TARGETED Chapter 111 "Failed to Prove" (A True Story - 6 to go)

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                                                      Failed to Prove

            Ed was coming close to his final arguments.  I was somewhat bewildered because there had been no real planning between us.  I lived some 70 miles from Ed’s office, which was separated by the most active freeway in the state that suffered as most major freeways do during rush hours.  I still had clients.  I still had to work for a living and I was certain that the truth would prevail and I could go back to my life.  I knew I was not guilty.  Surely the jury would understand.  Ed seemed to have prepared well.  He had been optimistic to the end and now it was time for him to take his best shot.

            Wall: “The government has failed to prove that Defendant Young participated in the conspiracy.  ‘The essence of the crime of conspiracy is an agreement to violate the law’ United States v. Troutman, 814 F. 2d 1438 (10th Cir 1987).  In a conspiracy prosecution, the evidence must support a finding that the conspirators had a unity of purpose or a common design and understanding. United States v. Kendell, 766 F. 2d 1426, 1431 (10th Cir 1985).  The existence of an agreement to accomplish an unlawful objective ‘may be inferred from a “development and a collocation of circumstances” United States v. Pack, 773 F. 2d 261.’”

            “Conspiracy requires specific intent to further an unlawful activity which is the object of the conspiracy. United States v. Blair, 54 F.3d 639, 642 (10th Cir. 1995). The government had the burden of proving beyond a reasonable doubt that Mr. Young, and at least one co-conspirator, agreed to violate the law. United States v. Hopkin, 716 F.2d 739, 748 (10th Cir. 1982). The Court in Hopkins concluded that the ‘essence of the crime of conspiracy is an agreement to violate the law’. In United States v. Klein, 247 F.2d 908, 918-19 (2d Cir. 1957) the Court held that there had to be a ‘meeting of the minds in an unlawful arrangement’ for charge of conspiracy to commit tax fraud.’”

            “Mere knowledge or approval of or acquiescence in the object and purpose of a conspiracy ...does not make one a party to a conspiracy.” Hopkins,  716 F 2d at 748.  In the present case the government never presented evidence that Mr. Young agreed to violate the law.  All of the evidence as to creating trusts for transferring funds off-shore. Issuing checks through an attorney account, notarizing documents fall short of the mark.  The evidence in the present case shows that Mr. Young understood that which he reviewed to be legal. None of the evidence shows Mr. Young ever intended to violate the law, nor does it show that he ever agreed to violate the law.”

            “A conviction cannot stand on nothing more than ‘piling inference upon inference,’ United States v. Fox, 902 F.2d 1508, 1513 (10th Cir 1990). In the present case the government has done nothing more than pile on inference upon inference. Knoweldge of a conspiracy’s objective is necessary to show requisite criminal intent.  United States v. Austin, 786 F.2d 986, 988 (10th Cir. 1986). ‘At a minimum… it must be shown that [a defendant] has knowledge of the conspiracy’s illegal purpose when he performs acts which further the illicit purpose.’ United States v. Klein, 515 F.2d 751, 753 (3rd Cir. 1975).  None of the evidence shows that Mr. Young had criminal intent.”

            “The government made a great deal of the fact that Mr. Young told Agent Anderson that he developed  a concern that Mr. Koskella was involved in an illegal activity at some point in October of 1997, when he first attended a presentation by Mr. Koskella (TR 1920).”

            I was very concerned about this statement.  I have never attended a presentation by Koskella and my attorney inadvertently made it sound as though I had.  The truth is it was a meeting with Koskella, myself and Mike Moreland.  The “presentation” was not given to potential investors or clients.  It was an explanation of how the system works as explained by Koskella.  I had no way of knowing that while was said had anything to do with what Koskella really did.  It turned out that this particular presentation was very clean, stripped of all of the “secrets” and offshore deals that Koskella had been, and continued to engage in.  Moreland later commented that it was a dangerous plan and was barely legal and sure to attract the wrong kind of attention. 

            My comment about what Moreland had said was twisted and morphed into some kind of admission on my part that “I knew” the system was illegal.  It was a fraud on me and the rest of the world, and certainly not the only deliberate distortion.  The misconception was not corrected by me through testimony as I elected to follow my attorney’s heart felt advice not to testify.

            Wall: “This suspicion arose from Mr. Moreland relating that he did not believe the structure, as presented by Mr. Koskella, was legal to Mr. Young (TR 1920), ‘mere suspicion of illegal activity ... is insufficient to prove participation in a conspiracy.’ United Syayes v. Jones, 44 F.3d 860, 866 (10th Cir. 1995).  A defendant’s admitted suspicion of something illegal was insufficient to show his knowledge of the conspiracy’s illegal purpose.  Austin, 786 F.2d at 989.  None of the evidence showed Mr. Young agreed to violate the law.”

