on our calendar is united states  fraud with the wire transfer occurring proximately four months after the bankruptcy filing on april the fourteenth of nine hundred ninety eight the wire transfer itself was between seattle instant t the bankruptcy but it wasn't an asset at the time because the bankruptcy was filed prior to after it was and asked her situation acquired interest and it was sealed it was no amendment to the schedule right that's true yeah that's true so that the evidence so all shows that the venue for that was properly in the western district it was a judge so certainly yes first ok but the problem arises your honor is that when and by the time the judge dismisses it all the evidence in support of that count has already been given to nigeria anyway because it was a concealed asset that was acquired after after the bankruptcy was think there was a limitation you're i have the exact language i thought i read it differently i think than i do not the evidence that was admitted as to count seven of the fraud in the misstatements attacked by mr mansour and that sort of thing weren't prejudicial to the counts that he was acquitted on and he was acquitted on receiving stolen money that was count two i believe but the defense in that case was that there was this big group of money and you couldn't tie the money that mr minter got to the particular money which was alleged to be stolen so that they the evidence this bad act evidence of of struggle and intent was an issue in that count in the other counts he was acquitted of by the jury were the perjury counts in front of the f a a now the defenses in those cases were one i didn't lie in to do was it wasn't materiality so again there was no issue as to prejudicial intent and that's what this all this other evidence they came and went to i had eleven examples the failure to tell ms for son lied to the appraiser saying that this airplane had special features on it which would have resulted in a higher appraisal evidence about the cloud on the title when he gave the title but there was a cloud on the say no i mean there would have been evidence that mr minter at one time tried to pass title i think that's probably admissible let's not admissible is this evidence of the cloud on the title which you excuse me i'm there just a minute because you got me off in a different world here as i understand is the fence the fence was i'm trying to stop the foreclosure on my house i never intended to file any anything else all i want to do is play this game his defense was no intent to defraud why isn't this relevant all this information about conceal this what he told people because your honor the fact that there's a cloud on a title doesn't prove whether or not he had intent to defraud previous to it's not relevant but then you know a lot of defrauding through the bankruptcy in the element of defrauding it is the intent to take something from one of the creditors and that's  there's yes but we're not talking about evidence about that we're talking about evidence about lying to appraisers saying that your your airplane is worth more than it is so you can get a loan against it that's not evidence that i can see all the assets at other better after evidence your honor if i may now i'd like to jump to the restitution issue and then i'll return to the to the sentencing issue of i have enough acts not because of the only mention of the debt which is to cry so then makes the bankruptcy totally irrelevant in all worlds why if you have creditors and you don't list them you're saying that the is whether you get it at all the victim in the amount of loss if an issue well i so i don't concede that they're not victims i don't think they are the let me address the issue of measure of the lost because i think that's important as well jury found them if he had succeeded and fraudulent we have chaining and discharging bankruptcy he would still have been required to pay something to each  creditor ten cents on the dollar or something so how do we figure out what that might have the end is that the right way to look at it in other words if you have a hundred thousand dollars in debt that he would have had to pay ten thousand is the amount of loss ninety thousand that he intended to wash away ninety thousand dollars not the four hundred thousand if that is the case how do we figure out how much on the dollar he would have had to pay if he had gone through with her bankruptcy well sam i question i do and i have two answers one i think that the actual amount of los because if he had listed all these people the gets in the assets then he would not have been eligible for chapter thirteen they would have kicked him out of chapter thirteen it and that he would have been very good to a chapter seven with my hypothetical because the question is the intend actual law so if he intended we have to assume that he intended to get away with it that he intended to have this just charged bankruptcy how do we figure out what that proportion would be do of sentencing has to go to what the people would have lost had the discharge well if mr group if mr mentor had done everything legal and and all the assets what would these victims have recovered that is that your theory or do you have legal authority that well this is the only legal authority that i have it's a supplemental authority to list assets case and the assets or maybe five or six times higher than the amount of debts he listed all of his credit card debts and in that case the aspects to cover everything in the case we're going to assume that he intended to defraud that entire amount in this case of course there were not assets to cover everything not by a long shot even if we were to assume that everything could have been sold at face value and there were no transactional costs i'm going to finish now you're on it because i'm out of time but the answer to the short answer to your sentencing purposes that we have to assume that he intended to go through with the bankruptcy and then receive it just charge but had he done so presumably even under his scheme he my colleague particularly the very last paragraph which addresses this issue and specifically the court there held the third circuit held that you have to look at the amount of debt that  fraudulent tant that's not that's not my point at all but under the scheme as the defendant has devised he will