times of an individual who eventually became a codefendant of ms rogers and went to trial read her that is mr blair also an appellant before the court today mr blair became soured on the basically the old after the first payment it was long before that actually your honor because in fact mr clark demanded from mr blair part of the proceeds of the fraud essentially if the government has  or which mr blakeley agreed to give it back one hundred twenty five thousand miles he kept the theme of the bargain he did although he was quite disgruntled about it and literally within days of the closing of the transaction which was at least a month before that evolved within days of the closing of the transaction mr blair was in his accountants office saying to his accountant i am in touch with the f b i and the i r s there is something going on here he very clearly at that point your honor did feel scorned and converted from it but now i understand and i know when i could talking about the facts but it was not just that he at that point something is going on he was very aware of the inflation in the property value from three point four million to four point two correct certainly not just some all of a sudden he felt like our learned something was going on he was really really in the midst of what was going on pretty much from the start yet he was runner that was certainly the government's case favorable to the government is what the jury found are mr blair and it is a rather unusual factual scenario decided that he was going to try to paint himself as a victim of this fraud in the prosecution theory he had been part and parcel of from the very beginning and in the process of trying to paint himself as the victim and to cast blame on the individuals who became co defendants my client ms rogers and mr s ultimately cooperated he did several things and made several statements that were highly incriminating of my clients including statements to the bank the victim banks  closing attorney made very shortly after the closing and statements made to the victim bank loan officer made so much there after eventually a listing in fact making a tape recording of mr clark rogers participation in a world where there were your honor you say you're a brute but there were statements i believe two sets of statements to the closing attorney may have been one but statements to the closing attorney statements to the loan officer mr forrester there was the recorded call which was introduced for its truth at trial the government did not contest that these statements were all used for their truth and then mr blair also had two interviews with the f b i at which he made statements incriminating of his co defendants all of those statements your honor were introduced at trial and each and every one of them was introduced or their truth is ok but if those points were in fact stablished by other evidence during the trial other independent evidence even if there is some group an issue with that issue just be homeless it would not your honor for two reasons first just as a matter of the facts those points were not established by other evidence at trial but more importantly when this court sits in review of a constitutional violation it is applying the chapman versus california standard for constitutional harmless error and that means that the burden is on the government to demonstrate beyond a reasonable doubt that there is no reasonable possibility that this evidence influenced the verdict that means that this court is not to conduct a sufficiency analysis on the remaining evidence the score is so stated in several cases including carney for one example cited in her brief that means that the court is not to ask itself would disturb me have convicted were these statements not introduced the court is to ask itself so we have any basis in this record for concluding that the jury merely disregarded all of those statements when it reached its verdict and convicted on other evidence the court cannot do so in this case for several reasons most salient of which is that the government emphasized these recordings in particular over and over during its closing arguments and there's an important issue here because when the prosecutor talked about this avoiding yes and in fact your honor there is a very important point that the court will see when the court reviews the transcript of her closing argument the prosecutor details there in evidence that in the government you demonstrated ms rogers guilty knowledge and the falsity of the statements that she submitted to the bank but when the prosecutor turned to the essential elements of the defraud and as the court knows in a fraud case knowledge is done enough intent to defraud is essential when the government turns to the essential element of intent to defraud two times the prosecutor said to the jury how do we know she intended to defraud the tate and the government but died on the tapes as the key evidence of ms rogers intent to defraud the cost the government and its closing argument opted to it's if you have articulated and alternative theory that really constitutes a distinction without a difference when you when we're talking about how we determine whether or not there is a said numerous times that this is not a sufficiency analysis it has affirmatively stated that it is ever for a court of appeal to examine the balance of the evidence as though the challenged evidence had not come in and ask itself with a jury has convicted anyway this court must be convinced that it's the government's burden that this jury this regarded this evidence there is no reasonable possibility that this jury relied on this evidence when it reached its verdict and that is simply impossible on this record because as judge merritt pointed out earlier this it earlier there were numerous instances of statements several witnesses who testified to statements the not the tape alone but the tape alone of course was the centerpiece of the case and what we had was numerous references over the course of the trial by two representatives of the bank testifying to prince separately the case course that judge greer believes that the statements were not testimonial but that was ever the reason that they were not in furtherance of the conspiracy your honor is twofold first when one looks at the indictment which obviously is the definition of the scope of the conspiracy this is in the record at pages two through four one sees that the government charged the manner in means of the conspiracy as the events up to and including closing the indictment has a section page for the record that says execution of the scheme and the execution of the scheme which was the object of the conspiracy was the receipt of the fines at the closing table so first as charged this conspiracy was complete act  commonsense application of the plane or a doctrine and if the district court had an opportunity to address the issue and was aware of the issue at trial then it will not apply pain ever but will hold the issue has been preserved in fact there was a need to come to is the answer that there was it was the appropriate objection or is the answer that there was not but it doesn't matter if the answer is twofold