prove three things at trial one that my client made a false statement to that he made a statement knowing it was false and three that he did so with the intent of influencing financial decision under eighteen u s c ten fourteen you know the government concedes in its opposition brief on page eleven that the only two issues substantiate are the ten fourteen conviction were in two thousand and seven the two thousand and eight tax return reportedly signed or authorized by my client you know a trial the government attempted to get the evidence in under for the rules of evidence in the one two da and returns on the grounds that they were false if they were false statements so i don't see why the hearsay rule would apply in the first place since hearsay is out of court statements and for the truth of the matter returns which are being submitted as false well when the government attempted will when the government submitted the tax returns ok there were two extra pieces of information on there that they were submitting one was the facts and figures that were on the tax returns and they were submitting those not for the truth of the matter so that but for the mere fact that they were false so no history exception was required there however the signature line they were submitting that for the truth of the matter circuit and that's where the court needed puzzled as to why that was after the signature attests to his statement that what was false was true well isn't that what they wanted to get it yeah but what i'm saying is that the court didn't allow the tax returns in because they hours before they were to get able to get three documents in and after the story and said on the record i have no idea how these records were kept this is an incomplete file the records are unreliable you know if they had electronic records there after after all that was said on the record the judge then looked in and called the sidebar and looked to the government and said it seems the only way you can get these signature or you have to show that the records were turned into the bank during the process during the loan process they weren't able to show that because again when i went to back to border the witness i was the witness you know was the document turned in during the long process well the government gave the court gave the government a chance to try to get that and they couldn't get it in when i went back over there were you did the tax the return because it was a state right well but i'm saying ok put hearsay out of line for a moment if you can what would be required to say i'm the bank i have this long file in this long file i found these two tax returns why isn't bad enough because and then you could argue about whether he had submitted it or somebody had submitted it to him on his behalf but it certainly seems like there was evidence that they found this long file in the lower file they found these two documents destroy in prison a ten fourteen didn't have to show intent and the way the government for they has nothing to do with getting the documents into evidence that without their case they have to show that as an element of their ten fourteen case they have to show how the documents got there and what the were in the bank file and they were the records regularly maintained by the bank and it was in their business to maintain such records well she couldn't testify to as to what the record practice practice was adam around the time those documents likely entered the file here but she also said that the file was incomplete and she said that the records were unreliable because when she turned over the what was purportedly the two thousand and seven tax you penned was there is there are certain forms that are contained by a government file those were government files this one here were bank records all the bank can say is that i had these records in my ok they can't say whether who did on the end they don't need to and they can't say i mean the government can put on other evidence to to make its case which is what they did here if i understand it correctly you have but to continue to answer the question what you what you in your analysis on government forms was that there's only certain information that could be entered that's not hearsay on these documents and my assertion is that on these bank records that were not created by the bank for for the information that was found on the tax returns they had to be able to show one that was either not hearsay the facts and figures they were admitting for not for the truth of madison but because they were false but when it comes to the signature line they that to say that this was signed by mr karr and for that matter they were going to have to find an exception and and in that that can't be lost on this court i mean it just can't that you know if the if the government wanted to allege they prove they were the fraud of course not because the dixon line was never a position of of the money the money was the money was would have been and would have been responsible to the bank if that was not an obligation to the bank the contract was between mr karr and dixieland there was i thought between them the bank never gave money to dixon line from the record i can show you that what the bank did is when the loan was financed nine to nine hundred thousand immediately went to mr  probably the bank had no agreement with with dick sealing the agreement was specifically the contract was specifically between dixon line in the bank and the contract itself said that there were no part of third party beneficiaries to the contract and i like morning my name is philip cups and skin i represent the united states may please the court i'll begin if i may with the question about the tax return submitted to the bank judge