admitting the government's expert testimony over the objection of the defendants that error affected the entire trial as i recall the gov the district court listed its reasons in its order denying a new trial that correct that's correct why is that not sufficient because as the cases we cited are brave say the temptation for post hoc rationalization is too great and the purpose in the by a remedy case for having a district court make a record of its findings is to guide the parties throughout the process to know essentially what the rules of the game are before the game is played and in this case there was no such record made b following up on that wasn't this procedure of using you know sampling for want of a better term wasn't that suggested by your client no it wasn't your own who suggested the government down i believe the government did suggest you believe the arguments below the government their experts were the ones that decided that sampling was the appropriate way to i had understood that your client wanted that because it was so burdensome to produce all of these documents and that your client was acceptable to using less than all of the documents for this calculation i misunderstood your question in the context of what was done there was an objection to how the sampling was done problem with your proximate cause argument it seems like you're saying that i have to take each alone and say well john apart for a loan and they didn't investigate his employment and then he lost his job because he had this job where people lose it all the time or is working for a company that fires everybody constantly or whatever and therefore i am being should have known that and that caused the loss versus your analogy  john had a heart attack he was working in a job even worked for thirty years and regardless of whether we'd explored that or not we were in a no he was going to have a heart attack and that's why he defaulted i mean you're asking for this kind of intense scrutiny of each alone like what caused the person to default was it something that could have been discovered by a proper review or is it just one of those things that happened somebody had a perfectly good job and then lost it for no reason we could regardless of whether you take it from the entire universe of loans or you take it from the sample the standard in the fifth circuit is united states against miller which requires proximate cause the the causation of the default has to be  something that is factually and legally related to causing the fault here there's no evidence of that whatsoever on the record if we were just talking about one loan this is a lawsuit about one law then we would be investigating you know could you have known about this guy's work history where he's getting fired every two months of this kind of stuff and that should have been a red flag or whatever versus he had a thirty year job that he lost and nobody saw that coming here we've got as you say hundred thousands and thousands of lines so we have to look at it in a broader picture and the broader picture that the government is saying is we know that when people aren't vetted we're going to have a higher default rate maybe there's somebody who wasn't vetted you could not bit me and i would still pay the loan ok so i would be an example of violating causing thing unless something terrible happened in my l but then somebody that was vetted you might have still given them a loan but a big percentage of those you wouldn't in that situation so the point at that point as i understand them to be making is the vetting matters and you all didn't do well why isn't that a fair argument well there are a couple of responses to that and what that's the reason it's not a fair argument is that is the standard by which that that they measure  lot of these defects didn't actually go to the ability of the borrower to repay the loan and that's what all of the cases on this miller included say is required for liability under the causation under approximate c support what happened all first of all so actually he used documents and guides from not f h a sources there's a notice from there if you're going to be held to a standard if you're you're dealing with taxes you're going to look at the tax code ok but what does this mean here he said he followed those guidelines and he may have considered some other things but at least this expert was asserting that i applied what i supposed to apply in deciding whether in the same thing the  h a is requiring and whether that was whether that was met or not let's that assertion has to be something it has to go to a standard of care it has to go to something that's an industry recognized stand in the  courts at a disadvantage here because it has no record of the court of the district courts of albacore problem across in problem with not having detailed the dog for analysis that we don't really know exactly what the court the district court found on paine's standard of care because he certainly could have considered the how godless but also added a bunch of his own stuff and that would implicate your argument or he could it looked at his bunch of stuff but only followed the high guidelines in his determination of dollars and that would be consistent with the government's argument and be a different approach so is is that the is that the sort of substance of the carlson problem that's correct your hon mortgage industry this was his standard it was a standard that he came up with he came up with it for the purposes of this litigation so if you're looking at behavior by this company from two thousand and two ships passing and i on that point i mean right standard it was not just a made up thing you say it's a made up thing it's a little hard to tell from the record and that's why i'm asking if that's the carlson problem is that we needed the person on the spot  judge the district court to really get into that and say here's what i would like to see is a comparison here's god standard here's the pain standard i couldn't find it in your briefs maybe it's in the record somewhere i'm not going to pretend i've read every single page of the record and if it is somebody pointed out to me so i am just i'm a little bit confused because i i'm having trouble comparing the two to know is it a briefs laying this out i mean you spend what is a hundred pages or some it's a very long three both sides that really doesn't say what it needs to say which is here's what he should have done here's what he did that's your brief their district in the district court we don't look at papers in the district who are you supposed to do that again on your honor and the court has started to recognize it's at a disadvantage because it doesn't have the district courts analysis of that because there right to a fair trial and we would sort that that's because the district court did not i do this down on my house if