good morning may it please the court i'm in federal defender wendy over myer for frederick williams and i'll be arguing for the first seven minutes reserving three minutes for rebuttal and today i'll be addressing the suppression requests under franks and some of the new trial requests the large amounts of exhibits illegally seized under the search warrant in this case best illustrates the totality of errors that occurred here both pre and during trial there were at least four procedural checks that should have caught this erroneous evidence but it was they were not used in this case there was no franks hearing there was no evidentiary determinations as to this evidence the court did not keep a neutral position and  pines on the evidence and exhibits in front of the jury the first check would be a franks hearing and the defendant here filed timely filed a frank's motion i know there was some dispute about that in the briefing the motion was filed within thirty days of the second superseding arraignment which is timely under the local rules the magistrate held a hearing to set the dates for replies and responses and the timeliness issue was raised at that time and millions also filed timely objections which we supplied in our further excerpts of record if we agree with you that it was timely and preserved why was there in denying the hearing why was there  wrote the affidavit in detail in his frank's motion and he was a pro se defendant this was his first person proffer his personal knowledge he knew who the complex the informant was he knew that he had had a feud with that informant in the informants involvement in this case and he also relied on evidence that he was incarcerated so he couldn't attach affidavits and things like that but he did say i have evidence in the government's discovery i can get d m v records utility records the state unemployment records to prove these claims at a hearing and we know he could in fact prove those things because those were proven at trial when roland testified he testified that the records he claimed these false records about erik lee williams he claims were submitted with a passport that he had in the affidavit saying i found all these false records he did not in fact fight those rights he said i couldn't find any records for  williams those all came later those were not something he possessed at the time he checked the application he also claimed there were photos of williams making fraudulent withdrawals from a t m there were no photos of his dion right it was d r and his brother yes there are no photos of william's taking money out of a t m s at all that was introduced at trial we also know one of the cars that roland says was registered to him seen outside this home was not registered to williams that came out at trial which you have to show right is that there wouldn't have been probable cause if it had been factored in yes what's your best shot at that argument that this is this the information about the confidential witness that bruce forrester and his lengthy involvement and feud with williams his bias in that he was caught in this fraud forrester was caught in this fraud you know the unemployment's agency was pursuing identity theft charges with the state and none of this was in the  connection of him to the actual offense and also the motivation he had to blame it on williams that they were in this feud and he had never he hadn't talked to williams in quite some time one of the late witnesses testified that they had this falling out so the magistrate didn't know that this confidential witness was you know was unreliable and didn't have that information and in front of them to make the determination and so that at the very least warrants of frank hearing and then that the hearing you know was a royal mess could go forward and talk more about the intense or reckless disregard for this information we do know rowland talked with some of the state investigators who were familiar with bruce forrester before this affidavit but the hearing would really flesh that out more as to what exactly he knew and why he said these things in the affidavit when he testified to the opposite trial and moving to the trial these exhibits for really the backbone of the government's case at trial there were over forty exhibits that came from the house where they seized this evidence and that was the central core of the case it was the beginning of their closing the government said it will take you through some of the most compelling evidence and will begin with the evidence taken from his house because that evidence really supported the aggravated identity theft charges which carry mandatory minimums here it's a mandatory two year consecutive sentence and without those exhibits it really undercuts especially those charges but really all of the all of these charges are so intertwined with the immigration fraud in the unemployment fraud that without those the government would have had to try his case very differently so when these exhibits came in williams objected they were brought in in mass just here's our exhibits we'd like them admitted the court said well first paraded this is the williams in front of the jury  which it often did at trial saying he hadn't objected timely to these exhibits which he had they were some were the subject of pending motion in limine days and the court said well i don't know if these are relevant we'll find out and we'll see if they're relevant but the court never revisited that issue and that's how it really exemplifies how this court treated most of the evidence especially the government's evidence in this case it just let it in without any evidentiary determinations and therefore a one for a three or four four which we go through in detail and in the brief and this kind of this climate of bias where it let the government you know go forward with this evidence but it really strictly limited the defense  here and i believe expressed a bias against the defense in front of the jury in the least eighteen instances which again we outlined in our brief for the court was very hostile to the defense and kept out evidence that would have been helpful to the defense while letting in evidence for the government without doing any determinations and the result is that it usurped the jury's role it apart on the elements the strengths and weaknesses of the defense's case and really didn't do the same as for the government