i'm sure the court is aware the government reached a conclusion in this case that's reflected at page twenty of its brief and pretty much sums up their position a trial when they say that it was impossible for anyone at b to think its business was successful that's a conclusion there was no evidence to support it other than the fact that they showed that my client read a script that contained false statements and i'm not claiming that it didn't contain false statements it was successful a successful business the prosecution book maintains that it was impossible for anyone it b b c to think its business was successful that is have to do with your next statement or with your next statement the next statement is that the only evidence that they presented on the successful ss and on the fact that anybody would know that my client especially would know he wasn't successful that the business wasn't successful well there was no evidence presented that my client knew the business was not successful and that's what the case came down to and i harped on that from the word dealer on that it's a case about knowledge that it's one thing to say that tony will provide a read a script that was provided by his boss a script that was read by all the sales representatives a script that even teresa mccoskey the prosecution witness indicated they considered the bible a den of goal to what other sales representatives were pitching but it doesn't show that they knew that the statements were not true it really the not knowing that i company was not successful isn't that the lie by business exchange that we know from its name tribute ski provider and the two that formed it at some point but he said we don't have any money and the testimony from mr from the back gentleman was mr bravado said then i'll go get some because they weren't they weren't segregating the incoming money they were paying it back out to other folks if you don't know it's successful i mean if you don't know you're you need more money because you haven't made any that would seem to be pretty good indication that's bravado was a salesman he was not in management the record is clear that my client was never involved in any management meetings throughout the trial the members of the management team testified one by one that included mr tripp bossy i didn't even have to cross examine mr to both see he had no knowledge that my client was involved in the conspiracy that he was running  with the government's theory there was well john the by the knew that his son was involved even if richard both he didn't know and richard to both see didn't know and and it's also an interesting aspect of the case that the ind that my client must have learned this the scheme and the object of the conspiracy from somebody else because they are really two other members other son he's the son and that's right he's the son but he was not in management now they assume but want to assume that he had knowledge and if that's true with my client had to have known because it was impossible for anyone to think the business was successful than that it's a pitts with a pretty broad brush and would include the other sales representatives because of my client would have known that the business was on the verge of failure and all the other salespeople would have known that as well but the testimony of those other sales representatives was to the contrary and they said in fact it was activists and we would have no way of knowing what the status of the property is we have no idea we just don't we were told and from oh that from all appearances things were going great gave where he was provided with a script that was prepared by john bravado and given to him and given to all of the sales people and said read this is it so my client read it and it was written it was it was speech it was given by john butler who was a manager and my client blindly read the script and over time apparently that script was altered somewhat but the basis of the of the script some of the know and i'm going to get to that you're right or that's an excellent question because there were different tiers in different layers of management and there was this clear dichotomy between the management on the one hand in the sales on the other the managing partners the property management director the property review board the c f o melissa traver testified that antonio provided was in the same position as other sales reps was never had any meeting and management made more than  the others mentioned mr souers and that's an excellent point because mr sellers testified and i think you'll find that in falling to page ninety eight he never spoke to my client my client even when he sent an e mail of round about not using the word guarantee he my client was not included in that and there was no wonder that we testified that at the meeting they said this is illegal we're came down and says well you can't use the name guarantee and one witness said my client told him go ahead and use it anyway my father said it was ok that's what he did he believed this father was doing the right thing he drank the kool aid to come to borrow a phrase and believe are who indicated that my client made about two hundred something thousand over the two and a half years i asked him seuss if she determined whether how much the other sales agents made was that moolah mr bravado was at last only asked to them i said did you try to find out what was in the sales pitches made by the other representatives if they were the same or identical was as miss mccaskey testify to and she said no she was convinced that my client was guilty and her object was to investigate my client and no one else i challenge the government at trial and i still have not seen that even to this point of one e mail one meeting one person who can say i told antonio bravado that the property values were gone that we were on the verge of bankruptcy i told anthony provided that they were over leveraged none of the management left before the end of this they were in the process of building a multimillion dollar new offices in southfield my quiet head his mother and his grandmother and best they didn't die fast there was never an occasion where a person was not paid their their interest in a timely basis it was not one instance but the point is even if they were shown to be false statements they have to be shown to be in furtherance of the conspiracy they have to show that he had dollar to the conspiracy that in fact this business was failing because if he did make false statements to put them as he did his mother and grandmother into a business that he had every reason to believe was flourishing from all