your honor first the defendants including ms rogers did raise the brewin issue prior to trial they did not she did not renew it by objection although mr blair because the court clearly had been aware of the issue and had addressed at your position is that it was preserved it was but even if this court is going to apply that same error doctrine and when this court reviews for example its cromer decision the court will find that in cromer the court found an error effect in substantial rights because the challenge testimony went to the heart of the prosecution's case i think my time is up the court has nothing for them to cook did you have another question i think c typically preserved for fraud cases that are especially intricate or especially complex argue that based on the charges of bank for all the aiding and abetting bank f in making a false statement to a bank there's nothing about this fraud scheme or mr boyers participation in this scheme that is particularly or especially complex or especially intricate especially if you look at count indictment is actually charged with making a false statement to a bank well that's the exact conduct that he's being enhanced for which is making for faults documents or there being four false documents that are submitted to the bank in support of this law and so my argument is that with those or documents that are being used for the sophisticated sophisticated means unhandsome that's not appropriate when in fact he's convicted   count four for the exact same conduct and if you look at the four documents when you look at his participation in those documents it's minimal at best typically a sophisticated means and handsome it  applies to to planning or a concealment type conduct there's no planning that went into the midst of moire that went into these four documents the were used for the sophisticated rings and handsome and he wasn't involved  n the planning to achieve the objective of creating and hence the value in order to get basically one hundred percent of what he wanted to get from the bank in order t and so if you look at how the sales contract is created i think the testimony is that mr blair is actually in his broker's office and mr rogers still samovar what the contract had to say that information is relayed to mr boyers hired who creates the document and mr blair simply science i don't believe that shows any planning on them on the part of mr blair or it and i certainly don't believe it's particularly sophisticated in every bank fraud case you're going to have some sort of that i would point out to the core of the phony down payment checks i think the testimony is clear from trial mr blair had no knowledge of those at all until after the closing he was never told about him never knew about them until after the closing the there's the owner financing document i think the testimony was mr rogers bringing that to mr blair there at the at the closing right before mr blair enters the attorney's office to do the closing that document was never presented to the bank it was not part of the closing package and i believe the testimony of mr clarke and mr rogers was that that document was never even discussed it causing so that certainly was not used as a fraud on the i understand that you say this is basically run by mail bank fraud you know nothing particularly sophisticated about it but what it is or do you have a particular case that you believe is strong authority for the position that you're advocating that this kind of series of transactions doesn't particularly amount to sophistication the purpose of the enhancement i haven't found a single case your honor where sophisticated means some faults trust documents and what the appellate court with six circuit said was this is a close call that we're not going to overturn what the district courts the because the attorney knew of the existence of of these offshore accounts and fraudulent so since you know bank fraud it's not all that rare and you say that you have about a case to really support your position what is the compelling he said evidence in this honor i believe that the fact that i can't find a case is one of the reasons that this case is so important that you should look at every fraud case should have a sophisticated means and handsome and this case i believe th court should set out some sort of principle for determining what sophisticated means applies and i believe that principle should be this that there has to be some sort of planning by the individual defendant that it's applied to to overcome some basic d diligence and in this case the bank doesn't have any real obligation to find out what these documents were fraudulent but if they had exercised any level of due diligence they would have known that the schedule c was not a real tax return they would have looked at the fraudulent checks that were submitted that mr blair had nothing to do with and saying that the check numbers were the exact same on all three checks and and so i believe that there has to be some finding that that i know that mr boyers position is that the bank knew about this they wanted the loan to go through i think that was actually the position of sam parker's world during the his testimony at the time that they entered into the sales contract four point two million dollars mr clark himself was under the impression that the bank was turning a blind that i can't say that's for sure but that's the impression that mr clark at that they wanted this long to go for and so when that sales contract was signed for four point two million dollars even needed this evidence and so the sort of names that the prosecutor really didn't like it was harmless error that's a good question there's merit if i can go back a little bit and explain how against him and i have the hatch regard he forces the united states to disclose prior to trial all statements which may qualify as proof and i don't make that determination but i complied in this instance  and may and it got continued until august because we had some conflicts with mr white's law firm is my memory that was bought off but i didn't know that until a day or two before trial so i made all of my disclosures back in march or april of two thousand and eleven the case was actually tried in august several months later and there were no changes it's a very lengthy document and i'll be happy to give you the site but specific  ones from the take which were actually transcribing given to the jury one make sure that the court understands that they were collected back up and they didn't have a quote the jury room but the statements were transcribed in the resume we did that was so that the judge and all the parties would have the information in writing that type was very short there are two instances that refer to tina that's miss rogers and only one incidence in there which by any stretch of the imagination in co pay and this rogers judge found that disclosure we actually had a short meet this is another thing that judge greer does before the trial starts and oftentimes when you go from one day the next let's say on monday we started the trial of the case on tuesday of the next day he'll call us all in there at eight thirty is not