specific questions for him however we do have assessed the issues in a way that suggests that they feel that all the defendants are really in very much the same position as in terms of the analysis of the restitution or r in this case your honor your honour's be the primary issue becomes whether or not based on the conduct of the defendant's admitted illegal conduct that they had paid for down payments of homes for purchasers that were not the down payments not being disclosed to the the bank whether that conduct in itself makes the defendants liable to bank of america who in fact is seeking restitution for the total amount of their losses where it is quite clear from the record that bank of america facilitated their own losses as we talk about in drano coauthored their in the manner in which they issued these loans independent of the fact that the down payments were not closed to the the lender now i thought familiar with any concept of comparative negligence in restitution law mean bank of america certainly did suffer these losses even though as you say may have been to a degree self inflicted points that we did agree pretty extensively is to call this a negligent victim really does not reflect the record we have a twenty percent down or a ten to twenty percent down payment that's paid and not disclosed to the into evidence i believe it is exhibit g that the court can find those on their site it extensively in our paper in our paper sure honored and in those loan documents they were so poor that the district court called them laughable they call the district court look i think you have a good argument that the money shouldn't go to the kind of america that it's really you know crooked but i don't think you have a good argument that find that the but for analysis that was done by the district court was an error however under the ill gotten gains concept could in fact reduce the restitution order to what was actually i'm not talking about rest to sho saying you're not entitled to this money this crooked money that should go to the government well the question because many don't have an argument only united interested in the course that it should not  that it should not go to the back well i that's our whole point your honor is that it should stay with you with your clients with me but it's still the question because then your honor under what analysis other than restitution would in fact have gone to the government it could have been through a fine court decided not to impose a fine and that the court decided not to impose a fine at a time when the district court clearly was contemplating the possibility of not awarding any restitution to bank of america because the court recognized and spoke at length that both sentencings and at the restitution hearing that the court was extremely ask you to consider the following comparison tell me whether you think it's valid or not suppose you got if we're dealing not with fraud but with a robbery in the bank robbers have inside help from the branch manager you've got an agent maybe even an officer of the bank who's helped facilitate the robbery is the bank a victim entitle to restitution i think it i think it would be and the reason is because clearly the bank manager or whoever it was that was a from the inside is not acting on behalf of the bank and i think that puts us in a very different situation here because we have the bank actually taking applications per very clearly there's no issue that they're liar loans they're not verifying any information the loans themselves multiple loans issued to the same people don't even have the same information on it processed within a very short period of time those true the knew it was all phony yet doesn't mean you get to keep the money i know you can you sense your clients are crooks why should they get to keep the money just because the bank of america was also crook or there's a possibility that the government could have done across the peel and suggested that it was inappropriate not to impose a fine for that very reason the question becomes though as to the restitution order how does the co how would the court head had ordered the the restitution to be paid to the government but we had to find that government was a victim somehow right resides and goes to victims that's correct however the the in the underlying case the government never argued that the only victim that they ended up pursuing they claimed was bank of america you may remember that fannie mae was initially  government in response to the british government is not that is not a victim but your client should not be permitted to keep this money when we set aside the restitution order should we remain for a more complete re sentencing since restitution is part of the whole package i would say no because in this case the court the sentencing was actually finalized with the exception of the restitution order long ago the government did not appeal that order that order is final there would be no basis there's no procedural basis and i'm not aware of any case which would allow the court to reopen to reopen the underlying sentencing i won't be sure that's true at all i mean that we have a lot of cases in which we express the notion of the sentencing package which includes sometimes if it's an individual and incarceration portion supervised release restitution fines i mean they're all components as we're going to be discussing later this morning of a sentence and so even though this amount of money for the rest to show wasn't nailed down until later which is another aspect that you've raised here  it's still all part of the package and so maybe hamilton is right even without across appeal maybe the whole package would need to be looked at again but certainly the court has the power to remain and ask the court to do that i am  unaware of any case law that would allow when restitution is determined not to have valid lee enter whether we're talking about the dole an argument over time talking about the analysis and then that includes  sentence that has already become final the problems with that in terms of why is this sentence final if it's on appeal i mean you're appealing a part of the criminal sentence which is the restitution we are appealing the restitution order in order to have appeal or for the government to have appealed the sentence other than the restitution under order under the special provisions of three six six three and no i