a telemarketing fraud child it was a lengthy trial and preach trial most of the defendants including this morris move for severance under a variety of a variety of grounds including the concern that there would be mutually exclusive or inconsistent basis between in this case mr morris and the attorney who was at trial mr leonard who is represented by gene or dale from san diego the throughout the trial looked at the record last night there were nine times during the trial said that this whole operation was crooked but he didn't know what's going on i mean you know i just they were rolled was there something and this lawyer einhorn was hopelessly crooked and then the jury could accept that testimony and then say well when a lawyer is crooked and giving crooked advice your client could have relied on that innocently i understand the court's concern of the certainly i'm a fool and i was put week by horn as well but it was more than that and the core of it and i want to talk about specifically i think the one piece of evidence they came in that most prejudiced mr morris but the core of it was einhorn kingpin he's a leader of this fraud he's not just a corrupt attorney but he was part and parcel he was a director of this fraud and he that was conveyed to all the defendants including morris and i think when you look at the a number of witnesses something that i believe is should never have been admitted that this trial the government i believe never would have been permitted to admit this in a separate trial but that is the advice of attorney einhorn to einhorn you had this attorney client meeting and he told you don't answer questions you know the answers he told you don't don't talk don't answer deposition questions don't answer questions under oath or by any investigators that would in that anything that would they could implicate you in a crime now the indication of what is tantamount to the invocation of right to counsel or or the fifth amendment privilege against self incrimination that has no place in a trial and i and i think that so undercut the defense that mr morris was attempting to portray which is i listen i'm one i've talked i've already seen like a reasonable turning to me and i reasonably followed his advice i think that's mutually exclusive i think that that was the core of mr lennard's defense in the case and i think that was credited and it appears to be more or less credited the jury hung they did not acquit that they hung on  honor that that those magic words were never used but i think given today's day and age in television shows everyone in the courtroom understood exactly what was going on there that he was advising people to invoke their fifth a privileges but i agree those particular words i was not trial counsel but i magine that judge moscowitz instructed the attorney not to use those particular terms but still i think that it  so thoroughly deprive mr morse of an opportunity to prevent his defense that this was a case in which seven should have been granted we understand the for judicial kamin traditional fish efficiency and a rule fourteen rule eight that there's a presumption in favor of it but it's precisely in cases like this where you have more time on trial involving multiple defendants that i think the court of appeals has to take a close look at the actions of the district court because the district court judge is the one who has to live with this and has  has to consider don't want to try this twice so while the one hand the rule promotes judicial khana me it also in my opinion promote it it creates an opportunity for judges thinking about you know their own concerns in terms of their schedule particularly in san diego with we have the busiest this record in the country from what i understand to err on the side of well you know let's see if we can cure it by curative instructions in this particular case the curative instructions came late they were the generic consider each defendant the evidence against each defendant individually your decision and one should not influence that decision on another but i don't believe that there was any point during which this very damaging evidence came out against  and so i think for those grounds the conviction should be reversed in terms of i'd like to sort of the sense initially was the court has many questions the the time frame on the since in this case hamelin decision had just come down i think within a matter of weeks or months before the sentencing the district courts from my experience and from reading the record in this case were struggling with how to apply the thirty five fifty three factors i think judge moscowitz as you see from the briefing and certainly in the record the briefing for the initial sentencing hearing the defense position was that any enhanced went beyond just the basic offense level basic level six for fraud have to have been alleged in the indictment proven to a jury beyond a reasonable doubt and we now know from subsequent case law that that's not the case that the district court can make those decisions first of all the forty five million dollar loss was the granted the sensing guidelines permit the court to find reasonably forseeable conduct of coconspirators but in this case i don't think there was sufficient evidence to conclude by clear convincing standard to social magically increase the sense to go from three and a half million dollars of loss all the way have to forty nine million dollars of loss the evidence was at trial that there was a whole branch to this conspiracy that took place in florida that raised about half of the money that was involved over twenty million dollars and there was no evidence tying mr morris to that particular part of it and beyond that your honors the anthracis the terse to others and punish the need for punishment but i think under emphasized the need to consider one of the thirty five fifty three factors which is syncing disparity and don't know what he will get he got twenty five years but it's cool it's