this trial your honour's we had a situation where the government produced a witness pretty woods was a critical part of the government's prosecution case the first reason this witness was critical was because they were utilizing testimony put a point of connection between richard marx wayne anderson and carolyn gross nicol as i'm sure the courts are aware friday which testimony was that her bank account was being used improperly and she was not repeat not authorizing anyone to make wire transfers out of the pinellas county federal credit union and that was the government's position that was a critically important part of the government's case as related to the conspiracy count one problem however aro when the defense was able to find two witnesses from the bank who gave statements that they had received information over the phone from freddie would authorize and wire transfers and just came in after a strike that this information came in after freddy would already testi d the question is if they're prejudiced so i don't respond to that's really i think there is prejudice that comes down in three areas very specifically one as far as being able to bring freddie would back into court and cross examine her this was one this was very late in the trial too i think the impact of being able to cross examine freddie would at that point would have been de minimus i don't think there'd be opportunity for the jury to see a witness your argument is that the jury could not have remembered what her direct testimony was no i'm not saying no your honor i'm saying that you know when you have a person testifying the first time and you have an opportunity to trial or cross examine right away with very specific important information that most effective way to do it so let the government when you're back and try to pull the horse back into the barn i don't think is that effective from the jury standpoint i just don't know it could be argued that it's actually equally so because you get a second targeted might infer that you couldn't get much mileage out of cross examination which is why you don't want to do it but you had the opportunity and so the timing arguments aren't particularly persuasive is there a third reason well there's just two of the reasons  three violation are the representations made by the law enforcement officer in this case are asked to the target in this case one anderson eight three subsection eight  very clear the property at issue must be represented to be the proceeds of specified unlawful activity as listed in other parts of the curve and it's worth noting that section night other parts of section nine hundred fifty six do talk in terms of some form of unlawful activity but that does not apply to the sting statutes got to be specified unlawful activity therefore without an adequate and sufficient representation by the law an office law enforcement officer the alleged financial transaction whatever it may be and whatever may happen after the alleged financial transaction does not violence in action nine one time were different in nature and in manner than the representations they have been making throughout this investigation so let me go back to those representations because they were here saying that because the mines are not owned by the financial institutions representations not match the statute in effect well i think there's a number of things i think for example and this came out in the trial as part of the record when when this agent is dealing with michael garnett in the northeast he's very explicit that the proceeds he's given the michael case he's trying to hide this money from the bankruptcy court and it's pretty simple it's pretty straightforward got it even talks in terms of well this is money laundering you know but with wayne anderson it is substantially different it's markedly different  from the standing in which this one conversation takes place to the actual content of the conversations  when he's talking about the scenario i mean before we get to any sort of technical aspect about whether or not it's the bank crossed actually some of the things that this agent says during the context if you're in this conversation which takes place in a public place where he admits anybody could overhear here it's a crowded restaurant and he admits that he never signaled to wayne anderson that he was about to get into anything that could be taken as as unlawful or illegal by the tone of his if you only pay ninety five percent of their loan and the banks are happy so willing to do business with you another quote everyone's happy and the bank is beating down my door to do more business i would submit this is not the kind of language that would typically be chosen if one were trying to depict and represent a section thirteen forty four bancroft such as a reasonable person would take it to be a section thirteen forty four bancroft now i agree with your earlier statement there are other aspects of this perhaps more technical aspects the i think the government parsing the words of the criminal statute but i think that as lawyers that's one of the things we do if there are some more technical aspects of this such as the materiality aspect the corded in order to be b particular customer is having trouble pining and so are the banks pursuant to a policy not pursuant to the statements pursuant to a policy for give five percent of loan and they're still making they're charging him under his scenario which is the only thing we have to go on in this case under histon aereo they're still charging him such high interest rates that they're making money hand over fist and beating down his door to do more business so obviously the banks are not relying on his statement on that his quest this particular customer is having trouble paying him but what the government is saying is that well technically under the bank fraud statute the banks don't have to rely on that statement in order to make material just has to be the statement just has to be of such a nature that a reasonable bank might rely on it however under the scenario as this agent laid out to wayne anderson in their one conversation no reasonable bank would rely on the statement two years five percent of the loan unless it's their policy to forgive five percent of the loan anyway which in this scenario was was the bank policy the banks would have had a security interest on the equipment evidently they were choosing not to foreclose on the equipment and the banks were continuing to do business with them so they knew he was continuing to do business money is there a point of all prophecy monies accountable property obviously the banks know he's still making money because they're continuing to linton money to do can continue to do business so there is no way this alleged misstatement he says to the bank which is why this particular customers