could i think you were right in that question about the truth of the matter asserted that was something briefed but never brought up a trial i think my reading of the trial record is that the judge judge dabble of felt that eight zero three six was the best route for the admission of these documents and the discussion followed that track but certainly the government had brought up in advance this party admission point that would be the my colleague has been overly focused on the point about the signatures look the fact is that signature matched signatures on lots of other documents where it's not disputed that mr karr signed but we didn't have like signature experts at this trial that really wasn't the issue the issue is did mr card give that return to the bank now the bank's custodian of records miss said yes she said this come quote from the borrower in quote that's a day or two seventy six she says the same thing again later and year to eighty six so the jury could disbelieve her there is other there is other evidence and testimony that she was unfamiliar with certain aspects of the bank's record keeping procedures but i'm more focused on were the documents and edited and do we look at the correct lay i was the do we look at the hearsay rule in order to analyze and i was stumbling over looking at the hearsay rule because i didn't see what the here is a was it's a it's a fair question as i say it's something the government did address to my recollection in its briefs because of that very issue this really isn't the truth it's the but also the relevance of the documents is the fact that they got to the bank and you needed the custodial witness to put that in evidence that you yes but that fact alone i don't think you see here say the fact that the custodian could say we have a copy with respect to the regularity of the record so whether it's hearsay or something else the fact is you have to get the record in evidence as a document that was communicated to the bank and it was relied upon by the bank that was the four jewel in the alleged fraudulent statement correct yes although the last point reliance that that's not an element of this crime but but otherwise yes your honor i take your point yes and so just to follow up on that question what normally would be given that i've been i'm assuming it seems to me this is not hearsay what would you need at trial to set a foundation to bring this this evidence and well i think yes and here we have the custodian we have the woman in charge of the entire loans records to but also ties into the construct of amendment of the event issue doesn't it because of secure really means obtain than a dozen it become important when the when the when the alleged false representation is received but yes if well first of all secure does mean obtain that's part of its meaning what course one of them but if it exclusively means obtained then yes i do think that implies something about the timing of the submission but secure does not mean obtain those return front words and the government drafts indictments carefully for this very reason secure has a broader meaning so i'd like to address that more a moment but if i may quickly just on this this admission question the other thing i want to be sure to say is i do think miss the custodian of records laid an adequate foundation under eight zero three six she said quote these come from the bar she addressed the date on the returns she addressed the fact that mr karr like borrowers generally with the bank has an obligation to present these within a fortnight two weeks so that that addresses a the record is made out or near the time someone were transmitted by someone with knowledge then she talks about the regular practice of the bank quote well this is a question is is it the regular practice of the bank to keep these records in the normal course of business and these records includes tax returns answer yes it is there is b the record was kept in the course of regular company conducted activity she repeats that again later that city are two fifteen she also says they keep the records for the life of the loan at city or through fifty six su section c of the rule is making the record a regular practice about activity same points i just addressed and there's also again she discusses in particular this defendant's obligation to submit his tax returns an y that's a day or two seventy two to seventy three so it's not just borrowers generally it's this defendant and they sent an email to remind them and then they remind him if he doesn't do it and of course this isn't something empty obligation of his the penalty is a two percent interest increase and the possibility of default on the entire loan if he doesn't comply with these covenants including submission of his financials the final point of eight zero three six is that these conditions are shown by the testimony of the custodian exact fact your honor is what the defense has tried to exploit she wasn't a percipient witness to this commercial loan she couldn't say with certainty exactly how this came in who received it the bank doesn't put a file stamp on it so they don't have an exact date of receipt she couldn't say those things we can see that but this court has said that doesn't matter in the united states versus bland for example which is in my papers and in other cases those facts don't matter and the final point which the district court also carefully considered is this sort of rebuttable piece of eight zero three six this is subsection eat the opponent does not show that the source of information of the method or circumstances of preparation indicate a lack of trustworthiness and of course that sort of speaking to the broader point of reliability of these records and what was probably part of