prepared to answer any questions or honors may have to begin in this case there was plain and obvious error by the district court's admission of the testimonial hearsay statements of crystal buck under crawford and it was hearsay error by the admission of  rights and should the court notice the error and i would argue there's five reasons why the court should find the third and fourth problems have been satisfied in this case first mr george's substantial rights were in fact affected because he did not have the opportunity to cross examine crystal bach and when krystal buck made statements about what she did working in a different building twenty first century and described her culpability he lacked the ability to prove that she got  mirror as not him that he did not participate in the event she was describing that he had no role in that and that alone should get us over the third prong in addition this was an extraordinarily close case after about twelve days  including testimony and argument the jury deliberated for seven days that's an extraordinary amount of time and they were turned from the deliberations they delivered a split verdict the quitting him of the first four counts and convict him of the last six notably respond i respond that a couple ways when i think that's exactly what they're going to say one i think when we look at the what the emphasize and closing that emphasize the other end to the evidence the emphasize in the interwoven holistic delivery why twenty first century was guilty sprinkling in box and your bare toes guilt as a way to tar mr george too it was contested like this court's decision and callan he testified not only that he wasn't responsible for this in addition there was four separate witnesses three called by the government who supported his defense who said he told his employees to to be honest he didn't tell them to say the obama plan he didn't tell them to stop paying their mortgage so when overwhelming evidence is the government missed it it's crawford error especially for both sides martinez may be a little different a box testimonial hearsay is just obvious crawford i have no idea why the object and say should not be admitted and not have the  on your two thirteen to fourteen when counsel attempted to cross examine the agent who had introduced miss box testimony about other things she said during the interview he was stymied and obviously the better objection would have been it should not have been admitted the challenge we have and we don't want to embrace the standard but we recognize it and can see that because that's where we are now obviously if you objected and it wasn't fixed this would be an immediate boomerang obviously back there so i except the courts would mandatory minimums change the guidelines for crack cocaine in this case the long awaited amendments to due to to be one point one where they were going with the commission recognize that these last tables and some of the ways we had hansen's of the fraud and larceny cases were were too high that they weren't based in data that they were leading to extraordinary high statuses those were just about to take place on november first twenty fifteen and defense counsel one of the continuance he asked for continues to december so mr george could be sentenced contemporaneously with a different cooperating witness ramirez's boyfriend if we send back or resenting on another ground does he get the benefit of the amendments he does  outside well more importantly he did not cite the advisory committee notes which are authoritative and binding on the district judge and he did not inform this battle that the the advisory committee notes the commentary stablished the exact point where they said it was not meant to be the benefit wasn't sufficient what was was not necessary well that's incorrect and understands in those the commentary is binding and so i would the way i would explain it distinguish it is counsel did not alert the p who heard the prior appeal to binding authority to support his position both landed on the nose which explains that decisions obviously doesn't bind this and you're well i think you require to follow lambert and that's the difference where they published it there would have been an interesting split would have been resolved that was divested because was unpublished decision but i would respectfully contend that lambert controls that decision despite the roberto which i think is what they titled the unpublished decision no that's helpful because  i was trial counsel in treadwell and this situation and i went to the government to pay attention this is not at least to me is different then tried well and tried well ricky  and randy treadwell were saying if you give us money we will give it to charitable organizations and this does seem a little bit different but i must i was hesitant because the other panel with the way but i appreciate your explanation that i thank you for that your hon get it quite right and i think you should just look at the chronology what happens is that the close of evidence on may twentieth the judge deems the rule twenty motions preserved i think you could consider that a general rule twenty nine even if not the judge reserved ruling at that time the defense case began then on may twenty second it's a friday the court is dark the clients aren't there the goal of the jury instructions mr seafish defense counsel expressly made an argument that there was insufficient evidence to support the affected financial institution expens evidence because the prosecution left the stipulation in his pocket or in their pockets and under james just because you get a defendant to sign something doesn't mean anything until you get it into the record either the filing of the c f it's very easy but if you sit on your rights as defendant as we know from my first argument there may be repercussions if you sit on your obligations as a prosecutor there may be repercussions and repercussions here under james which controls as you left it in your pocket the second argument is which is is clearly preserved and the are argue otherwise is that there was insufficient evidence to support the jury instruction that they in fact affected a financial institution that any for the any effect is too small and looking under i think it's star i think stars will in agony was the first case of support the proposition that it has to be a higher standard that if we look at it that distressed homeowners who are already can't are underwater and can't pay their mortgages this type of fraud getting one to three thousand dollars to modify them instruction that says all they have to show the government is the tense of the cboe seat is insufficient that the intent must be tethered to depriving the