utilized by the district court to admit certain e mails e mails you're talking about the business record exception that's the that's the issue and there were approximately  that apparently that they were business records i don't think we have a the only ruling that we have is and from the bench and he basically says i'm going to admit subject to additional objections for relevancy and prejudice these are these  the e mails he was challenging whether or not they were actually came from him the sec rest exactly right i think that's the argument that was made below and i think the judge did the judge say well that goes to the weight not the admissibility mean the jury would be able to do you know based on the questioning by you know done by counsel and i don't know if that was you or not down below the jury be able to decide you know if there should be any you have anything else on regarding mr carpenter no that was the only use your honor but the foundational problem is that mr carpenter was not permitted to cross examine on issues that were to actually related to whether he was the author of those those but the testimony was not that he was the author it testimony was a these e mails came from certain e mail commission to michael i just you know from an outfit called for shortness crystal pistol in arizona i submit that at hundred six sixty two which is substantially different than four and a half million so your challenge whether or not the gold mine proceeds were relevant tell me why they weren't why it wasn't relevant content i think that's what you're arguing i'm sorry i think you you're here arguing that the gold mine proceeds were not relevant conduct because that's what the court determined that they were relevant conduct for purposes of sentencing that it was foreseeable that they were somehow connected that these funds you know would into play based on all of the activity of the of the defendants i'm against i'm just trying to find out why the court was erroneous in making that finding as you're i think try is this nine hundred thousand dollars should have ever been injected into this trial in the first place and our position is it shouldn't happen so there were two schemes going on and one overall conspiracy according to the government i will ask the government why  connected in some ways or i think there is sufficient evidence to support that no one knew about the other so now we're coming back hindsight after trial and we're saying well this is  account came from any of the investors that were charged in the indictment so no money from the investors went into that count and know that money made the circle into the other conspiracy so from all we knew at trial was that this one hundred thousand dollars was a legitimate proceeds from something or what about the fifty thousand dollars that was withdrawn by your client sun at her request yes so that there is although the government wants to infer that fifty thousand dollars was dropped off in some sort of clandestine you know cash handoff that day there's no direct evidence showing that there was some sort of that the fifty thousand dollars went to steven carpenter that they were going to give it to mr karr appears i mean presentation of the gold mine the one hundred thousand dollars in the bank account christian god doing business as is that all you have to speak of counsel the presentation of the evidence of the nine hundred thousand dollars in the christian god doing business as says that gong bank account once we cross examined agent would in a stablished that none of that money had anything to do with the crimes charg this indictment we should have never talked about any of the evidence that logically flowed from that didn't suzette give fifty thousand dollars in cash from was a christian can have the bank account with christian yes from the gold yes she took the fifty thousand dollars and gave one thousand dollars to carpenter correct if you want to say that if i mean who knows where the exact she testified that she gave a thousand dollars that took place a thousand dollars took place after she got the fifty thousand dollars in cash troop it if you take all in ten minutes in favor of the government cannot the jury find that part of the fifty thousand dollars was a thousand dollars that went to congress they can make that inference your honor but the i guess the my guess my point is that why they shouldn't be allowed at any point to make that inference because none of that money has anything to and that it's happened and you're arguing that it shouldn't have been you know relevant or should think you know part of it wasn't enough to implicate your client for the gold my friend i think we have to look at it in the light most favorable to the government don't we want to sufficiency of evidence standard your honor i'm arguing that it's it was prejudicial it was relevant prejudicial to admit that  apart from the fees affected by that air it is rather even so whether the error itself is is a substantial influence if so if one is left in grave doubt the conviction cannot stand  allowed them to essentially steal second keep their foot on first and by that i mean they they painted the nine hundred thousand dollars funds as being fragile only obtained and once they paint them as progeny obtained it shades the testimony that the jury heard regarding all the the surveillance on june eleventh two thousand and twelve when the my client christian gall went to the credit union and withdrew the fifty thousand dollars and gave it to my camp says that all and then he left and went somewhere else and they were surveilled to the hotel allowing that the government to paint those funds as progeny obtained essentially prejudiced my clients ability to that permit an inference that christian knew that the oil and gas king was from the none of the money deposited in my client's account came from any of the oil and gas investors and i had to understand that that wasn't mike my question my question was you know why doesn't the fact that kristen learned about fraudulent funds and being deposited from an on trust money and nine hundred thousand dollars to come from their son a gold mine that that somehow makes it unreasonable or should be looked at askew but as mr schumacher testified during the sensing hearing the arizona gold mine had a website up they had a newsletter they