start with late the first issue that we've raised and our brief which has to do with the truck court's refusal to allow mr rosenfeld to call james bradley as that witness at the trial mr bradley originally proffered as it as an expert witness in the case and then based on some issues with mr bradley's bio it became clear that judge garbus was not going to allow mr bradley to testify as an expert and so mr rosenfeld's trial attorney asked that mr bradley be allowed to testify as a fact witness at the trial and mr bradley is so you with to the idea that he was an expert there were traveling on the sense that he was a lay witness giving opinion testimony well it's a judge garbus took it and that mr bradley was going to give opinion testimony but he really was was not being proffered at that point as an opinion expert witness  and the reason for that is the government had put on an expert witness mr kerr to testify about the fact that at least cd's and proof of funds letters things of that nature really don't exist in with the implication being because they don't exist they have to be fraudulent because there are there is no such thing and so mr bradley was going to testify as a fact witness that those types of alternative financial and i guess here's where i'm having the problem maybe you can help me here he wanted to say a bunch of things basically there are enough evidence couldn't do that wanted to make some comment about the president's transactions and the financial area district court was well within his discretion to say that's far afield and then we come to what the really the heart of it was which was that he wanted to testify about the availability of this form of financial collateral in the relevant commercial market place right that's correct that strikes me as the heart of opinion testimony from an expert it's not the kind of thing a layperson would know about it's not the kind of thing that a jury would generally have any inkling about but to suggest in this peculiar market commercial market this kind collateral financing is a common transaction that may well be true but it seems to me that falls beyond the can of just a lay witness it looks to me the matter how you disguise it or be just as if the government wants to put a witness on to say a checking account doesn't exist and so i want to call someone said oh we do have checking accounts and you know if i've actually have one and right well it's this is a little different right i mean there's a sort of a come on response to what bradley wasn't being asked at that point to give an opinion on whether these were a good financial arrangement a bad financial arrangement which really would be the gist of expert testimony but really just saying these are instruments that are used in financial transactions and i'm not sure i understand the difference if i am going to testify about a piece of knowledge that's peculiar to an obscure and limited part of the commercial financial market and i'm going to say that based on my background training and experience i can tell you ladies and gentlemen of the jury that this is a readily available and commonly used tools in this commercial marketplace that's a little bit different and it strikes me the stuff of an expert let's assume for the purpose of my question that this really fell into the ballpark of expert stuff wasn't  judge well within his discretion to keep him out for reasons other than the nature of the opinion all the foundational problems that existed here why couldn't the trial judge simply say i'm not satisfied  turns you're not challenging that well is the defense with drew bradley is an expert and traveled on the theory that this was late i'll pinion testimony which you said no it was les fact testimony but it strikes me that when you speaking at that order of generality about what's going down in this kind of market place and that this is common looks to me a little bit different than i'm a fact witness and so i think when mr stone was trying to get the testimony and because it was critical to the defense to have something along these lines to support mr rosenfeld's testimony and to rebut the government's expert the morning honors may please the court my name is paul shore steen and i represent mr holland in i'd like to discuss the sufficiency issue and then move into how that relates to the issue of the court erroneously allowing mr kerr who is the government's expert to give the opinion he did one because he's not qualified and to is not qualified to give that particular opinion and then discuss how that decision was compounded by  the discord disallowing us from bring your own expert which of course you guys of already begin begin to discuss regarding the sufficiency argument essentially the issue was whether my client had knowledge of the fraud we  the cd transactions connecting people who wanted to lease a cd with financial institutions who had them available for at least he openly advertise his business on the internet and through word of mouth talking to a lot of different people and he had customers who would contact him to say this is what i'd like to do i would like to lease these c d s he negotiated contracts with them they were had arms likes contracts with these individuals these people had an opportunity to review him to negotiate him to show them to their lawyers and advisers and they signed these contracts and entered into this transaction but i mean isn't there aren't there enough red flags here for a jury rationally to have concluded that your client knew i mean you know th e chase manhattan thing hasn't been a bank in a decade you know skew numbers or whatever you call them on the on the thing are not quite right the no one ever tried to extend the lease beyond the initial sixty days some people were complaining that these things weren't working it just seems like there's an awful lot of smoke here and there certainly were red flags but the question is whether those red flags allowed your reasonable jury to believe that my client knew it one of the point i wanted to make for address those specific issues is you know what these contracts were entered into the customers had five business days or ten business days to receive the confirmation and then confirm it themselves which the contract obligated them to do and the feedback my client was getting was positive this guy said he viewed the cd this guy said they were verified this guy had his lawyer say we've seen the funds are funded group verified it another guy confirmed it so he's getting confirmation that the c d s are legitimate now to your question this numbers off there was a citibank document that was fraudulent and you look at them in a microscope yeah that looks bad but i don't know how the evidence showed that nestle translates into my client knowing that that's fraud the few documents that were fraudulent did not come from my client i think one was just sort of emailed through from someone else we discussed