are having trouble paying me would have a natural tendency to cause the bank forgive the other five percent of the lon court my name is benjamin wagner i'm just as he was attorney in sacramento california and i represent the government in this case i'd like to start with the brady is true because i think the brady issue is the issue it's raised by both counsel for both the plants and i think it's the area in which their arguments straight furthest from the facts in this case and i'd like to start by talking about the nature of the material that was not supposed to are there some peano on a bank for records shortly before trial in the course of serving that subpoena he was in the bank total about half an hour he runs into this becky jimenez has a brief conversation with her she says something about testified at trial and as the witnesses then testified there was nothing about their testimony which was inconsistent with the government's theory or with the documents that had already been produced by the government in the course of the case  was not borne out by their actual testimony at trial i think the most that could be said the most that could be said for these witnesses is that they were arguably contradictory to freddie would but the government's view of the evidence and i think the jury's  it's clear from the evidence that that andersen and carolyn grass nickel were using this account to run money through to run the money that they took in from clients through the organization and right in the middle of it it says return to form to freddie wood at her address in washington state attention carolyn and becky jimenez testified at trial that when she called one of the numbers on these these wire transfer forms which you'll find at to eighty two to eighty six of the government supplemental excerpts of record these these wire try performs which of the documentary evidence that show that these transactions were going through th and there's two interesting things about those one on the upper left hand corner there's a phone number that appears there well the agent undercover agent in this case called that phone number in the course of the investigation and who did he get he got carolyn grass michael on the other end of the line so other individuals were using the account using the name freddie would in order to use this account to move the money overseas so really the it's not at all surprising that somebody at the bank thought they were dealing with freddie would and the two witnesse who came to testify of course the main witness the witness who had conducted these transactions back you minutes she testified that she had never met freddie with the only reason she knew anything about freddie would is that this other employee she said they'd never had a three way conversation and she testified that she had violated the credit unions policy in that she hadn't asked any questions to verify the identity of the caller so there was really plenty of information before the  there's really two aspects that you need to address one is this hundred thousand dollars and whether it's actually money own or whether something is owned by under control of the bank just having trouble finding that i agree with you he doesn't need to lay out all the elements and he doesn't need to stand committing bank front but he needs to have conveyed aston's you know more clever fashion so why here it seems like he's saying that these other people o guy i'm getting the lawns out that are financing these leases i'm in leasing business the money comes to me i finance the use of these leases the money comes back to me and it's an ongoing and i'm going arrangement with the bank so i've got this ongoing business it's not a one shot deal i'm in the leasing business so i well no i i think it does because because he is he's lying to the bank in order to get them to provide them with additional long lines in the bank and he's saying you know what he's really starting off five percent for himself but he's the business policing business so every time as he describes it it's a monthly cycle it says at the end of the month i sent a letter i said if they can't pay me but he realizes that they'll continue to to loan money and in the course of that ongoing scheme that these proceeds are generated and mr anderson clearly understands that because he asks them he dumped the banks understand that you're siphoning off five percent for yourself and the undercover agent again explains it says no they don't understand actually it's four percent i'm paying off this banker who gave me this inside information but they don't understand it and i keep this going and he's clearly talking about this is and i'm going deal i've transported to interstate commerce well that there that there was they're not not as much as they should have been but there was and actually one of the things that i wanted to comment on is there's just answer my question is yes there was there was the agent was not asked and i think did not directly state we carried this money in interstate commerce but that is what occurred the money came in interstate commerce and i think there was a lot of testimony generally about the operation which from which the jury i think proper might these undercover accounts that were in banks that were federally insured all of the accounts that they were open the undercover accounts that they testified were about i think they were in atlanta in boston and in other places in the east coast way to another question the one i ask i'm getting february first two thousand and one with when you understand this hundred thousand dollars in cash came out of these federally insured bank accounts that they were these undercover accounts that you know that was about it that was in the testimony i don't think unless you can show me the record you said it came out of  were were credibly insured accounts and the accounts that they the undercover accounts that they talked about were ones that were located on the east coast he wasn't he wasn't asked about the about the movement about getting on the plane with one hundred thousand indicated earlier the agent did not was not specifically asked and did not specifically that's going to be jurisdiction so it's kind of import well i know i realize that i realize that but the hundred thousand dollars there was i think a good deal of testimony about how the day you don't need to put a hundred thousand dollars in your suitcase and spend it on united airlines you just go down to the f b i you know california or wherever and get the money so that that's the question organization this international organization was accepting the money like a teller accept money from someone walking into the bank this was a transaction as i indicated in my brief conducting a transaction for purposes of nine hundred fifty six means  concluding