appearances from i want to talk about mr salary he was not even listed as a conspirator and here's a man who was a silk stocking lawyer brought into this company brought in other attorneys with him who knew precisely what the financial condition of the company was who knew precisely what was in that script who took no steps to advise the sales representatives you cannot do this anymore he was not then he was not a can coconspirator and i asked him did you ever speak to michael he never even spoke to him want to talk just a moment then oil only have two minutes to go but before i do that let me just indicate that even by ricky knapp it's interesting that the government uses the gain also a sales representative whose family and friends lost millions testified that there was no way that my client would have known anything more than her that she believed my client was absolutely had no knowledge of what was going on you cannot conceal worsening financial condition of the company unless you have knowledge of it and there isn't a scintilla of evidence indicating that my client had knowledge of how i want to briefly unless the court had other questions to discuss the jury issue and be briefed on this but this was an interesting juror a former president of the carpenters union even envoy or dear he testified to not being able to estimate how many f b i agents had been through his office it was a surprise to me they kept him on the jury and during the questioning of mr welch when i presented an affidavit that directly contradicted two of the statements he made about not having been told about an hour investigation in the s never happened and he spoke out from the jury box to raise a hand or pass no judge we're going to get a copy of it now that doesn't mean he was on our side and i know would be speculative to say that he was favoring  argument but the bottom line is he was conspicuous by his presence he had come eighty miles plus one way every day through two winter months he was never late once he did not want to leave this distinguishes the case from a lot of the cases he did not want to leave he did not asked to be recused and the reality is that the judge it sent him good morning may it please the court my name is karen runnels and i am representing the united states judge white i'd like to clarify something based on a question that you asked mr stein gold  you were furred two questions about whether antonio provide a had been warned about saying the word guaranteed mr stein quote said in his brief that there were there was only one conversation that ever took place about that there were numerous conversations and i hope to have time to go through them in a few moments but i'd like to refer you to exhibit ninety three that was just filed by the government i think it was last week i apologize for the late filing but that is a letter that was sent from john sellers to john provide and i think also to r j trimble see and he indicated this is in september of this it wasn't that it was the substance of the e mail it says that i just received a call from tony this is what john sellers is saying concerning a prospective investor interested in investing two hundred thousand he said the person has a number of questions including information showing that his principle would be guaranteed i told tony that i concerned about anyone expecting or believing that the principle is guaranteed and that was sent on march twenty seventh of two thousand and eight i just wanted to make sure that that was clarified because mr simon gold seemed to believe that there was no evidence that mr sellers had had that kind of communication with antonio bravado your own or your honour's antonio provided was charged because he was more culpable than anyone else that mr stein go would like to compare him to and he was convicted because there was clear and substantial evidence that he knew about the purpose of the conspiracy and that he voluntarily unknowingly joined it and i i want to also clarify mr cycle kept saying that in order for him to understand the purpose of conspiracy he had to know the details about the financial circumstances of the company and that's not true this conspiracy is charged as a conspiracy to lie to people to get their money basically to lie to them to say anything that it took to make them feel comfortable about it really in almost every case putting their life savings into b b c awkward and as far as the evidence of the government had there's quite a bit of it but i'd like to start with one of the things that that you all question mr stein go about at the end and that is the relationship that antonio provide i had with terry welsh who was one of the investors that he persuaded to invest in b and i say our relationship because there were numerous contacts between mr welsh and mr provider it is an example of antonio provide it not only being willing to say the things that were lies in the script but to go beyond what was in the script to make up his own lies to embellish what he had already said to essentially say what he needed to to get people to invest if the only thing that the jury believed was that he lied to terri while she get terri washes money that's enough for him to have been convicted of the conspiracy and hoping i have a moment to talk about some of the other things but it's but i was terry welsh goes he listened to the some of our this is not a situation where we have to speculate about what antonio provide a said during the s we have a videotape of it and even though mr cycle said it was partial the evidence a trial showed that was maybe a couple of moments at the beginning of the lengthy present that were taped over with a football game but he said all the what we need to do is to show situations where we can prove that he lied to people and terry walsh is a good example of that so we know and videotape what he told terry welsh we know those things are not true then we know that he went to terry walsh's house two or three times and met with him to try to persuade him to invest we know that at that time he told terry welsh that investors and b b c were getting thirty percent interest that's nowhere that is not in the scripts that is  not true to say the least but it no one else has come up with that this appears to be something that antonio provided has made up he said i don't get paid i don't get paid unless there's profit i don't get commissions that was really important to terry welsh because he wanted to make sure that antonio provider who was a young man at that time wasn't saying whatever he needs to say to get his money so he questioned him about whether he got commissions there is said he was