the cusip the numbers were off but there was testimony about those are internal documents don't necessarily apply to cd but then people are who the customers who are responsible for verifying and by contract are saying we verified it this we've confirmed it our funding group is in place these things which give my client reason to believe that they're there are some people who are getting less positive feedback right and you mentioned and i want to get to that too there was one individual and it was say or who was the primary victim who did complain so i want to say nobody complained everybody else either said nothing or that there were four or five people that said yeah we verified it say or did complain but one this was in in february after he signed his contract members were talking about three months into the nature of his complaint didn't really go to the fraud of the c it went to the idea that look at had this cd for x number of weeks i can't use it and you know once holland executes this transaction he doesn't know necessarily what they're going to do mean this is a strange transaction but these are these aren't just unsophisticated inexperienced people he's dealing with this isn't like that fraud where you're preying on the unsophisticated say our was a very successful businessman it turned nothing in the like an eighty million dollar company these other guys are very experienced in finance and have lawyers and advisers so there was one person they are who did complain as he said it was three months later and basically what he's saying is i can't use this now he didn't really say why you can't use it maybe you can't use it just because you bought something or lease something that didn't do what you think it was going to do but there was no indication specifically a fraud so going back to your question tom talk to me as well in this conversation about chase going through your client that reflects the name of the bank that doesn't exist in a location where they never operated on even when they did exist correct and you know again if you look at that document and microscope you like that that's a problem and clearly it's a red flag and i agree with you but again when you look at these transactions you've got contracts going back and forth you've got an escrow contract you've got confirmation and that kind of document that's coming to the customer it's not coming from holland so we can't say that he created this was involved in that transaction involving chase manhattan bank b w i i don't recall specifically i think the the what they did was they paid an arrangement fee to get this going and i think generally from the fact that the transaction involved getting paid six or seven hundred thousand dollars that involved a bank that never existed didn't exist under that name for a long time doing business in a location where it never did business i it was not just some modest little claimants this was a big deal this was to pay six or seven hundred grand in order to use it as collateral for multiple seven figure loans right yes yes i mean this whole idea about collateral not necessarily me people are going to use it for whatever they were going to use it for it really isn't good for collateral but you know these are business people that can use it however they think they can use it in the world of private finance yes it is a big deal literally  document that's fraudulent from a bank that is clearly not issuing it is a problem the issue though is does my client know based on that document which we don't know how much he didn't create into we don't know how much exposure he had to it and when it gets to the other person who is by contract obligated to verify these things and they know they have five some cases ten business days to get out and get their money back are not doing that i don't know that anybody complained about uptick or document  may please the court william glasser of the united states starting with the proffered defense expert there are the there are two different theories under which the defendants on appeal of propose that his testimony was proper mr rosenfeld's argument was that it was proper lay facts testimony and mr hollins argument is that it was was indeed admissible as an expert as as mr bradley was originally noticed as an expert i think that it's very clear the district court did not abuse its discretion in excluding the proposed expert testimony that testimony was suspect for a variety of reasons and essentially as can be seen from the proffered expert report it was conclusions inferences that the jury should draw so if i can focus then on whether this was fact testimony mr bradley never testified in his proffer and the mr rosenfeld's attorney never in his own proffer suggested that mr bradley had himself in gauged in one of these least cd transactions in fact he said that he was going to testify about how these things existed how they were feasible but that was based upon his knowledge in the field not his own personal experience having actually engaged in a cd transaction i think it might have been different if he had been called to testify that i have in fact engaged in exactly these kinds of transactions on multiple occasions that might fall in the realm of fact testimony however he never proposed to do that he what he proposed to the district court repeatedly cut him off during the proffer and said ok we'll get let's get to the facts testimony let's get to the fact that money and he never did i think if this court reviews mr bradley's proffer which is in document three forty eight pages eleven thirty and again the defense proffer through the attorney page seventy two three seventy seven this court can conclude it would have fallen within the realm of expert testimony and it was not an of discretion to exclude it for that purpose the turning then to the government's expert and whether or not his testimony was admissible the mr kerr had qualified in federal court as an expert seventy times but proximately seventy times before he had extensive experience in it with the comptroller of the currency engaging with similar sort of odd fraudulent schemes he was someone who had extensive experience and to the extent that the defense challenges his qualifications i just i think there was no abuse of discretion now if we look at his qualifications to testify to exactly what he testified to which i understand to be the second component of their argument he testified that least c transactions are quote unquote not feasible or do not exist in the commercial banking world he reached that conclusion by testifying that in his experience no one would lend that money against a c the that money the cd could not service collateral that was his testimony that look if this no one would lend money to at least cd because the person who's leasing it actually doesn't have access to those funds i think that's a a commonsense conclusion and i think mr kerr was qualified based on his experience