good morning me please the court counsel my name is harriet levitt i represent mr lindh the issues that i would like to argue today are the first and the third the materiality issue and sentencing issue i'd like to submit the hybrid representation if you want brief unless the court has a specific question regarding that with respect to the materiality issues as the court knows mr lindh was materiality that's correct that's correct now the government has countered that the wells case overruled the need her case and that materiality need not be proven even though the government  know i think that sufficiency of the evidence is a is less specific i'm arguing an essential element was left out of the government's proof but ok if you want to characterize it as sufficiency of the evidence i'll go with that but let me then take you through the reasons why the government failed to do that when it happened as the court is aware in this case the linz file for chapter eleven bankruptcy they failed to list under any area in their schedules the interest they had in an asset that was later sold and the lynn share of that asset was approximately two hundred  forty thousand dollars now the schedules do not show an interest in real property at the time at the time the bankruptcy was filed or when the when the schedules were filed the state of affairs does not show an interest in the property either belonging to a corporation or reflected as as a corporate asset so it's just not there later the property is sold as i said the linz receives two hundred forty thousand dollars and that gets deposited in the bank ten thousand of it is deposited into a separate account and two thousand in cash is withdrawn from that and thereafter in enough filing the monthly income report that receipt of money is not reflected and in one nine hundred ninety nine about a year and a half later mr l examined in the bankruptcy court and makes several different statements regarding his ownership of the property which by that time had been in fact discovered now at trial the government have the testimony of a senior bankruptcy analyst in this to catatonic i hope i'm not butchering his name pronunciation he testified that the bankruptcy court or the trustee looks at the schedules in a chapter eleven case to determine whether the reorganization plan submitted by the debtors in chapter eleven is a feasible plan whether it can be confirmed however the government never offered into evidence the plan so we don't know how mr linden's liabilities line up we don't know the character of the deaths we don't know the priority of the creditors we don't know how i remember the record wh telling how those creditors were to be treated and this is a reorganization ask you this what's your best kids authority for the proposition that materiality requires a showing of the relationship between the plane and was not able to find any case that addressed that issue your honor however what we have is the fact that the bankruptcy analyst testified that it's important to look at the schedules and to look at the plan and he specifically said that what they want to know is whether the creditors would receive more money under a chapter seven liquidation as opposed the fact of the asset is material in that of itself he didn't use that terminology important he said we need to look at the schedules to determine whether the creditors would be paid more money under the plan or under a total liquidation now if you don't have the plan and you don't know how the creditors were going to be paid  away does the bankruptcy point make it more feasible that everybody gets paid over time and isn't that a better plan so we don't know and we can't speculate castle get your argument that no reasonable juror in the light of the testimony that know what the assets were and what the estate contained well your honor i agree with you that debtors should fully disclose all of their assets but i am arguing that in the context of this case the government's reliance on a figure of two hundred forty thousand dollars is you know it's a figure that most people don't see in one chunk in their lifetime and that's why the jurors i think grabbed onto and said yeah sure that makes a big difference but in this case but in this case considering that all of the creditors were to have been paid and that over a period of time his liabilities increased from a million and a half to two million that it's not nearly as significant as it would otherwise have been and i also suggest that far with the farm work you look at materiality suggesting to the court that once the nondisclosure is down you have to show the materiality i want to specifically discuss materiality with respect to the false testimony before the bankruptcy court because in that county the questioning was basically as to his ownership of of the property or as to which entity he claimed the property was owned by now the government introduced into evidence or statement that he was real or where you're at the time he filed bankruptcy that he was the record owner of the property and he said yes and in another portion of the of the testimony he stated that his so this corporation linda jensen was actually the owner now here's a situation where they knew that this is a or as to another entity and i submit to the court that by that point in time it did not matter which entity it was and they already knew that he was the record owner so his characterization of of which corporate entity really owned it is totally immaterial and there should not have been a conviction on that and as to that i must say to the court no reasonable juror could have found otherwise and yet they did i'd like to spend a little bit of time court should be given the opportunity to decide whether to reduce that sentence that's a limited range ok and what i might point out with regard to that issue is that as the court is well aware th offense or these offenses do not carry a minimum mandatory sentence so the court by statute could have given mr lindh far less than the guideline of now now as i've mentioned in the brief i take issue with some of the factors that were used for enhancement in the guidelines tell your time probably would be better served to address your other issues because if we decide to do a review answer the district court it will be totally up to the district court to decide how this will address the sentencing aren't in their case thank