folsom in this case the evidence was insufficient to establish that mr folsom made a false statement to a financial institution committed bank fraud and committed wire fraud or in taking each one that there was there were three representations that were made or declarations that were made on the universal residential loan application those being that there were no outstanding judgments against or that he was not color currently delinquent on any obligation and that he had held property in his name solely within the last three years in looking at this case the evidence was was insufficient because there was sufficient evidence to establish that mr folsom had a good faith belief in the truth of those declarations at the time that the closing occurred not the judgments i mean that question says no judgments against you right or a camera exact language but that to me saying right now that one market well i would i would disagree your honor and here's the reason why the indictment and the evidence presented by the government is that the the false statements were made at the time of the closing july thirteenth of two thousand and thirteen we have to look at all of the information prior to that and leading up to what and why that answer was was stated in that way that there were no outstanding judgments and we have to look at mr foursomes conduct in the first is we can't look at that question in folsom had a good faith belief in his representation at that particular time in plain i don't know the law it's not like this is some complicated esoteric legal subject that he's asked on the loan application it's a pretty basic question that anyone with a fourth grade education could understand i don't understand why we would care what some prior offer letter that he got months before would be because the offer letter defined any judgments against him as judgments affecting title to the property that's what the bank was concerned with and looking at this there is a lien judgment on the lien was not filed against the property when was filed against him personally in addition when you look at mr folsom conduct he was completely transparent the entire time he went to the bank he inquired about the the told them about the judgment in the criminal case well because they said that it had they known about they would not even bother to take the application right well  have to look at and at whether that mr folsom had a good faith belief in that representation at the time that he made it on the declaration and if you look your honor he was completely transparent provided all of his truthful information all his biological information simply transparent if you don't tell the bank th this massive judgment against because this because the question is is is whether he believed it was a just a judgment or whether it was a judgment affecting title to the property now that we have to look at that he testified to what  was an occasional whopper well yes and i am discussing only the evidence that was presented in when and when you look at the evidence presented it was clear that mr folsom had provided the bank with his with his truthful name so birth so that they could conduct a credit check in addition they all he provided that information so that they could do a title report so prior to going on for several months in may june and then leading up to the closing in july charged with he was charged in the indictment with making a false statement on july twelfth two thousand and thirteen which was the date that the closing occurred at the time that the closing occurred had title source provided the documents that they were supposed to with transferring the title deed that would have been a true representation for that moment during the title because what was supposed to happen was title source was supposed to and this is and again this was all done prior to  june and july the bank was totally aware that mr folsom held title in the name of rosemont mission and they said they said well the way to remedy that is at the time of closing we will have a transfer of deed during the property from rosemont mission to m only thing that made that representation false was the title company's failure to follow through and place those documents and we have testimony from the notary agent that the the the closing goes very fast they flip through the documents see you sign so there was nothing then that mr mr folsom did not have any control over title sources failure to provide those documents which would have made that representation true at the time but getting back to  that judgment because i think that's what judge watford's concern is and in looking at mr folsom conduct as to whether he could have had a good faith representation at the time and he made this declaration the bank had two months of due diligence and he provided them with all more confusing question then then you ask because in the offer letter it says a judgment affecting title to the property and the lien was never the government never filed title or never filed the lien against the title to the property it was filed against him personally so it wasn't as simple i mean it would seem that this is a council on looking at the form it's are there any outstanding judgments against you yes words say anything about the property well in the offer letter that was in that was he was solicited by chase the declaration  judgments against you yes and what we're looking at is is whether mr folsom had a good faith belief at the time that he answered that question he was answering it correctly and what i'm saying is that you can't ignore how a judgment is  fined in the offer letter by the bank that he received it's government's exhibit seventy it's excerpt of record one of six and it clearly defines a judgment affecting title to the property now that's just one part of the equation when mr folsom provided all this information the bank has time to do due diligence and they never bring up that there's any judgment or anything affecting his ability to go forward with the loan he was truthful in providing his information they ran all of the checks and they could have and should have found out that there was this outstanding judgment and they did it so the time that he's making this representation to him he had a good faith belief that it's truthful now reasonable doubt can come from evidence of the lack thereof in addition we also have the fact that missy bata who was the initial loan originator she testified that she had no specific recollection as to the due to the conversation that mr folsom had but of course she would have answered any questions and we know that mr folsom did have questions because