and he filed bankruptcy petitions for them for the purpose of hiding and prolonging his phony attorney scheme those aren't my words that's what the prosecutor said in opening statement that the evidence would show an opening statement in which he described the landlords in effect as slumlords not as victims the government's own words therefore lead me to the first of the three points i'd like to make for the court this morning and that is that if the government proved anything it was that mr millwood intended to defraud tenants not the landlords in a case in which intent to defraud landlords was the essential element the key disputed element of the crime charged and the crime on which the jury was instructed his conviction should therefore be reversed outright second if i fail to persuade you of the first point and not to minimize my conviction of the first point the jury's verdict that there was sufficient evidence of intent to defraud the landlords was fatally infected by prejudicial evidence about the tense evidence that filled the trial filled the arguments filled the testimony including babies and pregnant women being put out on the street mentioned repeatedly in testimony in an argument and the trial was further infected by an erroneous jury instruction that neutered the requirement of proof to intent to defraud the landlords which was the key factual dispute in the case and those errors require at a minimum a new trial and the third point that i want to press this morning is that two years of completely unjustified delay in indicting the case after the investigation was completed unfairly prejudiced mr miller with turning his case from one in which he would have been required to be sentenced to concurrent time with his state sentence for unauthorized practice of law turning it into a concurrent time case into one in which he was done serving his state sentence before he was even indicted in federal court and therefore as we speak as we are here today he is serving  additional seventeen months in federal prison that he wouldn't have served at the government indicted this case in any sort of a timely fashion  case and let me give you a couple of responses first apart from what is what may be true in terms of the government is allowed to change the identification of a victim or or not identify a specific victim on the facts of any given indictment in case there is an immutable principle of law that your elec aced which cite in our brief and several other cases which says that the appellate court can only affirm a conviction based on a theory on which the jury was instructed for purposes of conviction  your if i'm right about crawford that part of your argument would be it would be a different case if the government had argued that you know whether intended to defraud the client's tenants the landlords and the bankruptcy court and it and you can find any one or all of the other but that's not what was argued and presented here sensually the government did ultimately argue they argued in opening this was a case to defraud the tenants they argue closing after the judge told them what the jury instruction was going to be that it was a case for the fraud both the man lords and the tenants they never argued it was an intent to defraud the bankruptcy court but the key is not i think what the government argued but what the court instructed the jury and that's the only basis on which this court could affirm the conviction and what the court instructed the jury was that they had to find an inten there's no doubt in the bankruptcy in the district judges mind that the victims had to be the landlord and wasn't that the instructions that were given that was the instruction but i was responding to the question that said would it be ok if in fact the tenants were the victims and not the landlords and the first answer to that question is it's not ok because the only way this conviction can be affirmed is based on the way the jury was instructed and the way the jury was instructed was that this was a prod on the landlords and so my first argument is there was no proof that there was fun intent to defraud  conviction and if the jury instruction says the victims are the landlords then the government has to have proven beyond a reasonable doubt that the victims were the landlords and they didn't do that that that's my first argument the second argument is you've just lost me on the first time where it's clear from the record that they were unable to proceed with their judgments of foreclosure well it is not clear from the record that they were unable to proceed with their judgments of foreclosure the government offered proof that there were judgments ok but but there was no evidence about what actually happened whether any landlord actually tried to foreclose or anything there was no there was no proof of that and in fact with some of the tenants like mr valentine his house had burned down a week prior to any order issued in landlord tenant court so the notion that mr millet had in any way prevented mr valentine landlord from from even getting mr ballantine or that mr millet could possibly have intended that he was going to do that when he knew according to the evidence that mr valentine's house had already burned down that's one of the key things that shows that mr mill which intent was as the government proclaimed in opening statement to  problems and the rely upon to say that that's a requirement in order for there to be a conviction you know i don't know that i have a case that says that any particular piece of evidence is require in order to have sufficient evidence what i have is what i have is a complete lack of evidence that says anything about mr mill with intent as it relates to the landlords as opposed to the tenants it's correct as a correct that it's had its place the moment that there were five that is the effect and that was the extent i believe of the government's evidence they had an expert witness who described landlord tenant procedure and said that if you have a bankruptcy filing until it's under that would stay in the victim but all that shows is that there was a potential effect within their one piece of evidence indicating that a notice that been given to one of the creditors there or there were notifications given to creditors as part of the bankruptcy process they were correctly addressed and to us that is a further indication that mr millet was not trying to interfere in any way with the landlords remember he thought the landlords were entitled to nothing because they were slumlords providing uninhabitable uninhabitable premises these and weren't entitle to get r or or possession or anything that that's his mindset and he's not trying to deceive the land which he's correctly putting the tenants information address information so the landlords and correctly sending these things to landlords so the it he's not trying to deceive them there isn't evidence that he's trying to deceive the members there is evidence he's trying to hide what he's doing from the tenants