. Ct. 960, 966 (2018). This case, by
question of law more appropriate for a court to decide. See, e.g., Baldwin
v. University of Pittsburgh Medical Center, 636 F.3d 69, 77-78 (3d Cir.
States v. Sussman, 709 F.3d 155, 178 (3d Cir. 2013) (stating that a theory
but also be supported by the evidence); United States v. Katzin, 769 F.3d
163, 185 n.21 (3d Cir. 2014) (stating that courts “routinely…make
context). At a minimum, the cases on which the Court relied make clear
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court.
North stated that such documentation was necessary “to allow the
system to report a true past due number without a lot of adjustments that
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could raise issues for us in the future.” A10994. 3 By contrast, the record
unreasonable.
mandates that the jury, and not the court, determine whether such an
interpretation was reasonable. This will not vindicate due process or fair
The Court should reconsider its decision and should restore the
3
In October 2009, Defendant Harra mandated that matured loans “that
require extensions need to be worked-on currently and kept current and
up to date.” A11018 (emphasis added). And Defendant Rakowski
handwrote a note on top on an email linking waived and matured loans
to the Call Report and noted, “Regulators asked for Past Due in Call
Report, that is everything.” Id. (emphasis in original).
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outlier from other circuit courts and from other objective reasonableness
are false under all reasonable interpretations. Harra, 985 F.3d at 208 &
meaning, but the record lacked this sort of evidence. Id. at 220 n.18.
Measured against the new falsity standard, the Court concluded that the
this Court announced a new standard, the government should have the
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standard, the Court failed to apply this Court’s relevant prior precedent,
including the recent en banc opinion in United States v. Nasir, 982 F.3d
144, 176 (3d Cir. 2020) (“Though a failure of proof usually results in
acquittal, the Double Jeopardy Clause is not implicated when the law has
citations omitted). See also United States v. Zwick, 199 F.3d 672, 687-88
(3d Cir. 1999) (abrogated by Sabri v. United States, 541 U.S. 600 (2004)).
finds support in other circuits as well. See Nasir, 982 F.3d at 176 n.42
In Zwick, the Court held for the first time that a bribery conviction
under 18 U.S.C. § 666 required that the government prove that a federal
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The same issues arose in this case. The trial court here limited the
and other laypersons’ understanding of the term “past due” through the
legal opinions, designed to usurp the province of the jury. See Berckeley,
ultimate issue of fact). The trial court sided with the defendants,
No. 15-23-RGA, ECF No. 559, at *1-2 (D. Del. Oct. 5, 2017). The
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government should have offered to prove its case. Harra, 985 F.3d at 220
n.18. Accordingly, consistent with Nasir and Zwick, the proper remedy
for Counts 4-19 should be vacatur with remand for new trial, under the
The Court should have affirmed the convictions on the fraud and
applying the harmless error standard, on the ground that the convictions
invalid.” Id. at 223 (citing United States v. Wright, 665 F.3d 560, 570-71
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(3d Cir. 2012)) and United States v. Andrews, 681 F.3d 509 (3d Cir.
2012)).
counts were based was not a “legally invalid” theory. Id. at 215 (“an
United States v. Yeaman, 194 F.3d 442, 452 (3d Cir. 1992) (where “the
presume that the jury found the defendant guilty beyond a reasonable
Syme, 276 F.3d 131, 136 (3d Cir. 2002) (affirming conviction based on
theory may have been insufficient). Thus, the Court’s reliance on Wright
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Skilling v. United States, 561 U.S. 358 (2010), here the government did
not present a legally invalid charging theory (i.e. one that could never be
proven); it simply failed to meet its burden of proof. Harra, 985 F.3d at
220 n.18. Therefore, the proper remedy consistent with this Court’s
vacating those convictions, see Harra, 985 F.3d at 224-25, that too was
the false-statement counts were erroneous. Id. at 217 n.16. And given
rendered legally erroneous even if they were “rife with references to the
legally valid theory, which (as just discussed) does not provide a basis to
theory.
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Moreover, the trial court also gave the jury instructions on not just
statute). Against this backdrop, where the jury heard the mass
unanimity charge, the Court should “assume juries for the most part
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CONCLUSION
order to: 1) clarify the legal standard for falsity; 2) remedy its reversal of
Respectfully submitted,
DAVID C. WEISS,
UNITED STATES ATTORNEY
Whitney C. Cloud
Assistant United States Attorney
Chief of Appeals
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CERTIFICATE OF COMPLIANCE
exempted by Fed. R. App. P. 32(f), and thus does not exceed the
(3) The text of the PDF copy of this petition is identical to the text of
(4) The PDF copy of the petition was prepared on a computer that is
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United States Court of Appeals for the Third Circuit through the
case are registered CM/ECF users and that service will be accomplished
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