had a geologist talking about how this was an ongoing operation and you know there's just there's no evidence tying my clients anything having to do with the arizona gold mine he took let's see evidence of the connection between christians acts and the oil well really the only action only evidence is that the money was withdrawn and under the government's theory went from the bank account to mr carpenter isn't it also though that the two brothers had a conversation that his brother as andras i was also parking money in an account and earning a commission for that amount and knew that it was scal i want to switch gears a little bit and address distinction between the this case and the arguments of the cases presented in regard to the jury instruction that was provided intruder as well as the majority of the cases presented by the government the question there was whether or not an accomplice instruction was appropriate when given when an accomplice testifies for the defendant rather than for the government the situation that we have here is the problem with that accomplice instruction being confusing being contradictory to the standard instruction that j therefore the concern with this is that when the judge instructs on viewing accomplice testimony with with caution that is transferred to viewing under such testimony with caution as the purpose of this instruction is to alert jury jur the possibility of perjured testimony but we assert that that is an argument that opposing counsel can make and that it was to elevate it to the level of an instruction give it far too much weight and again because of the similarities in testimony between  and that they were to view accomplice testimony with caution yes the problem with that is that they were also instructed that as the jury they are to determine credibility of the witness and they are to do that by listening to or by viewing different factors how they testify understand any motive they may have etc and so the argument that an accomplice is going to save his skin is certainly something that the government could have made but to put it in an instruction that the judge reads as the law of the case elevates it to prejudicial the government indicated that again in regard to the failure to properly watch your argument that the argument had been waived and so again questions or other objections by one defense counsel were to be to all and additionally pain to me and the government's case in echo or about the failure of the judge to ask questions that had been provided pretrial and that happened in this case anderson provided a proposed jury questions as well as joining in the arguments that his mother had made and so the failure to ask questions on behalf of andras did not waiver at at the actual law here did not waive that issue for appeal what was the prejudice because you didn't say it in your briefs what was the prejudice for failing to ask the questions that you had asked the prejudice here is that based on the questions that the judge was asking he was asking judges to urson jurors potential jurors to judge their own ability to be fair and impartial and this is been addressed as something that is concerning in the cases that were cited particularly in consolidates the court so that more frequently jurors are reluctant to admit actual bias and the reality of their biased attitudes must be revealed by circumstantial evidence and so we should have been given the opportunity to ask a question as basic as have you ever been a victim of financial fraud that was the type of question that was submitted because even if an individual said yes and then they were for the body or it on whether or not they could be fair and impartial we could have still use that information to determine whether or not a preemptory challenge would have been appropriate and by not having those types of questions which can do that at the government indicates that the court actually read the entire indictment to the panel and he did however after reading the indictment the follow up questions were have any of the panel members read or heard about this not whether you know the charges contained within the indictment were problematic from the the jurors but again the prejudice comes with the fact that they were being asked to judge their own ability to be impartial which has been determined to not be fair question to ask jurors and we need to have the opportunity to at least know that these facts were existence before in order to get a fair and impartial juror which is of course her jury which is of course a cornerstone of our kind of justice system did the court ask just the general question of whether there was any reason why a juror could be fair and impartial yes the court did ask questions such as does anyone is there anyone who has in his or her mind a question about their ability to serve as a fair or impartial juror one juror raise their hand  in a sidebar indicated that it was because they had been taking sleeping medication the judge i also asked if there was anyone who questioned their willingness to serve and no one responded that i as well as mr meyer asked questions about just kind of the catch all in a desperate attempt to get anyone to reveal something that might be useful in this determination after hearing the indictment is there anything that gives anyone concerned but again i believe that's putting too much burden on the jurors to volunteer in this large courtroom information is very personal i believe my time has run very much th me at counsel table is mr ross that he was lead counsel at the trial what i'll start with first for the court then is the nine zero two eleven certification and that was an issue that was raised only by mr carpenter what the court should be aware of is that all the fende in stipulated as to the e mails except for mr carpenter he's the only one who didn't that then prompted the government to file the nine o two eleven certification and what we're dealing with foundation and hearsay of course the rule that we're talking about is the nine zero two eleven certification so just be aware of that the other thing and this is more of a practical aspect had the custodian been brought from yahoo and just mention on that topic is that really what we're dealing with are eleven e mails of the sixty e mails all of the other e mails were associated with other