understand there would have had to have been a notice of appeal file within fourteen or thirty days let us know so suppose though just to follow through on that thought we found no flaw in the restitution order then the government wouldn't be entitled to say in the absence of a cross appeal that there should also be a fine because they forfeited that by not filing a cross appeal but of  but if you've invited us to open the sens back up again i'm looking at the actual sentencing documents attached to your brief and one aspect of the sentence is defendant who did not appeal their original sentence and the fourteen days or thirty days passed whether you're talking about the defendant or the government and there was a subsequent west restitution order that ruling woods sussed lead to the conclusion that the defendant for example could wait to the restitution order was entered and then has fourteen days to to appeal the entire sentence i am not aware of any such ruling or any such holding that would allow that but that is the  flipside of that conclusion i understand the court i understand the court's concern about this and at the restitution hearing there was actually a long discussion about what the ill gotten gains were and there is a possible alternative to the figure that the court actually reached which was basically having these defendants and down the fide bank of america for all of their losses losses which in fact go back to  not only the very conduct but the fact that they within two weeks knowingly entering into these extremely flimsy at best documents transferred them to fannie ma in the court's order in the district court's order there is a suggestion that for example what i'm leading to is that that in fact it wasn't the intention of bank of america to lose its own money no it wasn't well of course not to be gotten to know by the way they get sent when they have to take them back pay your honor other than the representations of the government regarding the quite a large settlement that fani me entered and the transfer of these sixteen houses back to being of american from fannie mae we were unable to gain any information regarding those types of issues and i can tell you that it's not in the record it was requested and it was questioned over and over again could we please be in contact with someone from bank of america now i do think it's important to mention this affidavit exhibit four which was submitted by the government and apparently signed by robin minor the the content that i believe in packs restitution the most is the statement that these loans would not have been issued had they known that had bank of america known that in fact the down payment was coming from the the real estate company so how does the no follow up on these on this affidavit the judge says you know you can file supplemental briefs on any issues raised during the hearing and anything else you want to talk to me about with respect to restitution this affidavit seems very flimsy indeed to me seems stunning actually in its lack of detail but but it seems like the defendants dropped the ball on it well actually your honor as we cited in our brief we discussed that at we discussed the affidavit because we were just presented and at that moment in court we did discuss it we raised the issues that we're briefing today well i  didn't the judge invite you to follow up yes and i believe actually i had filed and i could not file another brief however i had filed a twenty page brief prior to the hearing and virtually every issue was already objection to the district court's consideration well your honor that that may be true that it wasn't that we allowed it to come in but we're talking about a sentencing hearing the court can consider anything virtually anything it wants to at sentencing but the question becomes is it reliable enough for the court to reach that decision it did based on the contents of that portion i was looking for that objection and i didn't see it in the transcript did i miss it or did it come later what happened your honor it was raised that there were questions who is this person what is her ability to make make the statements that she is and those are cited in our brief your honor there those issues now no one said we object to the court that the court cannot rely on this for any purpose because in fact the affidavit does suggest that the that the affine may have had sufficient knowledge to attest to the char attached to the affidavit with the figures but we have no basis for her conclusion that these loans would not have been granted what about the conclusion the district court pointed out that your client's conduct is consistent with the today because they worked so hard to conceal the source of the down payments well i think that i think actually it's not a fair assessment of the situation and  tell you why francisco rodriguez for example is mentioned in the transcripts now he is not one of the houses that is the sixteen but he is one of the forty five houses and he was one of the thirty seven houses that actually the government pulled their requests and restitution and the day of the hearing mr rodriguez was actually convicted mr rodriguez was actually convicted of making a false statement because he had a gift a letter reportedly from his mother that she was going to be making the down payment and then again the down payment did not come from his mother i think that's really important because it shows that it's not true that bank of america would not have granted the loan simply because someone else was paying the downpayment we also have evidence that i don't follow your logic order there is evidence in the record that bank of america was giving loans to people who were not paying their own down payments but if he submitted a false gift letter he did but they accepted the gift letter which was coming from not from the defendant for his down payment my point is that bank of there's evidence that bank of america was granting loans regardless of who paid the downpayment we're going to the bank of america has a very crooked they were whacked with nine billion dollar fine by the government absolutely right and we do point that out again and we put it out to the court in the district court and we pointed out again here bank of america should not be getting eight hundred ninety three thousand dollars there any realistic prospect of collecting a are their asset yes certainly people pay