may please the court counsel eugene miller on behalf of the united states united states requested this court reverse the order of the district court granting the defendant a new trial reinstate the verdicts of the jury and remain percent the defendant was convicted of three counts of bank fraud following a jury trial the evidence at trial showed that the defendant submitted false sworn contractor statements to the title insurance company his own benefit some of which was to attempt to finish the over budget property at stone fence and ultimately of course then the bank is left with no collateral on those other properties on aunts nor center street and because he didn't build any residence on thirteen witnesses who testified and as we detail in our brief was a witness whose testimony was not necessary to establish these facts and convict the defendant now after the trial the defendant   motion requesting a new trial based on a two thousand and nine we courted statements of the bank officer which the defendant discovered the day after the two thousand and sixteen trial was completed and even though those two thousand and ninety statements didn't relate to to the bank officers trial testimony or to the issues at trial the court did find that there were force the civic statements in that recording favorable to the defendant so office right now on the materiality argument which we believe clearly requires reversal in this case for materiality to apply here the court would have to be convinced that the result of the trial would have been different if these statements had been disclosed prior to trial thus undermining confidence in the verdict and that's the defense burden to establish and we submit that was not established in the district court first of course if the statements are not favorable we submit that they're not then they couldn't be material if they're not at all favorable to the front they would not change the outcome of the trial but even if they had some slight impeachment value on the facts of this case and based on the trial record they would not undermine confidence in the verdict based on the overwhelming evidence of guilt which really is not disputed by the defendant and based on the relative lack of importance of the testimony of the bank loan officer one of the defenses that was presented at trial was the defendant's claim that he didn't read the sworn contract or statements before he sent them to the title insurance company and this defense has nothing to do with the testimony of the banks loan officer the corrected the one contractor samus were submitted to the title insurance company and in fact during cross examination of bringing up the defense pointed out that he had no idea who signed this one contractor state approved by the bank but money was not dispersed until the defendant in this case submitted to the title insurance company swore in contractor statements represented that work had been done in the title company the title company then forward that to the bank who would disperse the money to the title insurance company who would then wait to disperse the money until all of the various contractors came in and sign a lien waivers in the case to get their money and in this case the defendant himself was the general contractor on his property and also did a lot of the sub contract work so he often was the person then who was coming to the title insurance company after he had some of the false statements and then sign waivers so could be paid for the work he claimed he had done on the two properties work that he had never done so that's why the actual false statements that were submitted by the defendant in this case had nothing to do with the testimony of the loan officer law officer didn't know as far as when how wide those false statements were submitted to the title insurance company he'd then just received them from the title insurance company and approved disbursement of the funds didn't some point to a bank person the bank understood there was going to be a house on one and a second story on a renovated building on another and went out and it was just an empty lot on the white house and there was no second story on the other house and again those facts are not in dispute which is why the prior two thousand and nine statements ambiguous statements from his state of the loan officer are just not material to any issue at this trial the in addition to having nothing to do with the so even at a retrial a defense counsel could ask questions about the information and then he would be stuck with the answer and in fact as we detail in our brief the loan officer has denied the accusations that relate to the two planed was that he ballard was getting pressured to the front it was getting pressure from the bank to complete that stone fence property and that as he was getting pressure that the loan officer said to him after he expressed well maybe if i could get money from these other loans and put it in stone fence that the law officer said do what you gotta do now the officer denies that but let's just even take that at face value that the loan officer said to him do what you have got to do as we detailed extensively pre trial in the district court that is not a defense to paint fraud that would mean that the loan officer was complicit in the bank fraud that's evidence of the defendants make fraud but it's not a defense to bank fraud which makes the loan officers credibility of the case are released from my client's perspective and what he told the government that when he showed up at his doorstep at eight o'clock in the morning to interrogate him was that he told grant that doing way he'd be able to finish that property was if  used proceeds from the other loans and that property all for loans came from the same bank and that grant was aware of the fact that he would grant told them do what you have to do that's the whole point that was the basis of our good faith argument and his we told the bank that we're going to take that money and use that was designated for that property sic property c and put it on stone fence because that's the only way we could finish the stone fence property otherwise we wouldn't be able to finish it now counsel suggested there's undisputed about the money the money went in the stone fence there's been there's no suggestion that my client walked away with one hundred thousand dollars that money from these other projects was used to complete the stone fence project to do complete being is my client had actual good faith and in that attended the