this case needs to be sent back for a new trial on the real facts and not the singing and ties facts that the jury got to hear the first time really the jury didn't get to hear the whole story in the the marriage evidence and that evidence was critical because it went to the credibility of gary rogers and this case does not happen without gary rogers he was the only witness who testified on the issue of story about the documentary evidence that she was the sole signatory and that she had sent to her p o box and like i think any of the other accounts that were the business use she explained that she explained for one thing on the abusive voicemail messages there's a bunch of room in the break but one of them begins motherfucker he was threatened repeatedly in the boys no no this is just me manipulate the justice system to get revenge at the trial this case ok also he said anything which probably means everything but it seems to me it's within the trial judge's discretion and our issue is whether he abused it in deciding whether more evidence needed to be introduced on the acrimony between these two individuals and was in a deuce do you accept that some evidence of they have bitter relationship between the two by the time of these proceedings was introduced act but that's the point all the evidence i did not have to come in and in most cases of one particular point one particular issue here though the relationship between the two parties and some of that evidence came in and it's up to the district judge to control it so why is this particular evidence more provocative is it just that there's more of it what what's the real question you think for us source whether or not there was jealousy on his part which he was going to spin it you don't have to you don't have to take the word of the witness when you ask the question that's why in bias cases extrinsic evidence is always admissible so we go back to burden embodying they have evidence impeach the credibility of the the contractor who testified in that case but there were other attack attack his credibility and the defense was limited that's her constitutional right to examine the witness on the witnesses motives for testifying falsely and in this case the examination was limited and said in an abuse of discretion the question is abuse of discretion only if it's a question of limitation of cross examination where there's other the question is a constitutional issue if there's a limitation on the source and here that's what we have is different sources that were not allowed to be and see him and because kim boies was allowed to introduce that evidence of violence that was another source for sure and the threats you studiously usually have a constitutional right whenever there's a new witness that the witness must be allowed to testify even though the judge might think the evidence is because in that case the king a little what i'm saying is that there was a different reason for him to be bias he was embarrassed about that in the break he wanted revenge against  or and that gets to you there were two things number one the sources were limited because the violence was not let in and that would have been another source of reason for violence for bias and the other thing is that the trial messages there are transcripts of threat after threat after threat to use the justice system he said i'm going to throw you in jail i'm going to throw you under the jail so what we have is a different source and i think that that's more like where they said it you got to attack the credibility on one two and three which was his movie the contractor had a bunch of previous convictions that's not enough if form five are limited so it's not just more evidence on the same source it was different evidence that showed a different reason for him to fabricate his testimony and if this is evidence were to come in the jury would have known there wouldn't be anything there was no point beyond which gary rogers for go to introduction of these text messages was because i think i think there's direct quotes that it would paint the paint him as massage honest and racist basically show what a bad guy here is and so i read the district judge says well no you can't just dirty someone up like that now you're presenting it as a biased issue where in the in the motion in lemony hearing was a presented as biased but as opposed to him being a massage analyst and the racist he said he said buys throughout the time th put in all these text messages and all this was there ever a point in the trial where defense counsel picked out just two or three and said judge i understand you don't want to get into pages and pages of these but just be so the best ones for our case that was a tax that was a voicemail you have to have the contacts and show what happened from these guys from december the incident started a little bit before that but most of it is from december through may of two thousand december two thousand and thirteen to may two thousand and fourteen and i think it's important that you have the context of how this progress because he became more and range and he started making outlandish allegations  other people just seemingly randomly i mean there were people that she knew but the allegations were completely unfounded so if you ask that wasn't suggested by the trial court and it of assets that she would turn otherwise the calculation of the law yes from the first thing about that is are the important thing the first important thing about sentencing and restitution is that we know that the trial court here because the trial court these are both abuse of discretion standards and the trial court made an error of law and an error of fact because he said his only findings on