versus par mailings that are both legally compelled and contain no false statements cannot serve as a predicate for a mail fraud offense the recent case to which i refer is united states versus lake wittig which was decided on january fifth two thousand and seven significantly that after all the briefing this matter was completed by the citation for this case is for seventy two fed thir mailings that are legally compelled to say no false statements cannot support a mail or wire fraud conviction there the court was dealing with wire fraud to get convictions but also noted that the two statutes are so similar that their most other circuits to address the issue have an interpretive part to hold the mailings of documents which are required by law to be mailed and which are not themselves false and fraudulent cannot be regarded as mail for the purposes of from opposing counsel forwarding a settlement check to mr to heena regarding a case called ventures ranch mr gene didn't cause water for e mail it was not important to him whether the funds were transmitted via mail wire everybody here in any part of this case in the bay area they could have picked up by courier as was done a number of occasions here so the a mailing by a third person not under  control who i mean like has no false statements by opposing counsel who had no idea that any scheme was going on cannot provide the basis for a mail fraud conviction so a mailing  as i stand before you today i would acknowledge that the mailings to that are the subjects of counts two and five i believe arguably do contain false statements so my argument is limited to the mailing cases and those cases that are seen most of all because my argument is that supported by the ten circus responses in a way and by united states versus par is that if two conditions are satisfied and those are mailings were legally compelled and contain no false statements they cannot be a predicate for mail fraud however the mailings that issue in both the carty and kellog both contain false statements so those cases are in fact distinguish of money laundering six counts seven through love and allege the promotion of an unlawful scheme by means of sort of monetary transactions and i have two arguments to make regarding count seven eleven first of all counts seven eleven all involve payments of settlement funds to clients there's nothing illegal about that in fact mr heene is a lawyer and all of us here are lawyers you know we know we have an ethical duty to pursue our clients cases their best interests and in his cases he was a personal injury lawyer to resolve those cases and then to transmit the proceeds of those settlements to the clients and here accounts seven through eleven each one of those transactions are the payment of settlement funds to the clients those were legally compel there's nothing else mr he team could have done at that point so it was an expensive argument on the mail fraud counts under par a legally compelled act in this case the payment of settlement funds to the clients cannot provide the basis for money laundering convictions and i have another case of cite a court which is just you know dealership that was evaporated for a long time and was very legitimate with the exception of a nickel and dime to clients you know out of some fees they were entitled to for example a charge excessive title and registration fees for these cars and things like that and what the fifth circuit rule in that case and you know by the way the main the transactions issue there were paying regular business expenses like rent paying fees for disposal of waste products like w with the fifth circuit held there is when you have a primarily legitimate business and the business makes payments for routine business expenses that do not promote the illicit part of the business those can b that happened but you know nothing is part of his business the most legitimate disbursement of funds he could possibly do was to repay clients settlements and that's what counts seven eleven are so those counts cannot support a money laundering conviction for promoting an unlawful activity specifically alleged this is on page nine of our service record if you agree with me that the mailings in counts one three four and six do not  false statements they cannot be a predicate for mail fraud therefore there are only two of the remaining mailings two thousand and two and as a mailing is an integral part of mail fraud the earliest the mail fraud could have begun is with that mailing and january thirty first of two thousand and two but if we look at the financial transactions alleged accounts twelve through fifteen three of those four occurred prior to january thirty first two thousand and two in fact the transactions alleged in counts twelve thirteen fourteen all occurred in two thousand and one so if the first mailing that can possibly be a predicate for mail fraud occur in two thousand and two there could be a mail fraud before two thousand and two and therefore the money laundering counts and money one counts and twelve thirteen or fourteen must fail also because there is no predicate offense so that leaves us only with count fifteen of the money laundering charges and you know as to they have to have occurred in two thousand and two and you know i would not make any argue that was a legitimate transaction that was not so i am not here to defend that but i am here  convictions on counts seven through eleven and twelve through fourteen now i'd like to quickly address some sensing issues here and these are very important in our post worker days one might say why is the course was under five hundred thousand dollars so for national loss of five hundred thousand dollars yes one hundred seventy months that's huge now there are two people more errors and something like to draw the court's attention to the the biggest lives in determining the amount of loss under guideline section to be one point one beat one it is relevant to consider the data loss was detected and so it's actually the amount of loss that has nothing to do with whether or not there was actually fraud the fact that the victims were ultimately we pay does not negate if i get a fraud it's not to get a finding of fraud it is relevant in terms of determine number of victims specifically states that but for the big village ranch cases case there were six victims pulling the pre sentence report was looking at determine number of victims by virtue of the number of cases that were involved and here was class i think the chance he took is that the amount would be when the loss was detected he would not get