by the housing corporation one step relating to a site been paid by the california united healthcare workers crew for short and one count relating to statements on the loan application and was directed elsewhere by the court of plan to focus my argument on four of the issues that we've raised on appeal the sufficiency of the evidence on the housing corporation counts the admission of a what the government claimed were draft minutes of a board meeting to prove the the last calculation under the sentencing guidelines and the restitution award on the loan application now i want to start with the housing corporation counts counts ten eleven which charge mr freeman with embezzling money from the service employees international union local sixty four thirty four by requesting that union pay money for the housing corporation without disclosing to the union that the housing corporation would then pay the money to mr freeman the charges are brought under the labor investments that choose section five the one series of title twenty nine which makes it a crime to embezzle money with the intent to the fraud from a labor organization of which the have wanted that to be done the government did not offer and really didn't even try to prove that the local didn't want the money at issue to be used for the purpose for which it was ultimately w understand the government's theory it was that when he sat on the executive board of the cia you he was receiving a stipend of roughly twenty five hundred dollars a month and at some point the international decided to discontinue that stipend so his income was going to be cut and it looked to me like the government's theory was that by inducing sixty four thirty four to quote make a donation of twenty five hundred dollars a month  housing corporation the government's theory was that the housing corporation was just a pass through and that he basically figured out a way to get his twenty five hundred dollars back that had been cut from his income emraan i think that is a fair statement of at least one of the government's theories i think it's got a number of the clued in that actually the housing corporation was a label on the station money wasn't from the housing corporation but doesn't matter i mean as i understand the government's theory money laundering that the housing corporation was just a shell if you will through which the money passed and it was cloaked in a way that looked like it was money that was being supplied by the local to fund the operations of the housing corporation when in fact it was just a pass through what it was there were the government's precise theory it has to prove what this court in for dorson said is the essence of the crime which is that freeman took money from the labor organization the labor organization here is the local the local union knowing that the local would not have wanted that to be done all of the evidence in this case is that the local wanted the money to go to the housing corporation and there's no evidence that the local cared one way or another what the housing corporation ultimately did with that much less that they didn't want i think for sure that they didn't want to give it i found there was testimony that nobody on the board of the local new other than the president who essentially was ordered by freeman to sign the necessary documentation in order to make that happen it had never been presented to the board to obtain a resolution authorizing it as far as the board knew they were just supplying twenty five hundred dollars to help this housing corporation because it had no other source of money when they started doing well the other things you just described is actually evidence relating to the housing corporation i think you're talking about the for the president of the housing corporation derrick's meth and i think this is really a telling point as far as our submission is concerned virtually all of the at the government's evidence on this point virtually all of the evidence on which the government relies on this court defense of the convictions on these counts has to do with the housing corporation and the freemans relationship with the housing corporation there is little if any evidence as to what a local  because we're talking about embezzlement from a labor organization because it uses your idea mr hamel farther after the yes now you exactly the board of the international said we're going to cut off twenty five hundred dollars two to the defend then uses position as the in the local to say well how about you guys pay me the twenty five hundred that the executive board doesn't want me to get and the locals and find we're going to do it we're going to thumb our nose up whether it was a subterfuge or not the what what's what what's the business proposition you want to use a text term what's the business purpose of giving it to the housing corporation if they can give it to the defense straight out right that the purpose is that the local had a paying freeman directly i think the trial record speaks to that but it's our position that was the government's obligation which had the burden of proving the thoughts of the crime beyond a reasonable doubt that the local didn't want it to go to freeman and there's just no evidence on that point there was no representative of the local who testified as to what the local wanted this wanted to be done with this money and we certainly know that he testified that the local didn't want to go to friend mr some of our how do you explain the significance of what i call the audit evidence that when the sci you announced that they were going to look at the books and records of local sixty four thirty four your client allegedly  talked to mr smith about papering the arrangement any asked him to backdate a quote unquote