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Reply Memorandum in Support of Motion to Vacate the Judgment and Grant a New Trial Under Rule 33 — United States v. Allison Baver, No. 2:21-cr-00520 (Dkt. 295, D. Utah)

Summary

Allison Marie Baver’s counsel filed this reply in United States v. Allison Marie Baver, Case No. 2:21-cr-00520 (D. Utah), before District Judge Jill N. Parrish, in support of a Rule 33 motion to vacate the judgment and grant a new trial because of prior counsel’s ineffectiveness, or else to hold an evidentiary hearing. It answers the United States’ Response, ECF No. 294. The reply argues that Baver did not waive the challenge to the contempt charge and that trial counsel’s closing argument invited the jury to find guilt on a lesser standard than due process demands. It also argues that trial counsel should have cross-examined a witness about an SBA representative’s suggestion that the PPP might be available to Baver’s company.

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Michael Langford (9682)
Alexander E. Ramos (15234)
LANGFORD | RAMOS PLLC
8 East Broadway, Ste. 420
Salt Lake City, UT 84111
Telephone: (801) 328-4090
alex@langfordramos.com
mjl@langfordramos.com

Nicolas C. Wilde (15768)
Law Office of Nicolas C. Wilde LLC
40 S. 600 E.
Salt Lake City, UT 84102
Telephone: (801) 949-3088
Email: nick@ncwildelaw.com

Attorneys for Allison Marie Baver


                      IN THE UNITED STATES DISTRICT COURT
                                    DISTRICT OF UTAH

  UNITED STATES OF AMERICA,                        Reply Memorandum in Support of Motion
                                                   to Vacate the Judgment and Grant a New
         Plaintiff,                                   Trial Under Rule 33 Based on Prior
                                                      Counsel’s Ineffectiveness or, In the
  v.                                                  Alternative, to Hold an Evidentiary
                                                     Hearing to Determine Prior Counsel’s
                                                                 Ineffectiveness
  ALLISON MARIE BAVER,

                                                             Case No. 2:21-cr-00520
       Defendant.
                                                           District Judge Jill N. Parrish



       Allison Marie Baver (“Ms. Baver”) through undersigned counsel, submits this Reply

Memorandum, which is limited to rebuttal of matters raised in the United States’ Response to

Defendant’s Motion for a New Trial, ECF No. 294.




                                               1
                                            Introduction

        In her opening Motion, Ms. Baver described in detail her prior counsel’s

ineffectiveness—including trial counsel’s invitation to find her guilty based on a lesser standard

than due process demands. Ms. Baver also noted this Court’s valid concerns of trial counsel’s

ineffectiveness based on the Court’s firsthand observations of the trial.

        In its Opposition, the Government does not address what this Court “witnessed,” or how

this Court struggled to see how there was any strategy in what went on. In failing to address this

Court’s firsthand observations, the Government disregards settled authority recognizing that trial

judges are uniquely positioned to assess matters a cold record cannot capture—including juror

demeanor, juror reactions, and the likely effect of prejudicial statements on the jury. Further, the

Government downplays Ms. Baver’s legitimate complaints of ineffectiveness and retreats to the

refrain that this Court must defer to trial counsel’s judgments. But the Government overlooks

that “while there is, of course, a presumption that counsel was effective, that presumption cannot

be used to deflect all serious allegations of ineffectiveness, or else the constitutional guarantee

would be eviscerated.” United States v. Holder, 410 F.3d 651, 655 (10th Cir. 2005).

        This Court’s concerns with trial counsel’s performance were well-founded. A new trial

should be ordered.

                                               Argument

   Ms. Baver addresses each of the Government’s arguments in turn.

   I.      Ms. Baver Did Not Waive Her Challenge to the Contempt Charge.

        Ms. Baver is entitled to an evidentiary hearing on her claims of ineffectiveness so long as

those claims are “colorable.” United States v. Meacham, 567 F.3d 1184, 1187 (10th Cir. 2009).

In her opening brief, she described how Mr. Hamilton testified that he did not personally provide

                                                  2
copies of relevant court orders to Ms. Baver—his office or law partner did. (ECF No. 291 at 13.)

And Ms. Baver described how defense counsel did not ask questions during cross-examination

relevant to determining how Mr. Hamilton knew those materials were provided to Ms. Baver.

(See ECF No. 291 at 13.) Further, in her request for an evidentiary hearing, Ms. Baver requested

that she be permitted to cross-examine prior counsel about whether the trial team, “during their

investigation,” “independently verified Blake Hamilton’s claim that his office had provided Ms.

Baver with a copies of the materials that formed the basis of Ms. Baver’s contempt charges.”

(ECF No. 291 at 43.)

   Considering trial counsel’s performance as a whole, Ms. Baver has established more than a

colorable claim that trial counsel may have been ineffective in failing to elicit testimony related

to how Mr. Hamilton was able to testify as he did. Ms. Baver respectfully requests that the Court

decline to dismiss Ms. Baver’s claim related to the contempt charge until she has an opportunity

to have an evidentiary hearing.

   II.      Ms. Baver Is Entitled to a New Trial Based on Her Trial Counsel’s Deficient
            Closing Argument.

         The Government argues that “Baver’s various claims of error” related to trial counsel’s

closing argument “fail both prongs of Strickland’s test.” (ECF No. 294 at 23.) Ms. Baver

addresses each of the Government’s arguments in turn.

   A. Trial Counsel’s Closing Argument Diluted the Government’s Burden of Proof.

         In her opening brief, Ms. Baver argued that “trial counsel misstated the law by arguing

that the jury could find Ms. Baver guilty if they simply ‘believed’ that she intentionally falsified

a document.” (ECF No. 291 at 23 (bold added).) Ms. Baver’s argument was well-founded, as

other jurisdictions have recognized that a “juror’s mere belief that an accused individual is guilty

does not automatically mean that the [prosecution] has met its burden.” State v. Magallanez, 290
                                                 3
Kan. 906, 914, 235 P.3d 460, 468 (2010) (bold added). Indeed, other jurisdictions have

recognized that an attempt to argue that a juror’s mere “belief” of guilt justifies a finding of guilt

beyond a reasonable doubt amounts to a dilution of the prosecution’s burden. See id. (“The

prosecutor’s statement that the measure of reasonable doubt is ‘an individual standard . . . a

standard that when you believe he’s guilty you’ve passed beyond’ did, as Magallanez asserts,

incorrectly define and impermissibly dilute the State’s burden of proof.”) (bold added).

