stands convicted of a loan fraud and tax fraud of two separate trials our first claim of error on appeal is that the government's misconduct before the grand jury requires a new trial or at least a remain for disclosure of the key grand jury testimony of the casey alone fraud charges in this case allege that mr de castella provided tax returns to the lending banks knowing that those returns contain inflated income numbers which tended to qualify him for these loans but these tax returns were prepared and signed by his accountant john the this was not an airtight defense there's no question he sir the government could have played it straight and still perhaps convinced a jury that mr de castella knew the numbers and those revi returns were too high and were not realistic but rather than take the risk the prosecutors coerced the accountant to present a false statement to the grand jury this false the accountant told the grand jury in a prepared statement that at some point mr picasso asked me to prepare hypothetical tax returns for him in its business so that mr de castella could see what the potential tax consequences would be if he started to earn more money mr dick costolo quote gave me the numbers to use and the tax returns were prepared for mr the cost of this benefit i would not have signed these return when mr serrano he testified for the defendant at trial the government used this false statement to impeach his credibility and in fact the prosecutor is admitted before the district court that this was its strategy there it's clear from the record that this statement is the grand jury testimony is false the the record the evidence clearly shows that the returns were signed by mr ceramic in the interim numbers were not made  they weren't given to him by mr de castella rather they were computed by mr saran his methodology may have been incorrect the numbers may be too high but these are not hypothetical returns and they were not unsigned  since they're not going to be filed it just to give my underlying you know a sense of how much more tax on my understanding is that for the for this accountant it was easier to spit them out as as sample tax returns to show the consequences rather than calculated on a piece of paper but you're right they don't have to be on tax which is this common i mean i know i've not heard of this i don't know this is the first time i've ever heard of  original issue disk yes and i was going to get to that if i guess i just want to stress that united states versus heller the case that we rely on and this issue is an almost identical case in that case the defendant's account prepared tax returns using a disputed method of accounting the government coerced the account to give false testimony claiming that the defendant concealed facts from him during the preparation of the returns and this tactic ruined the accountant's usefulness at the trial as in support of reliance defense the eleventh circuit concluded quote mr heller has been deprived of an important defense witness by substantial sammy was and he was impeached with his false statement by the grand jury describing them as hypothetical returns and he was basically a useless defense witness so the reliance defense was undermined by this tactic case the government made i mean the government could have played it straight and possibly won this case there's no dispute they did they had mr consul say something that was clearly false before the grand jury and then discredit him at trial to make sure that the defendant's but here we're not asking the court to find that any of the government's evidence was incredible in fact the evidence is undisputed here all of it shows that mr to cost of was an eccentric character was a true believer in this theory what we used to basically set aside all of this evidence i mean we have here you have a situation where we have all the seminar materials that he which basically tell it struck him you have a right to this money this is your money here's how you go and get it you know all these suffered whatever you know this one i mean it was a snice is the problem with true believers there's maybe a problem with true believers but this is not fraud that's the point and if you believe it's true it's not fraud and this was not a sovereign within weeks if he was committing fraud he could have tried to cover his tracks and withdraw the return in fact the i r s told him just withdraw your return otherwise you're going to be fined and you're going to face criminal prosecution instead what you have is five months of correspondence with the i r s demanding some explanation insisting that his theory was correct demanding that they provide some explanation as to why it's frivolous he sent copies of these letters as the district judge found to the attorney general of the united states to the secretary of the treasury he put his fingerprint and his social security number on these correspondence this is not the behavior of somebody that's trying to cover his tracks there's no question to you he was a true believer i have based on what you say  true believers do go to prison for fraud is fraud and this may be something else he may have been he may be guilty of something but he's not guilty of fraud if you truly believe that the district court pretty much acknowledged that before and after the verdict that the evidence did tend to show that he believed it but the district court basically focused its a verdict on the fact that the defendant the theory was so absurd that no reasonable person could believe it and i would submit that the case law does not support that as justification for fraud for there are plenty of people and we cite a case from i think the ninth circuit but there's plenty of people that do get sucked in by these theories that appear to be preposterous including reasonably intelligent people if there's this conviction cannot stand if there's five minutes i would just like to mention the restitution issue our last claim of there is this court has held there must be some evidence to support a restitution