cooperated with the government he clearly was two levels above mr morris in this case benefited substantially or millions of dollars and he received a sense of seventy one months now i understand of the government has cited cases that the court probably can consider cooperation but i think that in in looking at how the public reaction what is spared in just in a case such a even cooperation even given to defend if you goes to trial to sentence one defendant to more than double the amount of time to sense of close to twelve and a half years when the principle gets half of that it's just it's just not fair and actually almost two years since we've had this in the original sense in this case and a little bit longer since we've had emily in i think if the court has a new opportunity to review this case to consider the all the thirty five fifty three factors i think that the court will  hope that this court concludes that it was an unreasonable sentence in comparison to the other defendants and just finally when you look at the thirty five fifty three factors and sensing disparity in some of the other defendants that were in this case related to this case the there were defense to both cooperated in who did not cooperate were entered into who entered into plea agreements with the government that limited the amount of loss and we've cited that in our bracelet defendants who had the identical situ position as mr morris an i s o or an independent sales office that raised a doubt somewhere between three and four million dollars where the plea agreement before cooperation was will start with that amount of loss or some significant lower amount of loss starting with the sentencing range of eighty to ninety months and then creates a downward departure of cooperation from there and to me although the supreme court certainly said that the reduction for acceptance of responsibility that a defendant gets for pleading guilty is not or the  to get that after a defendant goes to trial is not the punishment for going to trial i think in this case the when you see what happens to the other defendants the fact that mr morsi got such a dramatically higher sentence than all the other defendants who were similarly situated to him who didn't go to trial i think that emerge in the court to find that this isn't a trial tax or a trial of toll it's out of proportion to what the acceptance of responsibility reduction normally in the sentencing difference should be maybe a year or two not only others are pled guilty because if i heard a government no there were at least one or two and when i take a look at my notes and in a few minutes i can describe them but there was one of pled guilty after the trial who was in i think an identical situation receipt distance of somewhere between five and six years there were other did most of the defend it's did cooperate though that is true and be calculated under the guidelines how much difference it would make if your client the last target your client's activities were  the appellate brief both the opening brief and the reply brief and to a certain extent mr warren's presentation today totally miss characterize the facts as far as how the trial went now i can certainly understand mr reagan though the lead a didn't attend the trial mr warren didn't see indicated and it's a huge daunting task to go through a ninety volume record that transcended about a four to have five month trial and about four to six months of weekly motion hearings before that irreconcilably antagonistic in fact they were complimentary and mutually reinforcing and mutually supportive second there was only a limited amount of four or four b evidence that came in against mr morris and contrary to mr attacks about telemarketers generally moreover the court disagreed that that the contacts and the con that the comments by mr dale were intending to stick to mr morse's defense and that's in the even in very little bit of money and that for the work he did and what he did he thought was absolutely proper legal work that is school was was a manipulative man who falsely represented himself to everyone involved and victimize the people w with them implicitly the i s o owners the sales people and his partners and that the clapper to defend is testifying in the case we're all irish who were seeking a lower sentence he only mentioned mr morse twice in his opening statement and they were not disparaging comments moreover the defense attorneys as a as a group tried to harmonize the defenses and they basically had a couple of themes good faith and where appropriate advice of counsel which is what mr morris did and it the court commented and certainly the government saw a concerted effort throughout the trial to get along and attack the government's evidence but not attacking each other mr katz who didn't make an opening statement did throughout his cross examination of the government's witnesses also advance certain themes first of all that mr morris had a very professional approach to his work he had a good faith belief in the legitimacy in the viability of the offerings that his salesmen were selling that the information provided to the i s o owners  himself and the investors in the sales people conveyed the idea that the they often is were legitimate and had value and could make money for them he's certain that the corporate office it's with will be in the other partners up there misled the i owners and investors at the same time through his cross examination of the government's witnesses including the victim witnesses he aggressively advocated that full risk disclosure was in the private placement memorandum and that if the investors invest well that's that's the way the investment world is and that moreover they were viable products that the investors could have made money on if they just persevered he also attacked the credibility of the cooperate years as did the other defense counsel in this case in the defense case he did present the advice of counsel but unlike alex argued in the