individuals the eleven that dealt specifically with mr carpenter that were under the nine zero to eleven sort of occasion to state that a little more clearly people with personal knowledge who were victims came and authenticated those e mails as well there were only eleven that were the subject of the nine zero two eleven certification that only dealt with mr carpenter and again i mention the practical aspect that had mr carpenter's counsel wanted to address that issue with the custodian they would not have been able to help with that issue at all the other point is that courts ma clear that's the idea behind the certification so that we're not bringing these individuals from say for example in this case yahoo down in california all the way up to the state of montana huge now i believe the next issue that was addressed is my understanding was the gold mine and i think that that's garnered a considerable amount of attention so i will spend a little bit of time on that now first practically speaking this gold mine issue was not charged in the indictment the reason that it wasn't charged in the indictment is that that full case hadn't been worked up yet the case that was before that that the government had was the fort peck indian reservation oil and gas scheme so the reason that that was relevant though is that that money was used to pay coconspirator steve carpenter that fifty thousand dollars that came from christian gauls account that was then transferred to mr carpenter and one thing that the court should be aware of when looking at this issue is that we didn't know the individuals they were basically e mails calls but we had no identification of anybody that's why you have the surveillance team scheme that was what the defendants wanted for this trial it's not something that we brought in what was relevant to the government was that money was transferred from christian to suzette to carpenter the source of the funds did not matter and that's why you hear or you can see a s e r one thirty five mr foster asked mr wood and mr wood did the analysis of the financials did you referring to chris would personally do an investigation as to the goldmine in this case mr wood responds i did not do an investigation into that particular aspect of this case no sir mr ross that says your honor we would like to lodge an objection and take up an issue outside the presence of the jury regarding the gold mine issues then the court says well i think the objection is well taken it sustained you will not be making further inquiries into an issue in this case it's not part of the scope of the charges in the indictment even the district court recognized that then just to go a little bit to the end of that you can even see later at the very end of the case that s e r four thirty seven that is where mr foster says first during the course of the trial the government objected every time we tried to develop facts about the gold mine the point of the government was that that was not relevant for purposes of the trial it was not in the indictment what mattered was the agreement between christian g evidence do we have that he knew about oil and gas and he have to know for him to be convicted on absolutely and he definitely had to know so the first part and this extends even more beyond he had to know that there was this conspiracy but what's important for the court is that mr gault christian god probably didn't know all of the details because he wasn't as involved as might count but the court gave him credit for that by giving  level reduction for him but what he did know is that there was fraudulent money and that he was running the bank accounts when the court looks at this case and how mr and roston iraq didn't money from the goals mind s and a fraud and he got nine hundred thousand dollars and he's got the signature power over the account and he gives fifty thousand dollars to campers wife says that gal credits his mother that's correct  any of the details and where's the evidence of that so what he does know is that they are it was a family affair that they were working up in the four pack wailing gas he didn't know at that point when he spoke with  did know that that money was fraudulent that was coming and that's absolutely correct it was fraudulent what money the money a gold mine was frozen because a gold mines skim pressure on where it is please point out to me the evidence that christian had knowledge that there was some fraud involved in the oil drilling scheme yes your honor what he knew in this case was that that money was going to be what we're asking you is what ties christian at all to this conspiracy having to do with oil and gas leases because he's running the accounts which is the gold mine that is payin that the money from the gold mine pays mr carpenter how do we know and do we need to know that mr christian knew that that money coming from the oil and gas was a fraud yes well yes what's the evidence you know that it is a fraud that's right and so how what is the evidence that he knew that it was fraudulent fraud the oil and gas not the goal line because the money ok the citation would be s c r for seventy three that would be the nine hundred thousand that christian came in from the scheme then fifty thousand of that went to mr carpenter and the the reason family was not all the goals seem to be except for christian seem to be pretty in the deep into the oil and gas fraud that's correct your honor so there were leases that weren't really that had been expired and there hold them out to be they're taking vacations none of the money from the oil and lease is going to drilling that's correct so any of it's what the us that christian knew about that well he was on some of the trips so from two thousand and nine he was there now he only worked for target he worked as a youth pastor but none of them had jobs in any way right i guess what we're kind of down to is that certainly there's enough to draw the inference that there's a large amount of money placed charged with that's correct way what he was charged with was the he was he was moving the money for the four pack well in the asking how he did that was he took money the fifty thousand dollars that moments later was transferred thousand dollars of the bank from the goal scheme that's correct now miss goff and that it was for breathing apparatus but so there's really no