he could go to the bank and spoke to a bank employee mr gaines about some issues concerning the title so there would have been some conversation that occurred but i think more importantly in looking at reasonable doubt in the lack of evidence is that the government never called matthew speranza who was the loan officer who actually had numerous conversations with mr folsom but that evidence was never put on so we can't just look at the question in isolation when we consider in good faith and that's the argument here is that you actually have to look at all of what happened prior to july leading up to july thirteenth and two thousand and thirteen the closing now in terms of the current delinquency i'll just spend a second on that because there's as of july thirteenth of two thousand thirteen mr mr folsom never received any delinquent notice he had been told and the testimony was that they were trying to work with him he immediately applied for modification of his payments cut you off because you're already over your time but let me ask you this  because i think you're right on the delinquency one but so let's say that let's just talk about the ten fourteen count for a second there are three separate statements that the government alleges let's say we were to conclude that there was sufficient evidence for two of them but not for one does that invalidate the conviction or does the government just need sufficient evidence as to one of the statements to well i don't think i think that there's one once false statement would be sufficient however even though the jury returned a general verdict and we don't know which one it might have rested it's protocol well we don't and that's and that's sort of an issue so it's the case law on that point i think that that we don't know what the de jure verdict was and i would think that this court could reverse the conviction even if there was there was evidence that one of those three statements was false you don't have any case law that says that at your fingertips i got together no i'd be happy to submit a twenty a j letter to to answer that point more fully your honor sure through and i mean i'll ask your opponent the same question to you you are two minutes of your time you want to reserve two minutes for about all day but let's have you sit down and will please the court daniels it on behalf of the united states your honor viewed in the light most favorable to the prosecution a rational trier of fact in this case could have found the elements of each of the charge d'affaires let's let's talk first about the ten fourteen charge yes i'll just put the same question i just put to your opponent you i'm not persuaded on the delinquency because i think that's there's at least a good faith he could have had a good faith belief that he wasn't yet delinquent at least at the time that all this went down so let's say we concluded that there was sufficient evidence for two of the three but not for one we have a general verdict we don't know which false statement or statements the jury relied on what is the case law tell us about whether the conviction is still still  it's my understanding that all the united states need to needs to do is prove one false statement unfortunately i don't have a specific a cite for that at this moment but it's worth noting that the defendant could have challenge the indictment ahead of trial as duplicitous or could have asked for a unanimity instruction none of that happened i mean it happens all the time where the government charges more than one theory of liability for a particular count and for whatever reason let's say for some legal reason one of the theories turns out to be defective we then get a general verdict of guilt from from the jury we don't know which whether they relied on the valid theory invalid theory i know there is case law out there that says what the right answer is and that's why i was hoping you guys would be able to help with that if you have any authority on on that point i'd buy both of you to submit submitted and twenty j letter thank your honor and if i could try to convince you on the on the issue the evidence that  came and to trial was essentially that the defendant signed the loan application and guarantee that there was he was not currently delinquent on any federal debts on the opposite side the united states presented evidence of the judgment itself they presented evidence of the schedule that was where he was to pay twenty five dollars a month while he was in prison and they were supposed to pay three hundred dollars a month after he was released from prison and they presented testimony from the u s attorney's office from a representative who said that he never made those payments starting in february and continuing all the way through through july every month he did not he stopped making was a hundred whole time wasn't he in negotiations to try to get the amount lowered mean the testimony from the u s attorney's office was that he asked at the outset for a reduction in the amount and then they refused that and that he was uncooperative and that he would send something like one hundred handwritten notes to the u s attorney's office sort of disputing whether or not he had to or could pay that three hundred dollars but the idea that that he was in active negotiations is not supported by the record idea that he actually had a good faith belief that when he answered that he wasn't only quit that he was telling the truth again and that there's no evidence of that in the in the record he never testified to that it's basically the fence arguing in closing you advert remind me this was there some point later in time i'm assuming it was after closing where he was actually sent a letter that basically said hey the time has come your your first payment is now due i don't know october or something i'm not remembering that right yes it was it was in october after the closing he continued to not pay and they it wasn't saying the if you read the letter doesn't say you know now is the time now is your first payment and it basically says your payments due next month because you have been making payments for the last six months up to this point i think read in a light most favorably to the prosecution i read just for what it is that letter doesn't support the idea that this was some sort of prolong negotiation between the parties there was basically a letter saying start paying and start paying right now in october what was going on for what was seven months he was never sent any communication saying  that's what i'm trying to remember i got the impression that there was this ongoing series like he wasn't trying to hide the