not your honors and may please the court my name is white hans my co counsel patrick simon i just and i are student attorneys with northwestern university's bloom legal clinic at trial the central issue in this case was whether met mr lopez had the intent to defraud his client investors perhaps recognizing that its case with respect to intent was comparatively weak the government sought to fill the gaps with plainly inadmissible evidence and argument for whatever reason the trial court sloppily allowed government to do so now on appeal having all but conceded the legal errors we've identified the government falls back on the montra of overwhelming evidence but repeating that mantr does nothing to meet the government's burden of showing how these errors are harmless indeed to bless any number of fundamental errors under the banner under the refrain of overwhelming would be to gut mr lopez of his right  process in a fair trial in truth mr lopez was denied his right to fully voice his theory of the case and the government was given free rein to inject the case with prejudicial and improper evidence and argument turning to the errors we've identified on two occasions the government basically flouted pretrial rulings first with respect to the ruling payment testimony of virus agent  secondly when the government twice equated mr lopez to bernie made off during closing argument doing so was at best a bad faith parsing of those pretrial rulings to the district judge thinks so but no our district judge overruled the objection both with respect to the law and payments and pretty made up it was wrong to do so on both counts but do you think she misinterpreted her own orders your honor it's not that she necessarily misinterpret her own orders but rather in both whether the underlying conduct was erroneous and is the district judge doesn't think her orders were violated it's hard for me to say say that they were regular so we're actually not arguing we're not claiming that the orders themselves were or were were we're filing we're saying that that is a bad person pretrial orders had limited the scope of what was appropriate evidence and argument this case that we really highlighted this is did you just say bad faith person by bye on behalf of which us district judge rejected ok so why don't you just focus on what actually happened to try and gladly iraq and i'd like to start with the two references to bernie made off a closing because those are the most egre conduct these were clearly improper statements and i think in order to understand how they were harmful and how they affected the outcome of the trial it's important to look at precisely what the prosecutor said there were two direct attributions to direct comparisons between mr made up mr lopez the first comparison said i would suggest to you you may know about the bernie madoff case lots of people got investments back that they got their money back doesn't mean they were defraud what that's doing is it's essentially asking the jury not to look at the specific conduct that the evidence shows it's not asking them to try to compare what the evidence has said with respect to each of the twenty  know in appropriate we we would we would likely claim that it would be inappropriate because the pretrial ruling also covered that but but the second the second represent me the second reference to made off was was even worse because what it did was it drew upon  lowing payment testimony of i r s agent janet de lancey and use that as a way to equate the conduct of mr lopez to the conduct of mr made off basically compounding the error again i want to just quickly read what the prosecutor actually said you heard it in the lance you talk over and over about rolling payment it's designed to mislead these are not interest and it's interest payments clearly to know that some sort of return on capital just like again berty made off paid people for fifteen twenty years or more hundreds of thousands of people got paid back doesn't mean they were getting interest on their capital or returns on their capital so what again was doing what the prosecutor there is doing is you know compounding the effect of both the well and came in testimony which was itself improper which  get to in a moment and saying mr lopez is just like mr made up the most notorious fraudster in history and was there any evidence that lopez was earning interest in using it to make those payments your honor whether he was or was not he was making the payments up through the middle of twenty twelve was he making them with earnings on investments or with new principle which was topical to so you are it's actually not clear from the record to to my memory what it was but but it's that actually goes to an important conflation that i think that the prosecution may think that conflated return on investments with interest and they're not the categorically not the same thing interest is just a few pay for the purpose of borrowing money and to adopt the government's trial court recognized before trial that the term was argumentative and potentially prejudicial if it appeared on summary documents there is no distinction between that term showing up on summary documents and that term implies implies a fraudulent intent and that really didn't surprise the jury that the case agent thought that the defendant was guilty well your honor it may not have surprised the jury but it was still improper for the case agent to do that because doing so again whether allay or expert testimony was improper and it was so because among other things that require her to basically make a credibility determination of the witnesses when asked why she called these terms why she called these particular you know withdrawals and payments well in payment she said and these types of fraud prosecutions what you're looking for is to see whether the investor did with the money what he told the clients he would do in order to determine that he was actually willing that these seventeen times were actually