may please the court my name is john leaper i'm from el paso texas and i represent thomas e balsekar i want to start with the insufficiency of the evidence yawners as a preliminary matter a defendant does not need to make a rule twenty nine motion in a bench trial to preserve the usual standard of review for sufficiency of the evidence on a claim on appeal with that being said your honor no rational trier of fact could have found mr ball sugar guilty beyond a reasonable doubt of executing a scheme to defraud manufacturers represented by c m s on dates between november two thousand and two and february two thousand and three based soley on an outdated contract that related to archaic method and obsolete method of processing coupons in this case your honor the court found mr ball so you're not guilty representing himself they found him not guilty the court found him not guilty of counts one through fifteen all the counts involving in c the coupons process within c h because i o s's two step contract with in c h this one page document did not require that i always provide physical store tags identifying where the coupons had been redeemed by you know in a fraud case i have a hard time seeing how the terms and conditions of the contract are relevant especially after the fact with standard review here on the sufficiency of evidence your honor there's no doubt in my mind that this case was decided entirely on the basis of these two contracts one of which was void there was only one scheme proven articulated by the government and the witnesses one scheme and that the evidence was the same the court found him not guilty on in c h because of the contract because it did not require store tags and found him guilty on the others because they did require storage tags and the court made the basis for its holding crystal clear reasons for its verdict no sir not did not at the verdict i think you're referring to just the comments made it in the sentencing yesterday or yes sure i am but the sentencing mirrored exactly what happened with require store tags but that's not how they were processing coupons with c m s at the relevant time they were using one step processing which would not allow diversion so there was no scheme to defraud anybody the court a was did not have to provide store identity to in c h what the court did wrong was it relied on an outdated and void contract to determine i o s his obligations at a time when he was using an entirely different method of processing coupons there were no physical store tags with one step processing into step processing the coupons came in they were counted i o s paid the store for those coupons attached to physical store tag the coupons sent to the redemption agent who then counted the coupons again and then paid i o s in the one step processing there was no physical store tags the two processes were combined dennehy was sent been right there they weren't they were real mr and redeemed the diversion was simply taking them and rather than submitting them under the true name of a small store which which manufactures didn't want to pay they didn't want to pay and they could not pay because there was no recourse that the small store had again the manufacturer on the other hand manufacturers paid the big stores because there was recourse and there was things that they could do the white knight project proved in those they went out and and used i don't know hundred two pounds at the store and then submitted them for payment and seventy percent of those coupons got rejected for no reason they had been used mr mulcher was trying to get paid so he simply coupons from what is to kuya those coupons were then put into coupons submitted by big stores and then sit submit it for payment and that did reduce the charge back rate and there was nothing fraudulent about it because iowa asked in c h is one page contract said nothing about store coupons it didn't address the i mean store tags and didn't address that whatsoever the court related relied on the two step contract with c m s to determine its obligations at a time when it was not using two step process that two step contract was replaced by this thirty five page contract with all sorts of schedules and details it's a completely different method of processing coupons there was no fraud in c h didn't require a store identity and i was didn't give it to him and there's no evidence your honor there's no evidence anywhere of a step as a scheme to defraud under one step processing no witness described some way to manipulate the data change refer did not the government in about a one paragraph leading question said did you come to find out that they were being c m s was also being diverted the only thing that mr first said was the word yes applied to c m s as well what the government convenient leaves out is the timing of that complete with quaker oats which was in the year two thousand before i o s entered into a two step contract  m s mr furr did not testify that somehow it included it he said the word yes and that's it and mr and your honor his all of his prior testimony defeat defeated that his prior testimony was they used to say one step process and from two thousand through two thousand and five he testified that with one step processing there were no physical store techs moved back to the middle of i'm sorry  unfortunately the recording seems to go together with the application which causes a problem but we do need the proceedings recorded as well just for that your honor he keep the testimony was that mr firth told mr ball so you're at the very first meeting in april of two thousand diversion will not work with c m s because they're all one step process and the government wants this court to believe was i need that liz pendants lifted to sell the home because i need proceeds to retain counsel mr espers in particular yes ok well the home in fact looks to me like it was sold but it was sold a year later your honor was all in february of sixteen but we don't the die and the die had been cast mr most of your sixth amendment