going to pay the whole time he was either getting w two income or he's getting commissions all of this by the way with terry welch is taking place in june of two thousand and eight that's after the email and exhibit ninety three so after these conversations terry wells gets the p p m and he reads it and he's going wow what's in the p p m is pretty inconsistent with what this kid is telling me what this young man is telling me so so i need to get something in writing to confirm that what he said was true so well says i sent him a fax and he asked very sophisticated questions i think there were seven of them that is an exhibit fifty five which is actually a three or four page exhibit that shows this is what happened turner well says i want to make sure he has a conversation with tony says i'm going to send you this fax i want to make sure what you told me is true and so i want you to to affirm or attest to me that everything in here is true and to a new provider tries to get away with just signing the bottom of it sends it back to welsh well said you know that's not good enough for me i want to know if every single question i am asking you is true so finally tony provide a sense facts where he answers that all of these are true these statements are true and even make some handwritten notes this these questions are way beyond the scope of any script they are way beyond any other evidence we have of what what people were told and this is what he said he said in two thousand and seven b b c equities or net distributor profit stich distributor profits of fifty million dollars it's not in the script it's not in the p m and he makes a handwritten note to terry welsh it's not exactly but close even john bought a set on cross examination how wasn't true we were never profitable melissa traver the c f o john sellers general counsel kelly sees all testify this wasn't true the next question when the other questions no revenue calculated in the net distributable profits was derived from loans or the sales of shares  he had discussed this with terry well she had made the statement to terry walsh orally he wanted well she wanted it confirmed in writing this is found nowhere else and it wasn't true also the vast majority of the revenue calculated in the net distributable profits derive from sales and rental of real property this was not true the testimony at trial was overwhelming and in the last question up with these two to get the last question was whether b b c in two thousand and seven it purchased five hundred million dollars and in property summerset i have no idea where that statement came from gavin pike who was hired by b b c to try to restructure their debt had put together a valuation report in august of two thousand and eight two months after welsh invested that said that the asset value on the properties was less than the debt by one hundred twelve by one point six million dollars none of the promises that he made to terry walsh an exhibit i'm sorry but the question that was welsh asked antonia was whether in two thousand and seven the company had purchased five hundred million dollars worth of property the testimony from pike and several other people was that the property was worth a negative one point six million dollars well there was also the when you it would seem to me that when you tell someone we bought five hundred million dollars worth of property that the property would be worth that much and the asset value was not plus there was no other evidence that that statement was made by about exhibit twenty it is a convoluted remember that the targeted audience were people who had retired most of them were unsophisticated when it came to finances and basically what they were saying in the script and what they were saying in one on one meetings was we've got a better deal for you it's going to sound complicated but but we're going to make you money by protecting and guaranteeing your principal we're going to take the interest that we make on your money we're going to take the profits that we're making on all of this this property we're buying we're using our rental income and our profits that we're making by flipping properties and we're going to keep investing that and make money that way none of the properties were profitable this is another but the question that mr stein go this asking you to consider is whether antonio provide a new that he was lying to people or knew that that he was lying when he told people certain things so i think circumstantially although i think terry walsh is an example of a direct direct evidence that he lied to get teary washes money but i think there's lots of other circumstantial evidence that shows that he was willing to say almost anything and i'd like to just briefly  go through that one as i said before when he was telling people in one on one meetings and at some in ours that he wasn't getting paid he was getting paid and it wasn't a couple hundred thousand like  it was close to five hundred thousand dollars and that's from the testimony of color page i d number thirty seven forty three he was concerned when he got concerned that he wasn't at the commissions that he thought he should be getting he called k would cowskin he said come on i'm supposed to get the whole commission on this to turkey turkey investment and i only got a partial one and that is exhibit twenty four so it's pretty clear that he was on top of the money he was  the juror what we know on the record and this is an affidavit that we don't know much about how it was obtained you know assuming that he was telling the truth about what happened this is a juror who was sick i think we all agree on that let's assume for a second the judge foreman was incorrect and he really didn't have a chronic problem he had the flu like he said he had if you are at the end when his really long trial like we were and you have two extra jurors and you have a juror is sick and arguably had the flu that alone is within the court's ministerial or managerial authority the gaghan case talks about the judge's managerial authority in particularly complex trials and this is a judge who had tried valiantly he was extremely meticulous in the management of this case and there were a couple of jurors way in the beginning of the case that really had some issues and he thought you know we can't face this hung trial and not have enough alternate but now we're talking about a situation where the last witness is on the stand and this juror may have wanted to stay i'm not saying he didn't want to because he tried to come back into the courtroom he couldn't do it let's assume he had the flu like  said he did he could have infected the