       Because such a “mere belief” argument dilutes the prosecution’s burden and prejudices a

defendant, it is a tactic more commonly seen by prosecutors—actors serving as an adversary to

the defendant. See id. at 915 (“Such a misstatement of law is outside the wide latitude given to

prosecutors in closing argument.”). This raises a question that is relevant to this case. If a “mere

belief” argument dilutes the prosecution’s burden, why would defense counsel ever make such

an argument in defense of his own client? Here, trial counsel’s argument that if the jury

“believe[d] that” Ms. Baver “intentionally falsified those, then you’ve got to find her guilty” was

a misstatement of law more commonly seen by prosecutors. Making an argument more

commonly seen by actors hoping for a defendant’s conviction is, as Ms. Baver previously

argued, evidence that trial counsel may have “acted with an apparent interest to weaken Ms.

Baver’s case.” (ECF No. 291 at 22.) In other words, trial counsel’s argument was “so bizarre

[and] unwarranted that” it “fell outside the broad range of reasonable professional assistance that

could be considered ‘sound trial strategy.’” Ferguson v. Williams, 139 F.3d 911 at *6 (10th Cir.

1998) (unpublished) (citation omitted).

       The Government’s Opposition (1) fails to acknowledge that trial counsel had not

broached the topic of the reasonable doubt standard prior to making his diluting “belief”

argument and overlooks that trial counsel’s later references to the reasonable doubt standard

                                                  4
would not have neutralized the prejudice caused by the misstatement of law; (2) overlooks that

the prosecutor, in her closing argument, never argued to the jurors that their mere “belief” was

sufficient to find guilt beyond a reasonable doubt; and (3) overlooks the plain meaning of trial

counsel’s words and downplays the resulting prejudice.

   1. The Government Fails to Acknowledge that Trial Counsel Had Never Broached the
      Topic of the Reasonable Doubt Standard Prior to Making His Diluting “Belief”
      Argument.

       The Government (1) ignores that trial counsel had not broached the topic of reasonable

doubt prior to making his “belief” argument, and (2) overlooks that trial counsel’s later vague

references to reasonable doubt would not have neutralized the prejudice of his earlier

misstatement of law.

       Citing pages 46 through 49 of ECF No. 196, the Government argues that trial counsel

“repeatedly argued to the jury that the government had ‘the burden to prove beyond a reasonable

doubt’ that Baver knowingly submitted false statements to the banks, and that the government

could not meet its burden.” (See ECF No. 294 at 25.) And the Government argues that “Baver

ignores all of that and skips over the context in which Hunt made the challenged statement.”

(ECF No. 294 at 25.) But what the Government omits is that trial counsel, at the time he made

his diluting “belief” argument, had not broached the topic of the reasonable doubt standard. (See

ECF No. 196 at 26–34.) Indeed, the first time trial counsel raised the issue of reasonable doubt

was at page 44 of ECF No. 196. (Compare (ECF No. 196 at 44 (“Okay. I want to talk about

reasonable doubt.”) with (ECF No. 196 at 34 (“If you believe that . . . she intentionally falsified

those, then you’ve got to find her guilty. The government is right.”).)

       At the time trial counsel made the diluting “belief” argument, the jury had not heard any

argument from trial counsel related to the Government’s high burden of proving guilt beyond a

                                                  5
reasonable doubt. Upon hearing trial counsel’s prejudicial misstatement of the law, there is more

than a reasonable likelihood that the jurors were left with the mistaken impression that their mere

“belief” of guilt was sufficient to justify a finding of guilt beyond a reasonable doubt. So, when

considered in chronological order—the order the jury would have heard trial counsel’s

argument—Ms. Baver did not “skip” over anything.

         Further, trial counsel having later made vague, passing references related to the

reasonable doubt standard would not have neutralized the earlier prejudice of his legally

incorrect “belief” argument because the jurors likely would have been left “with the impression

that” trial counsel’s diluting belief argument was a “proper” description of the governing

reasonable doubt standard. C.f. United States v. Velazquez, 1 F.4th 1132, 1139–40 (9th Cir.

2021); C.f. State v. Silva, 134 Haw. 132, 337 P.3d 53 (Ct. App. 2014).1 Because trial counsel

made a misstatement of law and did not later explicitly correct his misstatement, the “prejudicial

effect” of that misstatement was “not cured” by trial counsel’s later arguments related to the

reasonable doubt standard. C.f. Silva, 134 Haw. 132 at *9.




1
  C.f. Velazquez, 1 F. 4th at 1139–40 (“Although the district court initially instructed the jury to follow its instruction
on reasonable doubt and ‘not as to what any attorney says the standard of reasonable doubt is,’ the prosecutor then
provided numerous improper examples that served to reduce the government’s burden of proof—all without further
admonishment. And the district court overruled defense counsel’s second objection after the prosecutor, during his
rebuttal, rehashed an identical argument that reasonable doubt was something the jurors used ‘every single day.’ By
overruling the objection, the court naturally left the jurors with the impression that the prosecutor’s comparison of
the reasonable doubt standard to an ‘everyday’ judgment, and that the specific examples the prosecutor furnished,
were proper. Moreover, the prosecutor’s distortion of the standard was among the last things the jury heard before
they began deliberations, further exacerbating our concerns.”);

C.f. Silva, 134 Haw. 132 at *9 (“‘Arguments of counsel which misstate the law are subject to objection and to
correction by the court.’ The prejudicial effect of a prosecutor’s misstatement of the law is not cured where the court
overrules defense counsel's timely objection to the prosecutor's misstatement of the law and fails to give a specific
curative instruction. This is because when defense counsel’s objections to such misstatements are overruled, ‘the
jury would reasonably perceive that the misstatement of the law was not incorrect.’ . . . Additionally, a misstatement
of law is not cured where the court has an opportunity to clarify the law to the jury, but fails to do so.”).


                                                            6
   2. The Government Overlooks that the Prosecutor, in Her Closing, Never Argued to the
      Jury that Their Mere “Belief” Was Sufficient to Find Guilt Beyond a Reasonable Doubt.

