shakespeare were writing today to my dad and don't be a closing agent either because the burdens of policing that were placed on ms musselwhite in this case wise to a level that is really greater than one would ordinarily expect of someone who is not a certified lawyer or something like that but before i get to her case in particular i want to address what i think is the most important issue in this case were primarily here addressed to address which is the denial of an unoppose pattern of cases in which one judge decides it just to transfer to another to another judge it's not it doesn't fit into the kit into the ordinary pattern of a caseworker thought though that judge the decisions of the earlier judges and that that would cure any issue now why him why is that not right it's not right because what he proposed to do this court has repeatedly held is not possible in the context of case a case in which multiple hearings an evidentiary hearing has been held and the transcripts have been prepared well well first of all we haven't really held that in this context and second of all though no transcripts have been prepared i think we all now that the district judges have access to their rough drafts of the transcripts from their court reporters so we don't know that he didn't review that i mean he said on the record that he reviewed the decisions and agreed with the reasoning so and he reviewed the whole thing to novo so what how do we know that he didn't even look at that i mean there are two separate issues here there's one he look at the transcripts which we don't now and two if he didn't look at the transcripts in this case does our case law apply i mean it seems to me that the case was slightly different situation first of all with the court used the word context i mean this is not a recurring context this is the only time this ever happened you have a judge who who recuses most the motion to recuse is filed within the window of the motion to reconsider his his iowa he flew in from iowa i believe that the night before he clearly did not have any access to any rough draft there were no rough drafts the hearing we had we had a very lengthy hearing on the first day of trial it was absolutely clear that he didn't have any any inkling of what happened in the evidence here here and what he the way he handled that matter was to say well i would have denied all the evidence you're hearing that that's that doesn't that doesn't mean anything we haven't we had a suppression hearing we had a suppression hearing that was completely justified by the by the record we have anything on the suppression hearing pardon me have you appealed anything on the suppression hearing i've appealed everything every order that was entered i have appealed hadley brown is there a specific issue you've raised that with respect to the suppress issue no there is not a specific issue other than this but this is a very important issue this is a fundamental issue this goes to the whole trust in the system that it exists but there isn't what i'm saying is if he said he reviewed all of this he would have adopted the exact same reasoning and you're not raising any specific issue about what he did that was wrong or unfair with respect to the actual legal ruling judge i'm it but but but the judge did recuse and the new judge got the case had a record before it and said i've independently reviewed everything i would reach the same decision and  all of those decisions aren't you at that point required to show was which of the decisions he reaffirmed could not have been handled that way and that it was so unfair as to deny you your client due process of law and without that showing well out of zach lee what that is and how that happened how are we to deal with it well i have done and i mean first the overarching principle i think the way the court stated it is differently than the way i was refocus on what judge pryor is saying i think we understand that if you were to show that he had to recuse himself and he didn't and his judgment as he issued it stood without an independent review then absolutely obviously there would be prejudice just from that but the problem is there's a second step here and the second step is it completely independent judge with no work use the issue has said he conducted it to novo review of everything that occurred so why don't you then have to shell that his decision had some kind of problem to it his decision referring to the second judges or the yes look at the first judge's decision had tremendous problems with it because it didn't look at any of the hearings there were not a single insipient transcript there was nothing the judge acknowledged that in effect there so he could not have done it what he said to the what he said to the parties was not true i have conducted an independent an overview i explained to the court you can't do it that way he independent review that's simply not but to the point the judge fires question what are the what are the what is the what did i show that was erroneous what i showed was the iranians was the judge the original judge denied me an evident please the core michael otterman on behalf of james settle long ago if i could start with a baseball analogy quickly my father and my son and i go to a baseball game every year last week we went to marlins came down to miami and i walked in someone at the entrance gave me a program and a score card and a score card out of the rules on the back and i sat there throughout the game and i scored the game ball strikes runs and i was a provide upon the rules as i was doing that jurors aren't given score cards when they walk into a courtroom jurors are supposed to listen to all of the evidence all of the arguments and only at that time you know the other stuff other circuits including  for limit area instructions to aid it in its understanding particularly financial crimes kinds of cases so that in as the evidence unfolds the jury has a better understanding