so it left the jury with the impression that the court hadn't made up its mind about this case and and that  in addition to forgive me for interrupting the jury didn't whole cell convict across the board in this case right they did not know they were every defendant acquitted of some charges yes every defendant was yes williams was still committed to the twenty one however this particularly the ones that rested on the evidence seized from residents sure and i don't mean to minimize that it's just that it seemed to me that the jury did a pretty good job of taking the charges one by one doesn't know it doesn't the record suggest that or isn't that what opposing counsel is going to say when he gets up i just want to give you a chance to respond because that's my impression well sort of well certainly yes i think i mean these were multiple charges and yes they did go through and did the quit several of the charges that's t but that but again the other you know the constitutional errors an evidentiary errors do require a reversal to go back for that so that the trial may be conducted in a fair manner and i don't want to take any more  good morning your honour's may it please the court jacqueline turn on d c j four jacqueline gentle now there are a number of issues raised in miss gentles appeal but there are two categories of issues i'd like to discuss this morning with you that may be separated into two different categories the first being the denial of miss gentles request for a separate trial and the second being the exclusion of evidence critical to miss gentles defense every criminal defendant is entitled to a fair trial jackie gentle was denied her right to a fair trial because she was convicted not based solely on evidence soley of her contact but instead the overwhelming evidence of another person's conduct while it's true that a defendant is not entitled to a separate trial solely because on the basis she is less culpable than a codefendant this presumes the circumstances that a jury is able to kohli and separate the evidence admitted against defendant here that was simply not possible for two reasons the first being the weight of evidence offered against frederick and the second the way the government continually lumped frederick and jackie together throughout the trial on that first point it's not the amount of evidence admitted against frederick it's the subject of the evidence the government used the evidence against frederick to connect the dots in its case against jackie what the government lacked in evidence against jackie it leaned on evidence it did have against frederick for example during trial we hear evidence that frederick search the death records to find someone with the same name as his biological father we hear evidence that a person left to work hard at frederick's house and then began receiving invoices for unemployment insurance  we also hear evidence that frederick alone was responsible for creating the two entities that the government alleges were the vehicles for his fraudulent scheme we don't hear evidence of jackie searching death records and there's also no no one left their work hard at jackie's home and then began receiving invoices for insurance unemployment benefits the only evidence we hear of jackie's involvement in these two business entities was her brother instructing her to do tasks and her completing these tasks believing that these were for these companies on the second point jackie and frederick we're continuing to go throughout the trial a limiting instruction could not reasonably allow the jury to collate and separate the evidence against frederick and jackie practically speaking on one hand the government asks the jury to consider the evidence against each and each defendant individually but then on the other hand uses a theory that if the defendants were family members committed to a common criminal sc throughout trial the government groups jackie and frederick together for example the prosecutor stated quote we've got frederick and jackson using the identity of three deceased u s citizens quote we have frederick and jackie also charged with theft of government money throughout trial as if these two were two peas in a pod this sentiment was so cemented even after a trial the judge lump them together during jackson's sentencing hearing when he exclaimed quote i mean the defendants lied about everything it was one big rip off in some jackie was denied a fair trial the jury heard evidence it would not have heard in a separate trial against jackie alone to the extent the prejudice could have been minimized to the government's theory prevented the effectiveness of any limiting instruction as a result we respectfully request that your honors reversed and remand for a new trial the second issue i'd like to raise with you this morning concerns two pieces of evidence before we move on to that none of diligently pursued then renewing it at the close of evidence would have been a mere formality the motion to sever there was a motion to sever before trial and there was also a replier into that motion and additionally  the trial judge adopted a report recommendation denying not denying the severance so really the way the way this trial was going this would have been a mere formality renewing the motion again cite a case similar thank you i can't any further at this time but i would be happy to submit supplemental briefing on that issue if you'd like or thank you and the second i would like to raise two more issues with you this morning  ere they involved two crucial pieces of evidence that prevented jackie from fully presenting her defense i'm running out of time so i'd really just like to address these very quickly the first was a department of family services her testimony the only thing that happened was she testified to it so this scrubber a tidbit and had the jury heard about the abusive nature that was documented between frederick and jackie they may have been able to understand that and i think i understand your argument on that one forgive me but is the other one the a file i know the other one is the comments that judge me made a magistrate judge made during these been revoked and what's your best argument that the magistrate judge's comments should have been admitted my best argument would be that it it was a self authenticating record and it could have came in under either state of mind presents its impression  really