one payments she thus had to believe what the witnesses the other witnesses who testified had said she was going to do with the money and she had no personal knowledge she was not qualified to do that and second as the second circuit in scapa is recognized in this court to recognize that type of credibility assessment by one witness of others is improper and is squarely the province of the jury duty of the jury it's the duty of the jury to recognize the credibility of the witnesses i see that i'm going into my rebuttal time so i just quickly want to turn to the other two issues that we identified first it was also erroneous for the trial court to honor your first question there were three expert opinions that mr outing reached with respect to me and we with them are brief with respect to the fact that this is a legitimate closely held family owned business and since the wife's business this is the wife's business where economic substance and have generated significant revenues and that lopez investment company was a profitable business profitable business that had the potential to generate a viable and consistent revenue stream so those are the three opinions and while there was technically no on some document oh so that i believe you may be referring to one of the investors danny cole and there was a question and actually that does bring me to the to the last issue which was that there was an issue where he had  initially authorized mr lopez to sign the documents and he it came out on the stand during trial that when the investigation that began did not inform the investigators that he had actually initially authorized that sort of thing is an error in a few cases have we ever found it to be reversible to my knowledge i'm i can't recall your honor but i do know that the court has recogniz not relying on that is ok that's just one of several elements it is true your honor our position where they only thing in the case to me well your honor our position is that each one of the errors is reversible on its own but of course the court should look at the effect on all four when making gordon good morning your honor is me pleased to call my name is james ward and i represent the government here today as i did before the district court along with my colleague of winfield on what i've sensed throughout this appeal process is a claim of some bad faith on the part of the government which distresses the government very much i'll leave that there after making that point the critical to that is this as just hamilton suggested there's no evidence that the government intentionally violated any of the pretrial orders of judge brett and in fact try to or for them to follow those these issues are all abusive of the h s the issue here the issue is this term loving payments heinie lopez use low in payments and come back to that more but contrary to what counsel earlier said there is no dispute about the fact that these payments that purported to be interest were not made basis that he had made these payments and we were making the connection that the fact that she made these lowly payments doesn't take away your criminal intent so we won of the jury to understand that i'd it's beyond my comprehension that the jury convicted jaime lopez because in closing argument there was this very limited short reference to wide hysteria if you don't think it would influence a jury i did say it would influence purported interest payments made by lopez were not made by investments because he never made any investments don't counsel talk about investing his wife's business he didn't invest any money in his wife's business he transferred money to this wise business and then impact is to take an investor off guard and there was testimony by the victims about this where per the contractual agreement the terms interest was of course to be made on a on a regular basis upon the investment but to pay the interest you have to have a return on investment which since the defendant never invested in the money he had to take other money from other investors and book that on  their records as if he was paying them interest so it loads them it causes them to believe no questions for the defendant is honoring his contract it's a term that this court has except that it's a term that other bill courts accepted and judge pret made the point that she had researched it and thought it was a proper term the other major problem here is the detailed explanation alone payment came in response to a question on cross examination trial defense counsel asked that the agent clearly two important issues in a thousand and six summary witness the government has a right to to to summarize the evidence and put it in character the government doesn't have to it can present its evidence in a neutral fashion the government has the burden of proof in a criminal case of course and so the agent had looked at all these documents and then testified about what that what she had obs then defense counsel on cross at the what did you mean by will in payments why don't you call them that and he tried to get her to recast her testimony because he focused on the fact that the contracts the agreement require to pay interest which of course they did but she said well yes that's true yes he had to pay the interest but he didn't pay it in the way you're supposed to pay it which is return on the investment he paid it out of scheme money coming from we didn't use that term in the trial but later money from other investors that was used and they don't like the answer but it's the truth and they have to live with the answer because they asked the question so much of the lo actually here's what happened danny cole prior to trial so not and not in the under of a statement like that but when he spoke to the agents originally he told them i didn't sign these documents which was the truth uncontrover what he didn't tell them and this is clearly an omission what he didn't tell them was but i had you know at least acquiesced in letting lopez sign