replacement contract which mr smith testified was not truly a replacement because it terms that were not included in the original i mean what i say about that is what i said about the evidence you identified in your earlier question which is that all of that there is a part of the housing corporation's design you know as i understand and maybe i missed read the briefing here but as i understand the record mr freeman learned in the summer of what was a two thousand and eight that the international was sending out auditors or somebody to review the books and records which would have included both the local and the housing corporation and in advance of the arrival of the auditors he orchestrated the paper going on in the housing corporation and again this gets to our fundamental point which is that the crime that the government really seems to be defending on appeal is the crime of investment of money from the housing corp i guess i'm not so sure that i view the evidence that narrowly is getting back to judge perry is question what was a legitimate purpose of doing it this way why would he need to insert those kinds of documents in the books and records of the entity if it was truly a legitimate arrangement well the the the question of whether there is an element with an intent to defraud as i've said ultimately reduces to the question whether the suppose it victim of the crime would have wanted it to be done or not but when i both know from having done these cases for most of our career that a badge or ind fraud is post conduct behavior which is designed to fro auditors off the track and why isn't it permissible for a reasonable fact to look at what mr freeman did and say if this was an above board deal why did he have to do this in order to hide it from the auditor i guess my multiple my ultimate point on this is that what inten defraud means in the context of an embezzlement statute like this one as this court said in third or second is that the money was taken by the defendant knowing that the union wouldn't have wanted it to be done and whatever doesn't that go to his intent it does of course it does but it's just one aspect of it and whatever can be shown about what was in mr freeman's mind there still has to be a showing to show that he knew that this wouldn't have wanted the union would have wanted it to be done that in fact the union wouldn't wan to have been done and there was not a so as i said there's not a single witness from the local who testified what the union's desires were as far as money was one side other than that it go to the house or peroration so is it a problem of direct  circumstantial proof is that what you're arguing you know on your sufficiency i guess i'm i'm not sure there's a distinction between direct and circumstantial what i'm saying is that what an intent to defraud when it doesn't with intent to defraud requires proof of whether it's director circumstantial is that the labor organization didn't want the thing that happened to the money to happen to you and i think in in answer to my earlier questions your position it has to be that the art of what i'll call the auditor evidence instruction on this count require that mine intent to defraud was to the local yes it did yes i believe so i thought it just an intent to defraud you have that language i don't i don't have it at my fingertips my understanding is the charge in the indictment counts ten eleven clearly identified the local as the victim i'm i'm pretty confident that the jury was instructed that that was the nature of the charge and then the elements were describing pretty general terms so if you hear the general description of the elementary description of the charge i think it necessarily follows that the jury was instructed that the victim of the crime the doesn't have to be from the local let me turn if i could to the  and what i would i want to focus on is the admission of what the government claims are draft minutes they were admitted as a business record under an exception to the hearsay rule eight zero three six eight zero three sex has five separate requirements as preconditions for admission it's our position that no fewer than three of them were not satisfied the first one that there be evidence that the document was prepared by someone with knowledge of them at or near the time we think really can be the beginning in the end of the analysis i could think i mean it doesn't take issue i thought the testimony was that it was prepared from a recording and that there was testimony from someone at the meeting is it not i mean it seems to me the district court thought that your objection went to the weight not to the admissibility and both sides introduced minutes evidence the only difference here is that this particular exhibit was a draft and had not yet been finally approved because there never was another board meeting after the june meeting when these draft minutes were prepared by them we were and we think that's a critical difference and it's also the fact that it was it doesn't go to the way because you have as preconditions for admission under eight zero three six these five separate requirements it would be one thing to say there was some evidence as to each of these five and i the district judge in my past  deciding whether evidence can come in and find that there is you know prada facia evidence as to each and to the extent that you have any issue with this mr freeman you can argue to the jury that this goes to way but that doesn't mean that you can simply ignore three of the five or even one of the five requirements and offer no evidence at all and say well that's fine we'll just let the jury but i suppose if we hear a catch all provision under eight o three that evidence may be admitted if a district court finds