of why certain evidence may be important or not going back to my baseball example i could never have scored the game properly if i didn't have all the rules the jury if they were going to be given a scorecard in this case had to have all the rules but they only had the government's rules they only had the elements of the government's offenses they were missing the defendant's main rule which was the good faith instruction and that's the prejudice in this case if in fact a lot of cases where the good faith and defense instruction is not given but the government's burden of proving intent is correctly explained to the jury but this is a case where a good faith defense is in fact given at the end of the case to the jury and they're properly instructed about it and intent was given from the beginning here's the key and it's the question that the jury ask deliberations deliberations the two week trial they had those written instructions with only the elements and not the good faith instruction for those two weeks deliberations began on friday morning all day friday to get picked up again on monday so almost two full days of deliberations they submit a question we have a concern about count fourteen the very last count in this case we don't know which set of instructions to use there's conflicting language it's at that point in time that defense counsel he'd never said a lot of had their instructions all along that the judge denies a request for a mistrial finally tells the jurors give back to those written jury instructions and twenty eight minutes later they come back with their guilty verdicts except for that particular count that they asked a question on which they found my client not guilty of so they had been relying upon both sets of instructions we know for a fact because of their question and i submit it's reasonable to assume that they relied upon both sets of instructions all the way through all the counts of either question was specific to a cow or which your client was acquitted yet and i think the reasonable assumption there would be that they relied upon both sets of instructions not knowing that good faith did or did not apply for counts one through twelve all the counts for which my client was convicted of if they come back five minutes in on count one and asked that question i have a hard time arguing prejudice they came back after two days of deliberations twenty eight minutes later came back with their verdict that's not fair this court has been a lot of time on the jury instructions it's one count that they were apparently hung up on judge i think the reasonable assumption is they've already reached their conclusion on all the other counts by the time they asked about count fourteen because it was they considered that because they spent in that you know only one only one that they had a real question about is one what your client was acquitted i cited to the third circuit alexander case where in that case it involved an improper reasonable doubt instruction and the court said you know when it's not clear whether the jury relied upon the improper instruction or the proper instruction we have to assume in that situation that they relied upon the improper one we don't have to assume much in this case they asked the question after two full days asked to the last count and so you know then equated your client on and i submit had they have all been told only to rely upon the final instructions from count one through count twelve they would have acquitted my client for all those counts as well if they didn't have the correct set of rules throughout the entire trial they didn't even know which set of rules to use for counts one through twelve they were only finally given that instruction and actually told to give back the improper written instructions for count fourteen and they came back with a guilty verdict twenty eight minutes later again i relied upon the new york compton case the government concedes and i appreciate their candor there aren't a lot of cases if any that are on point on this issue but the new york case at the nail on the head by permitting even encouraging the jurors to refer to the written outline during the trial the court invited piecemeal premature analysis of the evidence the courts outlined in effect serve as a checklist against which jurors could measure the evidence as it came in in that case tell there are the instructions on burden of proof and correct those weren't given right that the issue here is my analogy to that case is no good faith instruction they were given all the elements but weren't given the good choice on timely right the request to give them good faith your option that the district court said was on time if i could respond to that if it hurt i think number one to say that it was untimely prior to the beginning of trial is simply contrary to the e mail if in the e mails are attached in the appendix i've provided those to the court the first e mail the judge simply says i'm going to tell the jurors a bit about the elements and saying when to give them the elements in a written form the only thing he said he was going to give them in a written form was the overt acts defense counsel object to that then when it became clear at the end of the first day of the trial that oh my goodness they're actually being given these preliminary instructions with the elements that's when defense counsel objected and said wait a minute we ask fact it was passover that night for the judge to say i wasn't that brought to the attention of the district court that day if the day before yes i submit your honor that it was in no way clear that if you don't get it to me by midnight tonight i'm not going to consider it i would think it's reasonable for defense counsel again with a jewish holiday in passover to say i'm out of town this wasn't what i was focusing on i'm going to get this to him way before we start there would have been no prejudice to anyone the jury had not been called back