the catchall exception because any of those arguments made at trial no they were not your honor and i think i need to move on so that my  morning your honors and may please the court my name is marquis burton i represent miss carolyn willis casey i'd like to start with the insufficient evidence issue ms willis case he was convicted of only one count of mail fraud specifically of causing the state unemployment insurance department to mail to her using the u s postal service and to have delivered to her by the postal service a specific document dated september first tw ten and that was an element of the offense of conviction as the jury was instructed the problem was that the government never submitted a copy of the document that was purportedly mail to her all they submitted was government exhibit thirty two which the one witness who knew about that exhibit mr zulkey who worked for the department that created it said that it showed only that the department had made a determination of the amount of money that she would be entitled to under the program he did not indicate in any way that it showed a minute that anything was mailed to her and in fact she x x thirty two says nothing about a mailing it only s determination of monetary benefits the only evidence that they say presented that this document had any evidentiary value was that of a mr buck who is a federal agent who started out  testimony about the documents by the state department by saying i don't work for that department i don't create them i don't understand their terminology you should really ask someone who does and then although the defense obviously objected lacked foundation and the district court agreed there was no foundation he went on to answer the question of saying yeah it shows that there was a mailing there are two problems with that one is of course he himself testified that he had no knowledge of the just record said there was no foundation and the second is that the document itself doesn't say what he testified to in other words the government can call somebody who has no knowledge of an exhibit and at mit's he doesn't know what it says and have them say that that's the declaration of independence but if the reviewing court looks at that document and sees a grocery receipt that is not sufficient evidence to support the conviction and this has to be taken into account given the context of the government's entire case which was that a codefendant of miss willis casey was submitting numerous requests for unemployment confort compensation in the names of people who had no idea that he was doing that and taking their money and in fact since this was all and do have done online he was using the same personal identification number for himself for mr willis casey and for six or seven other employees again who had no knowledge of this was going on this alone sense the use of the mails was an element of the single offensive conviction that alone should be enough to overturn that conviction as to my other issue government exhibit two thirty nine that purports to show ms willis cases two thousand and nine tax return and  her w two that was submitted by somebody to support it the defense moved to exclude it because it was a compilation rather than an actual document not the best evidence unreliable cation lacks foundation foundation and so on and but the judge of liberia the stowed in who was the only witness and she admitted and the judge agreed she didn't know who compiled it she didn't compile it she didn't know who submitted the documents that was supposedly summarized she didn't know if the document was accurate all she could say was yes this comes from the i r s computer and you can see from the document itself that it's not as well as casey's tax return for three reasons one she didn't sign it nobody signed it people signed their tax returns this was not a tax return to every page shows on the top t a r p r t do not process and the witness said yeah that means it's not the document it's a compilation of data taken from the i r s computer and put it where there's no foundational objection a trial i'm sorry there's no foundational objection yes there w matter of fact the decision as to two thirty nine yes and the judge said yes no foundation but then he went on to answer it was a motion to strike and i do not believe not that i recall but he did object and it and see the judge agreed it was overruled and the third reason you can see it is because the cover letter from the i r s to the prosecutor i presume in response to a subpoena request so we no longer give you original documents we give you these compilations if you need a certified copy of the original the da document to present at trial ask us and we'll send it to you they didn't do that instead they simply submitted the compilation and yet again taken in context with the government's theory the codefendant and there was a lot of proof of this and you know this was government's theory was that the codefendant was submitting false tax returns false wus on behalf of a lot of people who had no idea that he was doing this on their behalf so did this more likely than not affect the verdict well here's what the government prosecutor said in its closing argument quote one of the most important exhibits to the government's case involving ms willis casey that this is one of the most important exhibits to the government's case involving as well as  quote and he went on to say that it proved that she lied about term ploy meant and income and quote given that and the government's own allegation that this was the most important  that's a second and independent reason why this conviction should be overturned are there any questions thank you counts thank you they are from the government mr chief judge may please the court james pierce united states the defendants in gauged in an extended and extensive fraud scheme encompassing full citizenship claims in improper access to government benefits with one exception this court should affirm the convictions and sentences and taking the claims in the order presented today the court correctly denied a frank's hearing in this case we think it was untimely in the reply brief there was some discussion about  enough there needed to be an establishment of a deliberate or reckless false statement and that even if those things were there if one were to excise those false statements there was still not adequate probable