to testify to that but as i mentioned it's a common sense conclusion and therefore i think that goes to harmlessness that even if mr kurz testimony should not have been admitted even if it was an abuse of discretion error was harmless because the jury could itself infer from all of the other facts that these sort of transactions don't exist they could not actually function as advertised by the defense defendants so that if i may briefly touch on the sufficiency of the evidence there were many facts from which the jury could conclude that the evidence was sufficient again that this court is reviewing under the deferential jackson versus virginia standard it there are certainly theories that the defense has proposed as to why mr holland was unaware of the fraudulent nature of these transactions he asserts that he relied on good faith but there were enough red flags that the jury could look at that and reject it there were the was the fact that no one ever followed up and paid the additional amounts that they were supposed to there was the fact that nothing numerous clients complain that they were unable to obtain lending there was a fact that the both defendants in this case received disbursements from escrow before the five day period which again can indicate an intended a fraud in fact they obtained the escrow funds in one case two days before the fake cd was actually issued the problems with the c d s themselves all of them were fake i think that someone mr holland points to the sophistication of the victims but someone in mr holland's position who is advertising that he has extensive experience in this area was he was himself sophisticated or should have been sophisticated enough to realize that he was engaging in fraud so the jury could infer from all of the evidence that mr holland was guilty of the alleged fraudulent scheme you let me let me go back maybe to rule seven zero one in there federal rules of evidence and lay witness under rule seven a ones allowed to testify about matters rationally based on their perception and that are helpful to an understanding of the facts i specifically about his knowledge of the facts and that they are indeed used in funding and in finance talking about least cd's but and then he went on to say mr bradley would be able to explain how business in this type in this type of financial world exists and how lisi the standby net worth individuals of headphones and venture capital and in danger that nature cradley ever suggest in words of substance that he had been involved in transactions of this kind not in this transaction but this never asserted and even in the in the act and the opinion that he had submitted originally the expert opinion he never said did he that he had ever been involved personally in this kind of financial transaction no i mean the the report top talked about opinions about that and did not say that i understand so so he's offering an opinion not based upon his particular observation of this kind of transaction himself so as to be of a more general an abstract kind it seems to me maybe i'm missing that yeah so i think if you read and he did testify s proffer outside the presence of the jury and then that proffer right up lamented by the trial attorney and i think if you put that together with what both of those parts that that mr bradley had been involved with these types of financial instruments not in this particular case i mean it's clearly one involving mr rosenfeld or mr holland in these matters but was proffered because he was familiar with these types of financial instruments and based on his background both as a lawyer and he had been in banking and degrees in finance he was familiar with them it's my understanding that and in the proffer that holland made regarding mr bradley that he failed in the proffer to establish that bradley had any actually experienced in using a lease instruments as collateral for loans i believe mr bradley testified your honor that he was familiar with least c d s being used as collateral but then that's part of where the his testimony got cut off by the way and i'm familiar with and i have some actually experience in this are two different things c agree with the core and i think it wasn't developed if you read the whole proffer judge garbus was impatient with the proffer and kept cutting out the testimony and then it was sort of summarized by the by the lawyer but i think it it's reasonable based on the report the testimony this summary mr bradley's background that when he's saying he's familiar it's not just because he's heard about it somewhere that he's dealt in the world of finance both in alternative finance and just the government risk in wrapping up the point about sufficiency you know the way it appeared is that there just was not direct evidence that my client knew announced in the red flags of circumstantial evidence but given the concept and again the feedback he was getting it just led us to believe that the just insufficient evidence to prove that specific element of knowledge and what the government did we believe to this sort of circumvent that problem of having to prove this at that specific element is bring incur to say well these things can exist and if they can exist it must be fraud so basically what that does is shift the focus away from the government having to specifically prove that the new unit state was a fraud and knew these c d s were fraud to well he had to have known because it's thing just doesn't work and it doesn't exist and ask to be fraud so it's sort of prevent of them having to prove that specific element and that's what kurt it with that broad general sort of negative opinion that he somehow he knows in the entire world of all the people executing private contracts and finance that nobody could do this and nobody would do this despite the fact that the government put on witness after witness after witness who were the victims who are working in finance and are educated  experienced who were there to say we were going to do that very thing we paid a lot of money to lease these knowing what we plan to do it didn't work and obviously it was fraud but kurz opinion is rebutted by their own witnesses which makes it misleading to the jury and shift the focus away from what they have to prove and then that's compound by the fact that we can't put on bradley who can offer another opinion rebutting her so you've got the victims who are saying one thing you've got her who's not qualified saying another and we should have a right to clear up that confusion and how they misled the jury by bringing our own witness who does have experience in private finance to say here's what we believe here's my expert opinion and these things can exist john thank you very much and thank you all i know mr short's thing that you were court appointed and we very much appreciate you taking on the burden of the figure asli representing your client we thank you all for your efforts this court