          In her opening brief, Ms. Baver argued that trial counsel’s “closing argument prejudiced

Ms. Baver because it invited the jury to find [her] guilty based” on a “lower standard than due

process requires.” (ECF No. 291 at 22.) In response, the Government argues that trial counsel’s

“‘If you believe’ statement was nothing more than a summation of the government’s thesis in

the indictment” and argues that trial counsel “merely adopted a dyed-in-the-wool rhetorical

framework that recited the government’s position and then explained why the evidence showed

otherwise.” (ECF No. 294 at 26 (bold added).) But nowhere in her closing argument did the

prosecutor even suggest that mere “belief” was sufficient for the jurors to find guilt beyond a

reasonable doubt. (See ECF No. 196 at 9–26.) The prosecutor did not argue to the jury that their

mere “belief” as to one of four elements was sufficient to find Ms. Baver guilty beyond a

reasonable doubt because “[s]uch a misstatement of the law is outside the wide latitude given to

prosecutors in closing argument.” Magallanez, 235 P.3d at 468. Any argument that trial counsel

was simply “reciting” the Government’s “position” is not supported by an examination of the

record.

          Trial counsel misstated the law and diluted the Government’s burden of proof. Trial

counsel having diluted the Government’s burden is “so bizarre [and] unwarranted that” it “fell

outside the broad range of reasonable professional assistance that could be considered ‘sound

trial strategy.’” Ferguson v. Williams, 139 F.3d 911 at *6 (10th Cir. 1998) (unpublished)

(citation omitted).




                                                  7
   3. The Government Overlooks the Plain Meaning of Trial Counsel’s Words and Downplays
      the Resulting Prejudice.

       In her opening brief, Ms. Baver argued that trial counsel’s misstatement of law “invited

the jury to find Ms. Baver guilty based on only some of the elements of 18 U.S.C. Section 1014.”

(ECF No. 291 at 24.) In response, the Government reaches across various pages of trial counsel’s

closing argument to stitch together an argument that trial counsel, in other portions of his

argument, addressed the other elements. (See ECF No. 294 at 26–27.) This argument is not

persuasive because it overlooks the plain meaning of trial counsel’s words and downplays the

resulting prejudice.

       In no uncertain terms, trial counsel made a simple “if→then” argument: “If you believe

that she . . . intentionally falsified those, then you’ve got to find her guilty.” (ECF No. 196 at 34

(bold added).) This is a prejudicial misstatement of law that instructed the jury to find Ms. Baver

guilty based on fewer than all of the elements. That trial counsel may have touched on other

elements of the offense does not neutralize the prejudice of trial counsel’s misstatement. The

jurors were left with the misimpression that guilt could be found based solely on their belief that

Ms. Baver “intentionally falsified” a document—without regard to the other elements.

   B. The Government’s Argument that Trial Counsel Made a Strategic Choice to
      “Reframe the Government’s Thematic Emphasis” Is Not Persuasive.

    In her opening Motion, Ms. Baver argued that trial counsel’s “closing argument was

deficient because it consistently reinforced the Government’s theme, bolstered the Government’s

explanation of Ms. Baver’s motives, and undermined Ms. Baver’s credibility.” (ECF No. 291 at

25.) In its Opposition, the Government argues that trial counsel’s “decision to co-opt the

prosecutor’s rhetoric was a time-honored and inherently strategic choice to reframe the

government’s thematic emphasis so that it supported the defense’s theory of the case.” (ECF No.

                                                  8
294 at 27 (bold added).) The Government’s argument is not persuasive because it (1) views the

statements in isolation—separate from Ms. Baver’s other complaints of trial counsel’s prejudicial

performance.

   1. When Considered Together with the Mere “Belief” Argument, Trial Counsel Cannot Be
      Said to Have Been Making a “Time Honored” Strategic Choice.

       Trial counsel’s statements that embraced the Government’s theme must be considered

together with the other prejudicial aspects of trial counsel’s closing argument. It is not a “time-

honored” (ECF No. 294 at 27) strategy for defense counsel to argue that jurors’ mere belief of

guilt is sufficient to return a finding of guilt beyond a reasonable doubt. Nor is it a “time

honored” strategy for defense counsel to completely fail to even mention an available good faith

defense—particularly where the trial court wonders “what the jury does with it.” (ECF No. 196

at 5.) Trial counsel’s statements that Ms. Baver was trying to “fit her square company into [a]

round hole” and his statement that he did not disagree with the Government that she was “trying

to cobble together whatever she can to get $10 million” cannot be considered a strategic decision

where trial counsel also misled the jury by arguing that their mere “belief” that Ms. Baver

falsified a document is sufficient to find guilt beyond a reasonable doubt. Indeed, embracing the

Government’s theme while simultaneously diluting the Government’s burden is not a reasonable

strategy. When considered together with trial counsel’s other prejudicial statements, the

Government’s argument that trial counsel was simply making a “strategic choice” to embrace the

prosecutor’s theme crumbles. As this Court previously correctly noted—it is difficult “to see

how there was any strategy in what went on.” (See ECF No. 241 at 11.)




                                                  9
   C. The Government’s Suggestion that Trial Counsel’s Failure to Address the Good
      Faith Defense Was a Strategic Decision Motivated by a Concern to Appear Friendly
      to “Jury Autonomy” Is Not Persuasive.

       The Government argues that “Baver’s ‘good faith’ and concomitant lack of criminal

intent was the central theme” of trial counsel’s closing argument. (ECF No. 294 at 29.) If, as the

Government argues, trial counsel’s central theme was good faith, one would expect trial counsel

to have made a direct argument tying the evidence favorable to Ms. Baver to her good faith. But

the Government is unable to point to any of trial counsel’s arguments explicitly mentioning Ms.

Baver’s “good faith.” (See ECF No. 294 at 29–30.)

       The Government suggests that trial counsel made a “good” and “soundly strategic”

decision to “‘count on the judge’s charge to remind’ the jury of the instructions, and thereby

‘preserve a strategy of appearing as the friend of jury autonomy.’” (ECF No. 294 at 30 (quoting

Yarborough v. Gentry, 540 U.S. 1, 10, 124 S. Ct. 1, 7, 157 L. Ed. 2d 1 (2003).) But it is difficult

to understand how referencing the jury instruction would interfere with jury autonomy. The

entire record—including trial counsel’s mere “belief” argument—establishes that trial counsel

performed deficiently. The decision to fail to reference the good faith instruction was not the

product of sound trial strategy. It was the result of trial counsel’s deficient performance.

       If the Court holds that Ms. Baver is not yet entitled to a new trial, she respectfully

requests that the Court hold an evidentiary hearing to allow Ms. Baver’s current counsel to cross-

examine “prior counsel about” why “they failed to mention the good faith defense in their

closing argument,” (ECF No. 291 at 43) and about whether that failure was the product of a trial

strategy designed to “preserve a strategy of appearing as the friend of jury autonomy.” (See ECF

No. 294 at 30.) The record establishes that it is more than “colorable” that trial counsel’s failure




                                                 10
to reference the good faith defense was not the product of a strategy to appear “as the friend of

jury autonomy.”