his thinking is that this is a very simple record keeping activity this isn't some sophisticated system this is a simple as someone at the bank gets the tax return and sticks it in the file that's it that's the record keeping practice it issues here so that doesn't mean that it was mr pickard who who edited however the fact that it's in the file of course but there was a wealth of circumstantial evidence that it was him and i could run through some of that briefly i also if i have time want to quickly touch again on the constructive amendment point but we know he's obligated to submit it each year we know that there's no evidence he has a partner in this business or something the topic of his wife is a little delicate because she was charged and then we dismiss those charges when she signed a declaration and submitted to the government saying that mr karr was in charge of everything in their household she said he forged her signature on these tax returns submitted to the  bank on the basis of bad and her representations through her lawyer she was dismissed from the case now we didn't introduce that declaration to mr karr's case because it's not directly relevant calling her as a witness of course we'd have some marital privilege issues we never went down that road but any suggestion by mr karr that his wife is who submitted these returns to the bank is getting into a court and that's what we know about the wife a few other points of circumstantial evidence in terms of other people who conceivably could have submitted these returns there was this notion of a bookkeeper for mr karr that person turned out to be an am le sales person so that didn't go anywhere to say the least then finally we had we had testimony from dennis young that's mr karr's accountant of twenty years mr young looked at the four file with the i r s he compared it to his own records he looked at the version given to the bank and he says for example oh there's my name and my stamp it's his firm's name and his number i believe is a license number that's on there and he said there's a copy doctored up and given to the bank importantly mr young also says in twenty years i've never interfaced with anyone other than mr carr not his wife not again some partner in the business no one else and the final point i think is worth remembering is that we're talking about tax returns here these are private documents so it's not the case that the bank could get this from just anyone or if somehow there's someone trying to frame mr karr that they could just get a copy of his tax returns and then doctor it up and and make it look like it was mr karr these are private documents it's a very limited number of places that these documents could come from and in fact we think the evidence overwhelmingly show that they came from mr karr so if i may again on the constructive amendment issue as i said a moment ago of course reliance is not an element of this crime and when it became clear that mr karr during trial was trying to  exploit some of the uncertainty frankly on the record about the exact day that his client submitted those zero seven returns in relation to the approval of the loan what the government argued in closing is well it doesn't matter because he doctored up those returns he put on false inflated numbers and his purpose in doing so was to influence any action of the bank that satisfies the statute for count one that's the crime and so that was the government's focus and i think in large part was response in response to mr karr's trial strategy which was to try to focus very closely on exactly what that timeline is i still think there's a very good case for saying  probably submitted that zero seven return in early november owais that's when it was due it's dated october thirteenth and then the loan is not approved with all the documents and the money disbursed until november twelfth so i think the evidence show to a reasonable degree of certainty that it was probably in the early november period before the loan is even disbursed but it doesn't matter because reliance by the bank on that return is not an element of the crime and the a document never played otherwise the indictment alleged secure and that word is perfectly consistent mr karr secures this lo section paragraph seven has an hour to secure the loan from s p i cetera but when i look at count one it incorporates those paragraphs but then the actual charge just said as he made false statements in connection with an application commitment to refinance that a fail and so how important is the paragraph seven in our day secure the loan compared to the actual language of the charge in count in the in the introductory section is of minimal relevance and i think it would be why at most we have a harmless variance here even if even if we accepted the defense's reading of the word sick here count one is what counts that's the operative language and you're right that it's so very incorporates those paragraphs it says in paragraph fourteen but then paragraph fifteen gives a charge and uses the language in connection lath and false statements in connection with as opposed to in order to secure right and so at most i would say that you read both of those together and that in connection with language in the mentioning of not just sort of the idea of applying for the loan but the actual loan the ongoing loan that shows again that this is not a static of met and you don't read secure as such secure is not a point in time and in common usage the idea of securing something is an ongoing point and and that's exactly i think a consistent way to make that paragraph which as you say is incorporated in count one consistent with the language in paragraph fifteen you just have your time or your time but i just have one clarification