and the judge could have taken the additional five to ten minutes to discuss that instruction and say yes i'm going to give it let's go back to those improper pulmonary written instructions let's add in good faith given back to britain instructions and there wouldn't be an error are part of my concern is that our standard of review on that honor ok while it's in that definitive i give you give me something today and we'll discuss it tomorrow was the tone in which the judge said it defense counsel the very i mean i would expect that i needed just provide it that day court but the next morning when the judge does ask what's your explanation for not submitting it and he immediately says judge it was passover that's a reasonable explanation and more importantly here we are roughly eight thirty in the morning you have it the jury hasn't even come in yet can we take the agree that for this suppression hearing there needed to be an evidentiary hearing no your honor would not agree and why not because the little the only issue raised in the motion to suppress was essentially a legal issue and that issue was the defendant's claim that because the search warrant had been conducted at the prem at a premises were where two businesses were located one of which was waverly media a press outlet that the f b i somehow exceeded the scope of the fourth amendment and conduct an unreasonable search by going into this premises to see to seize business records belonging to waverley property which was colocated at that premises and in fact if we look at the court's order denying the motion to suppress we see that no point in that order does judge to make a single credibility finding he does not talk about disputed facts regarding the execution of the search instead he focuses on the four corners of the search warrant affidavit he describes why the four corners of the affidavit a stablished f b i agents were justified in going to this premises to search for these very particular business records belonging to a business that had been involved in the mortgage fraud conspiracy now and when and if we go back and with we actually review the transcript of the suppression hearing we see that there really it's wasn't a suppression hearing like we're used to the agent testified he testified about how the the search team went into the premises and searched for the business records there was no disputed there was no witness called by the defense there was no dispute about what types of documents the government had actually seized from the premises in denying a motion to suppress judge dalton said it is inconsequential that the that business records belonging to waverly property happen to be co located a premises of waverley media furthermore in order denying the motion to suppress because she was an individual this was a search warrant executed at the premises of corp she didn't have a business there she had no personal belongings there these were to the motion to suppress was denied on purely legal issues of law not based on disputed issues of fact or on credibility findings and if we look at the cases that the appellate musselwhite has cited in her briefs and the one she relies on today we see that all of them to the best of my recollection related to cases discussing how a district court may or may not reject credibility findings determined by a magistrate judge and those rulings are all made in the context of the magistrate judge judge's act not in this context evidence officers came in and took the defendant's luggage without a warrant defendant claimed you took my luggage without consent law enforcement officers argue that property was abandoned law enforcement officers testify defense witnesses testify there are very xpress credibility findings made in that case the coalfield case does not establish the premise that the appellant's urge here ways in which as i understand it you say it was a false document are y and she took money from someone other than the borrower that's why that's one part of the analysis you and then the other thing is that she said money was paid at closing and it was a paid a closing yes your honor and i would argue that that's the that's the more compelling it is there anything cash to close obligation i have a question about that so maybe we're talking about two different things under the hood one says the amounts can be paid by or on behalf of the bar or right yes your honor i mean so the fact that somebody else came in with money that didn't come out of their account would not mean that the for the one hundred one was false right it would depend on the terms of the loan your honor i think if  testimony in the trial was a little bit back and forth on that i think it depended on the terms of the specific law whether it was a verified asset loan for instance and there were a couple that were verified asset but that it so i have some more some of the regardless whether there was a requirement or not that the closing money actually come from the borrower none of the lenders would approve what happened here which was that the borrowers closing money actually came from the lenders and missed muscle white's participation was essential to making that work but that's a separate question than whether or not the herd was falls right no i just mean what the lender would have accepted or would not have accepted is different than what the herd says the herd on disagree with well but the one represents that there was a certain amount of cash to close that was brought to the closing table and that was tendered on the settlement don't pay so now you're going to the money a closing as cross examination and what i mean it's kind of rambling as it is i guess trans groups often are but my take away from is he says he doesn't remember what day he gave her the check with with regard to counts four and five the fifteen round full circle the closing that was on march thirtieth two thousand and seven m i'm missing something about that i mean