cause we don't think that they were false statements council today emphasizes three the birth certificate for eric lee williams that is something that the affidavit says that the agent found and verified that birth certificate so there's nothing to suggest and nothing at trial suggested that he didn't do that it wasn't part of the state department's record at evidence at trial but it was nonetheless something that the agent said he found and looked at the second counsel points to today that the camry the agent noticed noted at trial that that had been registered and in fact mr williams concede that had been registered at one point to him as well there was there was the questions about so the question is whether the the individual was unreliable and the information that bruce forrester had provided was mr williams is engaged in this fraud scheme i know he lives at this particular address and serves some details and then that commenced apparently arguing forgive me but your time is ticking what you're arguing is that he was the information he gave was pretty specific and somewhat cooperated and so that was sufficiently reliable my questions to find and grant you that my questions different said the magistrate judge and told that he had a reason to lie this court has said that maj judges are not naive and that they understand when the court when when the government comes in with cooperating witnesses there are often biases at play perhaps it would have been the better sense should the magistrate judge have been told that this witness had this individual he may have been a better practice to do that but i don't think that is a basis to overturn i'm just looking for an answer to my question i'm not talking about whether there was or was not probable cause my question is much narrower i think it would be better practice to have done that in this case there is no evidence and this is something that needs to be proffered to get the hearing that even if this court were to treat those either omissions in the case of mr forrester or these statements that we still don't think are are false that that was done deliberately or recklessly and that is something that is a needs to be done to get the hearing and then finally to get to a point to a question you just judge kristen even if one were to excise that information there is more than sufficient probable cause there is thirteen months of investigation from the point of bruce foresters tip until the government seeks the search warrant and that the information in the affidavit describes both th citizenship scheme as well as the unemployment scheme and it also describes with specificity that mr williams is in fact residing at the place that that was alternately searched counsel just speaking for myself it would be helpful for me particular report is not testimonial and miss ellis who testified about it was company to do it i recognize that the non testimonial argument is a harder one for us to make miss alice did say we don't prepare this at request investigators and we don't prepare this for specific cases but it is part of an investigation so it is a closer call i think our stronger foot is our stronger argument is on the point that it is not that miss ellis was an entirely capable and  testify about it that's a little bit different than bill coming because by the nature of what we're talking about you can't have a lab technician go and rerun that test right so so what's the record show about what she really did and i've read it but i just would like your interpretation of it it's a little bit o certainly on her so what she did is there are raw numbers that come in about what a particular claimants income is and what the benefit that spits out is and then she can go behind the scenes when internal investigators go and look and see ok if this person wasn't entitled to the benefit what is the overpayment amount the investigator who did that assessment was maria hernandez she also testified at trial and was subject to cross examination what m ellis did she was not the author of the report but she went and in her words went behind the scenes checked all of the work that the authors of the report had done she testified that all of the employees of the section that she worked in the health and human services were trained  same way and were able to do the same kind of analysis precisely for this kind of reason somebody may leave the agency you still need to be able to adequately justify the report that is issued right so he's checked she was checking their work i think and one point he even said she triple checked it and i'll grant you that but why didn't she just regenerated why didn't she recreate it because that would be closer to bill coming right i think that would would be closer to it but she did there's nothing to suggest the regeneration would have done anything other than the exact same numbers that were ultimately  available in the underlying report and if she checks and indeed triple checks and comes up with the identical numbers and she goes back and looks into the file and finds the lack of citizenship as she testified that she did there's no reason for her to then create a new report if she says i have reanalyzed and reverified everything that the original authors did after she gave her first response in response to the government's questions the judge said something to the effect of well now i am worried and he asked a few questions and what do you think she did in the follow up responses that helped button it down so so the judge said were you just adding up numbers was that basically all that you were doing and she said no i went and she used the phrase behind the scenes and she i think she quoted the new max system which is some sort of internal system that allowed her to go in and look at the analysis and then ensure herself that everything that was accurately done and she could and had replicated the work that the original authors ha which why is it sufficient why and why is that because the form itself is one that defendant williams filled out in order to to bring his fiance and that form specifically says what is the basis of your citizenship which then enables you to bring someone else in the right but it doesn't say u s citizenship and we've got this case that's just about right on point what we do with that well we disagree that the smiley case is right on point and in fact smiley itself has has a sort of a