of the ultimate deal in this case resulted in a thirty three percent increase in capital to the bank than what they were willing to take it also resulted in the bank being relieved of a fifteen million dollar liability contrary to the government's position mr direction to mr call a potential buyer to the burkes a potential buyer and to mr tamar m table there was no all agreement with these third parties of an undisclosed kickback second the letters  themselves these pre contractual documents mr weimer its involvement the purchase price seen terms they were all all contingent terms there was a paragraph in each letter of intent and when i say each i'm talking about the one drafted by attorney peter shack the one submitted by mr call cause the one submitted by mr burke that explicitly provided that these terms aren't binding and when and the government in its brief said the various letters of intent were mere images of each other they clearly were not the peter shack letter of intent the very first one had mr weimer buying the fifty percent interest with the right to assign for the price of a point five million the call letter of intent change those terms i'm buying forty five percent  rewrote those terms as well they said we're only going to offer eight million and you're going to give us better financing terms than what call could is asking for merkel ask you a quick question will certainly be a bit of a side issue but in the transaction that closed if i got it straight that anchor bank went most of the money the burkes used to pay that cash that's correct your honor do we know whether that loan was a recourse evidence that was in your dreams and while it's i'm sorry that it the additional evidence that was introduced concerning the final transaction was it closed on march thirty first  that there was a contractual a definite purchase agreement reached some time between the board meeting and closing march thirty first and the burkes renegotiated the purchase price or if it got reduced from eight to seven point seven the reason the reason i'm asking is a looking at your chart on page sixteen of your brief yes and  a follow up on one of the thing about the bonus but this looks to me like a way to move more than six million dollars in tarp money from from this transaction that's correct we know whether it was reimbursed by the idea i know and as a matter of fact i think the logical inference of that is because mr peter shack winded to take the now i understand your points about disclosure and preaching track sure arrangements the government's position is welcome he planted the seed without conversation with peter shack we've got a standard for materiality in the law that says it's enough just to be capable of influencing decision makers we've got a precedent that says misrepresentations need not be matters of fact opinions can count have to strive to truths can count if they mislead people and we also have law that tells us misrepresentations don't have to be made directly to the victim and the victims don't have to be smart careful or sensible frame rate i think we have to accept all of those propositions as matters of law right at the same time i'm very troubled by the application of the federal wire fraud to statements about parties negotiating positions that is what terms are important in this deal to whom beat and i have not found any case law treating those sorts of representations by anybody under any circumstances as material for purposes of federal fraud statutes well and i think it is especially true when you have who the third parties are here mr called and  disclose to burke's or call cut that the bank was willing to take six million rather than eight million sure we have a two million dollar omission for lack of a better description the i was put out a statement claiming it was were sixteen and a half million that sounds fraudulent under that theory as well exactly exactly and so we have this material omission and i'm i'm sitting there and and this is always bothered me about the case from the get go are you telling me that negotiating among supposed to cait of parties and everybody's looking out for their self interest and we're indigo she asians that a potential buyer you've got to disclose your bottom line i mean that's when when i first looked up this case that what just i i couldn't get my hands on i agree with you and i have considerable sympathy for that view let me tell you though what bothers me on your side of the case  because first of all we've got the defendants mr warmer statement to peter shack before that first template oh i was drafted that tells him falsely we have to assume that the idea of board has perspective no nothing in the record ok to that regard ok the second thing that concerns me regarding the board meeting the critical board meeting mr weimer told the u s c see if i recall correctly that he described his role to the board as a quote your mark i don't know exactly what are your markets but i guess it's different from a  make or break term of the deal and that and nobody else in that meeting remembers him describing it that way they all testify if he's not in the deal their understanding was that the old dead right this is going to be a two step response so i hope i addressed the court's inquiry into the fight we have five counts remaining the first four counts deal with addresses as the to move or the facts transmission that was sent to the board before the meeting so the oral statements a count in themselves no then the really doesn't matter though ok but it now i get to part two to the oral statements i assume the court is saying look at we can look at that consider you know whether this was a misrepresentation except for similarly we can look at the fact that the board percent from i d i and then there was a second letter or a letter that wired said contingent upon you making that purchase i and by the time that happened there was no written provision anywhere that provided for the payment  anywhere