because that's his fraud his fraud is on the tenants pretending to be a lawyer when in effect if you file the bankruptcy petition but the mere fact that you have a potential effect on someone else when you're defrauding the tenants is under uniform case law not enough to prove the highest mental state that the law requires a specific intent to defraud is for chapter thirteen filings i believe that's correct i disclaim bankruptcy expertise  so you know the essence of the position there is they don't have any of the typical evidence that you would see he doesn't get money from tenants there isn't any landlord testimony there's no evidence of any actual impact on the landlord there's just this the evidence that there could potentially be a downstream a fact there wasn't actually evidence that there was a downstream effect there's evidence there could have been that's just an attempt to bring back the long rejected doctrine that you know if you intend the natural and probable consequences of action which isn't sufficient you know a specific intent case but since some skepticism on that point let me move to the second point no no i appreciate that and i appreciate that and i hope i hope i miss misperceiving skepticism but to me the point that is even more powerful is that i hope i've at least persuaded you if i haven't persuaded you that there wasn't sufficient evidence i would least persuade you that there wasn't a lot of evidence there wasn't a very good case as it relates to the landlords as opposed to the tenants which was the whole focus of the the proof until the judge told the government what jury instruction he was going to give her soon your client really was differently i think though that part of the matter is the same and they might have made exactly the same claim because they would still contend that he hadn't been authorized by the tenants to file the bankruptcy petition so i think they would still be contending that he was  the tenants i think we probably be in the same place i would like to ask a question that goes to this if you would mind there was a pretrial motion in lemony to restrict evidence of the tenants correct the judge listening to that and then made a decision that it's inexplicably connected and it's part of the background that will come in and i don't find after that any objection specific objection to any of the evidence when it actually came in and i went back to the what we had an excerpt of record where each one of these people testified and to the extent they did and it was somewhat limited i didn't find a specific objection and my a specific objection that came up at the time the evidence came in my reading of the record is the same as as your honour's i don't think there were specific objections i think the parties were relying on the previous objection and the judge's ruling on so if if the parties if the defendant believe that it was not part of the history in its connected objection could be made as it wasn't made isn't that issue waived except to the extent that it's part of the history i don't think so i think the defendant made exactly the same arguments that i'm making now in his motion the judge denied that i don't think the court wants to impose an obligation that have to quit after the court has already ruled on a motion that the defendant has to keep making the same objection all the way through the guy was a trial judge if you want to get around that you just said matter continue going to jackson and ordinarily it was aspects that of the tenant fraud that i can understand being inextricably intertwined with the landlord fraud the fact of babies being thrown out on the street pregnant women being thrown out on the street p children crying is very fear being thrown on the street that is an extremely intertwined with anything that's just pure prejudice and that was a large segment of the evidence of this trial and a large segment of the closing argument  i've gone through the amount of evidence it is and i don't find it a large segment i can cite our records but in any rate when did this come up on what issue did it come up i'm not sure i understand your question i'm sorry there are several records to the vulnerability of the tenants and how millward preyed upon them and while they're related to the law suffered there was it wasn't objected to that issue judge was allowing it again but what was the specific issue why did it come up i think it came up because the government thought it was proving a fraud on the thames and that's part of the problem the tenants they were milking the fraud on the tenants and gathering sympathy about the victims that's what they were doing and that's why it has absolutely nothing to do and is purely prejudicial on the fraud on the lam lawyers i thought it came out as to whether or not they were in fact bankrupt that would seem to me to be the thrust of that i'll you know babies being thrown out on the street isn't really very probative evidence of whether someone is bankrupt whether someone is bankrupt is can they pay their bills and that question i think may have been asked of one of these people if i remember but babies being bankrupt really doesn't relate to that you're down to the industry minister if you want to state  result i do i do want to emphasize while i'm on the subject of the prejudicial evidence that the jury instruction which completely neutered the requirement of intent to defraud if you combine that with the prejudicial evidence you end up with what i regard and what i hope the court sees as a completely unfair determination of whether there was in fact a fraud on the landlords as opposed to a fraud on the tenants and anybody can file bankruptcy with the intent of stopping a creditor from exercising their legal rights that's what you do in bankruptcy they credit the tennis would not have committed fraud had they given consent and actually wanted to file bankruptcy you have so if you start with the premise and i think maybe you just agree with this i mean if this is a if if this had been a lawyer involved herman and their lawyer had been pursuing a bankruptcy on behalf of these talents there would be no cause at all for fr thirteen filing as i understand meaning meaning that the debtors were probably promising to pay back every dime to the landlord's right that's what you do in a chapter thirteen you can modify the rights but generally for time  going to do that so i'm having some trouble with your argument that stopping a creditor from exercising rights is fraud because that's what you're saying your hon understand completely the friday against the attempts it's reprehensible it's what i have no difficulty with that part of the theory i don't understand particularly the product and the creditors because in fact the tenets wanted him to stop the veterans he filed a fraudulent document to do that but on the other hand you've got a legitimate process and mind in which you seem to be arguing is the existence of the automatic stay alone  evidence as your honor i don't think you can