award we're not attacking the entire war but only the want to employ a bank here with respect to that restitution all we have is a statement by the prosecutor that said his case agent spoke on the phone to a person quote with knowledge of the car for bank who said it reading to our system five hundred sixty thousand dollars is the total amount of loss no documents were submitted no testimony no letters from the bank this is not evidence especially in a case where the bank sees more than a million dollars  morning your honour's the government takes strong issue with the allegation by defended and his counsel that the government's presented false testimony intentionally to the grand jury for some purpose of setting up the defendant and being able to railroad him at trial mr shaw ramey's testimony before the grand jury was that these were hypothetical returns that he wouldn't have signed hypothetical returns and the return signed by him were all presented to the grand jury it was all presented there and his testimony was consistent pretty much at trial in the sense that he testified at trial that he created the returns that the defendants request based on documents provided by the defendant are consistent with the great jury but in trial every time mr goodman led him with on the amended return on the amended return and we you the one time he's asked look at exhibit twenty what is exhibit twenty the witness said well if i had to say i'd say it was a hypothetical return and then mr goodman redirected it while you signed it meaning then you were committed to it and he said all that it must not be so at the most you can say about this witness is exactly what judge lyneham wiper said we don't know what the truth is from this witness but the judge who heard the witness who was at the trial found that his testimony in the grand jury must have been true because they didn't buy this defense and and as the court found there's this witness that the best you can say for him was inconsistent but you certainly couldn't say that the government intentionally presented thoughts testimony much less that the government i mean the government really does take issue because there's nothing in this record to suggest that we intentionally present a false evidence or that we did so by coercing the witness which is something that happened in based on the interviews that the government had and the grand jury statement that the witness gave and repeatedly asserted is true in the grand jury the what the witness said was this guy came and i was his accountant he came to me at one point and said and gave me you know numbers to kind of compute on a return what my taxes be light and those are hypothetical returns not returns that i'm making with the intent that they would be filed but i call them hypothetical and that's what i prepared but he said i would assign a hypothetical were terms so we what we did in honest disclosure to the grand jury was we put in what the witness told us that's what he said and we put in there were terms all of those two thirty dash seven and r two thirty dash eight we put in his before the grand jury with his green jury statement and all of the returns at issue as an as an attachment to his so was all presented what he told hypothetical returns but i would have said i wouldn't sign the what the government did is we had a witness a key you know a witness who prepared these returns that the defendant had submitted bosley in fraudulent lead to these to the to the banks and so we put him before the grand jury an he and the like then though show that he did something and they show that they did it and we didn't you know we were trying to be tricky here we want to put in the returns we put in the richards we put in the witness and it's the government's position that that was the more truthful testimony and i'll tell you why because the returns when he testified at trial that and again it was the defense lawyers words but when he testified these were amended returns to be filed the fact was and he admitted this on his testimony mended returns there's a box on the return that you check when you're doing this an amended return this box was checked on his returns and he admitted it in his testimony and we called another county to testify that should have been done if these were going to be filed as amended returns and finally if you're going to redo a return and really calculate as you testified on direct a trial the way you go about doing depreciation and doing all this to what we would say inflate income there's a special form you have to fill out to do that not done here and he admitted all that and he admitted those were all things that you were supposed to do if you were going to file the amended return so it was the government's position he was lying at trial to the extent he was saying he was preparing me to actually file them for the i r s we were used for part of me or were these took those and he submitted to mcor bank in city and so that he could get these because he knew his income which included some years a negative income and like it some years four thousand now he could report over three hundred communicate so court here is there is no basis in the record no finding in fact a finding i would argue to the contrary by the court on october at that proceeding on october fourteenth that that the government intentionally coerced witness to persepolis testimony grand jury nothing to support that here at all and so basically what you have is a witness who testified differently at trial and so not supported but even if we did present false testimony to the grand jury the defendant has to show that the are that there is a great doubt that the decision to indict was free from the substantial influence of that testimony and here you know that was not the case because our case in chief did not rely on any testimony from s relied on the fact that he submitted these false documents to the banks that was our case that was sufficient to bring this indictment in a grand jury but even more even further even if you don't agree