defense brief that was not the only defense that was only a part of his defense and why it was only part of his defense it was very limited evidence that goes to the that went to the  counsel argument so he focused primarily on good faith of mr morris as to the testimony of the advice of counsel it came during mr morris his testimony he did take stand in the defense case which came literally about the third fourth month the trial and he testified that after receiving a letter from the department of corporations here in california and may have ninety six that they thought he was his office was selling securities he contacted m that i'm not going to contact you any further that's the thrust of his discussion about einhorn during his testimony he did mention that he had discussed cease and desist or to system frame letters that his office had received but he was not specific as to when that it happened so as far as the evidence in the records he talked to mr einhorn sometime and they had ninety six why is that important well the scheme started in july of ninety four so we're almost twenty months into the into the scheme where we first he there was some advice of counsel involved he also talked about seeing an attorney in the race going here in los angeles area about tax issues and that happened sometime in april of ninety seven just a couple months before the complete telemarketing scheme ended and that he and his wife saw the lawyer and they took some action in moving some money overseas to hong kong as a result of that tax advice and he also said that he talked to mr risk and about  workers compensation or independent contractor issues with mr risk and but he didn't say when so as far as the jury heard this advice or counsel can very late in the game that's why the government believes mr mor focused on good faith because he could argue good things throughout and there was plenty of evidence that he presented it that supported it there was a lot of talk in the both the opening brief and the reply brief that the that mr  hell for on behalf of mr leonard introduced all this evidence about mr einhorn's involvement in fact the bulk of the evidence came about was dry and what came out in the government's case through the government's witnesses and i would l mr katz raised in there in this article case in his opening statement and through the witnesses and in morton mr katz case through the testimony of the witnesses was continued were continued in the closing arguments i read those closing arguments recently in preparation for this hearing mr bell's closing argument went for three days parts of three days hundred eighty six pages of transcripts it focused primarily on this with and he mentioned mr  one of the co defendants but they were all factual discussions no attacks no disparagement and even alluded to mr it's cool with his manipulation of his long time partner mark levine again supporting that you know the good faith argument still that was i who are but he talked about when he did so it wasn't attacking einhorn in an effort to make morris look bad because morris is just can be said innocently relied on the advice of a crooked attorney he mentioned good faith seven different pages and he talked about mr manners good faith how he had initially got involved in universal wireless technologies with mr it's was mr bean and given an opinion letter referred to the other securities chinese and said that was my client's mr le first exercise a good faith and he did it throughout the trial or throughout his relationship now katz mr katz on behalf of mr morris had a three and a half day closing argument transcript four hundred seventy five pages he referred to it's which is a lot eighty nine times not as much but certainly a lot of times most more than any other witnessed he were made references to jim leonard on ten pages and what did he talk about the perfect professional relationship that mr morris had with mr leonard how mr leonard had given this well done opinion letter to mr its words back at the time of universal wireless technology saying that it wasn't securities and that gave him some solace of what he was selling and the twelve offerings in the indictment were not advice but he focused on mr einhorn's long service with the f c c is that impressive offices impressive practice a lot of clients he knew in the industry he said that he handled he helped mr morse with this california department of  o materials that they were that the conspirators used to avoid having another partnership meaning for the letter offering he talked about the experts in the field that were presented in the partnership meetings and the kickoff means which gave an impression to the i r s owners and  sales people that this was a legitimate offering the promotional materials he talked about to the that the investors that his sales people in the owners thought this is a real deal he said he's mr morris fired salespeople for misrepresenting to investors and he argued the good faith instruction over and over and over to the jury about how the burden is on the government to show a fraudulent ten i don't have to show mr morse of good faith but you seen it throughout this trial and i testify because he was not granted immunity well that's right here and because he was a target of that investigation we still want to prosecute him he was a target in another investigation that was still proceeding it was not as far along we had no interest in getting investors investments and he spent a lot of time explaining to the jury why it is mr morris and the other people believe that what they were doing was a real deal that again supported this is how these defenses were mutually supporting and not everyone was blaming it's cool as you say to them so convincingly it's amazing there was a conviction well interestingly your honor mr einhorn screw lation ship to this case was primarily on the securities fraud because the that's where his expertise was of all the charges treasury the jury found he was not