still pay a little bit to his creditors by giving just a little a little bit of  so he's intending for them to lose in my example only ninety percent of the total why isn't that the proper measure of the loss well chance of confusion that there exist here is that he was in a chapter thirteen and he was proposing a plan payments in the chapter thirteen equaled strictly the amount of his monthly mortgage payment he proposed and he intended to last where you have to look at the position the victims would have then and if the defendant had acted lawfully what would have happened he would have disclosed debt far in excess of  ceiling in a chapter thirteen which would have shunted him into a chapter seven and would have disclosed nonexempt and stock stock options profit sharing auto parts airplane is interest in western air couriers he would have disclosed those assets that would have been available to creditors the unsecured creditors who were listed and and they could have participated in a distribution  the two creditors who he own knew that could have had this was the main part of the bankruptcy process they were denied they would have had the opportunity in that chapter seven to have challenged discharge ability he undertook some two hundred fifty thousand dollars of personal obligation to the feller's and that transaction closed on october twenty seventh and then on december third he files chapter thirteen again right the chapter thirteen proceeding the charge the bankruptcy proceeding converted to a chapter eleven and then he simply dismissed that case so a discharge did not occur in the charged bankruptcy proceeding but the following year different they lost it because he fraudulently omitted from bankruptcy where they could have a sort of their rights and they could have the fraudulently inducement that generated obligations and that's why that is an actual loss to them having left them off the schedules and depriving them of their rights in that chapter thirteen proceeding so that if you look at what their status would have been had he acted lawfully then when you get to a determination of actual loss for restitution purposes and i think also intended lost for  chapter eleven chapter seven pursued years we could think bankruptcy but we don't think bankruptcy do we because this is a fraud case and he made up his own rules writing his own thing it is on time by friday so once he filed the thirteen it's no longer thirteen it's fraud right and what you're saying is those fraud actions then produce different results and you would in determining a claim through bankruptcy what kind of value the claim we're trying to figure out which you lost by his fraud that occurred because he used bankruptcy as a fraud not as a tool to relieve his debts which i think you put it exactly correctly because if not if we get into bankruptcy mode then we start valuing with the value of the claim you know that was or this and that they could have i was would argue that there was a huge sea change in their personal circumstances between december of one thousand nine hundred seventy when he filed this bankruptcy which was within weeks of incurring those obligations and when the counsel isn't it true that mr minturn never sought to appear in the just charge in this case the attorneys response was i kept saying that he just flat couldn't go that far to say that he knew that mr mentor never intended to seek a discharge this was a this has been a theme throughout all of the pretrial and trial motions and post trial and sentencing and yet again on this appeal and again i would well that's his attorney's argument but there's no evidence to support that argument that's that's one of the points i'm making to that effect was just the argument of counsel that's correct correct and there was a foreclosure and there was you know years whatever and he proposed to restructure the mortgage and he doesn't everything else in the bankruptcy can't you argue that's what he was trying to do what he can do that or not but well he can argue but i mean my only point is there's really no evidence to support that argument and and you know if that was the case why would he include any other assets on his schedules or why would it include any other debts included eighty thousand dollars worth of debts times other than sick your creditors that goes to my second part  creditors within the bankruptcy which constitute right absolutely i mean every single example that council used in his brief was there just by the district court or i can address those now but  that evidence was needed to prove he owned the airplane because you know he finds a little on one of those titles he put the word press in print after his signature and he tried a defense for a while but he didn't own the his plane both sides talking out of both sides of his now to pending on who he was talking to was further evidence of his intent to deceive her cheek that we have been held to our burden of proving throughout this case and i think i quoted in full at page twenty two of my grief he said the evidence presented would be appropriately considered by you concerning the remaining allegations before the court and you ladies and gentlemen as the jury so he affirmative if you can consider the evidence in count seven i'd like to turn to the restitution and finish up on that if i might i think the starting point from this court's analysis has to be from the district co analyses where he found that there was no actual loss as part of the bankruptcy law when he was determining the amount of loss for sentencing purposes he says mr mentor is right there is no actual lost but i'm going to sentence him on intend to last so there is a finding that there was no actual loss as a result of the bankruptcy fraud secondly we know that mr mann interest omissions of the debts in bankruptcy were not to go direct in proximity because of the debts themselves so that cannot be a basis for imposing restitution because it gets were preexisting the fraud third has to be the fraud which ended in october if if he had properly list of these creditors in this proceeding and if they had been able to get an order saying that the debts were not discharged the loss either occurs prior by the sprogs you have nothing to do with the bankruptcy or in a cosmic legal bankruptcy proceeding there can't be any restitution thank you thank you