with that invented in mor information provided pointing that out to the grand jury or that i don't know i have i mean in not in his testimony not in his testimony not in his testimony so it just is here is the document and here's the thing but it as i would also say your honor though completely independent of his testimony what the government represented to the court was that when they put in the case agent and the case agent summarized all this evidence that basically came in a trial which included which included that the tax returns he filed with the i r s for his personal were substantially some of them showed negative gross income  different than the ones and he never filed his business ones but the business ones that were prepared by as a cabinet he never filed showed substantially less but his legitimate account prior years showed substantially less moving on to his i'm almost ruling and also when he denied the motion for judgment of acquittal post trial he specifically said i know there's all this evidence that you say shows that he truly believes this and did not intend to defraud however think he even speculated you know the defendant may have done all this to create this kind of defense and basically at the end of the day when i'm looking at is all the circumstantial evidence that he had motive that the the theory was absurd and this was a sick and started and ran a successful business for a substantial period of years who negotiated his own business loans and mortgages and who could do this he said just one based on the very documents he had to create because he had to create those i i oh i do forms and on the basis of that they were clearly supposed to be prepared by the financial institution well there are plenty of people who are purportedly intelligent businesspeople or other professionals who get convicted of the same thing absolutely but i would say here that even if he was a true believer your honor even if it was the fact was here here he  knew he you know you can believe something and you could wanted to be so but you can also know that you're that you're trying to get something not entitle to but in any that that's what the court found and whether it be true believer or not i found it found that it s r the f b i agent identified that interviewed ice president at the bank who reported what their loss was he the probation officer went so far to interview the auctioneer the defendant never said well and hit the auctioneers name was listed in there mr kane the defendant never called any witnesses asked for at you no access to a witness never introduced anything  version of the story you know i talked to this witness and they say something different never asked us to make them available so we could talk to him to find out if you make something to said something different there is no issue in contention and with the last clear on is is the information in the p s r is sufficiently reliable which the court found this was there was every indication there was then that sufficient and then the burden shifts on the defendant to make an issue and con in controversy and that never happened here question did they get the most money they could write of the or right and i think you know if you read what this person say their position is that they did given the quality of the merchandise that was there and that kind of consistent with the evidence in the case in the sense that this was a cd business right and it did make specialized c d s and special shapes you know it's like promotion all items so you could see how that would be kind of specialized and maybe difficult to sell that a lot of things in it and so but there's not really a lot of information on that but just the bare fact and that wasn't their contention air argument wasn't over that over fair market value their argument was over whether in fact this showed that the bank was able to recover only one hundred forty thousand between because the actual that the loans were for the business loans culture told about seven hundred thousand and the court held him accountable for us to just one point on the grand jury of the supreme court and in the case united states versus mechanix which we said on page thirty seven of our brief said the defendant may be entitled to grand jury transcripts upon a showing a particular pro irregularities in the grand jury process i would submit that it very least we have satisfied that burden i believe it with judge came to that as the critical question if if the grand jury was told that these were hypothetical on sig returns that i made for the defendant not for use in any ticket to submit to anyone and then they were also given the returns which show that he did sign them what was explained to the grand jurors about this inconsistency where they told that the defendant his kid signature where they told that in fact these were legitimate returns that the defendant changed the numbers we have some clue because if you look at page thirty two of our brief it cites it sets forth with the with the government with the prosecutor told the district judge the government said to the district judge in the motion to dismiss hearing the government said the only reason we call this witness the ramey was not to support the probable cause finding but to provide impeachment at case agent is it said that the case agent supported the fact that he had two sets of returns one which he provided to the i r s and one which he doctor and provided to the victim banks what does that mean doctored suggests that he forged a signature or he doctored the numbers on that return both of these we know are not true as a government concedes the defendant didn't for chits his his accountant signature and he didn't change the numbers on the return these were the returns that were prepared by the accountant and as the accountant explained at trial he explained the methodology he went back and recalculated business costs and looked at the gross sales and came up with a higher income number and told the defendant that these were gentlemen and i use proper