contracted for he testified that he was in fact thrilled with the product that was produced for him and that he thought the engineering team that put that product together was great those are his words build a business with it the business was a social app communications between people sort of like facebook same kind of thing where you get on you talk to different but he subsequently destroyed that business himself in order to prevent police from looking at the communications he had to see if he was communicating with just specifically a twelve year old girl drum corps concluded at the conclusion of this essentially it's things like the name of one of participants one of the workers mr starter mr stoddard for some years been using a different name robert wood and that name was used but i mean wasn't there really more than that i mean it seems to me like to put it then you shouldn't be given old crap break right and it seems like that's what happened here because it seems like what happened was mr as my always paying to get the professional services of some  programming scribe with fifty programmers and instead what he got was a cut rate contractors and as a result there were certain problems with the program such as the room in which shut down there were other kinds of that for there to be fraud that deception is not fraud unless it goes to one of the essential elements of the bargain ok that's one thing the second thing it says is even though you deceive someone into getting into a contract ok if they get law he'd their argument at best is that he deceived them he deceived that mr seems to save mr has more into getting to it into a contract which mr ass more in which mr ayres more got everything he bargained for now you've mentioned a couple of things you said well he was going to get fifty engineers working on this that's wrong and i know you that comes from the judges rule twenty nine order it's factually incorrect what you'll find is the fifty engineers years old legibly a statement that mr asmara brother says was made to him some time after the initial contract had been signed by mr steiger and mr steiger said we've got fifty engineers working on it it's ok that him the same thing that otherwise charge you've got to read the contract to see what the deal is in this case all right let me go back to what you central elements are the essential elements are contained in writing in the two contracts there's a contract exhibit thirty four government exhibit thirty four which is the february eighth contract in which you got into that it says exactly what mr sampson is a company is supposed to do for mr as more there's another contract with mr as more did not pay for the initial contract they reformulated the contract to the april sixth contract and enable search contract is the operative contract in this case it is conceptually very simple if says we will develop for you software which if you pay us we will license to you mr and mark never paid for the software he had no right to the software you mentioned earlier that well that it didn't work that is wrong and if you hard engineers to do the contract he has paid money out already so and here's here's where he deceived ok he says instead of telling him that stein is no longer flyblown mr sands takes over and does the work himself ok that's it when the contract is signed steiger supposed to do the work stagger backs out and start it was going to come back and do it but what else mark wanted it done now in order to get it done now not qualified to put on no evidence whatsoever that they were not qualified the evidence in the trial is that they are one of the qualified mr steiger had previously led an engineering team lorton hearing team in a complex project that took the matter of years and created a very complex software engineering product for which he was awarded a patent the patents in evidence there is no evidence to the contrary was described as a bright talented software engineer who had done cutting edge work in social media products social media software previously but what about robert woods robert tiger or mrs arthur for reasons that are never fully explained by anybody  ding mistress dr username robert wood for several years prior to this he continued to use the name robert which i suspect is because he has not paid his taxes in thirty years which is part of it part of his testimony he had not pa  back to the pappy analogy that you might have contracted for but the reason you're even in the when negotiating with people is because of what they're representing themselves to be and that's why you're willing to pay money and that's why you then entered into the contract so there's deception as to who is performing these services why is that now material talk about the deception to two reasons first of all that that deception is due to the extent that is the  element of the contract what he tells them he describes trying to work his history he describes it as robert woods steiger comes in and testifies for the government says everything he says about me is true i have done all those things so he steiger's qualifications he doesn't mislead them as to his qualifications there is nothing in the contract that says this has to be a big california firm the truth is it's a d b a a california cutting edge technology f good morning ma'am please the court robert davies for the united states unless the court prefers otherwise i'd like to go to my second argument first which is that even if all the language and tackle officer holding there was sufficient evidence convict for the four reasons in my one through five reason as to count six through seven first a reasonable jury could find the defendant guilty because it was met misrepresentations and lies about robert woods and robert woods's sperms qualifications and judge ben ruled on that in his order denying the motion for judgment of acquittal at pages twenty and twenty pages twenty and twenty one of the order and i adopt that in full i mean that that is why you should have from the district court bottom line judge fence and found that the lies were capable of influence and has merits assessment of the value of the bargain to him mr kmiec mcgee mentioned that the fifty engineer quote was to be there and it was but there's plenty of other evidence which is cited in judgments and order and  pages three to seven of my brief at document one eighty three page one fifty as near testified about the defendant telling me he had found an engineer that was interested in the product and the project it was robert woods would security group they were great company there was good as facebook they were located in california he also the defendant also said the co founder robert woods would quit his job and work eight weeks solid on your project alone there's the quote in my brief from government exhibit twenty five c seven about roberts background being in fat incredibly varied and how great he was so judge for instance order at pages twenty and twenty one was correct mr mcgee mentioned the contracts but the point is the defendant fraudulently induced asthma to enter the contracts there are some questions about the after