thank you may please the court as i said and mcclintock on behalf of anita sharma for the progeny instruction challenge where i want to start it's important that we acknowledge that we do not challenge this efficiency or the validity of the evidence or the validity of the false deceive or cheat was wrong and it was plainly wrong aftershock after miller so the real question and where the focus has to be is the last two elements of the test whether that affected the defendant's substantial rights and whether it caused a seriously affected the fairness integrity or public reputation of the proceedings and it is clear from the evidence that the jury instruction given removes it essential element that went to the core defense theory in these cases that namely that the defendant individually and collectively my client sharma believed when she was recruited to do this process that the things were going to take care of the defendant in the evidence regarding their intentions is different because the evidence of what their role in the scheme was different so i think that assessment they have been very different for each independent vidual defendant in the jury needed to take a look statements she knew she told the f b i that the loan applications included false statements under the instruction given that was sufficient in and of itself to convict her for all the fraud count because it  things closing point out there were twenty three different mortgage payments so the only way for my client from a sharman to go into this her intention clearly was to not give truthful statements in the banking paperwork but it wasn't intending to cheat the bank because the only way she could grow equity in the house that was bought in her name so that it could be sold when the rows with the mortgage payments had to be made that didn't work out very well and variety of reasons but as far as deciding whether her substantial rights in the codefendant substantial rights were affected this error went to the heart of the defense so i'd say that there is clear that substantial rights are affected turning to the th a lot of the fairness integrity and public reputation the error here clearly created a risk of deprivation of liberty by convicting people of offenses that they were not guilty of under the law given the facts and it clearly to deny their the defendant their constitutional right to have the jury which is a core situational right the heart of all criminal proceedings have the jury decide that  entire theory of defense was mortgage payments were made the economy tanks the basically the real estate bubble burst and so they were unable to get the renters that they expect to be able to cover the mortgage payment that was the i can't say for sure that it was phrased exactly that precisely it certainly was that they had no intent to defraud and given the instruction the proper instruction for fraudulent behavior is that you have to have the intent both to deceive and to cheat and s timeliness i think that's well they put out in the briefs so the basic point i want to make with this is that you have someone who is not a native english speaker who his better approach  by the f b i she response says ok here's this time when i can take a break at work what the record suggests and then they show up to her office take her out of where she wants to meet at the conference room or the break room and they're in their building go to a car and i'm not saying and there is no evidence that they did this under any kind of physical duress but the length of time the fact that she asked a couple of times that she needed to get back to work in the questioning continued the fact that it was a private environment  detention was a product that was need a temporary brief nor public and that overboard her willingness to be able to be there so there was custodial that she had no free will to be able to leave early she felt that she was constrained in staying there so i think it was custodial i think the court erred in that and that her statements basically the same reason her statements were involuntary i just want to touch  is if you look at the daily kooris of the involuntary language standards did they over bear her free will not to confess i mean to be able to remain silent and i think the totality  circumstances is what you always have to look at given her english skills they knew that she was not a native english speaker and they chose not to bring an interpreter they could have they knew that you know they were going to confront her that she wasn't just a witness they wanted to talk to they knew they were going to challenge sure and then in did it with saying you know you're facing thirty years in prison she's in tears you know they may have pos for half a moment but they did not stop the questioning so i think the totality of circumstances indicate that it was involuntary anything else on that clearly not going to use my whole time so i just switched to the miter participant mostly addressed this in the reply brief as far as the relative involvement and i point out that if the government seems to be saying that all straw buyers are average and all sellers are minor as far as role in the offense then it cannot be that categorical i mean when you take a look was less than her partners and it certainly was less than both of the things i think that she was entitled to a minor role adjustment rather than being treated as an average participant  seeing did argue he made the argue argument to use his words that they did not take the money and run so this is a situation where the buttons were received there were a number of mortgage payments and to cheat out of funds and i think it is also significant that this is a mormon mission where the banks are getting a note with a repayment with interest and the argument walling that this that these payments were made i think blowing them really is in the context of the arguments in the argument about the mailing instructions but i don't i don't i don't think it is a lowing issue but no matter what the question of whether the missing element is prejudicial i think that clearly they made that argument that there were payments made in this century there was not an intent to saying there were there really was an incorrect assumption made that the that the original lenders were all victims when the actual guidelines say that that victim to get that ten or more you have to suffer financial loss and there was never really a correct analysis of buyers of of how many victims suffer financial loss which is significant because as we know lenders resold those loans this was a game essentially  believe that there were i want to say twel and there were there were fourteen properties and twelve twelve initial lenders but again we do not know if the government does say that it was foreseeable that some of these were resold you know that that was the finding that the court would have to make that is the that is the question of is the harm who was holding that loan when the harm happened and how many of those individuals there are under the  if it would be a point it would be a point here or right now i think the issue of the how many actually claimed restitution goes to this was the duration reasonable riegel era we're saying that the the imposition of the four point enhanced men is tainted by of the fact that the p s r never considered or address the critical principle of relative c tearaway number to the jury instructions in the verdict show that the error did not accept the jury's verdict number three the defendant's primary defense concerning a sensitive product this is th intent to repay that was no defense at all as this court has held in the miller case and even if that was the defense that there was overwhelming evidence that the defendants did not intend to repay let's talk thousand dollars in just the seller proceeds alone from the banks he also received over one hundred thousand dollars in real estate commissions and was relieved of over three million dollars worth of debt that he owed on the seven properties testimony for example mr coleman one dollar of the straw buyers testify he lied to lenders and made false statements in order to get loans the c p a but seriously saying brought the straw buyers to in order to have all of tax returns made and have you see he a letters generated in which he gave them word for word the money he testified the tax returns were needed to get loans that's bank money exactly the intent to cheat as defined by this court in miller it is it planned to obtain money or property find you the