ball he was saying i can't pay this i'm not going to be able to pay it can we let me try to work with you and then it wasn't until maybe that september october period were governed finally said you know what now we've rejected your in three days you must start paying three hundred dollars a month starting you know in two weeks or whatever i thought that was the state of the record but no one i don't think that that's if you look at the testimony from i believe john blast from the u s attorney's office she testified that there was that initial request to modify and that she denied that request and that he continued to send notes one hundred notes over the course of that year but i read in the light most favorable to the prosecution it doesn't support the idea that this was some sort of ongoing negotiation or that he would have had a good faith belief that he was actually up to date on his payments as of july as about the  expectation after the close that they'd be the quitclaim back i've gone through that when you have a trust you often have to do that  explanation that as of the date given his expectations about the paperwork that would have been done and that was the correct response i would respond in two ways first if you look at the language of what was actually asked on the loan application it said in the last three years have you have held properties all the other names so regardless of whether he was planning on transferring it that day it's still a false statement that he had held it's only in though you buy yourself jointly with your spouse or jointly with another person how did you get the i didn't say anything about three years i think it's at the at the top of that sub paragraph and it says have you had an ownership interest in a property in the last three years and then how is it in a property in the subway or grafs it's indicate that it was his personal property and they held it solely in his name it's not as straightforward as the question that he answered over the phone which was have you held property sold in your name but it does say over the last three years and  more importantly that the property was not in his name at the time that he signed this because it never transferred at the type of closing so council was arguing he didn't know that was the correct that he didn't know that they have answered followed through on the front but i don't think there's any evidence in the record one way or the other as to what he knew or understood at the time of closing in on rule twenty nine review it everything would have gone down as he expected and that that point he would have held the title in his own name before then so how would he answer on that for would think it would be jointly with another person or it certainly wouldn't be soley by yourself if you held it for three years prior and no i didn't say hold for three years prior years have you had unknown or shipment of property in the last three years and then this is how did you hold titles so it would be i guess oh slash as to account for the current day but he should've always put oh it's a minute because he did and that's how did you hold titles so even under his theory given brett three year  evidence that when this paperwork sefl came to life he was presented with a deed that would have corrected the situation and he yes he was contacted multiple times by the initially cooperative about signing the documents but then in the e mail exchanges that very same day he sort of changed his tone and said it was my understanding this was supposed to stay in the name of rosemont mission and then that just started a sort of month long campaign of you know he made an effort to rectify this paperwork error before the charges were filed did he make any effort mission and they said in order for us to go forward with this refinancing we have to have the title under your name and then they prepared the deed of the transfer and so they well no harm no foul because we knew of course has been held by rosemont of course this was all with the bank's knowledge and advice as to what the issues are different from putting on  that's why they suggested it so he was answering the question consistent with what they wanted at at the time the bank if we are to believe the government then we the government's argument then we have to say that the bank was a conspirator in this that the bank was was up on this particular issue after what the what was supposed to happen and what the title company and chase bank and mr folsom had agreed to is that there would be a transfer at the time of closing from rosemont mission to mr folsom individually and then back to rosemont mission there was supposed to be two transfers the bank was supposed to pay for the transfer that's clear undisputed evidence in the record now after the closing several months later when title source realize that they screwed up and i would add the judge houston found that it was total sources negligence as to why this didn't happen at the closing because they were obligated to to have the documents but when they found this out they approached mr mr folsom and they asked him to sign the deed but they only sent him one they only sent him the deed transferring to from rosemont mission to him individually they never included the second deed and when you look at the evidence in the e mail responses mr folsom was saying that's not what i agreed to you're only sending me one deed everyone agreed to have that second deed filed and that was as your honor termed the reason for his recap recal e and that doesn't demonstrate an intent to defraud which are the other arguments that i have in terms of those particular accounts and and that recalcitrance order or not agreement was not done in further one twenty eight her answer i can't recall at this time you know it's impossible i again what i'm asking you this is excerpt of record one twenty nine is that in the documents that you reviewed you can't specifically recall what document was missing to make your evaluation not at this time yeah right mr folsom provided complete financial transparency when he asked for the modification and it wasn't his his his refusal to pay it was his inability his frank inability to pay but if you look at the testimony he was actually at on july thirteenth two thousand and thirteen at the time of the closing he never received any dinkel in delinquency notice they were trying to work with him according to ms blast and if you do the math he actually zero nine nine dollars and eighty four cents at the time because he had prepaid while he was in custody so having a good faith belief that he was he was not delinquent i think is is not a