that issue is i find that the property was stolen and nobody ever said that the property was stolen this is property that can in theory bought together that was jointly in their names and she was what she said that she had turned over full ownership she ended as a joint owner she had turned over full ownership before detection and the charge and said it was stolen and so you don't get a credit so number one the government's not saying here and they didn't say in their briefs or at the aren't they here that it was stolen so we know that's and you're a number two if you do return stolen property you are still in tile to a credit against loss if you return before detection that's wasn't the case here and so would the government did is they didn't offer any evidence th because the trial judge found against them before there were even that a chance to say anything he said now it was stolen and says you're not getting a credit there's no evidence for any findings were guarding the evidence that was returned and she had detailed evidence on each piece of property that it was in both of their prior to detection that it was turned over to him so he became the foreigner and some evidence of value and this is preponderance of the evidence to enter the government didn't put on the any evidence and the hearing all they said is gary paid for it but there was conflicting evidence on that who you start out with the presumption first of all that and kim testified when she was asked on cross examination sigil you pay for that didn't and she said now that was our money i had my own money i had a job and she had a full time job and a business that was not  entire time and she said that it was her money she put in detail evidence about the ownership and detailed evidence about the value and she got no credit and the judge there's a whole section of the government brief where they talk about well this really doesn't prove that you don't get there but the proponents of the evidence standard you're pretty low the fact is the judge didn't look at the sufficiency of the evidence he made an error saying that the property was stolen we know that it wasn't and then saying also that the someone properties that eligible for credit so if you have an error of fact in an error of well that's an abuse of discretion this is to go back at least for the judge to look at the evidence which there is no evidence that he did in this case thank you good morning may please the court this is a classic embezzlement case in this case this voice mr rogers testim assets as her own and consciously stop to embezzle them during the period when she didn't even work for the company she said tisha slee went and opened to wells fargo's account where she was the only signatory she funneled millions of dollars through those accounts bankrupting him and the evidence supporting that comes from multiple sources it comes from both document area evidence witness and mr rogers as in this case the evidence of bias that the defendants sought to introduce would have been inflammatory and highly prejudicial and irrelevant there is still not one instance of linking how any of that the tickler instances other sources i think was the phrase would have been any different than the evidence that the jury heard if you look at the cross examination well let me ask you this mr gay you saying that it would not be any different evidence seems like you're also saying that it's not relevant because the documented i know that i haven't and she's made that the basic point of this evidence is you can't believe what you witness is saying about his being unaware of the wells fargo accounts that he was faming surprised when wills fargo when with wells fargo and asked me initially about this account  so it does seem to me that in so far as that we need to be made with could have been made with bias evidence isn't this better evidence that was being offered by boyce and anything that they were allowed to present that this kind of relationship and so soured that it's a fair prospect really something for the jury to consider that he was a frappe or kading his lack of knowledge one of the critical things to remember in this case is that the embezzlement took place in two thousand well all of these text messages with meals are in two thousand and fourteen there is no way logically that voice mails and text messages concerning his motive in intent have anything to do with her embezzle meant that incurred two years earlier but in the issue of whether she wasn't battling two years earlier if he was aware it if he were aware of that but not willing to admit it later at the time of trial the fact that in between those two events the the opening of the account and his testifying he had this destruction of his relationship with  with the defendant so i don't see how the years that you're talking about are particularly relevant and then ours in this case whether he used horrible lang whether he was  relationship that they and it's thoroughly developed in the cross examination but these texts are to a different degree i mean that's i'm sure that's what the government found a motion in limine to exclude a view they were to a different degree i would have been required the court clearly under a confrontation houses or four or three and as long as it provides an avenue for the defense to assert their defens not but but yes he was extensively cross examining about all of that i did you threaten her or compel her to return property yes i did at various points eat with the  said you know she came clean it was cross examination the jury got to hear the substance of the fact and the relationship between the two was extensively florida cross messages and there was never any attempt during