these for me because at the time i trusted him and i want to expedite the the agent that of course he did it but at the trial on direct this wasn't contradicted by direct versus cross at the trial on direct he said i didn't sign those documents but i gave him my permission to do that so that was brought up then across the defense hammered him about that he thought well why didn't you say this and they characterize it as claiming it was a forgery  never said it was a forgery he just said i'd signed it myself so there was no inconsistency between direct and cross now the most important thing here is in terms of this you know discretion but letting them call the other witness they made all the point they want to make about his credibility across and in closing argument twice they called him a liar they called danny cole a liar to the jury and said he has no credibility because of this so the point that they wanted to make about this issue they were able to to clearly make a long list but if the government say i'm sorry what did the government say at the trial and i mean we objected to them calling the the  agent before we'd taken the statement saying that the agent couldn't add anything to this it was an omission it wasn't like he admitted he lied to the agent it was a situation where it was it was going to come you know not not necessary for the defense to make that point and in fact there's a suggestion in their brief that he could have talked about all these other things you know about the statement which the government's position is  speak what i'm trying to tell you judge is that we said the focus is was this witness to fraud by the false pretenses representations and promises so whether or not he acquiesced and signed the document doesn't answer that question the not critical to understanding the elements of the offense and that his credibility otherwise was in place based upon all the other evidence and in fact you acknowledge that he had authorized the transaction absolutely absolutely yes he did authorize there's no question about that but critical to remember also just with respect to that victim and the other three victims the defendant later completely falsified  the whole set of documents to change the terms more beneficial to him he lowered the interest rate he extended the time of the payment requirements of his and everyone testified it was completely not disputed that the defendant created all these false documents later that were critical to showing his criminal intent the issue about how much money did he obtain from this program about four hundred thousand dollars lifestyle forty five thousand dollars he put on the trade account and he lost every penny of that and no other money was invested and all the money to his wife's business was not of this let me talk if they are that's just her practice and it's a common practice in our district and i'm certainly familiar with that practice you know just templeton is very familiar with it practice and what in fact the government does agree with a but even if you didn't agree with it  that's the standing order and everybody involved in the trial knew about that ahead of time the bottom line about all of these this and i think judge hamilton suggested this in this questions a while ago they got in all the evidence they wanted to get in that was in the civil anyway in that in fact judge praed gave the jury the expert instruction at the end over the government's objection but the jury got the expert instruction he was allowed to give all kinds of opinions the government's major objection really wasn't the seven o two issue although the evidence he gave didn't require seven o two status the government's objection was primarily on relevance you know initially at least on for a one meeting because the evidence had nothing to do with the issues of the case the fact that his wife's business now the day of the trial was profitable and stating well has nothing to do with the fraud charges and our argument throughout was this is just going to confuse the jury create issues that are appropriate for them to consider that being said the just read judge still allowed him to create a lot of that testimony give opinions about what is in a judge allow allare thing to be called an expert witness well for two reasons the first one is it's her standard practice and this is referenced in the  judge's application of that label can be understood as indorsing and crediting that testimony now there are other different points of view and it's not a perfect solution to the problem but it's a common solution to the arguments for making or trying to point out that these errors in the trial essentially created an uneven playing field for mr lopez second with respect to what the government now says about blowing payments first of all it's not a term of art when courts of use this term it's been using cases are out of the same way a court might say that murder in a case but that's a witness is not allowed to stand up and say this is murder with respect to he's not i'm sorry or maybe i'm in this overstating what i mean but is the lower term essentially is allowing the government or was allowing this witness to make a credibility determination that the government evidence is credible whereas the defense evidence was not and then allow earth and then basically attributing this fraudulent attempt to mr lopez directly seventeen times and it's that error was compounded in the prejudice is compounded by the fact that the government than in closing argument explicitly tied this improper evidence to bernie made off and said that just like mr lopez bernie made off years long payments so now not only does he has the jury seventeen times and heard this this intent attributed to that fund that now they hear that bernie made off had the same intent and did the same exact actions with respect to what the government represented about allowing the impeachment of mr cole that the government the prosecutor at that time said and this is a pla