fraud anybody and this information about grant should have been provided to us pretrial now they suggest lawyers want to thirteen witnesses well i would suggest that my client was interviewed on the first when just investigation began he told the agent that i told grant in essence i told grant that's what i had to do and that grant implicitly said do what you gotta do the only  call is a witness in the grand jury of all these witnesses they claim to have is granted and they specifically asked him that that because they knew very well that our good faith defense would rely on the ultimate trial testimony grant it grand what came in the court said yes i told them go ahead and do that i don't think they would have a case so that's the witness they call them the grand jury to walk in his testimony and supposedly part of reno they never even talk to this ma which always leaves suspicious i specifically on several occasions asked them for all the material pertaining to grant and that was never provided this investigation of the grant that the could government conducted and these undercover reporting of the grant that the government could not get that was never given to us we had no idea that that took place in the first place and what grant and the reason it's significant and the reason the district court felt that there's a good chance we might have gotten a different trial is because clearly the two people then decided that grant one was given immunity and two given a pass for prosecution and that earlier investigation where the two people sit in a council table the prosecution table mr miller and mr allbaugh so now when grant gets up to testify at the trial is it likely he's going to say looking at looking square at two people that decided he's not going to prosecute it and he's given immunity looking at those two people he's been that he's going to say yes you're right mr ball mind i told your client that he could do that there's no way that's going to happen i should have been able to ask him what his bias indeed not biased but it that these two individuals gave him a pass from that investigation and that's what they did because what they're investigating him for which we had no idea about was that he aided and abetted and probably three or four loans three loans i think it was one local bank but got to me he meant from the from the loans the proceeds in one thousand dollars the missile would trigger any cash requirements purpose of which would apparently with to get this money to replace the money he had stolen while he was a police chief which which caused the dip that's a question depriving us of her force so the point being is he told grant i don't want to get i think the i would soon understand structuring understand money laundering agrees to look to cash the checks the way scott gets wants cash based on less than ten thousand dollar bets and then these people get by decide out because they have the checks one of which grant cash himself and they decide not to charge or and that's fine that's that's their decision to make but the point is i should have known at the trial i should been asked mr grant at trial that true that these very people were to investigated by these people and don't they did they hold the keys to your liberty and don't they still hold the keys to your liberty so the jury attributable way as to whether or not grant was client and the bank that accompanies the middle but these statements being made my from my client's perspective i really told them that this is i if i'm going to complete this project the stone fence project i have to take materials and resources from the other three and i don't much like it the stone fence project completed sell that i could use that money and then complete the other three projects so the point being is grant that held the keys to that defen had any bearing on how his now testimony denying it and this stuff about him being one of thirty witnesses is ridiculous because like i said that they called him at the bridge or e for the purpose specific purpose of connery any any good  reasonable whatever the language is a reasonable belief that that could have happened because the point is that as the court who oversaw the trial saw that the only evidence the solid evidence that the government had against our good faith and our lack of intent was the testimony of grant and we couldn't i didn't know anything about his criminal conduct in this particular last the was operated by bunch of crooks the president another loan officer other people gone to jail but i had nothing pretrial to suggest that grant himself was involved in any of this she never gets at the bank i knew nothing about that and there's no way reason why i should have gone about that so i could actually challenge his credibility at dr trial i brought out that the debate was being investigated and of of the branch boss went to jail for a loan a private proprieties all those things but i couldn't get any of that to touch grant because they didn't  think about this and this should have been disclosed or to very least it should been turned over and camera and let the court decide that never happened until i found out about it after post trial and then i asked for it out we find out we're dead it deed and the minute the judge heard about it and saw that and listen to recordings he legally ordered them to turn it over to us and it was a much question his mind whether or not this had an impact or could have had or whatever language originally back in a jury he said it did and that's why you at any rate i suggest that what happened here is my hands were tied behind my back at this trial because i couldn't attack the key witness in fact the only witness the government had to counter the defense's hands were not tied behind their back in fact that was part of the problem the judge allowed the defense to go beyond what they should have been allowed to do with the district court which is troops present this evidence of a corrupt bank in the district court there's been no articulation of materiality of how this was material how it would have been a defense it wouldn't be he says the defendant acted in absolute good faith the last clear if you make false representation as to the bank which the definit did then you don't have a good faith defend he says he didn't have intent to defraud the bank that wasn't an issue that's under section thirteen forty four one this was a case under thirteen forty four two he says grant was the only person in the grand jury that's not part of the record in this case