victim of property and it's that connection that nexus between the intent that makes  defraud and respect that i don't think the government gives fair a fair review of his closing argument they specifically argued intent to defraud was sufficient because he lied to the bank when he opened bank accounts and this jury was plainly of the belief that that was sufficient that it's not under shaw under shot he had had the intent to deprive the victims of money or property to see them not the bank who wasn't an alleged victim and it's that disconnect i would contend that an aftershock which ours morning may it please the court tom stout on behalf of the united states you're ours this was not in fact a close case the defendant's retained expert took the stand in this case and opined that the conduct that the defendant admitted to in interviews with agents and the conduct that was testified to on his part by former employees were in his own experts words complete misrepresentations she conceded that she would never do a  litany of things that he admitted to do and that multiple former employees testified that he did the only evidence that he claims is exculpatory in this case is the idea that he contradicted his co owners instructions to defraud homeowners but as we argued to the jury a trial and as the district court found in ruling on the rule twenty nine motions that argument cuts both ways and we submit he's trying to draw the on reasonable inference from that multiple former employees testified that he both instructed them to lie and stood by while his coner instructed them to lie and either acquiesced in her instructions or affirmatively endorse them it was only later in the scheme after he became aware that his company was the subject of investigation by state attorney general offices and after he attempted to minimize his culpability by submitting a purported resignation letter after which he continued to both manage the company and draw what were effectively owner salaries from profits did he did anybody suggest that he began contradicting instructions to lie but even at that point what that shows is not that he was innocent but that he was aware that his cohen or was instructing employees of his company to lie and was more than happy to continue profiting from those instructions to defraud financially distressed homeowners so long as he could make it appear like his hands were clean he did not resign he did not do anything to stop his own company from defrauding homeowners at that point he not only continued to make money from the scheme he made more money going forward from that point so your honor this was not a close case and the split the split verdict is not evidence of a close case defense counsel trial argued you know most cases that aren't close cases don't come out was split verdict on the jury doesn't take seven days i understand that your honor and obviously we're not in the jury's room jury room and we don't know what's in their heads but i believe the split verdict here is perfectly consistent with the defense that mr george's trial obviously not our position at trial but it was one that we think a jury could reasonably have accepted and defense counsel argued that they were separate from the rest of the scheme because the lies that were told to them were told by a man then hamid shall vary who was a codefendant this case and who pleaded guilty he mira's and there were elements of the fraud that were committed specifically with respect to those two victims that could arguably have been kept and towards mr shall be very he sent them separate invoices in his own name for rent on properties that he claims he now and and the checks that that they paid to him were deposited in into his own personal accounts now the rest of his conduct was perfectly consistent with the rest of the scheme and we believe was done in the course of his employment by twenty first century so our position at trial was this was all part of one scheme but the fence counsel argued that that was separate and those were the only two victim counts on which the jury acquitted so i think the more reasonable inference here is that they struggled with those two specific victims and ultimately agreed with the argument defense counsel put forward as to the rest of the counts we don't believe there was any issue and obviously this is a very fact specific argument and it's going to depend on the facts of each  the britain argument the i don't believe that what defense counsel claims about the record is actually borne out by a review of the record if you review the closing arguments in this case the government did not at any point suggest that the jury should convict christopher george based on in copa torrey out of court statements made by his co defendants if you examine the closing argument the government cabinets closing argument into two distinct portions in the first portion it reviewed a timeline of facts specific to each defendant and the second portion that reviewed the elements of the charges as they applied to each of them now fence counsel argues that going to that specific page of the transcript the government made reference to christopher george while discussing crystal bach only because ms bach had signed a form that purported to say explained to her that she could not make certain fraudulent statements and this was in the context of christopher george and management having become aware and that was established their independent evidence that was not established or any statement in this book who did not name christopher george did not say anything to directly or so when the government made passing reference to the fact that management in christopher george was aware of these investigations it was to explain why they had issued this form for crystal block to sign it was there was no argument at all suggesting that christopher george should be found guilty as a result of any out of court statements of ms bach similarly there is no argument that the government or that the jury should find mr george guilty as a result of any out of court statements of mr de roberto if you look at the hol citation specifically in reply brief defense counsel makes much of the idea that the government mentioned hologram attorneys somewhat in proximity to its argument on christopher george but if you look at the record again in the context for that statement that is in the part of the argument where the government is explaining in serial how each element should be there how the law should be applied to the facts regarding each defendant and that argument is specifically happened to mr de roberto moreover this idea of hologram attorneys that was independently established by evidence to which defense counsel did not object to