for the rest of their lives on restitution at this point in time as the finances of both all of the defendants show that they are not very liquid they all have financial  problems whether some of that money in fact we've already had some issue regarding my clients being forfeited to go to restitution so so yes and no yes and no on that right  whalen thank you good morning may please the court my name is in the family whalen and i'm here at the at the united states your honors the defendants are not all in the same position here as defense counsel started her brief by saying mr le engages in a two step analysis first asked whether defendant knowingly voluntarily entered into the agreement you know mr whalen that we don't we understand this and we have the non presidential case in van tilled it used the same language but i don't know who's saving the trees or whatever why why not say you know incarceration supervised release fines and restitution it's so much more manner in which the components of percent that are right that let's define the term all components of the sentence there is a finite set you have suggested special assessment which is so non discretionary that i'm not even sure you know a waiver would mean anything but if you are inviting this very kind of appeal because restitution as defense counsel is pointing out it's something that's kind of qu quezada criminal sometimes the government's entitle to bring entirely standalone restitution proceedings why not just say so and then if you want to force these appeal waivers you've got something very solid to base your position on well your honor we have something solid to base our position on and that's this court's opinions this court's a set components of your sentence include restitution and this court and warden which defense counsel cites and the opening brief is a part of your sentence well that's fine and dandy as a piece of cloth but we need to be sure that when people are waving something as important as a right to appeal or is a right to bring a post conviction proceeding that they're doing so knowingly and there that's where you get into you know there's this fuzzy word all components of my sentence and are people like you know these folks i'm sure my toes in particular are going to know that it's so easy to say it and make it clear and if your honour's reversed its previous course and decides the components of your sentence doesn't include restitution that's what i'm saying let's assume of components does include so if you had a question you could have asked the magistrate judge at the time when you look at our plea agreement as a whole and don't take one isolated paragraph or i want to isolate that subsection of paragraph seven it tells him the restitution will be determined by be totally asleep i don't believe that's right your honor i understand your concern about bank of america not following through on the representation made on the right now doesn't merica with the other banks in this period of time were cr well your honor that might be so and look at the amends fine that was levied on the bank of america i agree with that and that's the so why did they get the eight hundred ninety three thousand because they're still victims of these defendants frauds i mean the government going on they know that these are phone need loans for phony because because the actual because the money is not being paid by the person who is who is the bar well your honor they didn't know that the down payment was being paid by the defendants and that's where this the rubber hits the road if you will in this appeal which is that banks said if we had known that you the defendants were making the down payment instead of the buyer we wouldn't to shoot that low blow and i don't believe that when i don't think you should believe that i think the government is being extremely gullible because when they look at nine new mortgages in a four month period by some guy named julius  they're going to wonder what what's this guy how he's getting nine new mortgages in four months who is this person is this some billionaire or is this nobody and i courses nobody i understand they don't investigate testimony says there's a high probability the bank would have tonight the loans if they'd known we the defendants were providing the down payment to the bank he understands the importance of the down payment though you don't understand the point is the bank knew nine mortgages in four months seven more than six and two and a half months for some other guy right a woman six more in a ten day period sure that doesn't raise a flag for a bank your honor that very well might have raised a flag and as we know it in our preview probably should have they probably should have investigated so at lest we know they didn't investigate that's where is the government because what they were doing your honor is they're relying on th honor the reason they don't do anything is because the defend the buyers made the downpayment and so they have money in their hands they believe the buyer has some vested interest in this property now and their expert talks about that there's one thing to say yes this buyer has a million dollars in assets that's buyer makes a million dollars here at the bank might say sure that's a great candidate for a loan but now that same buyer comes back and says well but i can't make the down payment at that point it's entirely reasonable the banks going to say no we're not going to issue a loan what the bank here says if we had known these buyers weren't providing the loans we went into this shoot the loans you know you keep missing the point it's not if we had known we did not banks i understand the courts concerns about the misrepresentations made on the applications the banks should have investigated that what the bank says though and the issue in this case is the source the down payments that is what the bank says we relied that the buyers are there were suspicious stuff there was suspicious stuff but there wasn't anything suspicious about the down payments because the defendants took great steps to conceal the down payment and you might as a bank seriously have issues about an two hundred thousand dollars property and twenty percent is down you know forty thousand dollars so the sellers get two hundred thousand dollars and then it's up to the bank to decide how that happens so it's a down payment some of it's the mortgage but the mortgage gets sold