   D. At a Minimum, Trial Counsel’s Personal Vouching Compounded Trial Counsel’s
      Other Errors.

       The Government argues that trial counsel did not opine on the credibility of a witness

during his closing argument. (ECF No. 294 at 31.) But trial counsel repeatedly argued to the jury

“in [his] mind” that Ms. Baver was “talking forward looking . . . .” (ECF No. 196 at 39–40.) As

this Court noted, what was relevant for the jury was “the evidence, not what” trial counsel

thought. (ECF No. 196 at 40.) And as Ms. Baver previously argued, this Court previously

“discussed much of the evidence that—if properly presented to the jury—would have resulted in

a reasonable doubt of Ms. Baver’s guilt[.]” (See ECF No. 291 at 14–15.) Trial counsel was

deficient for relying on personal vouching (after diluting the Government’ burden and after

undermining Ms. Baver’s credibility by reinforcing the Government’s them) because the

argument should have focused on the evidence—as this Court correctly noted.

       Assuming without conceding that trial counsel’s personal vouching is not sufficient to

independently justify a finding of ineffectiveness, Ms. Baver respectfully submits, based on the

unique facts of this case (including trial counsel’s dilution of the Government’s burden) that trial

counsel’s personal vouching was an error that contributed to the combined effect of her trial

counsel’s deficient performance. (See ECF No. 291 at 40–41.)

   E. At a Minimum, Trial Counsel’s “Cobble Together” Statement Compounded Trial
      Counsel’s Other Errors.

       The Government notes that trial counsel “immediately followed up the challenged

statement by explaining what he did ‘disagree with’—namely that [Ms.] Baver had lied to obtain

the loan.” (ECF No. 294 at 32.) And the Government points to other portions of trial counsel’s

                                                 11
argument that it argues demonstrates that trial counsel “repeatedly argu[ed] to the jury that the

government had failed to prove the ‘intent to influence’ element.” (ECF No. 294 at 32.) But trial

counsel’s statements did not neutralize the prejudicial effect of trial counsel having agreed that

Ms. Baver was “trying to cobble together whatever she can to get $10 million.” (ECF No. 196 at

31.) Assuming without conceding that trial counsel’s statement is not sufficient to independently

justify a finding of ineffectiveness, Ms. Baver respectfully submits, based on the unique facts of

this case (including trial counsel’s dilution of the Government’s burden) that trial counsel’s

statement contributed to the combined effect of her trial counsel’s deficient performance. (See

ECF No. 291 at 40–41.)

   F. In Opposing Ms. Baver’s Argument that Trial Counsel’s Closing Argument Lacked
      Any Apparent Strategy, the Government Misreads Its Own Cited Authority and
      Fails to Address the Deference Owed to This Court’s Firsthand Observations.

       The Government relies on DeLozier to argue that Ms. Baver cannot make a separate

claim that trial counsel’s closing argument lacked any apparent strategy. (ECF No. 294 at 32–

33.) More specifically, the Government argues that Ms. Baver’s argument “fails at the outset

because she does not ‘point to any specific improper comments in the closing argument.’” (ECF

No. 294 at 32 (quoting DeLozier v. Sirmons, 531 F.3d 1306, 1329 (10th Cir. 2008).) But in

Delozier, a petitioner appellant argued that his attorney was ineffective, in part, because he failed

to “object to . . . the prosecutor’s closing argument . . . .” DeLozier v. Sirmons, 531 F.3d 1306,

1329 (10th Cir. 2008) (bold added). The Tenth Circuit could “afford no relief” under the federal

rules of appellate procedure because the petitioner appellant’s brief did not “point to any specific

improper comments in the” prosecutor’s “closing argument.” Id. But Ms. Baver’s argument is




                                                 12
not that trial counsel was ineffective for failing to object to the prosecutor’s closing argument. 2

Ms. Baver’s argument is that she was prejudiced by trial counsel’s closing argument, which

lacked any apparent strategy. The Government’s cited authority does not apply.

         Moreover, the Tenth Circuit has affirmed a district court’s finding that a criminal

defendant was denied effective assistance of counsel where the district court found (among other

things) that both “defense counsel presented closing arguments which were ineffective at

proffering any semblance of a defense theory.” Stouffer v. Reynolds, 214 F.3d 1231, 1234 (10th

Cir. 2000). “Looking at these facts in light of the entire record, the district court concluded ‘such

a total lack of preparedness and ability equate [sic] to constitutionally deficient performance

from any vantage point.’” Id. Thus, Stouffer is Tenth Circuit authority supporting the proposition

that a closing argument lacking a “semblance of a defense theory” is a fact that, when considered

together with other errors, can justify a finding of ineffectiveness.

         The Government argues that “the ‘entire record’” demonstrates that trial counsel pursued

a strategy of arguing that Ms. Baver acted in good faith and lacked criminal intent. (ECF No. 294

at 33.) But the Government’s generous reframing of trial counsel’s closing argument is not what

is relevant. What is relevant is trial counsel’s closing argument—and the argument’s effect on

the jurors. As this Court already observed: “The closing argument was not really a closing

argument, at least it wasn’t a constitutionally effective argument.” (ECF No. 241 at 7.) And as

the Court observed: “I know what I witnessed during the trial, and I am struggling to see how

there was any strategy in what went on.” (ECF No. 241 at 11.)




2
  Indeed, the prosecutor did not attempt to dilute the Government’s burden of proof in her closing argument by
arguing that the jurors’ mere belief of guilt was sufficient to return a guilty verdict. That bizarre argument was
instead made by trial counsel in his closing argument.
                                                          13
         The Government makes no mention of the Court’s firsthand observations. (ECF No. 294

at 32–34.) In failing to acknowledge what this Court “witnessed during the trial,” the

Government disregards settled authority recognizing that trial judges are uniquely positioned to

assess matters a cold record cannot capture—including juror demeanor, juror reactions, and the

likely effect of prejudicial statements on the jury. 3 Regardless, the cold record confirms that trial

counsel’s closing argument reflected no discernible strategy and fell below constitutional

standards.

    G. The Government’s Argument that Ms. Baver Cannot Establish Prejudice Is Not
       Persuasive.

         The Government argues that Ms. Baver’s “conclusory assertions that the jury would not

have convicted her were it not for her counsel’s challenged statements are ‘insufficient to satisfy

the Strickland standard’” and argues that it is “not ‘conceivable’” “that the jury would have

returned a different verdict . . . .” (ECF No. 294 at 34–35.) The Government is wrong.



