morning your honour's may it please the court and counsel i am pleased to be here on behalf of crystal lundberg we are presenting three issues before the court the st is that the district court eroni is lee admitted three pieces of evidence into trial that prejudiced ms lund in her defense secondly that there was insufficient evidence at trial to support the convictions and counts two through six is finally that the district court erred court st and foremost is a month where it's prior profession as an as court was allowed to come into evidence and this was an error and it was an error for did what she did with criminal intent or the intent to defraud and the fact of her previous employment had nothing to do with making that determination so there are cases for instance such as united states versus cox in this court's case mcgee these are her prior involvement in the escort business was not material and secondly it was highly prejudicial theory of the case according to which ms lundberg did this because she was an escort and this was as they characterized it the card was her ticket out of that lifestyle now court would review it under the plane air standard because this lundberg trial attorney did not object to the admission of this evidence at trial but she did not waive her right to have it present down the prejudice of this is clear if you look at cases like courtney versus the united states in the th circuit where the court found that the introduction of an undercover witness's wives engaging in prostitution was irrelevant and in also prejudicial because of societal attitudes and potentially jur toward involvement in this this kind of conduct and the same thing here i think that there isn't a propensity free chain of reasoning as this court requires that would allow that evidence in as the government as certs in retrospect as evidence of motive and the reason why that argument doesn't work is that you have to speculate about too many issues make too many than not because she and engaged in that as a court activity previously and there isn't any other way to look at introducing that particular piece of evidence and in a trial because it doesn't go to motive it an shape or form you would have to speculate about whether or not she chose to be in as florence how much money she made as an escort whether the money she made as an escort was substantially different from what what the gifts were that were provided to her by mr kennedy there are just too many speculative issues that you would have to make conclusions about before you could say that this constituted evidence of motive and there was no evidence introduced at trial to support those so for instance this court includes like allow the admission of economic evidence bankruptcy proceedings credit card debts and loss of job and things like that on the issue of motive but the government and that case had evidence to back up that information in this case with respect to  there was no evidence to back up any finding that this was a motive for her to engage in fraud this court has said many times that the evidence of other clear crimes that are not related to the to issue are not are precisely the sort of thing that for a for b is designed to keep out because we don't want them the jury making a decision based on a bias or prejudice they may have against someone who engages in a particular profession rather than on the evidence at trial which is whether the person engaged in fraud or intended to defraud through their conduct the nd eviden lundberg is the opening of other credit can credit card accounts in scott kennedy's name and that this issue also was immaterial to any relevant issue at trial this  the opening up of three fairly small credit card accounts valuing five million three hundred and three thousand dollars there is no evidence presented at trial that these accounts were maxed out defaulted or any other thing that the reason put forward for introducing this was as evidence that is lundberg knew that there they were living beyond their means while that is insufficient  credit cards are not necessarily in an indicator that one is living beyond their means of people open credit card accounts for all kinds of reasons for wanting to establish credit on their own to making purchases with cash to doing all kinds of other things other than being a reflection of knowledge about a person's economic status if you're hearing that the evidence of trial they've trial counsel did not object to this evidence either so again it would be reviewed under the plain airs standard and the last piece of evidence in this category may be among the most egregious and that was a government's exhibit fifty eight which was a text message that scott kennedy sent to himself there was no evidence presented at trial that he sent that text to ms lundberg that she read it that she understood it or that they had any kind of discussion about it this piece of evidence is in a different category than the other two  the trial counsel actually stipulated to the admission of this evidence ordinarily this court has found that in cases where the trial counsel stipulates you don't review it at all and you consider it waived however in this particular case because trial counsel did not object to the admission of the evidence because trial counsel didn't file post trial motions and because the nature of the air is so egre lundberg there was never ever any proof that she sent it in that piece of evidence kennedy sort of confessed to himself about all the bad things that he had done and why he had done them and that he had done this out of some love or desire to please miss lundberg but it was not relevant to ms lundberg understanding of what was going on or ms lundberg participation in what he was doing and knowing card the question is whether she knew that it was illegal for him to be doing that and i believe the contention at trial or the way the defense came in at trial was that his actions and his words were contradictory and that while he says it was it looked like he was going to get cut started writing these e mails to himself and and sending e mails to other e mails or text messages to her that even though he's telling her that they don't have enough money to afford what he's giving her what he's letting her do he turns right around and continues to let her do it trial was that the exhibit fifty eight was never sent but that he sent something similar to her what he sent that was similar to her wasn't entered into evidence because it had been deleted and not recovered so the text messages says oh my god or o m g please delete that me mail and maybe you're committing fraud elite that you aren't you are hawking crazy that didn't come into evidence that text message came into evidence but what that text message was specifically referring to did not come into evidence and that text message also i should say should point out refers to him committing fraud not to her committing fraud or not to her being a part of the fraud that he is committing yes she was sentenced to fifty three months imprisonment and in the custody of the bureau of prisons and so she is actually serving that term at the moment  nd issue that i'd like to discuss with your honor's is the sentencing issue sophisticated means and i believe it's our position that the judge erred in finding that ms lun represented