rights were violated the day that he was deemed to have waived the right to counsel the court gave him a constitutionally offensive ultimatums you either hire counsel within twenty one days who says he'll try the case in eight months or else you represent yourself i know you say that i understand that but it is clear from the record as i read it in may of two thousand and fifteen the trial court was warning your client about the risks of going pro se and urging him to get counsel your honor i don't believe there's any col whatsoever by the district court warning mr maule sure about the disadvantages of representing him protests pro se i believe everybody both parties agree there was no colloquy whatsoever i mean that's fair on no formal morning b telling him in may of two thousand and fifteen you can get counsel ok first of all the dye had already been cast your honor his or his rights were violated back in january when the court gave the ultimatum the court said either have an attorney or represent yourself mr ball so you're asked does that mean i have to have an attorney who's ready to go to trial on october the twenty sixth two thousand and fifteen the court said unequivocally that's right you have to have an attorney at that date so your honor what happened thereafter i don't see how that unwinds of the constitutional violation and i don't believe that it unwinds the constitutional violation whatsoever i don't winds it in the decision was made after the deem the waiver the violation was complete at that juncture it's not his duty to unwind the violation caused by the court w harm occurred to him that couldn't have been and why bring in new counsel what harm occurred to him that could not be undone by using his assets to bring in m esper or some other lawyer your honor he was not allowed to use his his assets he was told unequivocally you can't use your assets you cannot hire mr ashford and you have to be ready to hold those things and know that  yours fault that this case was was going on going for eight months a lot of motion your honor to be a trial if i if i may address those motions the government of the government and ind icted i o s the interesting immediately thereafter they were successful in getting i o u s to waive his attorney client privilege with regard to hundreds of thousands of documents in the possessions of three law firms your legitimately claim to turn a client privilege work product privilege with regard to many of those documents it took the court to if not three years to rule on them and your honor the court ruled that hundreds of those documents were in fact privileged including the abigail platinum all that was front and center at trial and now the government is trying to discount and run away from because in it mr ball sugar admitted diverting coupons within c h but denied diverting coupons was with c m s mr ball so you're scuse me mr abraham filed meritorious actions on behalf of mr moss or your the government could have gone to the government got an indictment without those documents the government think you are sorry obstruct the investigation and prosecution the court asked about the delay pointed out the delay it was extremely frustrating to the government the victims and the witnesses especially the witnesses who were the target of intimidation efforts by do you make sense on a sort of back yeah i can make sense in a couple of different ways some of which require more all of which require speculation as we don't know what the judge had in mind disagree with that and present the evidence in our view that status the scheme applied to clients represented by both manufacturers agents if the court is asking me to speculate as to what the court may have had in mind i'm happy to do that there had been a lot of finger pointing and saying it was all and c h was all and skates this is just a business dispute it's contract matter we're fighting with and c h and c h and c h their client their contract is different your honor that's what mr boster kept saying look they don't want this specific store information and that's when the contracts were set or his defense it is possible again and i don't think it's necessary or in the record for this appeal that the court simply wanted to p issue from the equation given what was going on and knock those issues out for appeal i can't speak otherwise to what the district court may have been thinking in that regard but what i can tell the court is that there  sets of coupons if you want to simplify it coupons and its rapid pay program that it knew were likely to be rejected and which the district court ultimately found the bulk of which had never been even used at a store they have coupons they know are going to be rejected and coupons they know almost never get rejected from large we tell chains and so what i was decided to do and mr boster is direction to make money was to take those coupons that new would not get paid lot about them provide false store and retailer information to manufacturers and get them paid it was a simple as that now there was a step in that for some coupons where internally they removed store tags that they had attached themselves before providing false information out to the manufacturer that's just one small that just tickle step how they did other things too including altering the appearance of these coupons first and campus carts and in the cement group of sunday inserts from the paper they're all the same line up ten sheets so they're the same and cut them all at once and save time so that's going cut mass cut goes hand in hand with mint condition and so that's what they were doing was altering the appearance to make sure that these these components got through and the court heard testimony from nine i o s employees from executive to plant manager about what they were doing additional evidence from others who became aware of it when working with us and evidence from witnesses who described the fraudulent nature of the rapid pace of missions at the plant folks stay for as well carry  it they were