memory and say are there any issues that need to discuss brought up a bruton issue that had to do with cameron forster who was the bank loan officer senior vice president and former law enforcement officer and sail judge he raised and we resolve that i made it very clear that i wasn't going to ask that question and i didn't do that and i don't know that i consider myself a great prosecutor i do consider myself a good prosecutor and more than anything in a case like this which is clearly a target rich environment all of these documents all of these acts all of the faults basement i would never have consciously or even unconsciously tried to put in evidence which was not crucial to my it to the too late is that losing the supervisory agent when he did it that he knew it was criminal behavior and he knew it at the time that he committed it ok so he brought it here and it you know i have a whole different right the first time and with the plethora of evidence of guilt that we had in this matter why would i have done that i would not have done it consciously she also states or ms rogers argues that i emphasize or have been an  this matter came from tehran tears and went to the bank sam clark from does that mean that somebody else created them gave her she passed them on are you saying that she was involved somehow in the creation of those documents or that they sent them well it depends on who you believe according to same cloth and my question is that somebody say yes she created the same card if i had to put it in the decreasing order of importance instead of chronologically as i did the witnesses that same card who put her in the getting from day one he she told him day one act into one hundred percent financing for you just  bank checks for four hundred sixty five thousand dollars in earnest money which she knew because she had helping to finance his health just the year before that same part of it had forty two thousand dollars by her own admission on her own to the money mrs rogers at trial stated that the most money that same card had any availability that all the equity in his health and his kids college education buzz the whole nine yards was forty thousand dollars she knew there was no way same park could have come up with one hundred sixty five thousand dollars in earnest money you've got rogers according to sam rogers told clark to kill blair about the two hundred ten thousand dollar promissory note the side deals they are you know she created that fake promissory note bobber own admission she created the amortization schedule for it she fabricated the entire story to mr clarke and repeated it to mr cales or of a variation thereof about the kickback one hundred twenty five thousand dollars you know she was the lead in all of that you've that she first attributed to sam clark that he disavowed any knowledge of that those were her or her figures and that her diverging in writing she admitted to agents can and that she had to have known about the of testimony which was thursday and i really wasn't as prepared as i should have been and that's probably why i cited the statement from mr blair's take but i went back and i looked at my argument and i went over time which is another indication that i was not prepared and out of to ask stated two hundred seventeen sentences to says in that two hundred seventeen sentences as regards the portion of the closing argument which pertain to mrs rogers five out of two hundred seventeen talked about the called statement that it's two percent of counsel could you confirm what i think i heard you say which which is that the tape and within that tape one sentence is the only true concern issue and that in this case it's absolutely correct your honor and i thank you for pointing that out i've actually got the transcript of it here i think you also need to understand a little bit about the in further just the conspiracy and how things played out and why mr the different personalities that if any of these three defendants had bothered to be completely truthful with each other they would have gotten into this trouble but the initial fraud started with mr blair when he falsely told mr carter that i make a lot more money than i report on my tax return and and that explains why mr blair immediately goes to the closing attorney and asking him to reissue another to ninety nine for one point two million dollars less or something close to that you have to look at the whole scheme of things and i have run out of time i think the sophisticated me is enhancement the fact that all three of us pages and pages in our appellate grace trying to feel about your career and judge greer of whom i become offended about was obviously very very careful of it about it you made a mistake your honour's he made a mistake but he was absolutely cognizant of the bruising issue and in this court has said as a practical matter the touchstone of play in error is whether the district court had an opportunity to address to the parties actually present the issue in a manner where you remember that efforts to conceal the conspiracy after the fact are statements made and further resolves the conspiracy seven seventy s i think fifty seven that an attempt to conceal a conspiracy does not extend the conspiracy unless concealment was originally charged as an object of the conspiracy which it was not anything hold it's not your honor to the to this extent first one looks of course at the indictment to determine what the defendants were actually houston doing second and this is an alternative analysis even if the court believes that the scope of the conspiracy is broad enough to encompass these statements one must ask whether blair was acting in concert with his co defendants when he made the statement that clearly he was not to go back to your honor's word he  scorned at that point and days after closing he was telling his accountant that he was going to the f b i they were not acting in concert at that point your honor they were at odds and that demonstrate that the statements were not in furtherance of the conspiracy if i may take one moment just to give the court cites to the references to the other statements that are at issue in breaux in the testimony by the closing attorney is in the appendix that fifteen eighty seven talking about what they're told him including statements about the rogers the testimony by the  loan officer is that thirteen seventy three and seventy four the testimony by the case agent which encompasses both the recordings and verbal statements made to the case agent by mr blair are pages  clearly a reference to my client also an appendix page thirty the court will see what listeners called the single statement it is a single statement but the single statement is that after recounting the detail of the s says cause tina told me whatever she said agree to it so i did so a single statement your honor is but a single statement saying the whole thing was her idea it's highly prejudicial even under a plan ever standard ms smith said to the court that she would not have introduce evidence unless it was crucial to her case and that the record reflects thank you thank you thank you for your arguments the matter is submitted thank you