necessarily exercise it without without distorting what happened at trial and what this case was all about this is a scheme that involved the landlords and the tenants in terms of his ability to successfully get what he wanted was which was know the way the bankruptcy works and specially chapter thirteen the debtors come forth a plan a repayment and i look at that normally you'd see if you were climbing with the creditors were true victims that they would be in there saying you know we want to foreclose i can't believe that we were chapter thirteen i think this is analogous to the bank fraud cases where a deception in terms of representation of a fact on a loan document is enough to to show the intention to fraud that there doesn't have to be a showing of surprised you're not familiar with it because neither party raised this issue in their briefs that is the part of the issue of whether intent to defraud a specific victim is necessary i don't find that petition he had attached an exhibit in which he listed the creditors that would be affected by the automatic stay and that in every single instance he listed the name of that very landlord that was the landlord of this particular t to follow your honor and the key thing in the government's mind that makes this a crime is what he has deception of his of is quote clients his deception of the rent caused them to believe that he was legitimately filing papers in bangor tenant law as he said that he was doing he was legit be their attorney and help him prepare perpetrate the fraud think the missing element of proof here is that the creditors were believed and in fact stopped and stopped their version procedures because of the bankruptcy now obviously automatic stay applied but in this circumstance are many circumstances which the one more question over time of taking over time why do you say that these these bankruptcy are fraudulent bankruptcy petition which didn't qualify for filing i'm sorry your honor i get the tenets not but chapter thirteen bankruptcy you can file a chapter thirteen bankruptcy and there you don't have money you can say i'm going i need protection from the direction i need this and i'm going to use the bank or because i'm richer promising to pay the money back  fact there's no evidence here it's it was implied that these people don't qualify and you keep saying they didn't qualify but in fact they did qualify under bankruptcy laws and then you're on or even assuming that they did qualify for bankruptcy protection colleagues i'm concerned about the sentence imposed in this case that's wrong the judge decided there were vulnerable victims the only vulnerable victims i read the record that he had and if i were not the ignore the fact that even though in his view the indictment narrowly confined itself to charging fraud on the creditors that he had also heard evidence of a great deal fraud on another side of victims and whether they were actually charged in the indictment or not i some fraud against tenants i can see why that vulnerable victim exception would be there but i find difficulty in this case i understand that you have wider latitude i could proceed quickly through a couple of points that were raised first of all at page twenty four footnote nine of our opening brief we tried to recount the evidence on who who had what assets for purposes of bankruptcy there was very little evidence about but we put it in it page twenty four of our opening brief it's not clear to me how it's a fraud on the landlord if they were eligible for bankruptcy but they weren't authorized they didn't authorize no with to file that seems a fraud on the tenant as opposed to a fraud on the on the landlord i have been able to locate crawford and it is as i suspected as for not having it at my fingertips before it's essentially the same sort soul and it's very different from this case in crawford my understanding is the defendant was charged with taking a painting and the holding was she didn't need to know that the university owned it she just said i took it from the museum and i didn't know the university owned it so the difference between who owned it was not a difference in terms of the government's theory of proof of what the crime actually was as it is here between you know a fraud on the tenants on the one hand and a fraud on the landlords there was just a question did she know that the university owned the museum and in in addition to that going back to the distinction i made earlier the jury was not in correctly instructed the jury was not given an instruction that says you have to find a fraud on the landlords they were given an instruction and i think it's contained in the  the the case down to a particular theory that's different from what the government would try to would be trying to argue want to appeal so it's different from the scottish are you i won't take away too much your time i like to have you comment and that's your effort to distinguish c victim that is someone must have been defrauded of his or her property and he's saying that's a change which is consistent with what we have been indicating crawford state how in light of judge to shame is that we are reasoning about holding from what the dissent is i would say that the fact that the indictment does not have to specify a particular identifiable victim does not you know in especially in the context where it's just a question of who owns the museums as you see only on the museum or not that is a completely different case and is far short of the shift that you have in this case between you intended to defraud the tenants all the way over other points very briefly that were made i hear the government again arguing that that the idea of the bankruptcy pride was to hide from the tenants what mr millet was doing and that there was see i also heard the government say that it is a requirement i'm sorry that it's not a requirement of intent that there be an intent to create a loss to the victim and that is what the judge instructed the jury but that's not a correct statement on the law and i think that's one of the pivotal reasons why the trial was unfair because in light of all this prejudicial evidence and the thin if any evidence that they have an intent to defraud landlords they completely neutered the instruction on the key element of the case by saying there was not a requirement that mr mill would intend to cause a loss to the victims and what's an intent to defraud if you're not intending to cause a loss to a victim and the hornbook say you do have to have that intent the instruction in this case erroneous lee said that if you didn't there i listen for any justification of the de lay there is no justification for that and if he did not mention her argument that's not ok fair enough ultimately i think the this case was charged incorrectly and just  the same result is required here and i ask you if you do have any sympathy for my position mr miller with the clock is ticking for mr miller with he's he's serving the over time time he's serving as a result of the