guilty of that obvious so the two securities related components the jury acquitted him so they essentially accepted the defense presentation with respect to  fears that everyone had the beginning in the case about untag unstick defenses and and spillover of president prejudicial evidence had not transpired that the council had been very diligent in trying to prevent that from happening and they have been successful i'm going to skip over the confrontation issue unless the court has any questions and i think i want only spend a couple minutes on the very least some time for mr casper yes that is right and if you have no question then for for me i just want to stress there were many many instructions i have a couple listenings now because i had to provide the court that show fifteen twenty limiting instructions in detail about all the various issues of the four for the evidence and if you'd like to do that i think we have that issue here i think you're the method used by the court below to calculate the actual last year which was the out of pocket investment by investors in that amount going it was stipulated to i think marsh was fully consistent with section two f one point one of the guidelines five which is operation generated you're hired urge the court to take a look at the let's decision telemarketing trades in that case your honor this court held that we agree with courts of appeal which of hell telemarketers responsible for the losses caused by other telemarketers and their fraudulent companies and the appellant here cites to the studly decision second circuit case that case your honor study was merely a sales representative he was not an owner manager  meeting and it is a good example for the court to show how involved mr morris was how he participated in the things which described and made him fully knowledgeable of the full extent of the fraud perpetrated by his room and other rooms across the country how do you explain something disparity your honor with respect to sentencing disparity there and i think here's where it's important not to take into account judge m each of those five cases himself so he was intimately involved and familiar with all of the defendants in each of these cases who came before him for sentencing there were also of the twenty additional indictments thirteen who pled guilty before with respect to this issue the other defendants expressed remorse for their conduct and many of those will cooperate as for example with respect to mr it's quits and i know that that's been a central focal point here he came in our only he cooperated he provided substantial testimony on the witness stand for roughly eleven days and thirty four hundred record transcript pages again he expressed remorse and ultimately judge moscowitz in sentencing portion of the  discussion there was pressure against this with cooperating by mr levine he did make the government's case and i thought he was truthful a trial having watched his testimony so he got the benefit of his cooperation that was the case with many of the others in the appellant in his brief incorrectly r and in that transcript i believe it does demonstrate the court's competence of this issue and demonstrates his consideration of the other individuals who are sense you are finally after weighing up the factors on both sides of the equation the court came down with a stance that was eighty seven months a low the low end of the properly calculate guideline range this this factor  for these reasons your honor and or those reinstated by my colleague mr people would ask the court to affirm the decision of the district court in all respects and that's the court has any other questions my time is limited just one of the cuts on a couple of things terms of the sensor guidelines i took a marketing at least for the fraud counts based on three point five million dollars of losses using the now relatively engine guidelines that were  political and including a an enhancement for aggravating role in the offense my calculations have he'd be at a level twenty two which would be forty one to fifty one months that money laundering guidelines would be substantially higher than that it probably somewhere around double that but in terms of the so obviously very significant distinction the my review of the record in terms of the sentencing that the other defendants received two did not go to trial the government for whatever reasons in terms of negotiating with people who were cooperating so it will limit your amount of loss will start you just what you're individually responsible for and it does repeat in my opinion of unfairness to say ok not only do you lose acceptance of responsibility for going to trial but you get hammered for fifty million dollars of loss of which mr morse in his case earned three hundred thousand dollars and paid his taxes on it and then after it was after it all came apart started paying restitution before he was charged in the case a gentleman by the name of glenn bach received fifty four months an evangelist received sixty six months both were operators of independent sales offices basically people like mr morris who get a group of people working for them doing the telemarketing in terms of what was lost calculations from thinking well i don't know i wasn't at the sense in hearings but i would imagine that they were each of the sales offices earned or a raise mission say between three and four million dollars and so i just sort of blitz case which mr fastow raised in the studly case the blitz cases i understand it says look you're responsible for other telemarketers you're working with in the same boiler room as they call them the sane people but it doesn't say you're responsible for this room and that room or the other rooms in other parts of the country these were scattered from l a all the way to florida and so i think this is somewhere between the stanley case where they say look you just accountable for exactly what you individually did if you're if you're not aware of other