credit for the repayments post detection i think that's a correct ruling and i'm not here to argue that but i think if you look at application one it does specifically defined victims as those who suffer practice in connection with that mystery team produces all of his files to stay far as part of the production of all of his files goes to the nancy fairy file and is part of that file there is a document where in certain expenses were charged miscarry which in fact were not incurred in connection with that case so that document just goes to the state bar with everything else but at this point to stay far as an investigating him that's done because he's bar's investigation in the two point he asked much not have been imposed and you concluded before my brief rebuttal time i asked that the court reverse the mail fraud convictions in counts one three four and six member rosen representing the united states in this matter i'd like to address three issues first the claim of insufficiency secondly the number of victims and finally the obstruction of justice enhanced meant regarding the tenth circuit has said about that more over i think it's not even clear that these were legally compelled mailings defendant asserts that but hasn't really made much argument about that the mailings and counts three four and six were letters that mr taking sent to opposing counsel in an attempt to obtain settlement funds that may have been part of his job as a lawyer to try to pursue his client's claims but there is nothing that would require him to do that via a letter moreover those solicitations were in furtherance of his scheme at the time that he sent those letters which account for was in december of two thousand and one and then early part of two thousand and two defendant was in desperate financial straits the government put on five different witnesses and this is in the record between pages fifteen thirty and fifteen ninety all of whom testif defendant contacted him contacted them desperate to obtain short term high interest loans which he did during this time he called mr newton mocker on christmas eve trying to get a loan of several read for sixty thousand dollars which he never could paid back he got a loan for five million dollars from thomas rankin torrey at a rate of interest payments of sixty thousand dollars a month this shows that he was desperate for money and in that context his solicitation of trying to obtain settlement funds to come into his business to use for his own purposes puts that in the context of how they furthered his scheme and in fact he did then quickly misappropriate those funds once they came in he wasn't diligently pursuing his client's interests by taking those settlement funds because none of that money went to the actual client for whom those payments were made the mccoys funds went to pay the pensions ranch clients the a b l funds also went to pay the vintage ranch clients and the conway settlement funds four hundred thousand dollars went to pay his own business expenses and then three hundred thousand dollars went to pay other clients so also yes you please address did you try this case in the district court i did not would you please address counsel's argument regarding the victims and the law regarding the class absolutely first of all i take it you mean it the guideline interpretation one i just want to make the point that i think he's waived that argument it wasn't in his opening brief the only claim made in the opening brief was the sixth amendment claim and i think by not raising it in the opening briefing for the first time on appeal rais it's been waived but in any event it should claim on it it should fail on its merits as hounslow pointed out victim is defined as any person who sustained any part of the actual loss actual loss however is guidelines moreover the victim ranch monies were in fact included in the last calculation because they didn't get it he didn't get a credit against that loss you only get a credit against a loss for purposes of the loss calculation if the fraud was detected after you paid the victims back but in this case the district court specifically found it was supported by the evidence that the victim ranch clients weren't paid back till i think beginning in march through july of two thousand and two but the fraud was detected in january of two thousand and two one would sure as of legal aid determine that the that there wasn't enough money to pay his client's back so in any event the victim ranch loss was included in the last calculation so even under defendant's interpretation the victim ranch client victim clients should have been counted as victims because they did sustain part of the actual loss but i think this court's interpretation of the loss the fact that the date just in the common sense matter did sustain a loss because they went for months without getting those settlement monies is cracked and there is a eleventh circuit case specifically holding that and that's united states versus lee which was oh yes i'm sorry seven f third eighty one specifically says that even more clients are reimbursed later they can still be victims for purposes of the guidelines and and part that makes sense if you think about it given that the last calculation  i'm sorry given that this loss would not you can be sentenced based on intended or potential loss why would we treat victims who were maybe only intended victims may defense characterization of the timing of the bar investigation simply doesn't square with the record first of all it's clear that the bogus expert witness fee claims that defendant provided to the bar were in her to make an accounting of that when she told him that she couldn't find any support for it and he told her to create these bogus documents to give to the bar and that he had been meeting with the bar investigators during this time more that he was therefore disbarred an investigation is over is not correct even after he was declared and now the bar then filed a notice of the disciplinary proceedings because they still needed to formally  and he was contesting that disbarment at least up until october of two thousand and two the record shows and the parties even stipulated that the record at page eight hundred eighty three that the application for the active involuntary inactive in roman status merely sought quote temporarily to bar the defendant from practicing law pending full disciplinary proceedings so there was still ongoing bar investigation at the time that he gave over those false billing statement i would ask that the court affirm the convictions and the sentence thank you