deception that's what how the court defines cheating in miller a scheme or plan for obtaining money or property by means of false or problem pretenses representations or promises now this is very similar to the language that miller relied on in terms of finding harmless error in that money or property the jury instructions taken as a whole in this case show that the instructional error did not affect the outcome of the proceedings that is that has just have not been their burden in this case in addition going to make their money if you look at the financials in this case the rental payments did not nearly the mortgage payments the income of the straw buyers need to sharma was making thirty five thousand dollars a year and yet she took out over four million dollars in loans it was impossible for her to make the mortgage payments in addition she told the f b i that she did not intend to make the mortgage payment and  mean you had asked about this three to four months of mortgage payments there was evidence in this case that they were made as well and there was testimony that if payments were not initially made red that would as you well know there can be more than one world leader and organizer of the scheme what was telling to me at the trial mr coleman testified that surjeet saying was instrumental in getting all of his rochester swing had decision making authority in the case he was on the licensed real estate agent he was in charge of collecting the backup materials to support the loan applications he and sergey found the homes for coleman to so he was the individual who was directing money not only to the shell accounts but also to his mother who was a dollar to his sister who was a seller who was determining which one of his family members was going to be getting the money in need over eight hundred and thirty thousand dollars in just cellar proceeds and over a one hundred and nine thousand dollars in real estate commissions every transaction he was making money on because he was the loan officer he had a big role in terms of directing where that money went to and he used it was in the game as you say in every single one of these transactions anything that's right  as a judge burrell found it was an average because the penned the judge specifically found in a written opinion that she understood the scope and structure of the criminal activity that the nature and extent of her participation in the mission of the criminal activity was great and she also stood to benefit from the criminal activity the court found it is cool to sit in that sharma understood the s structure of the activity the court specifically found that she repeatedly lied to get loans from glendenning institutions for the purchase she purchased five houses in this over six months again and again she lied in addition she knew it wasn't just signing a loan application she signed documents of her intent to move to sacramento another letter intent to move to upgrade of a letter another letter about her media business and benefited weighed it weighed in favor of her not receiving a minor role redemption she received over twenty thousand dollars from the things and they came from various different bank accounts showing that she knew the various bank accounts were being the leaders in organizers of this scheme and that mission armed with an average of just and then minor participants would be the sellers who signed fraudulent documents that said that they owed money for example to the in order to support the colon and had somebody renting out his home so those people would be the minor participants in the scheme but a straw buyer who's purchased five homes and got over four million dollars in bank money she was an average participant the district court did not clearly air and going back to mr reardon's point with respect to whether the court considered rowlett relative caught culpability with respect to rogers for saying it did the court was less culpable of his father the government responded in its briefing how that he was a leader an organizer himself and the p s r itself as mr reardon has put has told you many times that the deed the trust actually contained material representation about the primary occupancy of each of these straw buyers and those material misrepresentations were me to the  contemplated by the defendants and we're expected to be mailed by the lenders and would have raised red flags that not been held there was actually testimony on that and which were provided evidence of collateral necessary to secure the loans were incident decision in united states will it versus williams which i believe judge warned by you were on that case and mr warner actually argued it in that case that if the court found that you trust for instance an essential part of th because they provided evidence of collateral necessary to secure the loans and that seven hundred and eleven here there was testimony from the lender victims that these deeds of trust provided collateral to secure the loan lender witness testified that if they had not received it mail back which was the normal course in this process that would have raised red flags for the lender so it would definitely low the banks to keep them and then in return the banks get these deeds of trust which everyone testified happened by manning so it was completely within the scheme that these views of trust work not where he is arguing that some of the lenders they have sold will loans in that same document says stated that he too little enhanced and pretend a more victims was appropriate he actually did his own property used twenty eight different loans were at issue in this case and the court found that there were ten or more victims the parties proceeded with this understanding that there were twenty of them were held for more victims the  front of the core were reliable there was no interest that they were not reliable and the court did not clearly air especially when there was absolutely no argument on the fact that there were newer than ten has just not shown plain error that has substantial rights were affected it does not show that there was a reasonable well probability of a different he has not shown a reasonable probability of a different al even if all twenty eight loans were resold as he asserts there are likely would have been more a victim's in this case he cites this case a lot and to talk about securitization and in that case there would be more and more investors we might have been victims that were the case but at this point a plain air review is his burden and for all who talks about hopping taito there was nothing in the record in this case that this was a hot potato situation we resold but that chad that she's kept the other line was so consequently on the record here there would have been at least thirteen victims and in this case where there was no challenge to the factual  it was reasonable for the court rely on the information that was i'm proud of that and the court did not plainly air and with respect to that makes our point and on the substantial right that she was denied by the instructional ear on the fraud count mystically said it was impossible for miss sharman to make the mortgage payment and it was clear from her statement the f b i that she was relying on the thing to do so intent from the beginning was to gain a quickie in house by about the paperwork to get the loan and she acted like a straw buyer it goes to both the substantial right of that being denied a jury verdict on that and it also goes to the lord of this little thing the fact is that the daughter said that both the father and the brother were controlling this i would add that iraq is for saying really is the person with the real estate knowledge and who had the license i think that this isn't the case where there is a i think this is a close call because there are not clearly delineated divisions of responsibility like some larger organizations i th per view so i think it should go back and it should go back for relative culpability as well just to address the issue of blowin i don't think this is lulling because what would have been found had they gone back to the recorders office this was not an ongoing relationship and it was not like low where they were trying to hide the deed back in the city back to the original person it  was there is just nothing that they would have found was not a lowing circumstance because it's not an ongoing relationship the banks would have just it's recording of the deed that is significant is not getting the thing back in the mail they could have gotten from the