they did need it in essence to quite a bit of fraud i mean here's this guy who is hiding how these loans are really being vetted he lives when they approach him on and says oh i was just a one off and yet we're supposed to believe oh mr hodges innocent and all of this is just a bunch of that the district court failed to work through and the jury also failed to work through well there are a couple of issues with regard to the jury working through the let me get to the point of not every live mis representation false statement or rises to the level of the false claims violations and the reason for that is is there are other remedies available to hud if if in fact this was these things were false these things that underwriting wasn't done properly or was done negligently that doesn't give rise that were consistent for errors in the underwriting ones are valid yet five years later six years later mr payne comes up with this standard and decides that everything they did was wrong the interesting thing about mr pain analysis is the day also said that hud's total scorecard automated program got the underwriting decision wrong fifty percent of the time so what standard is i like being held to here no loan is perfect underwriting decisions are completely subjective even mr paine agreed to that it's in hud's guidance that underwriting is more art than science witnesses testified that if you put five on the writers in a room with five different loans you'll get twenty five different follows the decision in and bronson patel being unpublished but iran being published and i don't think we have rejected the no possibility rule we've just not applied it so i think it's still out there but it seems like what these cases are saying is if there's an argument that can be made that the juror is not following the direction to deliberate with the other jurors were done and the judge has the call it's it's in the judges the  discretion how do you do around that well that's actually not what happened here if you look at the jury deliberations and even after the judge brought the jurors album asked the vast majority of the jurors say one i believe said that everybody  participated in the deliberations but the problem here is that it goes directly to journos number four in that believe that's recklessly eighty three eighteen disclosing the contents of those deliberations a few days later go by after some sleep after the first allen charge temperatures rise people get heated in their debates there's a second allen charge  there was a mr mr our quest after the first allen charge bistro request after the second allen charge and the judge then decides he's going to remove this juror that's causing all the problems he knew that that was the juror that was holding out for all surprise surprise shortly thereafter you get a you get a verdict for the government so once the sanctity of the juror has been invaded when they just pop the case and every time out correct once that's been invaded objecting to the testimony that issues preserve but during the course of the testimony there were issues that were objected to and certainly on the motion for a no trial what objection made to the judge not providing findings and conclusions about overruling your dahlberg motion at the time that that was issued not right but you're saying you don't have to make it no because we've already made the the objections to the rule at all sir i said what objection was made to support of all the government's claims and found in front in favor of the government and all the claims and so i think that's an important guiding principle they have but the jury still has to be properly given evidence properly you know dealt with and so that's you know  constituted the standard that they knew that they were supposed to apply when they were reviewing the loans and so any suggestion that the standard was improper or made up by mr paine is essentially the fence counsel using their cross used some standards or techniques or whatever the labels were at the time there were independent of the f h a standards your honor the record shows i believe that he applied the guidebooks to tell you how to underwrite an f h a loan he consulted one additional source beyond that but and he specifically testified that he only used it to the extent it was consistent with the hud standard i think i think an important point here is mr paine made specific findings regarding several hundred loans here and no one from the defense during their cross examination during their job or motion or even an appeal has ever pointed out any findings by mr paine regarding any loan that they disagree with that they think that under whatever standard they think he should have applied w can at least based the argument that he was using things beyond standards of guidance beyond the f h a if we look at that are we going to follow that there right that there were not as fre that worries me and on hundred pages a briefing that somehow complies with our word limit it it was not addressed so i feel like i'm a bit lost on this question of what exactly the standards that i don't mean that ok like i applied the right standard laser gel in that doesn't tell me anything the standard requires five things one two three four five i applied one this way to this way that's what i'm talking about not just doesn't tell me i looked at these ten twenty fifty things whatever it is and then i would wonder if there's fifty things you look at as a good so is as the star class underwriter i'm going to look at fifty things but this guy only looked at forty nine does that mean that's a fraud that we should get an f c a huge dollar figure on i mean they asked the problem if we don't even know what they are the the list and we don't have what mean applied and we don't have what allied messed up on then we could have a situation where it's really just a typo ish thing maybe a fraudulent typo but it's still a typo wishing or we could have something that's very substantive like you didn't bother to check somebody says my incomes eighty thousand dollars a year and they're actually make a nothing and you didn't check that best sound substantive well mr paine explained his fight and he went in detail at the trial through i believe two or three  files and explained exactly what his findings were to explain exactly why the violations were serious and substantive and he then entered into evidence a chart summarizing his conclusions with regard to the other three hundred or so loans that went through issue by issue and problem by problem for believe it was two loans that he went through a trial was one for nine to three until one four nine five two and then the chart that was and the exhibit was entered in evidence summarizing his conclusions for all the remaining loans as a two general principles for how to underwrite about a loan properly you look at the bars income assets