before the trial court in this appeal on his behalf we are asking the court to vacate his conviction based on the government's constructive amendment of the indictment a trial and because the evidence was insufficient to say and sustain a conviction as a matter of law i'm going to focus my arguments this morning on the issue of the constructive amendments but i do like you i would like to start with a pretty florida about since it's sufficiency claims because in addition to requiring reversal on its own right i think it helps focus the line through defense or the government is universally well liked and respected and was only after a month long trial where the jury took weeks more to deliberate that it found two co defendants guilty of all charges return partial verdict as to mr proponents this is one of those instances we would submit where the jury got it wrong and the sufficiency of the evidence reflects that the district court itself observed its order denying his rule twenty one challenge that he court rejected your point among other things citing eighteen u s c section two and saying that you don't that the government an indictment doesn't actually have to cite to section two in order for it to be understood or defines the scope of liabilities so whether mr bill congress is doing very soon personally or through an agent the court said shouldn't matter so perhaps you could explain why that was wrong in your view i think the the importance is it's asking is we have to ask what it is specifically we look at when we look at a whether or not a constructive amendment occurred  and one of the things i think the pfister court argue not just in relation to whether or not the federal statute regarding principle asian liability was cited but it took the  the charge itself has to be amended but i think there's a lot of law both from the supreme court and in this circuit that says constructive amendments are broader than that and one of the things you look at is certainly what you know what was presented  grand jury what was presented at trial both in terms of the evidence and the arguments of the parties and while not really applicable in this case what instructions were given so whether or not section two was cited i certainly one relevant consideration because that the facts what the nature of the evidence in charge was that was in fact presented to the grand jury but as i was sort of looking at your brief i'm looking at what is page twenty dollars of your briefs you say specifically the defense argued that the government constructively amended the indictment by broadening his theory of culpability for mr belconnen no longer includes direct performance of and false mortgage documents but to shift theories mid trial and argue that he was responsible for the acts of others under a principle series so that looks to me i'm sitting here looking at section two it looks to me as exactly the sort of thing section two says that's already understood to be part of the offense and so whether there was sufficient evidence to show that he directed the people or the rest point about dave diamond was was that actually before the trial we raised section two as a point supporting the fact that it wasn't necessarily raised in all of the different statutes and when you look at the indictment itself i mean this was a well appointed diamant to call it a speaking and dies it would be an understatement i think i think the scheme itself was set out in at least if not more than forty five dollars different paragraphs right and the centerpiece of that ind to how you participated in the scheme which it's course knowing participation being an essential element and also the government's theory as to how you form the intent to defraud and so basically right before trial is new information developed regarding his employee lot of hanson and the government's theory winds of shifting a trial which in any event there was a disconnect between the grand jury in the trial jury and what they heard in terms of the government's theory of conviction there was no doubt different and i think following like the real question we have to ask is whether or not that serious broader or not and if it's broader it's a constructive amendment one of the other points sort of related to this discussion i think is worth certainly a suggestion there from the district court itself that this is a case where it did in fact find a variance between what was presented in the indictment to the grand jury and what was presented at trial if you look at if you look corporate principle agent my right and it also because it was in fact other cows that he was convicted on that didn't pertain directly to two that didn't seem to win for closings that didn't involve the documents at issue right and that's something that this report specifically relied on highlighting it in a footnote of opinion and the government certainly has a size and go to a large extent in its response but i want to i want to emphasize as we did not reply that specific counts just just have to be especially reasonably foreseeable as an outgrowth of the scheme to any given defendant they don't go back to the elements and what the theory of conviction which by the way looking technically didn't even the scheme itself was in fact reincorporated expressly by the government and every single one of those counts including in all of the counts of conviction so maybe it would be helpful if you american dream bank account that he was aware that there were misrepresentations about who was providing funds for example for down payments and i'm not saying a jury had to draw that inference why was it not a permissible inference to draw i'm sorry judge what could you i didn't catch the beginning of what you are saying looking focusing in on the actual counts of conviction which of course was a subset of the charges as you noted i was just saying why isn't this even if not maybe the strongest case in the world one where the jury was entitle to draw an inference from the checks drawn on the american dream bank account that mr vaile comus was away or that the down payment was not coming from the source  the papers showed it to be coming from there was a misrepresentation i understand your question i think the answer to it is going back to what i was sort of saying earlier about what it is and what can in fact constitute a constructive amendment of the indictment is the evidence at trial right and when you look at the evidence on the issue of the american dream and whether or not he knew the source of it and what you're specifically referring to was those counts where he  he said the fires attorney would have no involvement in that and so when we look at what the actual evidence was and what the government's theory of conviction was that's where you know mr  documents was in fact the centerpiece and because that theory shifted more broadly a constructive amendment occurs all right here so what did i just about three minutes if you want to save any time yeah i wish i was i was just about to say that if there's no other questions i would very much appreciate it thank you certainly mr walker may it please the court grayson walker for the united states there was ample evidence  trial to support the jury's verdict that david bell conus knowingly participated in a mortgage fraud scheme and executed that scheme at real estate closings for buyers care and dancer and tiley well conus challenges  sufficiency of the government's evidence largely echoing arguments that he made in closing with respect to the counts of conviction a properly instructed jury considered and reasonably