working and there was evidence that as more i was happy with that but as i cited to my brief there was testimony that the app did not work and that there were bugs in it and this is important taking the evidence in the light most favorable to government for all the reasons it page brief and if if it was unimportant why did why did the defendant keep line that something the jury could consider  judge rosen blom you ask about what security group and whether it exist taking the evidence in the light most favorable to the government it doesn't know what in there is evidence on the record that it exist but it is on the record that it doesn't exist is a corporation called sprout marketplace inc harry steger went to the bank and said i want to open a bank account in the name of spout marketplace inc doing business as security group that doesn't create this corporation it doesn't exist same with wood secured same with debbie s g inc that's a corporation but it's formed by robert woods robert wood says in excess you get to count six and seven when factory software group  the evidence in the light most favorable to the government just isn't correct and you should have firm on this first argument i do want to mention that in his reply brief the defendant argues the indictment was insufficient because it didn't allege that the lies were capable influence in as much assessment of the value of the bargain you should reject that argument for several reasons most notably it was not raised in the defendant's initial brief and he's on notice that the written need to raise it for justice is order pages twenty to twenty one also it is in our indictment if you look at section count one section see paragraph five through thirteen and count one's reelection reincorporated in the other counts the same is true in his reply brief you argue some about jury instructions that wasn't raised in the initial brief that's waived i have sight sight which i didn't have to get a chance to get but i think the court is well aware of its law in this area that raisin in that argument in the reply brief is too late that makes it wa there's a second argument that i don't want to get lost in the shuffle as to why you should affirm judge fence and that's that the defendant defrauded as out as more out of money for suppose that seven hundred thousand dollars a month made in payments that did not occur mr mcgee and his brief in reply brief says there's no evidence of that but there is evidence of that if you look at government exhibit s ten it shows no payments of thirty four thousand or seventeen thousand dollars the highest payments are under four thousand dollars and the looked at personal accounts there were no payments of that tied at page nineteen of his reply brief mr mcgee said well there was evidence that the defendant paid some money out of his pocket but if you look at his citations which he cites a five it's actually seven document one eighty one pages one fifty seven one sixty four one seventy five and seventy six all that shows is that the defendant personally paid twelve thousand two hundred forty dollars for the south by southwest event that's got nothing to do with maintenance payments and even if you add it to the seventy eight thousand dollars you're still under you're still at ninety thousand dollars you have my third argument that the app did not work which there was evidence of i would also point out as well which is that the defendant diverted money met for what security group one security group inc which don't exist to his own use and then you have count six and seven which are really independent i mean don't let them fall through the cracks you've got of all the the arguments i've made in my brief about that overall you've got the defendant who is the consultant that's me here to hire a company that secretly is the defend the in a consultant a reasonable that this was fraud taking all the evidence in the light most favorable to the government as this court is required to do there was sufficient evidence to convict and you should have from the district court i do note at the you know if you got exactly what you asked for in the sense of he knew he was asked in tagalog the new is asking for to buy a woman a drink and he got to buy a woman a drug that's exactly what he asked for and he got to do that in this case as maher is asking for a professional an elite engineering services and it doesn't seem to me like the jury found that that's what he got so to me i don't think he got exactly what he asked for i don't see that is dicta i just don't ok i mean you don't need to answer that here and judge franson said that in his order at pages twenty to twenty one what you just said and that that is the government's position i mean  route twenty nine motions and it does lay out some facts that the judge thought at the time was correct if you will read the the sentencing in this case a month white the judge of that time at the end had access to the transcript and we cited the transcript frequently in our motions that sense in the transcript is very different in the conclusions that judge that judge but benson drew in his rule twenty nine for example at page seventeen of his order he says they was misled as to the eminently qualified the judge got that factually wrong as to their experience there is nothing in there that is there is no evidence that they were that mr asthma or was misled as to their experience none zero zero  in fact the description that mr sam's gave of mr steiger's experience mr steiger confirmed when he testified for the government as to the facilities there's nothing in the contract that says anything about the facility that's not a part of the contract as to financial resources there is no representation whatsoever as to the financial resources of the company doing the work to the extent that there is any deception for example mr steiger's name it is deception to get them into a contract it is not a deception about what he will get from that contract because he got exactly what he wanted from the contract myster evidence was thrown against the wall let me ask you something you just said what the facts were i mean why don't you just say what the facts were if you want to get them into the contract i mean isn't there a reason work mr as more continues to persist and mr sams eventually agrees to do it so tell me what it is he told him that was wrong find it in the record because it's not in there what about count six and seven and the turner  percent gets frustrated and he gets mr turner to help me get frustrated because mr adams more will not pay he keeps saying he's going to pay but he doesn't pay mr turner gets in but mr turner calls mr as more and talks to him is his testimony he was a government witness he wanted to see the guy really had the money so he says i'll tell you what we made an offer to him to purchase the company contingent on his pain his debts ok within days that offer is you owe money for that for this work mr as mark told mr turner yes i owed that money and i will pay the money it is not a crime to lie to a deadbeat to get money legitimately you know and that's what happened in this  e thank you