that it's otherwise authentic and reliable there it wasn't it wasn't offered under that provision no but it's not it's admission is not defended by the government on that ground so i think it has to stand or fall but the court did hear testimony did it not from the clerical  staff who normally prepared the minutes well the two pieces of evidence that the district court relied upon that the government relies upon our testimony from an essential a political person fallon who said she was involved sending the draft minutes around to the board before the next board meeting for approval and she speculated that this one was different was different from the other ones because it was made from a recording but she still said that the regular practice  to prepare the minutes within a month because that's when the next meeting would be and she thought this would have been the same right why is that not evidence that this was prepared nick close to the time of the meeting because there is no evidence as to even if you  that this was made from recording there is no evidence as to what happened in connection with the making of this document from the recording in other words is it a verbatim transcript or is it something else there's no evidence us to what happened after it was prepared  edited there was evidence that the minutes that were ultimately approved by the board were in fact edited this was a these are two thousand purportedly two thousand minutes of a two thousand and eight meeting offered a trial many years later there's just no way of knowing but applying our standard in hanks and i mean those arguments sound to meet our weight arguments that the jury should discount the reliability of the content of the exhibit not that it's in d showing they that the expert is reliable and and so on and certainly a judge would say over objection i'm going to allow this expert to testify and you can argue to the jury that he's not as reliable as the proponent of the evidence car may have a place to work morning charles economy half the united states i want to start with the defense started with the long term care housing corporation counts and i want to take a step back and look at the overall scheme that was involved here which i believe judge tolman fairly accurately described here was a defendant who was receiving approximately twenty five hundred dollars a month in an international strike and who  that money introduces to the local of resolution to give the money to the housing corporation he doesn't reveal to the local at the time that he plans to get money from the housing corporation himself the local has no reason to believe that he's going to get the money from the housing corporation because he's been working for the housing corporation without additional compensation up to this point the next thing that the defendant does the defendant to the board members at their meeting and the language is a resolution very very clearly states that the money is no longer going to be going to the fact that it's going to be going to be you and that what the union intends for it to be done so because presented that person with the so called consulting contract so the timing and the circumstances of smith's appointment the timing of the circumstances of the defendant's urging the local to pass the resolution  on evidence that the defendant was aware that the local wanted the money to go to the housing corporation and not to the defendant himself and certainly under the the standard of review here it's it was rea consciousness that the union would have proved that because what the union wanted to do with the money was have it go to the court has a corporation not go into the defendant's in the part of your theory that meth was in on the fraud that he was helping intentionally helping the thrive that's not the government's theory and i can't speak to whether that's the case or not but certainly smith was someone who the defendant was able to direct and control and smith was not someone who w stand up to the defendant and say hold on a minute i'm going to look after the housing corporations interest to make sure you don't get this my arm and that's evidence for the fact that not only is the defendant is appointed by the deceptive despite the defendant's lack of any real position on the housing corporation but the fact that when they defended for example mr smith with the backdated second version of the consulting contract the government advance two theories as to why this money was in fact the unions money the government is not arguing that the long term care housing corporation itself was here and the government is arguing that with respect to the minutes the only real issue here is the fact that they were not adopted by the by the board and they were not adopted by the board because there was never any subsequent meeting  how do we know they were made at the time of the event so as i understand the testimony we know that usually they were made before the next meeting but here there was no next meeting so if the person who was usually made the minutes waited till the last minute because they waited till the next meeting and there was no next meeting how do we know when these minutes were made well we know that they know that a recording of the events from which they were expressed surprise obviously had to take place at the time of the meeting and so i think the distinction it is not particularly significant with respect to whether the whether these minutes were transcribed immediately preceding or excuse me immediately following the actual meeting or sometime within the next month like the others were we so is your position really the timing doesn't matter at all because there was a recording it doesn't even matter if it was within a month well if you