mixed holding on the one hand it says when it's not clear that you're asking for u s citizenship in other words when the guy said i was born in new york and that nationality could have been sufficient sure that's not enough to uphold a conviction but when you are asked subsequently he's asked in an interview in a way that it's mixed specific that they're asking about his u s citizenship then the court affirms and says that is a place where that is sufficient to establish that the you have made a false statement to somebody who with reason to inquire and our view is here the entire way to admit someone as an american citizen when it's asking for your citizenship maybe in the form would be better if it said american citizenship but it's  sufficiency review construing inferences in the light most favorable to the verdict that's more than enough to justify or to support them that he was right misrepresenting his american citizenship i wasn't talking about i didn't mean to refer to smiley i'm referring to this case i don't have pronounce smiley as the basis for it and that pretty neatly it's the same kind of notion where you know what is your claim for citizenship and checks the box i think parents and naturalization but doesn't say now that is it could mean billy's even citizenship  understanding of the government strongest argument here correct me if i'm wrong is that in context he must have meant the united states citizenship that's correct but it's this case now that we've gotten to grapple with so i think you've answered my question yeah and i think it to some of the arguments raised and particularly the questions of judicial bias looking inside of us and before you do that didn't you say when you were opening your argument that all the convictions should be affirmed except one and i was referring all the convictions counsel what's your response to the third defendant argument she was only convicted of the one count of the one mail fraud count what's the best most direct evidence and the government has that she caused that mailing it's hard to give one because there are a series of things working together but if i had to point two to one piece i would actually say it's government exhibit sixty three which is this is when when buck is testifying and it's fair that bach didn't have the detailed knowledge of steve's who elka who worked in the employment division and sort of described how the notice of monetary benefits were created and how debit cards were used but what exhibit sixty three is actually miss willis casey's debit card history and on that and i think it's page fifteen eighty five of mr williams excerpt records includes all the trial exhibits i believe it is there on that exhibit says male and so there is that the accurate and i think what the government's response was and i think ultimately how i understand the district court's ruling is that buck was up there talking about an already admitted exhibit and frankly you can put any witness up there to talk about an already admitted exhibit and you can say i don't know anything but here is this exhibit already admitted that says mailed now to to walk back there were other pieces of evidence some of which my friend on the other side just referring to and forgive me for interrupting with just you know indicating that was mailed is really consistent with defense counsel theory which is that frederick was the mastermind was having these things mailed to folks and intercepting them i'm on paraphrasing but so it's not inconsistent with that but again we're on a sufficiency review and we wouldn't disagree with the idea that fredrick was the mastermind of the scheme here i think the question with the defendants like willis casey and gentle is were they like those group of people whose personal information was used they didn't know about it and the benefits flew flowed only t or was she someone who was involved in the scheme itself but that's the whole right that's what so are trying to figure out whether the evidence was sufficient that one difference between these two defendants the two women one testified and one to one as to willis k c am i correct  recalling that it's a very voluminous record so forgive me but it is my correcting recalling that she gave an interview even though she didn't testify at trial that she gave an interview pretrial to an investigator or has made a statement indicating that she was employed by one of the some record dispute about there was some other individual but who actually acknowledged working for what the evidence showed were fictitious organizations but what other evidence is there about that account about how twenty is that the is that the mail that's held on which miss wells has so there is also a government exhibit thirty two which showed the benefits and my friend on the other side referred to this the benefits that had accrued to miss willis casey right through the department of environment seeking employment training and rehabilitation and then there was the general background information that steve's welcome had supplied about how the fraud scheme works and it was it was sort of how benefit disbursement works and then additionally how the fraud scheme worked right and i'll grant you all of that and just here and then i won't belabor the point anymore what's your best evidence that she caused this as opposed to somebody else using her name fictitious we the jury convicted fredricka of using other folks identities so this is seems to me this is her defense  that it was done but without you know her name but that she didn't cause it that's what her defense is so so i think that it is both exhibit two thirty nine which we've talked about and we can have a separate discussion about the admissibility of of that exhibit in other words that she received a benefit from that and her statement which we've discussed earlier that she actually was she claimed to have worked for this company that the evidence suggested didn't actually exist ok i'm happy to talk about two thirty nine i'd would like to get back in discuss some of the side bar in the judicial bias commentary but obviously the courts questions are most important here so i will address that unless the court wants to go elsewhere in our view this are three responses to the sidebar issue one is the judge did make some comments that i think were on unfortunate and ill considered in this court in the ball case has said that about