i'm looking at was the second one on fifteen grand ol circle count seven which was the second one on three ninety seven silver beach drive count now on which was the second mortgage on sixteen sixteen north atlantic avenue and count eleven twenty seven twenty one atlantic avenue those were those are all second mortgages right yes except for that last property the investment property the closing with money right i mean that the person getting the mortgage wouldn't be wouldn't arrive at the closing with a check because it's a second mortgage is in there i mean i'm just i can't i can't remember from the from those posts precise hurd's whether there was any money that was meant to be brought to those closings but the lender would have made the second there were the same lenders the lenders the test i believe the testimony was the lenders would make the second mortgage loan based on the terms of the first mortgage but it i mean if what you're charging these people with is look you took i mean something about the money that was brought to the closing one right either it when yours or there was some agreement that it wasn't going to be you know deposit a toll later then how would that apply if there was no money necessary to be brought to the closing because it was a second mortgage and there's  lane on the piece of property do you say that yes because what happened what essentially happened in the second mortgages was that the bank didn't it didn't end up loaning one hundred percent as is typically or close to one hundred percent as is typically the case with the second mortgage loans it ended up loaning one hundred twenty percent or one hundred thirty percent because the borrower spines had already been plowed back into the first mortgage so that so the borrowers ended up having no skin in the game whatsoever which is not the deal that the banks had  falsifying those there's going to be one hundred one for the second mortgages to get there and so her conviction would be dependent on those having been falsified to start r that the closing agent had not acted in the bank's interest which it is required to do under the closing and under the closing instructions for all these loans but what about your second argument makes it hauls i'm sorry are you said that the closing agent had not happened on behalf of the bank and that there was a course of dealing here where these borrowers were coming to the initial closing table without the proper funds to close and she was allowing them to funnel the seller's proceeds back into the purchase so there and so there is an aiding and abetting theory there as well so it doesn't just apply to the hud ones it would apply to the other documents if i could turn there any other questions on this issue or no you've been answering a lot of questions from us and if you would like to address the point mr mr overman raised you certainly can have a couple minutes to do that as each of them were given a couple of extra minute thank you are with respect to the primary jury instructions i would first draw the court's attention back to the controlling precedent the b in that case the court dealt with policeman or a german struction that included the elements of both conspiracy and substantive fraud counts those elements were included in those instructions the court said that not only was it not error to give those instructions religious holiday the night before to us to submit a good faith construction the next morning obviously it cannot be your honor because controlling precedent says that the it did it's that it's ok for the court to give the elements of the office good faith is not an element of the defendant is not entitled under other control in precedent this court to a good faith instruction until he or she has established a foundation in the evidence or basis and that's not seem like there's something unfair about the idea that the jury considered there with all of the instructions that are sort of the roadmap to the government's case because i mean the overt acts or whatever are in there and  and by definition the defense can't be in there because it can't the instruction can't be given until there's evidence to present that instruction so i mean instructions are given all of the time but there's something different it seems to me about giving the written instructions maybe maybe it's there and maybe it's not hard to give the written instructions to the jury but it seems like there's something unfair about letting the jury hold on to what are essentially the pro government instructions and not allowing those to be supplemented until the very very end of the trial with the defense instructions and even then allowing the jurors to hold on to the original version of instructions as well i mean there's something about it that's troubling your i thought about this a lot in preparation for the argument but it ultimately occurred to me well first of all the course the judge instructed the jury to consider the instructions as a whole and we know that juries jurors are presume to follow the instructions but secondly i think it's it's maybe not correct to think of  to think of these preliminary instructions as somehow unfair to the defense because the court i looked at a preliminary instructions last night and i think maybe on six different occasions the court emphasizes burden  presumption of innocence keep keeps telling the jury over and over and over it's the government's burden of proof this is what the government has to prove the government has to show that the defendant did this willfully did the defendant did this knowingly prove beyond a reasonable d element so what if what i was thinking about and prepare a preparation for the army was what if the defendant decides you know what those government witnesses are testifying quite like the government would like them to i'm not going to say anything because i don't have to if the jury had already been instructed on good faith they would be sitting