trial to say judge there's been a variance we'd like to ask this is relevant to this issue there was never an attempt to focus out of that entire cache of documents what would have been essential to their defense there simply just was that was just not done in this case from the beginning to the end from the opening statements through the closing arguments the jury knew that these two had a blowup that was one of the phrases used that they were in a very  d disagreement that he had filed a civil suit against her that he was pursuing criminal charges and by the way all of this is really not even part and parcel of the tax counts as well that she was convicted of as so the idea that this would require a remained for a new trial i don't believe that any of the acrimony goes to the existence of her tax fraud which is many of the counts in this case and she did receive the sixty month sentence which was a downward departure on all of the counts concurrently but at the end of the day the evidence of bias in this case is clearly before the jury did the defense get to place inflammatory and then potentially misleading in the sense of as i said whether people are having affairs or whether the existence of the truth of those things for example whether he choked someone or whether any of that it was just never established no witnesses were brought in to say yes he choked miss boyce on a certain date all of them were just rank allegations between the parties and i think a fair reading is that they were equally engaged in this dispute and miss voice clearly took the stand she gave her version of events he took the stand both were subject to cross examination this is not a circumstance where we have a inability to conduct cross examination of the witness the subject of the of the text messages or the voice mails they were on the stand so to the extent there are many many ways to explore the existence of bias in motive outside of putting as i think the word was highly embarrassing and perhaps in appropriately distracting information before the jury and that's what for zero three allows the district court to do so from the constitutional perspective she was able to present the defense from a four zero three standard it was not  can be said that that affected the sentence your honor and i'll explain why the threshold in this case the guidelines level was based on amount of loss of the least one point five million we started off with the figure of intended loss of two point seven million roughly in this case it comes down to a dispute between her calculations and of one hundred twenty four thousand dollars if there's one hundred twenty four thousand dollars which the district court properly excluded there was no guideline there as we point out in the brief and it's reflected at sentencing there is a six hundred forty two thousand dollar delivery for them to get below the one point five million threshold for the call last calculation on top of that all of the return of property is that i think all was easily after the offense had been discovered and to be one point one specifically talks about that you do not include the amounts returned after the offen was likely discovered in this case i think the timeline is set forth in our brief certainly shows that virtually all of the things that were returned was the result of his demand that she return those things having discovered the fraud but even if you're right about those things for loss calculations that one and they would be entitled to those reductions for restitution the timing doesn't affect restitution for example so so how would you address restitution so i'd like to begin by saying if it's if it's spread i also think it's not preserved absolutely there was no objection to restitution would be on plane air and for the same reasons the six hundred forty two thousand so to start off with for restitution the amount was two million thirty nine thousand starting point so it was already not the same number as the amount last place starting and if you were to take away the same six hundred forty two thousand dollars which could not be verified the amount of restitution would once again be aware and it's clear from the sentencing transcript and i know there was some mention that the government didn't offer any proof further questions i will feel well take it long start of us and then he is wrong to say that the fact that there was cross examination on some of these issues like the act with me is enough to satisfy the constitutional right that kim boys have to confront  rogers about his motives for testifying falsely saying that there was acrimony or tom well doesn't say what's in these texts and what's in these boys they are messages they paint an entirely different picture and the jury was entitle to see the full effect of that in order for pin boys to be able to put on an entire defense and when gary rogers was asked about whether or not he threatened can voice on cross examination he d decent not i wouldn't put it that way i told him what was going to happen which is a lot different from saying i'm going to use the criminal justice system to get revenge against you the jury was entitle to hear that and so believe that that's exactly what he was doing as the wife handling the finances but opening up those accounts so that he could get credit from wells fargo then later they have the falling out who becomes jealous all these different you she's come and then the charges after that that's when evidence from geary on the tax evasion or that would have made a difference on that that's where the marriage evidence comes in that's where the marriage evidence is very important because if it was his money and he was letting her be in charge of it is be