other minutes were sufficient and they were made within a month  what transpired at the me thing i was there that's for and i attest to that and then you had the testimony of this clerical person who actually circulated draft minutes to board members on prior occasions which were later adopted as fully approved minute that's correct and the question is whether or not the district court abused its discretion and under the rules of evidence in admitting the draft as opposed to well there are no formally adopted versions here that's correct there's no formal you adopted version here which is what distinguishes this from the case that the offensive stopped but here it's mr morris testimony that judge john and referred to that collaborates that these are an accurate representation of what occurred was it was a recording of a will try no run of the court in the recording wasn't available and it's my understanding that no one knows what happened to the recording so there was no opportunity to taken from a recording they appear to be a transcription the minutes reflect on a logically what the witness states chronologically occurred they reflect the substance of what the witness states down logically and heard and so  think i actually do ok and could you respond to this argument about whether the intent needed to be to a particular entity and what the jury instructions said about that oh yes instructions are clear that the victim of this entity is the local and that the money had to be on to the local and and thus it's a reasonable are reading of that that the intent to defraud had to be on the local so you're of this case and if i could just reiterate the evidence of the intent to defraud here was sufficient he didn't disclose to the union that the payments were going to go to himself he didn't ask the local to pay themselves directly he referred to the fact that he was getting a salary reduction all the while he had control of the entity that he persuaded the union issue to give to donate the funds to as well as compensation and as well as his conduct regarding the audit the fact that he approved the payments to himself without any supporting documentation until all of a sudden here comes here we are on the eve of the audit and suddenly the defendant is tryin multiple time sheets to support these consulting can't stand soft and back getting a different version of the original consulting contract so even though many of those actions took place with respect to the long term care so what is the theory essential even though it's a five a one c violation it's a kin to wire or mail fraud scheme in other words we're looking at what was the scheme to defraud here but the jury still had to find in a passage of title so to speak from the local to the housing corporation when it was never intended that the money was going to stay at the housing or i don't believe that it would and that's the government's indirect grounding union funded the long term fair housing corporation and the unions officers of graham the long term care housing corporation freeman and the unions president despite not having a wall on the long term care housing corporations board manage restrictions or care one way or another about what the housing corporation did with the money after the local gave it to the housing corporation ms o'connor relied on what she said was the plain language of the local resolution of plain language of a local resolution is that we want to give this money to the housing corporation says nothing one way or another of the health whether it cared one way or another what the housing corporation did with the money or placed any restrictions on it ultimately the government's theory of embezzlement as to the local and as i've said i think it's real theory is that there was embezzle man from the housing corporation which might be a crime in some or all but it's not a crime in the world  about i was teasing out with ms o'connor this notion of title passing what what if the theory that the government offers is true that there was never any intent to give the money of the housing corp was simply to use the housing corporation as a pass through so that he could replace the twenty five hundred that were it was cut from his salary by the international i mean i don't think there is any evidence of that but again this get that gets back to a point that you and i were discussing earlier which has at most it bears on a specific aspect of fraudulent tax which was what it was and mr freeman's the government also has to prove that the local didn't want that to be done so even if you think mr freeman was trying to trick an entity to part with money if in fact it turned out that the entity was perfectly happy to part with it in exactly the way that it ended freeman correct right i think ultimately as i was about to say before that is the government's theory of them doesn't lend as to the local which is that mr freeman didn't disclose to the wall that after this money was given by the love of the housing corporation separate reason why these five hundred one city council just don't work but apart from the fact that the government didn't prove that the local didn't want the money to end up in mr freeman's hands well that that goes back to the discussion we're having on on the significance of some of the evidence stablish the intent to defraud but the question is whether there was a nothing in this record from which the jury could find that the whole purpose was to hide this scheme from others board members of the local and reimburse him for money that he wasn't getting it right and what i would say about that is whatever else that may or may not prove doesn't prove that the local didn't want the money to get used to from the opening i think we have your arguments in