there during the whole trial waiting for the defendant to offer something something to support this good faith defense absolutely makes suggesting that you should necessarily be able to put a defense instruction on the front end i guess i'm just more troubled by the idea and i understand that the burden of proof reasonable doubt stuff was all in there but there's just something that doesn't sit right it seems to me about giving those written instructions to the jury to hold on to through this entire trial and then not taking them back at the end but i think it comes down to if it was ok for the judge to say it it has to be ok to reduce that to right on our president say that the judge could have given a preliminary oral instruction the judge can give that final written instructions only gap is what we've never ruled based on what happened at that evidentiary hearing and so it is no question in this case there is no question that there was no independent did novo review within the meaning of this court's case law and that's only one of three grounds of our issues but that factual question is at this point undisputed the other grounds we raised our go to that in the question itself the improper transfer of the case and there is a separate body of case law and in that context the prejudice that one must show where you were you show that something improper has happened and something improper did happen and what are you talking about from judge honeywell  said are you talking about the transfer of the case from judge honeywell to judge dalton is that what you're talking about when you say the improper transfer of the case are you talking about the transfer of the case from judge conway to judge garvey or from judge  ultimately to judge garvey through judge conway which which one are you talking about at that component of the issue relates to judge dalton's consolidation order judge twenty will issued no orders there's no question that it was a violation this court has precedent on this issue because the ryndam assignment is not something that people just say the government has honeywell consented to let there's judges on the district court are allowed to transfer cases among themselves as long as everybody's in agreement said you show that you either had a biased judge or you could have suffered prejudice some other way i did what was required i followed the rules i showed i had a biased judge that when you were checked up so long those plea when he through when he denied the right to file motions when he cut off the right to file one memorandum when he wouldn't let me present evidence at a hearing that he was a biased judge i did what i was supposed to do i followed the rules i played by the rules they did not they admitted they did not he may be the greatest guy in the world i'm here to create a system to establish that this circuit has a system that says we don't have to ask whether you did something wrong we don't have to go there we protect everybody we protect the system and that's what this court's pre say that the preliminary instructions are simply preliminary that explained to the jury the basic principles about a personal trial and their duty as jurors goes on to say that the end of the trial if we've said you can give  right not with the elements i'm not aware of anything president that says you can give the jury the checklist up front and that's the problem when the government raises a scenario that oh maybe they won't want good faith at the end of the trial so we don't know if we should get at the beginning we shouldn't give any of the elements at the beginning it's all it does is encourage this corpus out of its way in many situations jury questions for example to prevent premature deliberations when you give them the elements upfront and give it to him in writing all you've done is given them a checklist so they sit there and say checked check check before they even get to the defense case before they even get to the argument and that's the problem with give i don't the understand that i don't understand the problem that the jury might know why they're hearing certain evidence and whether that actually checks i don't understand that it seems to me that  it's helpful for a jury should know the relevance of whatever it it's having it we get we pick people off the street to come in and as a civic duty listen to something with which they're often completely unfamiliar and i suspect in and in a lot of white collar cases it could be really but well during and to let them know about that ahead of time and  and and to give them a frame of reference it seems to me would be a good idea from from both the governments and the defenses you know i don't doubt that in a lengthy white collar case it might be helpful to give them definitions up front but the problem and white courts don't adopt this why this court has been adopted i'm unaware of any court in the country that in their polygamy instruction says it's ok to give the elements up front is because the tendency would be for the jury to simply be listening for those elements in the evidence and as soon as they hear those elements went out and cover meant doesn't presume but but as you know your honor and as i know generally speaking it's rare that a judgment of acquittal would be granted at the close of the prosecution's case so usually the government has put on some evidence relating to those elements and but the defense hasn't even presented their case yet that can refute those elements but if the jurors given a checklist in this case literally a written piece of paper that has the elements they may be checking checking checking and once they get checked to element three that's the end of it their mind may close and they no longer listen to the arguments to the evidence from the defense to anything else and their minds that's all they need to get to and that's the end of the case and that's why we don't allow elements to be given up front your honor thank you