somebody else has to change things and if i meant to say that the bank physically had the money in their accounts i apologize that's not what i'm trying to represent what i'm trying to represent is the fact that these defendants i'm sorry the buyers are able to make the down payment is a big issue for the bank and that's what mr alito is testified to that's what the expert testified to that's what ms harris testified to and i think it's reflected in the defendant's actions they're willing to make these ridiculous statements on the loans for the buyers to look at the steps they took to conceal this i can't care about it that much with the list the judge poster was reading off of these mortgage after mortgage after mortgage all under there it's not like they were even shopping banks it's all think of america it's all in their records well your honor the district court who sat through this trial and reviewed the evidence found credible this affidavit by miss minor where she said that this is a terrible affidavit we don't know what her job was we what level of knowledge that person had about events going on in two thousand and seven or two thousand and eight they raised an objection they objected to the weight of what she says and there they don't object it to be so unreliable that it violates their due process rights if the district court relied on it that's what they're arguing now and if you look at page one seventy three and one seventy four of the evidence you're hearing that's where the government admits this affidavit without any objection now if this court believes the district court abused it discretion underlying this affidavit relying on this affidavit and turning and i to a lot of the testimony about the importance of the down payments that is the issue in front of the school this court for two of these defendants it's not the issue for m stream of income in the future in essence to get do i want to go to a victim do i want to go to the government those are the choices you know very well and judge simon knows very well you know i would i would think that that would it has at least me some pragmatic appeal if that's the resolution here you see it legal gestures to i don't your honor and there i unfortunately didn't cite it and can't come up with it off the top of my head but i believe there is an opinion by this court where found the district court didn't  authority a pretty dull an opinion very found the district court didn't have the authority to order restitution and the mandate for a full recent and saying if the court with like i'd be happy to submit that as a supplemental i'd be happy to research and confirm that opinion does say what it says and submit it as a supplemental filing post argument of the hour if you both would like to address that within seven days and just quickly to go to judge posters point i think judge posner you hit the nail right on the head which is the defendants shouldn't be able to retain this eight hundred ninety three thousand dollars that's what they're asking for in this appeal they're saying because we were so fraudulent we shouldn't have to pay for the bank's loss and there's no dispute the bank actually suffered the loss in this case i don't believe your honor doesn't believe that the bank suffered a loss in that they lost eight hundred ninety three thousand dollars that issues uncontested it's supported by records in this case where the bank civil actions against the buyers for foreclosure so they are down eight hundred ninety three thousand dollars and when you take into account the amount of the law i regard it was a understand the court's opinion i don't believe that this record abused its discretion and finding the bank was a victim for the purposes of restitution because they relied on the defendants the source of the down payments so with that in mind  dismiss mr lee just as appeal and affirm otherwise unless the court has any further questions thank you very much first of all the down payment does and in essence remain with the seller of the property so that it they put up the money and then in essence they get it back and so that money does not go to the bank it's never gotten to the bank in terms of the down payment so it's not a financial security in essence for the bank as much as the argument is that by the government is that they have skin in the game i would point out though that at the trial of the the expert that the government refers to also testified that during this time period that there weren't fagged down payment assistance programs and i believe her testimony suggested that these same individuals may have been eligible for those programs so i just mention that to underscore that this blanket statement that it is that if the money is not coming from the by heirs they wouldn't the base would not have granted these loans is simply resorted by the record  uncle or somebody it's quite another thing for it to be coming from seller i understand the fraud we've admitted the fraud but i point out to the court that with the victims and victims excuse me with the with the down payment assistance programs that were in place at the time and if the court were to look at some of these applications you'd find that there is a suggestion that even at the closings that the downpayment assistant representative was present though the proper channels were not use the down payments did come from the  defendants that in fact the bank would have accepted would have accepted down payments through the down payment assistance program and again that doesn't give any skin in the game to to the buyer what are those down payme profit group and in essence truth that that down payment is actually paid by the seller can actually fund the nine for profit with those down payment assistance programs so i think it's a huge overstatement for the government to suggest that these banks could care less where the money came from also and i see my time is out i do want to point out in those applications that if you track the applications the nine  four applications for each individual you'll see that the figures are are so outrageous that the bait takes in that saps that there's no reflection for anyone paying any down payments so if the bank really cared about where the downpayment was coming from they certainly would have paid attention to their own information about the fluctuations in the bank's accounts for these these buyers thank you very much as con