you evaluate the value of the property you look at other debts of the person house so these are all this is all very much in the record it was explained to the jury as i said you might fail to investigate somebodies income but it turns out the person said they had eighty thousand dollars in income you didn't investigate that but they in fact had eighty thousand dollars in income i would say then the lack of investigation of the income is not the proximate cause of what happened next you know the guy had a heart attack or whatever realize that's a bit of an extreme example but that i'm just trying to investigate the proximate cause point so how do we make that link between had you investigated the this guy you would have found that while he says he has eighty thousand any come he really has eight thousand an income and i think we can all see why that would be a problem you know if you're buying a house that's two hundred thousand dollars or whatever the numbers well first of typo of i didn't investigate the guy's salary but he is in fact making eighty thousand there's zero proximate cause there because my failure to investigate cause not that he actually had the money turned out to be true he told the truth well  then right well your honor first of all when you're when you're in when you're underwriting a loan you're determining sort of the kind of if you're looking into the future it into an unknown future so you're trying to figure out if the person as they are now are likely to be able to do pay back their loans and what i'm saying is it is possible that somebody fills out a loan application and tells the truth and then i felt a bit but the truth would have supported the loan well then the vetting would have supported the statements in the document and there for my betting didn't cause whatever happened later well i believe failure to substantiate something that's truthfully presented as maybe a very small part of the findings most of the findings that by mr paine work somebody not having the correct loan to value ratio not having sufficient income to be able to afford the loan not having made it sufficient down payment you know the value of the house not being what it was supposed to be you know fraudulent or it's sort of you know  suspicious looking documents in the file that suggest that something is you know going on and so you know i suppose you could sort of tailor make a hypothetical example which is of course but what we do in court here to to create an example where yes absolutely the person was on the group that doesn't have the right number and it made me think about a car accident where somebody is licensed the driver's license was revoked but they're driving a car anyway and they in fact had the green light and the other guy the red up i don't think the fact that they lack the license why that's right while that's wrong and i'm not in any way indorsing that caused the accident accidents caused by the other guy who had a license running the red light so this constant focus on well we just wouldn't a been here you know if my mother didn't give birth to me i would have caused the car accident so let's see my mother that's getting too far off proximate cause well if we're talking about the unregistered branches it's a slightly different causation argument but it's still here the jury heard evidence that the branches that were not registered mr hodge pacifically decided which branches to register and which ones not to register and the ones he didn't register tended to be the ones that were less good at making loans intended to make or loans and in fact he specifically and there's evidence in the record specifically directed that those branches who i knew he didn't want to be subject to scrutiny use other branches numbers to make their loans and then surprise surprise several of those branches were in north carolina where there had been a statewide ban on them registering new branches until they could fix up their problems there and a bunch of those branches actually hundred streatley high default rates so this is not a random sample ng of just ok you know here you go this branch register this one isn't there making people loans we have evidence in the record in the jury was entitle to find that that there was a deliberate mis and unbiased ration of that of the bad branches so so i don't think i don't think we have a cousin problem either on the underwriting or on the register branches what about the carlson strict liability argument that failure to have done in a canyon on why you met dobber is itself reversible isn't that sort of a matter of strict liability well i don't think that there's a strict liability standard under  it can affirm on that basis in fact i believe in the methods case the court had some questions about the experts methodology and sort of suggested that it might have liked it done a little bit differently but nevertheless said well that would have been something to address in cross examination that's not enough to  overturn a jury verdict and so it allowed the stand i think in in by a remedy in in contrast we had this court looking at the expert who was kind of an unqualified person giving a somewhat you know outland sounding testimony and this court basically concluded that there was no reason for that kind of testimony to be admitted in the first place and reversed it for that reason so i don't think we have a strict liability issue of if the district court doesn't write down you know to this court satisfaction  that's a problem that's different from simply than the run of the mill if you will juror that's being a refusing to engage in the process i think there's two issues with that characterization of what happened first of all though there is the one note to suggest that this juror had a sort of a general view of the government is out to get everyone there's no suggestion that there was any kind of holdout or any kind of deadlock in the sense that this juror was specifically holding out for one some point some sort of general view that the government is out to get everybody and essentially refused to participate in in the deliberation and then he went on to threaten all of the jurors basically said you know he doesn't really want to engage with us on being persuaded the other way and i feel like that's his right i mean if we had a criminal case where one jurors walked in and said i don't think the government's proved their case i'm voting not guilty and they go well we want to talk and whatever is going to look i don't think the government's prove their case when we say that juror must be taken off the panel well first of all your own that really worries me because i think you are entitled while you're supposed to sit there and i grecian threaten people although i think it's questionable whether that happened here  i think the jury is entitled to make a decision based on the evidence and doesn't