3
  See Arizona v. Washington, 434 U.S. 497, 513, 98 S. Ct. 824, 834, 54 L. Ed. 2d 717 (1978) (“There are compelling
institutional considerations militating in favor of appellate deference to the trial judge’s evaluation of the
significance of possible juror bias. [She] has seen and heard the jurors during their voir dire examination. [She] is
the judge most familiar with the evidence and the background of the case on trial. [She] has listened to the tone of
the argument as it was delivered and has observed the apparent reaction of the jurors.”) (bold added);

see also Whittenburg v. Werner Enters. Inc., 561 F.3d 1122, 1128 (10th Cir. 2009) (“Because the presiding trial
judge is present in the courtroom throughout the proceedings, he or she is uniquely positioned to assess the
prejudicial effect of an improper argument in the context of the overall trial, as well as to fashion an appropriately
tailored remedy.”);

 see also United States v. Fields, 72 F.3d 1200, 1207 (5th Cir. 1996) (“In reviewing a claim of prosecutorial
misconduct, this Court first determines whether the prosecutor’s remarks were improper and, second, whether they
prejudicially affected the substantive rights of the defendant . . . The magnitude of the prejudicial effect is tested by
looking at the prosecutor’s remarks in the context of the trial in which they were made and attempting to elucidate
their intended effect. At the same time, the district court’s on-the-scene assessment of the prejudicial effect, if
any, is entitled to considerable weight.” (emphases added).

see also United States v. Cheska, 202 F.3d 947, 953 (7th Cir. 2000) (“The district court was in a far better position
than we are to understand the impact of these remarks on the jury, in the context of the whole trial. We have only the
cold, black and white record before us. The district court was there to see whether the jury bristled or gasped or
perhaps sat impassively when the prosecutor made this remark. The district court was able to assess the credibility of
the witnesses and the strength of the evidence presented and determine the impact of this comment in context.”).
                                                           14
          “To satisfy the prejudice prong,” Ms. Baver “‘must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different.’” Lopez-Casillas v. United States, No. 2:20-CV-00236-JNP-DAO, 2023 WL

6377512, at *3 (D. Utah Sept. 29, 2023) (citation omitted). “‘A reasonable probability is a

probability sufficient to undermine confidence in the outcome.’” Id. (citation omitted). Here, Ms.

Baver has established a probability sufficient to undermine confidence in the outcome.

          There is a reasonable probability that the jury would not have returned a guilty verdict if

trial counsel had not diluted the Government’s burden and invited the jury to find his own client

when he stated “then you’ve got to find her guilty.” (ECF No. 196 at 34.) Trial counsel’s

statement establishes a probability sufficient to undermine confidence in the outcome because

there is a reasonable probability that the jury based its decision to find Ms. Baver guilty on a

lesser standard than due process requires. If trial counsel had not diluted the Government’s

burden; had not invited the jury to find his own client guilty; had not consistently reinforced the

Government’s themes; had explicitly tied favorable evidence to the good faith instruction; had

based his argument on favorable evidence rather than his personal opinion; and had not

effectively conceded an element of one of the offenses, there is a substantial likelihood that

reasonable doubt would have been created in the minds of the jurors. Ms. Baver has established

prejudice from trial counsel’s deficient

   III.      The Government’s Attempt to Downplay the Beneficial Effect Kirkham’s
             Testimony Would Have Had on the Good Faith Defense Is Not Persuasive.

          Final Instruction No. 26 provided: “The defendant is charge with a violation of 18 U.S.C.

§ 1014 for making the following false statements to Northeast Bank: ABE’s average monthly

payroll was $4,770,583; and ABE had 430 employees.” (ECF No. 178 at 49.) To find Ms. Baver

guilty, the Government had to prove, among other elements, that Ms. Baver “knew the statement
                                                   15
was false when she made it[.].” (ECF No. 178 at 49.) The jury instruction also provided: “It is

sufficient that defendant submit the statement to a third party, knowing that the party will submit

the false statement to the federally insured bank.” (ECF No. 178 at 49.)

           Final Instruction No. 30 provided: “If the defendant acted in good faith, then she lacked

the intent to influence a bank through a false statement. The defendant acted in good faith, if at

the time, she honestly believed in the truthfulness of the statements that the government has

charged as being false.” (ECF No. 178 at 56.)

           Ms. Baver previously argued that a phone recording between her and Jason Kirkham, a

Lendio Utah Franchise Owner,4 “prove[s] that (1) Lendio understood Ms. Baver’s company had

no prior payroll but submitted the application to Northeast Bank anyway and (2) Ms. Baver

admitted to having no prior payroll,” and argued that “these facts would have bolstered Ms.

Baver’s good faith defense.” (ECF No. 291 at 32.)

           In its Opposition, the Government (A) suggests that under no circumstances can this

court “second guess” trial counsel’s decision not to call Kirkham because that was a decision

within trial counsel’s discretion; (B) argues that the record provides numerous strategic

explanations not to call Kirkham; (C) argues that Lendio’s knowledge is irrelevant; (D) argues

that Kirkham’s comprehension is speculative; and (E) argues that Ms. Baver cannot establish

prejudice. Ms. Baver addresses each argument in turn.

       A. The Government’s Suggestion that Courts Cannot “Second Guess” Trial Counsel’s
          Decision Not to Call a Particular Witness Is Not Persuasive.

           The Government argues that “the Tenth Circuit has ‘repeatedly held that whether to call a

particular witness is within the sound discretion of trial counsel” and argues “courts ‘do not




4
    See Defendant’s Exhibit 409
                                                   16
second guess’ those decisions. (ECF No. 294 at 35 (citations omitted).) But the Government

omits that the Tenth Circuit has “noted an important limitation to the scope of trial counsel’s

discretion: it is the informed, tactical decision that is within counsel’s discretion.” United States

v. Holder, 410 F.3d 651, 655 (10th Cir. 2005) (emphasis in original).) “And while there is, of

course, a presumption that counsel was effective, that presumption cannot be used to deflect all

serious allegations of ineffectiveness, or else the constitutional guarantee would be eviscerated.”

Id. Indeed, the Tenth Circuit has recognized that it “should not attempt to state general rules

regarding when the presumption of effectiveness should prevail and when it should give way.”