sophisticated means it may be true that with respect to the from the merit of the conduct of mr kennett the certainly could be termed as sophisticated based on his knowledge of the financial system of the marriage his setting up of the credit card so that only he was responsible for it and his ability to high in the fund and spending within the american counts lundberg on the other hand was not involved what she did was not all sophisticated basically what she did was use a credit card that was given to her by mr kennedy to spend money and she did it in her own name she did it with his authorization and she didn't do anything at all sophisticated what the judge relied on at sentencing was the involvement in lying to a lease las to get an apartment to get to the house and while he helped her produce a fraudulent document to do that that was not related to either planning the fraud on the mare or provided those to her yeah and it was not clear from the testimony at trial whether she altered him or he did they were altered though no question about that to show that she was  that she was earning more money than she was while this might have been a fraud on the lesser it wasn't a part of the scheme to defraud america because there was no this wasn't part of can sealing the money that was paid to the less or because it came directly from the mare credit card and everyone knew that and it also wasn't a part of the defrauding up in american terms of executing it i see my time is unless you have other questions  under roof or for the district courts not plainly her and admitting that link between her motive d and her previous background is not speculative based on the evidence the defendant herself made clear kennedy for example testified on cross examination that when their romantic relationship began and just before their increase in spending started he knew that defendant was quote looking to get out of her previous background that trial transcript page three hundred and ninety four even more clearly after the scheme was discovered defendant texted kennedy that because they had been cut off the card she  for three balancing for the same reason that there's waiver there was no one fair prejudice defendant herself elicited back that she was no support during kennedy's cross examination and she made reference to her background clos well there can hardly be unfair prejudice under these circumstances a couple other points one way perhaps with respect to get support and i in her reply of the defendant argues that there was only one passing reference to her background on cross examination i don't think that's quite right   st there was explicit reference to it in the in the discussion about the couple's backgrounds which involve several questions about her previous escorting and then about twelve pages later  seemingly in questioning kennedy's credibility there were several references to the fact that she knew what her job when set aside now it's true as my colleague on the other side points out that in that line of questioning specifically was not used but trial counsel for the defense had made reference to it just a few pages pretty previously and then again he used it during closing  also in the reply the defense argues that it did record suggests that the defendant just missed the opportunity to object to this evidence hey i don't think that's quite right if you look at the docket entry seventy seven dollars that's the defendant's proposed body or in this case and at least five questions about the defendant's prostitution the commercial sex industry and sex for money come up this suggests the defendant clearly anticipated that the evidence would come and i don't think the record reflects that she just missed the opportunity as to the credit lines the just reports now plainly aaron introducing evidence the small credit lines that the defendant opened and kennedy's name the evidence was relevant to her knowledge of fraud the fact that she maxed out smaller lines of credit very clearly put on notice that kennedy could have legitimacy to support her with his own income in fact kennedy's testimony was that defendant did open these accounts because she thought they quote kennedy's paraphrasing of the defendant needed more availability to spend it after he had set a budget for her on the existing personal credit card and after their other product perks maxed out again and this does not require speculation on that evidence it showed that the small lines of credit which exceeded the budget that kennedy had spent at a time when the credit cards were being maxed out were all indicative of the defendant's knowledge that kennedy kind of legitimately support her trial transcript kennedy explains that they were having serious financial problems that he put her on his personal not the corporate of his personal amex accounts but that she had been subject to a one thousand five hundred dollar budget there's also based on this your honor no probability of a different outcome the evidence against the defendants was substantial the jury heard among other things and kennedy told the defendant  the credit card all of this was more than sufficient for the jury to defendant's state of mind it's true that the jury was not able to see the e mail that was actually sense of the defendant but they're still question this year were you in email that reference fraud kennedy testified that the e mail he ultimately sent to fend was substantially similar and he explicitly made clear that it referenced fraud and also we have exhibit sixty two in which the defenses just kind of pointed out the defendant excuse me as judge katie pointed out responded to kennedy's suggestion of fraud and in the mail the jury heard the short comings not that email it was for one point of clarification that i don't think the record leaves any ambiguity about who manipulated these financial documents the testimony was that kennedy from illinois  brother quest of them so that she could be sure that she could provide for her she then physically alter the documents to secure mansions lease to make it appear as though she had sufficient income to pay for the home country to the fen argument i think that was clearly a purpose without the verifiable income she couldn't complete at the application and without that application she couldn't have gone on to spend more than one one hundred thousand dollars  her background for purposes of motives is no different than if she was living in poverty and wish to get out of poverty and that's why she participated with mr for or for p i think in the appropriate case like in united states versus peril in which there is trial record evidence suggesting that defendants financial personal bets again when trial evidence suggests that those debts were the reason for the frock can be appropriate for all four for the analysis to your bit your position would be if she was a minor drug dealer in perhaps dealing with  marijuana in areas where that remains a criminal issue that could also be brought before him as he wants to lead the life of a drug dealer in your honor again it a cooperating codefendant who's testifying as to things he was specifically told d by the defendant about why this fraud matter to her why it was so important it could be appropriate and we think that's the case here thanks to both out of the case will be taken under advi