point on an issue that nobody has touched on this just in reading the record in my preparing for today and looking at the issues that were raised and one he raised a couple of issues regarding the amount of the calculation of loss and restitution and just i want to just clarify there was a letter mr cook card to the bank regarding the look like there's about six hundred thousand dollars that was laughed what happened to that six hundred thousand was it accounted for i believe it is so your honor clear to me when you look at the bank said release a certain amount of money and subject to certain conditions and whatnot that's right and that's i think the point mr card made in replies that that document doesn't on its face to appear to show that it was released just that it maybe was planned to be released really subject conditions here's how i would read that i would first note that the custodian who's submitting that document says that that document accounts for the remaining money and this is years later so despite the document on its face six sixty three and there's no contrary evidence that it wasn't dispersed and but again i think a proper point here is that this is kind of a side show that the idea or the suggestion of the defense is that somehow this money held by the bank for these fire insurance offsets his restitution obligation but you have this bank through their custodian sane in a declaration submitted under perjury that these funds are in a quote blocked of perjury the bank saying that this is mr karr's money this is not our money even if we're holding it in account for him and then dispersing it and they go through how they dispersed it in so so much money when here and so much there even if the court thought that that final document doesn't quite add up or doesn't quite show the last some number of dollars being dispersed i don't think it matters in light of that larger point that this is a blocked account this is not the you know is there a few things i want to address but i need to go back to the ail three six because it's rare that you get a bank in to say that she has no idea how the files are count that the files are incomplete that the files are untrustworthy if if that doesn't keep bank records out what will that all go through it doesn't that's what the district court judge said when the that is exactly what the court said but he did so because of the perfunctory thing that everyone believes that bank records are solemn and that you know they are the protected in the highest way but rarely do you have a banker stoli and come up on the stand and say our records are unreliable you know it is a circumstance free to cross examine her and show bring out all the shortcomings you're right yeah you're right your honor and that's why it's not a requirement that the custodian see you know who filled the mountain and any of that but when the custodian says that that the files or the was she submitting is unreliable because she had a partial two thousand and seven tax return a partial two thousand a tax return and documents from two thousand and nine all together and presenting those as a document and the bank's own custodian says that they're reliable the court should have said you're right they're unreliable because i can't see if that doesn't persuade this court that those files should not have come in there is no factual scenario what you say they were unreliable for for they on the thousand tax returns weren't there the unreliable because we think that there was someone within the bank who may have changed the records unreliable for a host of reasons and because the custodian herself said that the f incomplete we know that there were documents there that should have been there that weren't there that you know would have helped my client unreliable because there were there was information that we would looking for but there's that make the documents that are there unreliable for the purpose of that they are that they are in the file yes it does you're on a pickup as it was our contention that he did not subpoenaed did not submit that two thousand tax return that was there and when the bank story and says that the bank files incomplete you know it's our assertion that you know if it had been a complete file you know we would have had information that would have helped my client they said you had two points you wanted to make not waste but you've gone over  an extra two minutes so that if you have a give you one more minute to make one final point yes your honor on the two thousand on the counsel to through seven in the record on page money came from mr carr's bank account and it went to vixie line and then it then it went to mr karr's other accounts the money was always his there was no there was no third par right to the bank the money was always says dixon line not only on that money now with the government did when the government says that they painfully you know draft these indictments carefully what they really meant to was say that the bank had been defrauded right with the they didn't do it drafted that way they drafted and said dixon line was to file it and that is just wrong if you look at the lew case is just absolutely wrong that two through seven cannot withhold scrutiny under that under that scenario and then especially when the money is coming straight from mr karr's account it's not coming from from the bank it's coming straight from his account to dixon line and it to himself because the agreement was between dixon line mr carr and the reasons he did it that way or only his reasons you know really unimportant other than that ok thank you so much  your time thank you very much and we appreciate your arguments on this case in the matter is a bit of this and that is our session for today