it if the whole purpose of the frog was to induce these poor or i guess what primarily black or minority victims to part with money with no intention of ever honoring refund request why does the title of that document not demonstrate some evidence of contempt on the part of the conspirator for their victims who s proved could not necessarily be linked to your client you don't dispute the fact that that he did indeed sign letters which were virtually word for word identical to the template that was filed under that profane ti ask the question a different way getting back to my standard of review question if that is the state of the record how is it in abuse of discretion for a judge tough to admit this document in order to show the state of mind of the person who signed the letters denying refunds to the victim because there was never a showing that the file that mr keller used to create those rechecked refund rejection letters included the same file title essentially  what exhibit thirty three was what was probably perhaps the first creation of this draft letter perhaps not that's the problem we don't know exactly how i guess what really what difference does it make if he signed the l and the wording of the letter is essential identical to the document that's contained in this file folder and the jury is being asked to consider whether or not when he signed a letter denying refunds it was with the intent previously formed not to honor any refund request because the purpose was to get the victims to part with their money that's a circumstantial inference that the jury has been asked to make but it seems to me a fair  e to be drawn by a reasonable fact finder on the facts that you can see if the government could have established that mr keller either traffic created that computer file with that name or or use that computer file with that name and my question and say it was the defense theory that foster authored the doctor that wasn't the defense right so let's not engage in further speculation if that was your theory at trial so how under pinkerton is it unfair to charge kalar with what fostered yeah well i think number one there's no there's no evidence that i would be further and further arrests of any conspiracy that existed during this and intend not to refund the money to the victims when they start refunds when they discover the fraud why why is that not relevant to intent to defraud i think even backing up a little further we don't even know that that the folder name of this title had any relation at all to to the people who are requesting refunds if you copy the serve you think it was just a coincidence that the day of the title was said before before the before the jury and the first thing that happened without occur is the district court hiked up and said a lack of foundation for three and require the government to get that document down off the screen so i think due process to a fair trial because there's no evidence that mr keller ever had any idea that the draft refund letter that he was using to send the clients ever was and was names with this title there was never any evidence that  that he that the title of this computer file was known by this recolor whether people in the office talked about it or joked about it if that happened it certainly i think it would be relevant the language of the letter itself as i recall talks about the fact that the board has met and i presented your claim to the board and we're very sorry but the board has directed me to tell you that we're not going to pay and wasn't there testimony from foster and others that there were no board meetings and that nobody ever right and statements made that one exactly right but what mr keller testified to his direct testimony was that it in my mind we were doing a job that was getting people who otherwise could not buy houses in the house and his mind even though it was not a perfect business model even though his mind there was a gray area and in many areas of the business he was working very hard to do what the business was designed to do which is to help people who otherwise could not purchase how's this purchase and when the jury saw exhibit thirty three up on the screen and heard the name of the file stated in open court and heard the government repeatedly and further mr keller was the one who created that document that really what was devastating evident evidence against mr keller and th as microsoft or when huge multi thousand employee firms was a very small closely held company they only have four or five principles when you talk about a small company like that and the computer file  in this case when you talk about fourteen hundred clients only one hundred of which ever got homes in the whole program was based about guaranteeing homeownership with no money down and then when you specifically look to the refund process which w of that evidence and we also point out the district court to steps for instance a judge of for me the parties from ever speaking the title of this document throughout the rest of the trial so it's not as if the judge which was completely oblivious to rule for i don't i don't think if there is nothing in dispute about that was basically on contradicted i don't know why they just recorded that either but she uses the word to account for potential overcounting and i think that's important to point out she never says old you know i think there's a problem  case mr keller honestly believed that he was working for a legitimate company working very hard to get people in the houses it was a close case but when exhibit thirty three was considered by the jury for seven or eight days and attributed to mr keller properly i think that was what led to