Id. In fact, the Tenth Circuit has reversed a district court for failing to hold an evidentiary

hearing where one of the primary claims of ineffectiveness was trial counsel’s failure to call a

witness. See id. at 656.5

     B. The Record Does Not Establish that Trial Counsel’s Failure to Call Kirkham Was
        the Result of a Strategic Decision.

         The Government argues that “Kirkham’s testimony would have strongly reinforced the

narrative” that “Baver deliberately misled the banks after ‘learning what not to say’ and ‘what

not to put in’ her applications.” (ECF No. 294 at 36.) Respectfully, this argument is nonsensical.

         As Ms. Baver previously argued, with “the telephone recording in hand, trial counsel”

“could have elicited testimony demonstrating that Ms. Baver openly admitted to not having

prior payroll.” (ECF No. 291 at 32 (bold added).) This would have undermined the




5
  (“Our record offers no explanation for counsel’s decision not to call Mr. Smith . . . Such a crucial decision must be
explained before a court can draw any conclusions on the ineffectiveness claim . . . We are convinced that the
circumstances made critical the holding of an evidentiary hearing to develop the thoroughness of trial counsel's
investigation, preparation, and the basis of the decision about calling Mr. Smith as a witness. All of these factors
called for an evidentiary hearing which must result in reconsideration of the validity of both convictions.
Accordingly, the order denying the § 2255 motion is REVERSED and the cause is REMANDED for an evidentiary
hearing and reconsideration of the § 2255 motion.”).

                                                          17
Government’s narrative that she learned “what not to say.” Indeed, it demonstrates that Ms.

Baver continued to be honest about the lack of prior payroll—not that she learned to hide that

fact. The reasonable probability of the effect of Kirkham’s missing testimony is the opposite of

what the Government argues. This Court should reject the Government’ strained theory.

       The Government also argues that Kirkham’s testimony would have bolstered the

Government’s theory because Baver “didn’t tell the bank what she told Kirkham . . . .” (ECF No.

294 at 37.) Again, the missing testimony would have had the opposite effect of what the

Government argues. The testimony would have demonstrated that a third party (Kirkham) had

likely reviewed Ms. Baver’s materials and understood that her application referenced “potential

income that could come in this year . . . .” (FI-LE-ABE-01-00006 at 0:00:33–0:00:55 (bold

added).) Kirkham having understood that the application was referencing “potential income”

would have demonstrated that Ms. Baver reasonably believed (in good faith) that the bank would

have understood her application materials the same way. Again, the reasonable probability of the

effect of Kirkham’s missing testimony is that it would have undermined the Government’s

narrative that Ms. Baver made a false statement to Northeast Bank. Again, this Court should

reject the Government’ strained theory.

       The Government argues that regardless “of what Baver told Kirkham (or Lendio) about

ABE’s employment and payroll figures, her application to Northeast claimed 430 employees and

an average $4.77 million in monthly payroll—no qualifiers, no caveats.” (ECF No. 294 at 37

(bold added) (citing Trial Ex. 13(a)-(d); ECF No. 198 at 8).) But Pinheiro, Northeast Bank’s

chief risk offer, (ECF No. 198 at 4) testified that exhibits “14(a) through 14(k)” “were . . .

documents submitted in connection with Allison Baver Entertainment’s application for a PPP

loan,” and testified that “Northeast Bank had access to those” documents. (ECF No. 198 at 10–

                                                 18
11.) Among those documents were the Good Faith Statement (Government Exhibit 14(b)) and

the Table of Contents. (Government Exhibit 14(a).) As this Court has already recognized, “the

table of contents that accompanied all of the loan filings gave a timeline of the company and it

was clear from that timeline that there were no employees.” (Transcript at 453.) And the Good

Faith Statement provided, in relevant part, that the slate of projects “was scheduled to begin

production in the spring of 2020, employing 430 people.” (Government Exhibit 14(b).) To use

the words of this Court, the “context of the entire submission” undermines the Government’s “no

qualifiers, no caveats” argument.

       The record establishes that trial counsel’s failure to call Kirkham was not the result of a

strategic decision. Alternatively, the “circumstances” demand “the holding of an evidentiary

hearing to develop the thoroughness of trial counsel’s investigation, preparation, and the basis of

the decision about calling” Kirkham as a witness. Holder, 410 F.3d at 656.

    C. The Government Overlooks that Lendio’s Knowledge Is Relevant to Ms. Baver’s
       Belief in the Truthfulness of Her Statements.

       The Government argues that “Lendio’s knowledge” that “ABE had no prior payroll” “is

irrelevant” because regardless “of what Baver told Kirkham (or Lendio) about ABE’s

employment and payroll figures, her application to Northeast claimed 430 employees and an

average $4.77 million in monthly payroll . . . .” (ECF No. 294 at 37.) But Kirkham having

confirmed his understanding that ABE’s application materials demonstrated no prior payroll

would have been relevant to the question of whether Ms. Baver “honestly believed in the

truthfulness of the statements that the government has charged as being false.” (ECF No. 178 at

56.) Again, Kirkham having understood that the application was referencing “potential income”

would have demonstrated that Ms. Baver reasonably believed (in good faith) that the bank would

have understood her application materials the same way.
                                                19
    D. The Government’s Argument that Kirkham’s Comprehension Is “Speculative” Is
       Not Persuasive.

       The Government argues that “Baver’s assertions regarding Kirkham’s comprehension is

speculative at best.” (ECF No. 294 at 37 n. 13.) But the Government does not dispute that

Kirkham told Ms. Baver “so the challenge with you is that this is all potential income that could

come in this year . . . .” (Compare ECF No. 291 at 7 with ECF No. 294 at 35–37.) Nor does the

Government dispute that Kirkham told Ms. Baver “you can use the payroll paid for the first

quarter of this year . . . but you haven’t had a lot of payroll expended this year though.”

(Compare ECF No. 291 at 7 with ECF No. 294 at 35–37.) The audio recording establishes

Kirkham’s knowledge. The Government’s argument that his “comprehension is speculative at

best” is not persuasive.

       The Government cites a Fifth Circuit case, Evans, in support of its argument that “courts

have expressed a reluctance to upset the jury verdicts based on ‘complaints of uncalled

witnesses’ because ‘allegations of what the witness would have testified are largely

speculative.’” (ECF No. 294 at 37 (quoting Evans v. Cockrell, 285 F.3d 370, 377 (5th Cir.

2002).) But in that case the petitioner “did not provide affidavits from the alleged eyewitness or

indicate what testimony the eyewitness would give . . . .” Evans, 285 F.3d at 377 (emphasis

added). The Government’s reliance on Evans is misplaced because here, Ms. Baver has indicated

what testimony Kirkham would have to give if placed under oath. The recording of his own

voice would require him to admit to what he previously understood. The Government’s argument

is not persuasive.