              “Although this evidence may raise a suspicion of guilt, that alone is insufficient to support a conviction. See United States v. Smith, 133 F.3d 737, 742 (10th Cir. 1997), see also Austin, 786 F. 2d at 988 (‘evidence that only places the defendant in the climate of the activity that reeks of something foul' is insufficient to show his criminal knowledge) (quoting  United States v. Jackson, 700 F.2d 181, 185 (5th Cir 1983).

              “In the present case it is clear that Mr. Young never entered into an agreement with anyone to violate the law.   No evidence shows Mr. Young made such an agreement, ever.  Mr. Young is a family man with ten children, a longstanding marriage and a strong family.  (TR 2422-2423).  No evidence shows that Mr. Young was profiting beyond making reasonable attorney’s fees for legal service’s rendered, as is evident from the sparse circumstances and continuing struggling private practice.  (TR 2426-2432) The unrefuted evidence is that Mr. Young is an honest man, as attested to by Delbert Phillips (TR 2088).”

              I must apologize for presenting so much of Ed Wall’s defense but it is important to understand what was argued in order to have a real grasp of where all of this is going.  The truth is just after Phillips gave me his support he ripped it away.  Instead of testifying about my real role or lack thereof in what Koskella was up to, as only Phillips could. Phillips bowed to that advice of his attorneys and refused to offer any further testimony.  It is true that at that time all that I could get from him was that I was an “honest” man.  Later, as I shall make direct reference here in Volume I, and pick it up in detail in Volume II, while he was on his death bed Delbert swore out and affidavit that revealed the truth about what happened.  Unfortunately that was not available until after his death, too late to save me from my fate.

              The balance of Ed’s discussion raised some very important points and will be useful in understanding what happened next.  As I have repeatedly stated I had tried several times to have my case removed from the others but the government was not about to let that happen.  Why?  Because they knew the conspiracy theory would fall apart as it pertained to me.  They would have to prove it.

              Wall: “The Court improperly denied Defendant Young’s motion to sever.  Mr. Young filed a motion to sever pursuant to Rule 14, Federal Rules of Criminal Procedure provides, in relevant part:

If it appears that the defendant …is prejudiced by a joinder of offenses or defendants in an indictment … or by such joinder for trial together, the court may order an election for separate trials on counts, grant a severance of defendants or provide whatever other relief justice requires.

              “Mr. Young, prior to trial, asserted his constitutional right to a severance due to there being a strong showing of prejudice as a result of a joinder. See Fox v. Ward, 200 F.3d 1286, 1292 (10th Cir 2000).

              The plea and accurate depiction of what was happening that supported the justification for removing me from the “lineup” was ignored.  The lack of connecting up refused.  Any evidence that pointed to the possibility of reasonable doubt was simply swept away and either hidden from the jury or ordered to be disregard.  Judge Benson later made two statements that I find tragically interesting.  He told me, looking at me direct from his chair above the courtroom, that perhaps I should have been separated from the others, and then with a show of emotion that was not characteristic of Judge Benson when there was a challenge by one of the defense counsel that the trial had not been fair, Judge Benson noticeably disturbed by the claim, very forcefully informed all present that there “had been a fair trial”.

              The prosecution ended by saying that even though I had gained nothing personally from the conspiracy the real reason I was part of it was “because I was just evil.”  I got a kick out of it.  That did not go over well with the gathered family and friends who had come as witnesses.  There was an audible protest uttered from some that was enough of a distraction to cause Judge Benson to warn the families to be quiet or they would have to leave.   

              The case was then given to the jury along with the very prejudicial chart “for demonstrative purposes” that contained virtually nothing about me. A protest about the unfair effect of the chart was cut short by Judge Benson who overruled any and all objections. All I could recall was an image in my mind of Ed Wall standing in front of the jury holding a copy of one of the adulterated letters in a picture frame and while pointing at it offering a statement that they needed to acquit me because I had been “framed”.  Really?  That was it?  Just less than an hour defense with only three witnesses called in a nearly month long trial and that was it?  I felt myself in free fall. I kept repeating over in my head that I should have testified in spite of my attorneys strong advice not to. 

              In reality I didn’t care about how it might affect any other action they could bring, I needed to testify.  It was just too late.  

              I looked back at my wife and children who were there to offer support.  I will never forget the look on her face.  It was shock and despair.  I felt like I had just failed my best friend and the love of my life and the jury hadn’t even made their decision yet.  We were in recess.

              “What do you think my chances are?” I had to ask. 

              Ed had seemed optimistic going in.  I searched his eyes for some hope, some confirmation that he had done his job and there was reasonable doubt. He failed the eye contact test.

              “Well we shall see what the jury says.” He did not look at me when he said it.

              “Ed, really, what do you think?”

              “I am not sure I convinced the jury.”

              There it was, the ultimate disclaimer.  He had completed his duty and like many times before gracefully lost.  Don’t get me wrong, I like Ed, but he was and is completely outnumbered and out matched.  A Court appointed attorney against the largest, well-staffed, well financed law firm in the world.  We walked outside and across to his office.  We did not have long to wait.

              Ed answered the call.  “We will come at once.”