whole jury we could we could have had a mass and this was perfectly within judge formants authority to take it on and to make sure that this juror well and i had no idea how long the deliberations would go on either so if they went on for a week yeah he would have gotten sicker and sicker presumably in that time or could have and frankly and i know this may be a little bit off the record we all like this sure he was affable and i think it's just as  appropriate to say that he asked about that exhibit because it was the the government's about the government's strongest evidence against antonio provide it and and so he could have picked it up for that reason to it this is all speculation i'm sorry that he had to be the juror i'm sorry he didn't get to finish obviously he was to i'd like to make one other point going back to the other issues judge i'm sorry but all the presenters that we know of and that were testif trial invested themselves in fact deb davis not only tested i think maybe close to a million dollars of her own money she invested a lot but she got her church and her family and all sorts of people to invest a lot of mother who put in they didn't they they didn't put money in they transferred the realist the ownership of real estate to the company in exchange for shares and b b c so  they raised five fifty million until well i think maybe a little bit more than that but what we were able to show was it was in the fifty million dollars ok and then how did the judge compute the amount of boy i wish i was better but what he did is what we did and what he accepted was that he took the amount of money that had been invested in b b c and he backed out any payments that were made back to the investor and also bet ok and also back to the property that had been purchased how did how did the judge tree the money that had been frozen did they get credit for that i think it was fourteen thousand dollars well that's it yeah that was in they be less than that i'm sorry i'm not better prepared than that but the freezing took place in the third week of july of two thousand and nine i believe the only money that was in there was about about fourteen thousand and none of the properties that were held and remember these properties may have a lot of this was an assumption of debt it wasn't the purchase of the property and so there was nothing there was just money owed to money oh that's good can i ask a question that you also may not have been be able to answer good and kind of coming out of left field but do you remember how many insults when they were calculating the sentences how many insolvencies there were i do and your honor it's important that the definition of insolvency i mean under the guidelines it just basically means somebody whose livelihood was substantially affected there you know and one of the examples of that would be losing your life savings i think there were over six hundred best years in this case we had to show that over one hundred them suffered that kind of insolvency i and i know that number was much larger but what we did is we went through the victim eight months statements and we see who is saying i put on my for a one k and i've lost everything i had to go back to work at seventy who are those types of people we came up i believe the number is  hundred thirty eight people and it's exhibit d two well we counted and we and and we couldn't come up with a number that that maybe you did and that was the confusion but but your proposition this morning is that you just have to have over that you have to have only one over or more and that's what the guidelines say and that was the testimony of special agent or the summary chart that was put together was by special agent kelly see this is exhibit d to the government sentencing them ok so you're willing to go by and by whatever exhibit the yes  antonio but i don't use that you can't use it it's improper there's no indication that my my client was ever told the f b i and mr sellers my client made statements to mr welts that were shown not to be true but he did it to have them invest in a thriving company one that he believed was successful one that his grandmother did dedicate property valued at one hundred thousand for she lost it all he did though he didn't have any money he was nineteen years old when this case started and the amount of money that i attested to learned making money here he didn't wall it back into the wonderful deal you are he only made two hundred something thousand and two and a half years the number that was given to you by the government from agencies that included funds that he had received legitimately from insurance proceeds they were contesting those were improper or that they came from b b c the number that i use  accountant who testified that that's what my client made so that's the number i used well but he had half a million dollars to dispose of in disposable presumably disposable income or at least some part of it and he didn't invest in the  right i do not believe that that number is accurate it's true that he did not have any money because the money that he did make quite frankly he bought a real pretty car into nice clothes because he was he was told play the part he had a new that i think that was in the record but he did invest his grandmother he didn't best his mother and he did invest his best friend and his mother to tunes of a million dollars and they testified they don't believe that he knew what was going on because they would not leave him in commissions on those i don't know if he took commission on those i don't believe he did actually i think ms davis got it got it but i want to leave you with just one quote about the juror issue because i think this is a forty three violation i do not believe this is  akin to the other cases where jurors asked to get off it's purely speculative whether or not he would have infected anyone or would have come back the very next day that it's within the judge's discretion within the judge's discretion if they asked to get the total absence of a record of the proceedings in which the charges in the make up of the jury occurred we quires us to assume prejudice we have the utmost confidence in the integrity of the district judge who presided in these proceedings and of the trial judge of the circuit individually and as a group however in a time when our judicial system is being severely question it is important to maintain the appearance of justice and regularity as it is to be certain of their reality right thank you thanks for your i see your serving under the criminal justice act and i thank you for that service and thank you very much for giving me the extra time