                                                 20
    E. The Government’s Argument that Ms. Baver Cannot Establish Prejudice Is Not
       Persuasive.

         The Government argues that “there is no reasonable probability” that Kirkham’s missing

testimony “would have affected the outcome of Baver’s trial.” (ECF No. 294 at 37.) But the

Government never meaningfully addresses Ms. Baver’s argument that the missing testimony

“was evidence that would have bolstered her good faith defense.” (Compare ECF No. 291 at 31

–32 with ECF No. 294 at 37.) There is a reasonable probability that if the jury had heard the

missing Kirkham testimony, that it would have accepted that “she honestly believed in the

truthfulness of the statements the government . . . charged as being false.” (ECF No. 178 at 56.)

   IV.        The Government’s Arguments Relating to the Trial Team’s Failure to Cross-
              Examine Ken Luis Are Not Persuasive.

         The Government argues that (A) the trial team was not deficient and (B) that Ms. Baver

cannot establish prejudice. Ms. Baver addresses each argument in turn.

   A. The Record Does Not Establish that the Trial Team’s Decision Not to Cross-
      Examine Ken Luis Was the Result of a Strategic Decision.

         The Government argues that “Baver cannot overcome the strong presumption that her

attorneys’ decision not to cross-examine Ken Luis was objectively reasonable.” (ECF No. 294 at

38.) But again, “while there is, of course, a presumption that counsel was effective, that

presumption cannot be used to deflect all serious allegations of ineffectiveness, or else the

constitutional guarantee would be eviscerated.” United States v. Holder, 410 F.3d 651, 655 (10th

Cir. 2005).

         The Government argues that “because the prosecutor had already introduced Luis’ email

into evidence during his direct examination, it was unnecessary for Baver’s attorneys to cross-

examine Luis simply to have him repeat his prior statement.” (ECF No. 294 at 39.) The

Government’s argument is not persuasive. Considering the large number of exhibits that would
                                                 21
eventually be introduced into evidence, it was not a reasonable trial strategy to assume that lay

jurors would identify the significance of Luis’ statement in the exhibit. Again, where the defense

team highlighted in their opening that “an SBA representative based in San Diego” had

“suggested that the newly created PPP loan company may be available for [Ms. Baver] and her

company,” the only reasonable trial strategy would be to highlight the evidence supporting that

assurance by cross-examining Luis.

          The Government also argues that “any attempted cross-examination of Luis could have

resulted in more damaging testimony . . . .” (ECF No. 294 at 39.) This argument is not persuasive

because leading questions are permitted on cross-examination. See Federal Rule of Evidence

611(c)(1). A targeted cross-examination with highly leading questions focused on the relevant

content from the email would pose little to no risk.

          The record here establishes that the presumption of reasonableness cannot be used to

deflect this serious claim of ineffectiveness. Alternatively, “the circumstances” justify “the

holding of an evidentiary hearing to develop the thoroughness of trial counsel’s investigation,

preparation, and the basis of the decision about” not cross-examining Luis. See Holder, 410 F.3d

at 656.

   B. Ms. Baver Has Established Prejudice.

          The Government argues that Ms. Baver cannot establish prejudice because “Luis was a

minor witness for the government,” and argues that she cannot show that cross-examining him to

elicit testimony about a prior statement already before the jury might have changed the outcome

of the trial. (ECF No. 294 at 39–40.) The Government’s argument is not persuasive. As Ms.

Baver previously argued, the missing testimony was relevant to her good faith defense. (ECF No.

291 at 34.) “If properly presented to the jury along with other evidence of [her] good faith, there

                                                 22
is a reasonable likelihood that the jury would have found that the Government could not meet its

burden . . . .” (ECF No. 291 at 34.)

   V.       The Government’s Arguments Relating to Trial Counsel’s Cross-Examination of
            Patel Are Not Persuasive.

         The Government argues that “[t]here were good strategic reasons not to prolong Patel’s

cross-examination” because trial counsel had already secured an admission that Meridian Bank

had received “two documents” that “explained ‘that Ms. Baver didn’t have any employees at the

time.’” (ECF No. 294 at 41 (citation omitted).) The Government’s argument is not persuasive.

Ms. Baver had a valid good faith defense. The failure to fully explore testimony relevant to that

defense cannot be said to have been the result of a reasonable strategic decision. A review of trial

counsel’s cross-examination of Patel demonstrates a lack of “thoroughness of trial counsel’s . . .

preparation . . . .” Holder, 410 F.3d at 656.

         Again, the Government elects not to engage with “what [this Court] witnessed during the

trial,” and how the Court “struggl[ed] to see how there was any strategy in what went on.” (ECF

No. 241 at 11.) A complete review of trial counsel’s cross-examination of Patel demonstrates

that the cross examination “wasn’t a constitutionally effective . . . cross-examination[.]” (ECF

No. 241 at 7.)

   VI.      The Government Fails to Adequately Grapple With the Record Evidence that
            Raises Serious Questions About the Veracity of Pinheiro’s Testimony.

         The Government argues that given “the government’s theory that Baver’s attempts to

modify and resubmit her application showed her intent to influence the bank, it makes sense

that trial counsel would seek to avoid drawing attention to Pinheiro’s direct testimony on that

point.” (ECF No. 294 at 43 (bold added).) But if trial counsel’s strategy was to “seek to avoid

drawing” the jury’s attention to evidence that Ms. Baver had resubmitted her application, the

                                                23
only reasonable strategy would have been to object to Pinheiro’s questionable testimony

implying that Ms. Baver had submitted, signed, and “sent” multiple applications “to Northeast

Bank” (See ECF No. 198 at 6) prior to April 27, 2020. Again, “Ms. Baver received multiple

emails in April of 2020 suggesting that her application was not submitted to any banks prior to

April 27, 2020.” (ECF No. 291 at 38.) In arguing that trial counsel, on “cross-examination,” had

“elicited testimony from Pinheiro to downplay the significance of Baver’s resubmissions,” the

Government addresses the second of Ms. Baver’s arguments related to Pinheiro but ignores the

first—that trial counsel was deficient for failing to object. The evidence available to trial counsel

prior to commencement of the trial raised serious questions about the Government’s theory that

Ms. Baver had caused applications to be “sent” to Northeast Bank prior to April 27, 2020. Trial

counsel was deficient for failing to object.