participating in a transaction and he was accepting this money now with the idea that he was going to put it in his garage and he was fixing somebody's car there in fresno he was taking it and the whole discussion in the meeting was ok here's the money you're going to credited to costa rica i'm going to wire it back to pay my bank in the united states they talk all about how that was going to happen in fact that is exactly what did happen and there was testimony there was evidence seized from mr wynn anderson's own computer and that as soon as he got the money and couple days later he credited this account down in costa rica so what we alleged in the indictment we talked about the money moving interstate commerce the cash moving in interstate commerce but we also allege that he was conducting a transaction in the transaction i think we were entitled to prove at trial and i think did prove that that larger transaction that she was initiating by taking that money affected interstate commerce was the whole purpose of the transaction in fact was to move this money in interstate commerce and get it back and the agent testified in great detail that that's exactly what happened that the money of interstate commerce but i don't think that precluded us from i mean it's clear from the problem that the indictment that what we're talking about here is an international money laundering or organization that move money offshore and that was set forth throughout the indictment so i don't think we thank you however there is no evidence nine i'm aware of in the record contrary to what the government says that the satchel of currency was actually transported in for staff to different issues it is wrong it is and it's important to by saying the money came out of the f t i see it counts and they can but there's another issue of whether or not there is jurisdiction because of demonstrating that the currency which had been transferred to interstate commerce was the money that two point stronger first as to the actual currency received by one anderson in fresno california there is i would submit to the court not a shred of evidence on the record to show that that actual currency was brought from the east coast to california not on the reasonable supposition in the modern age is that in fact when the agents arrived in california they got the money either from the f b i office or a local bank the fact that they have a bank account in the east coast in no way means that that's where that currency came from the second point is the government's argument that somehow this is part of this one hand to hand transaction is part of a larger chain of transactions this is another example of the government holding all the cards not the handing transaction but the idea that there was a whole chain of transactions resulting in money moving offshore and being repatriated to the united states there's a need in this case even if it's not a issue he's responded with respect to whether or not it really meets the statute as being some kind of a bank fraud because then the bank didn't know that they were getting sliced off four percent or five obviously knew that they were not being repaid all their money banks keep track of whether they're being repaid all their money they knew they weren't getting it all back but the sting scenario was that the banks had a policy of being satisfied with receiving ninety five percent moreover the government's things to an area was that it wasn't just a one shot deal with a bank right bank loses out five percent you think if they weren't happy the bank would say i'm not going to deal with you anymore but in fact the banks kept coming back hamster wheel going well your honor i don't think that it constitutes a story that a reasonable person would perceive to be bank fraud where the government undercover agent is saying the banks are happy that they can slops coming back constantly to do more business with me because it's pursuant to the bank's policy that simply doesn't sound like a bank fraud nor would a reasonable person perceive that to be one when the government was in control that's an area why didn't the government just say the undercover agent just say hey i managed to perpetrate a bank fraud through a loan scheme and by golly i need to hide the money because the bank is time after it that's a pretty straightforward story and there's no reason for the government agents not to have done it just as there was no reason for the government agents not to has said for instance we're dealing with the bank of america right they could have used a bank that's well known nationally known and known to the f b i see insured but the agents didn't bother to do that they easily could have in this case i suppose your argument is stronger because of that let me ask you a question just for the sake of argument that we conclude that there is insufficient jurisdiction to sustain but there is sufficient for a conspiracy count would we have to sentence to go back for recent thing under that situation i think i think you would your honor although i would yes my short answer is yes you would hear i'm not saying we are i just want to know your position on that if in conviction i think it would be appropriate to send it back to the district court to revisit that issue next question we ask you a lot of issues and jurisdiction but the contract part of the conspiracy don't seem to im in was this hand to hand transfer of one hundred thousand dollars but it's not it's not the act it's the conspiracy entering into agreement to do something yes your honor so how is how is that implicated because if there is no evidence that the only the only transaction that he was involved in or an agreement to participate in on was this one transaction and if this one transaction didn't constitute a crime and that was the only thing that he had agreed to do then it should undermine the conspiracy count against mr anderson as well because the district court found that the other the preexisting bankruptcy scenario that involved in the storm arts was not to be held a tribute to mr anderson even under any at sentencing so found that mr anderson did was unaware of those and therefore was not involved in an agreement related to the what about what about the money running through these account their accounts and brother saying to send it to the other brother and money going through their records on his computer would that be enron you know your honor because as the government claims mr anderson is the accounting department for a larger organization the point is whether he had the men's rights to be involved in the commission of a crime and here when the government undercover agents at one time that they talk to mr anderson they're unwilling to clearly say to mr wayne andersen hey we want you to do something that involves criminally derived money