this district court judge in the past and said that before this skinny after this particular trials that the judge didn't have that guidance at this point but the comments were not as extensive it's not all eighteen or in fact one thousand instances that will it mr williams quotes in the brief i think there were at most three or four that were showed in patients towards him there were some more that exhibited hostility i think toward some of the other defendants  ultimately what it was not as extensive but to the extent that it would created problems of the judge's curative instruction which this court and ball and scott has indicated will help steer the jury away and then as judge kristen indicated and as we will indeed stand behind the jury selected verdict indicated it didn't just wholesale convict mr williams or for that matter any of the defendants it went through and looked at the evidence and did that analysis what turn to miss gentles severance claim of course we're operating against the backdrop that defendants who are indicted together particularly for conspiracy are typically tried toget preference in the federal system for doing that the fact that there is differing weight or quantum of evidence is not a reason or but one appears more more culpable than another is not a reason to resist that default preference and frankly again sort of back to that selective verdict arguably the joint trial was more favorable to miss gentle in so far as the jury unlike with mr williams acquitted her of more counts that it convicted her on and looking at comparing her with for example miss willis casey or denise williams whose appeal is not before this court the jury credited the notion to a certain extent that those two will as casey and williams were not perhaps as involved and rejected  with miss gentles testimony before it the notion that she was somehow tricked into doing all of these things and so that's why we think the severance the court correctly rejected severance judged assuming you asked we failed to right well we in our brief by failing to raise it i think we have actively did it certainly it would have been more prudent of us to have raised that but i don't think having not raised in our brief we can say anything other than that at this point i'm not sure i response to exhibit two thirty nine make sort of i think the easiest way that this this court can uphold the court's decision to admit it is that it's a party opponent statement this is a tax return this was casey did in fact sign it i believe that's on to eight zero eight of the excerpts of records but courts regularly except tax returns as a party opponent statement something that the individual him or herself actually  and additionally i think that as we say as we've argued in our brief it would qualify as a business record it would qualify under sort of the residual exceptions to hearsay and frankly exhibit two thirty nine really was most pertinent to the question of whether miss casey was involved in the conspiracy at all the jury ultimately acquitted or of that and so to that extent we think it would be harmless even if it were improperly admitted though of course  i've argued i think that there are adequate basis for the court to have admitted it as it did i think i have covered what the defendants have to have raised and i'm happy to respond any other questions otherwise we would have  certainly no constructive and no variance at all first of all you think instructions correct we think the instruction could have been worded better but that it is not plainly or clearly incorrect it says in order to convict the defendants of conspiracy to commit textually that that has to refer back up to conspiracy to commit mail fraud particularly when viewed in light of the fact that when the government got up a closing argument and said count nine is the mail fraud count you have to this is related to the unemployment fraud scheme on plane air review of first of all we think the instruction is not clearly or plainly erroneous but that in light of the government's closing argument means there was no effect on the just defendants substantial rights thank you that's thank you very honor just a quick response back to the franks hearing issue is that the government doesn't dispute that rowland's testimony at trial was clearly different from what he put in the affidavit so that proves the intensity reckless disregard for the truth elements that could have been proven to frank's friends hearing and bias is actually absolutely crucial to put into a affidavit and that's that hall case and also the perkins case which actually the government's decided without those statements without the confidential informant all we're left with is one car outside of a house there's no reasonable nexus that the defendant live there or that evidence of a crime would be found there no one saw the defendant coming there out no one knows who left the car outside the cars are often outside of a home maybe someone's a guest are something like that that is not probable cause that there's going to be evidence of a crime at that residence because there's no proof the defendant lived at that residence they didn't check the database they didn't do  so that solidifies the franks hearing as for the hearsay issue ball coming it's not just that she ran numbers it's that she didn't check the source of those numbers she didn't look to verify the documents submitted underlying that report and also the original author of the port was let go from the state agency or she was no longer working there and we don't know why and so bowl coming also it's not just that the numbers are those correct is this author of this report credible and he couldn't ask those questions because she wasn't available to testify and he was convicted of those counts was counts thirty two and thirty three so that requires reversal as for the count mine constructive amendment the allowed a conviction for any conspiracy it was not limited to conspiracy of mail fraud only and again a constructive amendment is something that mandates reversal on as to that counts and that was also the main count for sentencing and so that with unbundled the sentencing hearing require a new sentencing and so we ask that this court remain for suppression or francs severance and new trial thank you counsel thank you all for your arguments this morning the case just are going to be submitted for decision