trial mr george himself admitted that he was aware that there was only one attorney associated with the company who worked on a vanishingly small number of trials i'm sorry of a lot of loan modification applications so this isn't a point that was that was the subject of much factual dispute at trial all of these points of which they complained or established by independent evidence to which defense counsel did not object and if you and if you review the closing argument there is no instance in which the government invoked a statement out of court statement of bunkered the roberto instruction defense counsel lies the timeline here the timeline begins before trial when the parties stipulate that in fact these entities are financial institutions that was memorialized pretrial in proposed jury instructions given to the court that specifically said the parties have agreed to these facts can we move on to that any question because i gather unless you disagree i gather that we come to the same answer if you lose on the any question that cracked yes your honor so if you could if you get address that one has i'm inclined to think you lose and maybe maybe you can talk me out of it on the any question your honor we believe that there is there is no authority for the idea that there is a specific quantum  decide on what standard he would suggest this court adopt in lieu of any i believe there are five different standards he puts forth high risk of loss sufficiently direct risk of loss direct and significant risk of loss realistic probability of lost or substantial in direct effect and all of them are different from  any they may all be different from any your honor but the problem here is no court has adopted any specific standard and even if this court were to find that any is too broad the evidence here clearly establishes the standards at least the standards of  martin and those were cases in which the sr circuits found an effect on a financial institution based only on false statements and loan applications so these weren't no steps had actually been taken towards actually causing a default this was a mere increase of risk in terms of their risk analysis with regard to these lenders and what we have in this case is something far beyond that and it was overwhelmingly proving a trial that twenty first century century employees were affirmatively instructing homeowners to cease communications with their lenders and they told them that they were going to pay their mortgages on their behalf in order to cause them to not pay their mortgages and that evidence was uncontested at trial and was overwhelming so even if this court were to believe that the word any was error the court can still affirm based on the overwhelming evidence that would independently satisfy at a minimum whatever quantum of a fact is contemplated by mons and martin if we were to conclude that the any instruction is erroneous which the standard by which we judge harmlessness just have to be harmless beyond  of this a versus any was there was there any discussion of a versus any and was there an objection to the use of the word any not in my recollection your honor but on your brief i did not see you arguing that because there was no objection raised to specifically any that it would be harmless as opposed to plain no your honor we did not take that ok treadwell issue i do think that the language of the of this court was clear and tried well that the only half of language contemplated not only acting for the benefit of but acting for an a t and there is no authority limiting that language i would submit that in these particular circumstances when somebody represents that they are acting as they are on behalf of a government agency in order to gain somebodies trust that's the only way to make sense of this enhanced meant because somebody wouldn't act on behalf of hud or f h a in order to gain funds for them when it comes to acting on behalf of a government institution that's the more natural reading of the enhancement i'm not sure i understood your in well in the first instance we believe tribe the language of treadwell settles it in that tribal very clearly says that on behalf of can mean acting as an agent of rather than for the benefit of but independent of the what we think is the clear holding of treadwell in this case the only way to make sense of the enhancement when it comes to acting on behalf of a government agency is to read it as acting as an agent because one wouldn't act on behalf of a government agency in terms of for the purpose of the benefit of it so one of the things that the twenty first century employees falsely represented here was that they were part of the obama stimulus plan now wouldn't make any sense to read that instruction is saying they're acting for the benefit of the obama stimulus plan the more natural reading in these circumstances is as an agent of or under the which means that we don't have to get to the question of waiting yes ron and i think another reason for that is i think the proper vehicle for that is if the guidelines have changed defendant can bring this motion under section thirty five eighteen all i wanted was a yes or no and i see now that my time is thank you i'll try to run through four points briefly one my colleague and i both made the same error we answered the question correctly judge fletcher eighteen u s c thirty seven forty two g says we get to remain on other grounds about the i c claim the guidelines  effect at the time of the original sentence control apologize for my error but your answer is the answer is in the absence of granting the avni claim and he we manned will make it will have a plan we sentencing but under the old guidelines so wrong about that i guess we got the wrong answer from the government to we're two for two at least we've corrected it in time the second thing i want to say briefly is i think the government's version of their overwhelming case they take facts from an interview that mr george mission from an expert they take testimony of others saying he did bad things and ignore the testimony of others that said he did it was a close case for the reason the really identified it's not the third point i'll make it's  crawford however and there's no doubt that the when that testimony came in it was admitted against all defendants because it was a living instruction that's how it was admitted against mr george it's a plenary admission in the absence of restriction by the court and i again i urge you to read the closing arguments i think it was an indictment of twenty first century broadly in using their testimony to tar mr george and the last thing i'll say is about the instructional error it's the novo review they've waived it in their brief they asked for