in essence it in essence yes it wasn't skimming those proceeds they were skimming from their clients as well but generating those proceeds from that they were actually paying for these coupons upfront and they' funded programs certain they would pay them a retailer we're taking these and we're going to pay you will reconcile it later and that way the retailer doesn't even know what's being billed out in its name both from the small store and the big store perspective and then just keeping the money when it came in and that's that's really what it really what it was with respect to the contract now that does not wipe out the sufficiency of the evidence when viewed in the light most favorable to the government this is a fraud cases just got her a motion in title the rule thirty five motion procedurally it was inappropriate so the court didn't reach the merits but in that motion he asserted that this one step contract was the basis for your conviction of me your honor there could have been lost because of have found a way to weigh in at that point but found that mr ball scores claim was contradicted by other evidence which in fact it was the court addressed to the city for questioning with mr with mr leeper this morning submit that even if the question of did there come a point were to be considered leading certainly could figure out whether i was testifying as the person asking the question or whether the witness who was sitting in front of him was providing that information and again that's only one piece of the evidence about it not being limited in the manner that mr leeper claims that the court had additional testimony from dave howard who ran the plant to which the coupons were diverted the plant that buildout the large client coupons the small store coupons came in and war as mexico the diversion was that i was physically move them hundreds of miles away to build them out as the large store coupons and the person in charge of receiving them and billing them out with the false information on them dave howard testified i couldn't live i could limit that to any particular manufacture i'm going by retailer so i have a large retail chains coupons on the why i'm dumping these coupons from more as that are coming in and in with those coupons i'm not controlling it by if it's going to a c m s client and then c h client procter and gamble which doesn't use its own which  gamble dealing with issues caused by the scheme and talked about other disputes caused by the scheme which were outlined in exhibit seventeen mr leeper is right we did make issue of a quaker oats issue it would encourage the court should have interest to look at exhibit thirty seven which is the correspondence back and forth between quaker oats and i asked about these quaker says mr right that's related to it coupons in two thousand and that's when the scheme and diversion started april of two thousand a year before this one step contract even came into being so the scheme was up and running in fact the audit records show forty nine million dollars in deferred coupons just in two thousand but those quaker oats going they say they got these coupons we pay it we don't hassle them and we look at this number and we're seeing all these fish use and we're seeing things like coupon redemption rates at one hundred fifteen percent of the volume of product they bought or coupons fifty thousand coupons being redeemed for product they don't carry what is going on and so they're looking at this and what's really interesting if you drill down into the details is they specify which invoices they're talking about and they all start with an eight and there was witness testimony that explained that's how i o s initially tracked the fraud how they tracked the diverted coupons because they used invoice number starting with eight or nine which were outside the normal sequence a customer or consumer who has purchased the products listed on the offer on the coupon and the retailer complies with the manufacturer's redemption policy and terms and it's interesting in litigation before and it's in which if the court looks at things other than goods so mr bosler and i was to take in the position they weren't goods they had a right to payment of payment in tangible or general intangible based on the compliance with the manufacturer's redemption pages forty nine and fifty that the bulk of the rapid take were gang cut and had never been used to purchase a product so that's really what he started with this ok the bulk of these coupons that we're talking about were gang cut had never been used we know that i west diverted two hundred sixty five million dollars worth of these compounds just in two thousand through two thousand and three so if i the district court assume that fifty percent of them had never been redeemed that's one hundred thirty two point five million and i will apply mr boster his point of ownership percentage from that so in other words were only talking about coupons that had never been used and can have been know about you so that's why one of the reasons that we believe the district court with correct counsel but if we look at the rest of the record it shows that he did know the risks he indicated and he explained this in his testimony that this was his life he was on trial for his life he said that i'm not waiving my  right realizing that the right was important and he claimed early on the district court was violating his sixth amendment right and threatened in appeal which would show he knows that it would be a bad move to go by himself again argue that the trial would be a waste of taxpayer money because of those errors he had the supporters as he explained that his entire circle and his son were also attorneys that he would stand by counsel showing in appreciation the difficulties of representing himself he also had his background and experience as he describes himself he's a litigious individual who thrives on litigation and the court has both his testimony and his filings for example record six forty three where he talks about his prior