       The Government argues that Ms. Baver cannot establish prejudice because whether “a

‘new application was sent to Northeast’ each time Baver modified her application was hardly

material to the question for the jury whether Baver knowingly lied” to the bank regarding payroll

and number of employees. (ECF No. 294 at 44.) This argument is not persuasive because the

evidence as introduced bolstered the Government’s theory that Baver repeatedly and knowingly

submitted different applications in attempt to influence the bank. The Government also argues

that Ms. Baver was not prejudiced because only one application “was the subject of Count 2 at

trial.” (ECF No. 294 at 44.) But allowing Pinheiro to testify that Ms. Baver submitted, signed,

and sent multiple applications to Northeast Bank when record evidence raised a question as to

the veracity of that testimony is prejudicial because there is more than a reasonable likelihood

that the jury impermissibly based its finding of guilt on these alleged prior bad acts (prior

multiple, completed submissions). Ms. Baver having (allegedly) submitted multiple completed

                                                 24
applications to Northeast Bank also had the likely effect of prejudicing her viable good faith

defense. If instead the jury had only heard evidence of the single completed application, there is

more than a reasonable likelihood that the jury would have accepted the good faith defense (if

that defense had been properly presented).

         The Government also argues that eliciting “testimony from Pinheiro that other

applications Baver modified and tried to submit . . . were not passed along to Northeast from

Lendio would not have affected the jury’s analysis of the elements of that charge offense.” (ECF

No. 294 at 45 (bold added).) Again, the record evidence raises a serious question regarding

whether Ms. Baver “tried to submit” an application to Northeast Bank each time the Government

alleges. ABE having “made an update to the application” (ECF No. 39-1 at 1) it not itself

evidence that Ms. Baver intended to submit and sign a completed application. At a minimum, an

evidentiary hearing is warranted to determine whether trial counsel “investigated how

information was transferred from Lendio to Northeast Bank and when—including whether a

Docusign was created simply by virtue of [ABE] having made a change to [the] application.”

(ECF No. 291 at 43.)

         The Government argues that “trial counsel [sufficiently] undermined Pinheiro’s

testimony that a new application was generated to the bank each time it was resubmitted.” (ECF

No. 294 at 45.) But Pinheiro’s testimony that Northeast Bank treated the multiple submissions as

“essentially the same” application did not dispel the prejudicial effect of the questionable

testimony that Ms. Baver signed and submitted multiple applications to Northeast Bank. Nor did

it undermine Pinheiro’s credibility as much as conclusively establishing that his testimony was

false.




                                                 25
       Considering the viability of her good faith defense, the record establishes that Ms. Baver

was prejudiced by trial counsel’s deficient performance in (1) failing to object to Pinheiro’s

testimony and (2) failing to adequately cross-examine Pinheiro.

   VII.    Ms. Baver Was Prejudiced by the Combined Effects of Her Trial Counsel’s
           Deficient Performance.

       The Government argues that “there was nothing objectively unreasonable about any of

the challenged actions by Baver’s former counsel.” (ECF No. 294 at 45–46.) This Court should

not be persuaded by the Government’s efforts to brush aside Ms. Baver’s legitimate claims of

ineffectiveness. There was nothing objectively reasonable about trial counsel diluting the

Government’s burden of proof. Making a forbidden misstatement of law more typically seen by

prosecutors was bizarre and was objectively unreasonable. When considered together with all of

the other identified errors, the inescapable conclusion is that Ms. Baver was deprived of her

Sixth Amendment right to effective counsel.

       The Government argues that this “case . . . was straightforward and based almost entirely

on” Ms. Baver’s “own written statements” relating to her having “said she had 430 employees

and $4.77 million in average monthly payroll when she plainly didn’t . . . .” (ECF No. 294 at 46.)

Again, “‘whether there was enough evidence to legally support a conviction does not answer

whether there was a reasonable probability of a different result arising from counsel’s deficient

performance.’” (ECF No. 291 at 41 (quoting Newmiller v. Raemisch, 877 F.3d 1178, 1204 n. 3

(10th Cir. 2017).) In this case, “with effective assistance of counsel, the jury could very easily

return an acquittal.” (See ECF No. 241 at 11.) Ms. Baver was prejudiced by trial counsel’s

ineffective representation.




                                                 26
    VIII. In Arguing that Ms. Baver Is Not Entitled to an Evidentiary Hearing, the
          Government Fails to Address this Court’s Firsthand Observations.

        In her opening Motion, Ms. Baver described in detail the previously scheduled sentencing

hearing where this Court described what was “witnessed during the trial,” and how the closing

argument “wasn’t a constitutionally effective closing argument.” (ECF No. 291 at 17.) But in its

recitation of the procedural history of this case, the Government jumps from the trial’s closing

arguments to Ms. Baver’s motion for a new trial—without mentioning the Court’s firsthand

observations. (See ECF No. 294 at 18.) In failing to acknowledge what this Court “witnessed

during the trial,” the Government disregards settled authority recognizing that trial judges are

uniquely positioned to assess matters a cold record cannot capture—including juror demeanor,

juror reactions, and the likely effect of prejudicial statements on the jury.

        As Ms. Baver previously argued, a district court is required to hold an evidentiary hearing

on a defendant’s motion for a new trial when the defendant’s ineffectiveness claim is colorable.

Based on the trial court’s valid concerns, and for the reasons detailed in Ms. Baver’s Motion,

there is more than a colorable claim of ineffectiveness. The Court should hold an evidentiary

hearing if it does not order a new trial.

                                                 Conclusion

        Pursuant to Federal Rule of Criminal Procedure 33(a), the Court should hold a new trial

based on prior counsel’s ineffectiveness. Because the record establishes prior counsel’s

ineffectiveness, the Court should grant a new trial without an evidentiary hearing.

        But if the Court holds that Ms. Baver is not yet entitled to a new trial, the Court should

hold an evidentiary because Ms. Baver has established a colorable claim of ineffective assistance

of counsel.



                                                  27
Nicolas C. Wilde (15768)
Law Office of Nicolas C. Wilde LLC
40 S. 600 E.
Salt Lake City, Utah 84102
801-949-3088
nick@ncwildelaw.com

/s/ Nicolas C. Wilde


Michael Langford (9682)
Alexander E. Ramos (15234)
LANGFORD | RAMOS PLLC
8 East Broadway, Ste. 420
Salt Lake City, UT 84111
Telephone: (801) 328-4090
Email: alex@langfordramos.com

/s/ Alexander E. Ramos




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