rejected those arguments and returned guilty verdicts on five coun that verdict should stand so mr mr mr i should have probably races with mr leavitt as well but it's my recollections and please correct me if i'm wrong that there were no fights about the jury instructions on these points  the scheme and that knowledge evidence came and several forms the jury heard testimony from condo buyers robert and mary jo neil's that bell conus placed them under what they described as a gag order at a closing where they started to discuss their anticipation of a down payment refund the conus later admitted to law enforcement that he knew those buyers had received undisclosed financial incentive it was reasonable for the jury to conclude that only a knowing participant in the scheme would place that kind of gag order on buyers who were about to disclose a fact that would have revealed the scheme to the lender the jury also for evidence of weight to place on a quick comment don't talk about that here and i don't know seems like i didn't read here for your case if if that were the government's only evidence your honor i would agree but there was more with respect to bell conus the jury also heard evidence about the subset of closings that occurred at balco at the title company nineteen out of two hundred and fifty four and the smallness of that number is in itself incriminating when you look at the deals on that list they involved closings for the lead schemer vince  college age daughter the college age daughter of his mistress an employee at the woods who receive down payment checks directly from man quality and the tiley closings which are two of the counts of conviction also took place a classic title there on that deal and that list of instills so the incriminating inference to be drawn from that list is really based on the list of nineteen deals considered as a whole and does not turn on whether there was sufficient evidence to convict bell coming up with executing the scheme as any particular straw buyer closing the jury also heard evidence that in two thousand and fourteen the conus reached out to a former was trying to get the story straight on what happened at those highly suspicious then steals again only nineteen out of two hundred and fifty four turning directly to the counts of conviction three of them relate to a power of attorney closing for terror and cancer in december of two thousand and seven there is no dispute that david l conus was at that closing there is no dispute about the authenticity of his signatures on the relevant documents and the key knowledge evidence with respect to those counts of conviction is an e mail that dell conus received addressed to him hours before the closing in which he learned that american dream had wired the down payment fund for the  closings to the title company and he received instructions to have a certain portion of those downpayment funds wired back to an american dream bank account at trial they'll come in as argued strenuously that he neither read nor understood that e mail the jury was entitled to draw a conclusion otherwise and that conclusion was reasonable that e mail was addressed to the conus it concerned a matter pertaining to his law practice not his title insurance company and the instructions contained in that email about where to return the surplus funds were executed that deal was fraudulent on its face the lo application and settlement statement falsely stated that karen gans or downpayment funds were coming from a checking or savings account but the countess well knew from that email that karen gans or downpayment funds had come from a rd party enti american dream on the other two counts of conviction as to tiley these deals were also fraudulent on their face the down payment check presented came from american dream yet lead to stated that his employer was motorola and he was providing a down payment for checking and savings these deals were on the list of nineteen vince deals close that classic title because they needed two layers of protection  both buyers attorney for the federal mint statement and closing the deal at his title company because any neutral settlement agent or buyer's attorney outside of the scheme would have looked at the facial contradiction in these documents scuttled the deal as to the constructive amendment argument as the district court accurately pointed out in its ruling on post trial motions the dispute about theories of direct versus indirect liability pertains to straw buyer counts on which the jury did not return a unanimous verdict they do not relate to the five counts of conviction at issue here as i said there is no dispute that belle conus attended the care and dams are closing and sign relevant documents and in the case of the tiley closing the government never allege that bell conus personally signed or notarized any of those false documents instead he was functioning as the buyer's attorney on that occasion and arranged for the closing to take place that classic title because of its obviously fraudulent nature in any event as judge would pointed out earlier earlier theories of direct and indirect liability do not change the nature of the crime charged here the indictment in paragraph thirty five dollars contained allegations and were broad enough to encompass a theory of indirect liability to the extent the conus is complaining about a variance here  that surprised him about the government's theory of conviction on the straw buyer counts again on which the jury did not return a unanimous verdict bellicose both anticipated and attempted to rebut the theory of indirect liability throughout counts that he contested very vigorously relating to the theory of indirect liability the jury did not return a unanimous verdict pending any questions from the court the government just want to point out you know i went back and pulled up the indictment real quick while listening to mr walker's and it's just worth observing that section two was not cited in any of the fraud counts if i'm not mistaken it was only cited in the false statement so at least in terms of considering whether the fraud itself that was a constructive amendment that is certainly a relevant consideration could you just plain to me why you think that there's continuing relevance of things that pertains to the whether there's continuing what i'm sorry relevance why do we care if he was acquitted on these accounts well because it goes to the point i was mentioning about the executions judge every single count of the indictment real  scheme was realized and the centerpiece of mr bell conus his involvement in the scheme was notarizing in signing false documents in relation to these closing so if you change their theory with regard to something of such  significance that's a constructive amendment and it doesn't matter whether that goes to change you know whether it changes the evidence or changes the nature of the crime itself or it's the same scheme i think this court's precedent and if you if you go back through the case we cite d it's not the crime itself that matters it's it's the elements in this given defendant and what is the evidence to establish the proof of those elements and what's the divergence between and is there a divergence between those things between what the grand jury hear what the trial judge hears and if it's broader in the latter situation that's a constructive amount and that's reversible error but you didn't you didn't object anywhere in this region to the jury instructions right far as you were concerned the jury got propre instructions on the elements of the senses correct