you thank you for pointing that out general if the court has any questions to ask of me regarding the other issues i would appreciate it now maybe you can separate time for me but i shall do that the false testimony during the bankruptcy court proceeding about who actually owns the property the defendant was claiming in the bankruptcy proceeding that one of his corporate entities on the property if in fact that testimony were true that asset would not be part of the bankruptcy state and with not it wouldn't have been subject to the bankruptcy court jurisdiction basically and that's why it was material because in fact explain how these bankruptcy forms the information was in a general way used by both the bankruptcy court and the united states trustees office by giving the jury that information in the jury had the information to make their own determination about whether failing to disclose an asset work that amount of money would be material inversely the jury could have come at it the other way and looked at it as whether it was material or not for the aspect really didn't have any defined value because he invited three or four years before and over to bunch of money on it i'd take it and so therefore there was really nothing to disclose i guess or if there was a minimalist i don't know quite what the argument was but would you address the time meaning of the disclosure versus the timing of when the value was determine  but even in one thousand nine hundred you cannot you cannot possibly argue that the property had no value and the property clearly had value whether it couldn't then determined and specifically as it was because of the  to whether the defendants bankruptcy reorganization was possible and in fact the defended himself when he was being cross examined during the criminal trial conceded that the property needs to be yes i think it got i think the guidelines actually say that i think because there was a conviction for perjury in this case and a question on the same line of if the charge is perjury that will give you the sentencing level just conviction to give you a i need to correct mr miscall on two important natters first with respect to count five counsel advised the court that the perjury was significant because if the property belongs in the corporation then it wasn't part of the bankruptcy frank rich state and that's not true under the bankruptcy law and getters interest in a corporate and a corporation becomes part of the bankruptcy state and specifically question twelve on the schedule b requires the debtor to list his or her interest in any corporation and the value of that interest additionally statement of the fears question eighteen requires the debtor to advise whether they are involved in any kind of business organization and what their license is what the name is that they operate under what are the assets so they are there are other  schedule b which require the debtor to list what kind of items they have for conducting their business or trade so all of that becomes part of the bankrupt estate and that is why i am saying as i said earlier that when mr lynn testified before the bankruptcy court that the property really belonged in one of his corporations that is non material this statement of obviously you look at the deed it's got him and his wife on there is community property but it was not a material misstatement because regardless of the ownership entity whether it was a personal ownership or corporate ownership it's still part of the bankrupt estate and subject to seizure and disposition by the court now the other statement that mr the school made and i know that this was not intentional was he misstated inadvertently the date this property was sold the property had been purchased in one nine hundred ninety four as i stated for approximately ninety thousand dollars there was a fifty thousand dollar incumbrance and the linz owned as community property a forty percent interest in the property that was what they had at the time they filed bankruptcy mr must go misstated the date the property was sold he said it correct the record on that however at the top of filing the bankruptcy as just judge nelson pointed out they owned a forty percent interest with somebody else and there was an incumbrance on the property and while the bankruptcy trustee could conceivably seize the defendants or the debtors interest in that property i submit that given the incumbrance on it and the sixty percent ownership interest by somebody and as i have just noted that that perjury statement was not material to anything and because the government is relying on that that enhancement must fall at this point in time element to the offenses charge and i think that under blakely and certainly under booker fanfan there needs to be reconsideration i i will agree that the better practice would have been to have objected at that time and i will for the record that after the blakely decision and the am lean decision were in inter i was already appellate attorney at that time and i filed a motion for recent in sync which was denied based on lack of jurisdiction since the well i think it does because as the court itself pointed out the obstruction of justice is not necessarily an element of that perjury on count five and similarly the amount of money that was placed on deposit in a bank is not necessarily an element of the money laundering charge the jury could have found that the money laundering actually occurred when he deposited ten thousand dollars of that money into his personal account and took out two thousand in cash and put it in his pocket sensing purposes it's not now as important with the jury found out as it is with the court if the court can look at the facts that it can consider and finds that is two hundred one thousand why isn't that what you're looking for purpose of sentencing because there was an enhancement of two points to the base offense level based on that specific amount and the analogy but if there is one and the person's report facts which are not objective can be used by the district court so you don't care at that point what the jury said but the pre sentence report your honor king out before amalie i don't know what that really matters i mean we all warriors through you know great ideas they can see the future judges through well i don't know about that because every time i've argued ineffective assistance of counsel for not foreseeing that this