have to give into the other jurors of that all think he's guilty or vice versa they all think he's not guilty maybe he's guilty that is why you have told us that's why texas has the ten to in civil cases so that there isn't one held out or even two they can keep you from having a verdict but that's not our federal well well your honor i think i think it's important to remember that first of all that these were findings are made by the district court as a as a trier of fact it observe the demeanor of all the jurors when to call them and so this is a pretty deferential abuse of discretion review here but i think that i think that there's a little bit of a been a mischaracterization by the defendants about what happened and if you when the when the court gave the allen charge part of the allen charge is it tells jurors in general if a substantial majority of the other jurors disagree with you you should be open to reconsidering your position and discussing it further with them that is a specific instruction that this juror disobeyed in addition to threatening the other jurors and wearing earplugs in and glasses in the jury room and sleeping and snapping anyone try to engage with him about any discussion so this is not about like i'm voting here and you're going there and let's let's let's try to debate this is about not feeling or to even participate in the process to even look at the evidence to even consider whether or not or shouting at you can you not put on our plugs i mean that's what he said he said people were shouting out in the air plugs don't keep you from harry they just keep you from hearing his loudly well to the judge to disappoint judge found his testimony and not point to the not credible and he found the testimony of the other jurors who said that he was the one threatening them to be credible so again this is a sort of determination that is maybe difficult to do on the cold record and the transcript may not do justice just worries me for the future because i can see one juror get bullied by the others then he fights jurors all the other jurors said that they had not even made up their minds at that point and this is four days into the deliberations so i don't think that i think this characterization of the holdout and like everyone's and why are they doing the why are they getting now and they did report at one point in deadlock there was no reporting on how the deadlock was or who the deadlock or was i suppose one can i caught the size that this guy you know by it's not a hard hypothesis to me and your honor i understand that we shouldn't be throwing out holdout juror is just for instructions in fact the processes by which this was done was was essentially directed by those by those decisions and guided by we take you to a different issue beyond probably the time you have to have in looking at the two figures of the last seven point four million eighty five million what was necessary and pains testimony before a loan would be put into the list that added up to seven point four million that's the owner registered branches now is that between a loan from where the line thirteen was  loan when and to that total he testified that he only put loans into that category if he found you know substantial serious violations of objective standards that were clearly you know apparent on some of the testimony by mr paine is not designed to establish causation he was not asked that question there is no evidence of causation the record is simply not expert us well but people didn't look at our many loans or in this eighty five million eighty four million dollars and look at that loan by honor just briefly on the approximate cause issue to follow up on the questions that you just had and mr burnham the only evidence in the record regarding an actual cause of a default is in sound in the individual case summaries on the on the early payment default reviews and you can see and we've those are in our record excerpts you can see examples where it says cause of the fall death of or calls a default loss of job because of default illness cause of the fault  divorce those reasons are in the record that's the government's epp evidence they put those in the record there's no other evidence that regardless from mr paine or anybody else that any of the missing documents in a loan had anything to do with ability record except have twenty five twenty examples like that to do is that all that had some sort of explanation that would not be consistent with poor underwriting in those early payment default  reviews yes you're out of that but those are only a small subset did you only review i believe it's five percent of the early payment of all or ten percent of the early in the defaults so there is necessarily going to be a smaller subset of those in the record but that's the only evidence the other issue is we've been discussing mr payne standard mr paine standard themselves ability but the standard in this case is recklessness and that's one of the false claims act you've got to if you're going to do this sort of painting with a broad brush in order to meet the scientist requirement it has to be underwriting is done so recklessly that you knew or should have known that you were causing these problems and nobody there's not a jury instruction or recklessness even though we asked for it his standard and i want to do that under the amended f c a amended in two thousand and nine materiality on the other hand is having a natural tendency to influence or be capable of implementing the payment or receipt of money or property so where do you where do you draw the line between the recklessness you're claiming also the scienter and the materiality definition of under the amended act wonder escobar that's a demanding standard in a word to show that you have to show this not just merely something that the government deems as material so for instance in the box thirteen on the ninety two nine hundred eighty forms even if that number is false one it's not certified to by any certification in that form it's specifically not in the surf occasion that the loan correspondent songs secondly there's those documents are reviewed for completeness they're not  complete as they're not reviewed for substance that was the testimony of the hud fissions they get these documents make sure all the boxes filled out they put in a file the never looked at again if a loan had defaulted or was had defaulted certainly could have picked that loan file up look at that branch id number and said that's a problem that's not correct we're going to deny the claim based on that because it came from a new a ineligible branch they didn't do that and they just paid the  clearly box thirteen can't meet that materiality standard so under that analysis under escobar we would submit that the statements that the government's claim are material they see my time is up matt please finish your answer