dispute i mean we don't know exactly how much transferred but there's no doubt that money was transferred across and mr knew that there was fraudulent money which mr goh christian god that's crap and that money from the cults gold mine but he didn't necessarily know where all of the money came from and that's knows that his job is to run the fraudulent money yes the frozen money for the goals can you if one thousand dollars in frozen money goes goes to carpenter any not evidence that in a light most favorable to the government the only connection between my camp and steve carpenter was for this oil and gas and where is the knowledge where is the evidence that christian knew that the only conduct and which made a substantial difference in the sentences i mean the amount with the oil and gas was you know less than one hundred thousand dollars i think is seven hundred eight hundred thousand dollars but then when they get attributed all of them with the oil and what the gold mine that raises it by four point five million dollars that's correct so i guess i'm trying to reconcile your position if you work on it you didn't really want to include it you didn't think it was ready but certainly didn't hold you back from arguing for the upward just absolutely so here's how it progressed at trial  before the day before mr camp a pleaded guilty his entire point was that he wanted to acquit his family of all of the conduct that he was going to keep the blame and he was going to say that they had no idea about anything at all then you have on so that was on april twenty fifth of two thousand and thirteen excuse me that was on april twenty second of two thousand and thirteen and in there there is a statement in the offer of proof that says additional monies were being provided by the victims into a fraudulent goldmine promotion that operated at the same time that was at the change of plea of the government alleged that and that's at e r eighty three in mr campus briefing now the reason why that was relevant is colonel dumas us had paid money into both the gold mine and into the indian reservation so he had he had been swindled by mr camper there and then he had also been swindled at the arizona gold mines scheme and i think that that's one issue that we're getting tripped up or at least i didn't the answer is clearly if the court is asking if we think that this is one scheme my answer would be that this is one scheme that m has never sold anything legitimate in his entire life and you can see that in the record when mr ross dead his cross examination once you think that the goldstein and the oil gas are all one right i think that we charged the fort peck  gas but certainly they work together and the reason for that is that they mix the fines all the time it's constantly in intermixing of the funds and you can see that here with the records that we have at sentencing where for example that is then transferred into domestic energy solutions which is the fraudulent corporation and even you have the commingling of funds that mr wood testifies to in the sentencing and then you have as well mr burns egypt b to support the conviction of all of the defendants and then more pointedly the relevant content ect you know that would add that much money to increase their sentences and so for it to be relevant conduct i guess they have to know that it was reasonably foreseeable that's correct and it has to be jointly undertaken criminal activity and so you're you're saying that is jointly undertaken activity by all of the defendants that's correct and it was reasonably for and neither did mr carpenter so those are the three individuals that the court is dealing with for purposes of relevant conduct now i did at least want to point out as well that this is something where it wasn't the government who makes these fines the defendants mix these fines and they continually go back they call the mooches where they solicit one individual once they've taken the buy and been defrauded then they repeatedly come back for them and what they'll say for example is they will say you invested ten thousand dollars with me you've lost that money if you invest another five thousand dollars with us we'll give you credit for that and that was a continual sort of a tactic that you can mark call was taken by a t m machines that f d r eighty eight phone card machines new age products gas that's mr camp was involved in so you have that continuation that where there is that what we call the double punch and you can see that with domestic energy solutions and then us oil and gas so with mr camp he comes in he says that the amount for domestic energy solutions is x dollars the victim pays  money in comes mr carpenter after that and says that that money should be credited and you have to pay an additional amount of money to keep your investment so that's the jointly undertaken criminal activity that it was all working together and if you were just to look even at the restitution amounts for that again that link that we have is the use of money from dean how left  the fort pac well in gastein because they're providing that money it's directly harmed one thing that was brought up in the briefing was the issue of the case the parallel in case it was brought up in the reply brief that basically said that  e we have the rule of a few weeks and she we originally occurred by saying that you have restitution and if there are any acquitted counts it can only be for the count of conviction congress amended that saying that you can broaden the idea of a victim in other words counts that aren't convicted and in this case you have for the definition of victim means a person directly and proximately harm the reason mr  africa from the oil and gas king was directly harmed is that his money was used to profit the fort packed oil and gas king and the way that i would think about this or at least it's in my head is the idea of a grocery because that money dissipated it was used it was going to go back anyway well it was in the account but then it was it was dispersed so that's why he was directly harmed and the other thing if the court were looking to draw lines about that and the restitution amount you have the same that comes as i mentioned colonel dumont's and that's s t r one thousand the same beneficiaries which were the gaul family there was the intermingling of the funds the use of