and i mean think about the bonus i'm sorry you got another one i thought well the other one i can i can i can see i'm going to be very curious to hear about the origins of this prosecution to the extent the prosecution's willing to share but i gather that mr own which inskeep probably interment took some offense that mr weimer its response at the time of the board meeting where they ask him point blank in essence without you in the deal does the deal go forward and he said no and he's purporting to speak in essence for the buyer's negotiating position there works we can do we have to assume that's false it's intentionally false i don't think you have to assume it's fun it's number one because the time by the time that conversation took place there was an but this is a this is a kind of all hands on deck we've got this huge payment we've got to make markets are tanking everywhere everybody's scrambling to find cash even if it's coming from the tarp money right now correct so ok can i ask you if i could i know you know we're out of time here but this is cases i hope with my colleagues involved as one answer to some of the concerns that i've been raising about the government's case is well i and if that distinguishes this case from other sorts of just negotiation kinds of cases where there's two responses to the two party answer to that question as well if this were an honest services case there would have to be some side payment by a third party undisclosed kickback and that's why i started with  was he is involvement that got this deal done you bet he had a he got a four percent bonus but he put together a deal in two well he didn't shoot straight with his employer well as an employee employer problem it's not a criminal prosecution under these circumstances i  when you when when the court said just now every term is up for negotiation those key terms the for the four and seventy percent ownership interest and the and the fee the way that  explained it to the board and explain it to supervisors prior to the board meeting is that those terms are not for negotiation and he's a fiduciary he's he's what they're relying on in order to determine the truth of the trial and i understand that argument but i that if if this were an undisclosed side the whole no doubt he you are justified in trying to send him to prison but he is he has disclosed the conflict of interest it is out there for everybody to see the board brings in his lawyer and says in essence eyes wide open we've got to do this we need the cash from this deal so we need to make this happen now i would have thought that the best way to answer that question that mr on which in ski and the other folks involved had would would be to ask the burkes correct right yes and they never did you never did and in fact in terms of the materiality of mr weimer its participation in this deal i don't understand if these statements were so material how neither side apparently raise the issue in the continuing negotiations to close the deal where even the price changes by three hundred thousand well right that's right but let me explain that for just a second you know you have to understand the context of which of the actual board of directors and their and their personal vol in the day to day operation of id i once they approve the deal mr weimer takes on the rest so who closed the deal the they kicked they kick weimer out of the meeting appropriately so they can talk about his conflict of interest does he have any further involvement in the negotiations to close yes he has the rest of the involvement he has that he is the president of i d i and he's the only executive officer of i d i who testified about those later negotiations that i know he's the president but there's also the the board has also said he's acting under a conflict of interest you know i don't i don't know the answer to that right now i don't i don't know who would who specifically testify to that but the the testimony of the board of directors  and but i'll explain this to you for just a second the the board of directors all of them testified that their involvement in this transaction was only to approve it and nothing else so they were not involved in the transaction and you know let me tell you why mr bertram if you look at his testimony he's actually running car dealerships off and menashe in wisconsin and induct him and he's in florida he's retired florida and the other board of directors is also retired florida so these folks aren't doing the day to day operations of and can you answer the question about whether the banks loan to the berks was recourse or not i don't think there's any evidence in the record as to whether or not it's a resource limit want to be very frank about what concerns me about this jury and it also looks to me as if you all are trying to grab the minnow in this pond mr mcguire murdered while a whole lot of tarp money drifted by with with shark sending it up to  upstream to the holding company and i can address that none of that none of that this this this case comes the court in the context of a rule twenty nine with thirty three motion or we're looking at the evidence the jury looked at the evidence and look at that started the jury did not look at that evidence and not look at the actual the exhibit that was that was plopped into the into the defense brief is not actually something the jury ever saw one thing that we did hear from it from the testimony of chuck jackson is that the is that the the transaction was was approved it was actually something the regulator had full disclosure on regular of me meaning the bank regulator and and so that's that's something i say could regulators approved are bank lending the six million dollars to the berks to pay the cash to the holding company correct exactly that's what happened here and during that time period and to answer the question of a three hundred  eleven thousand dollars fee and whether or not idea actually ever paid the bank back mark to moment specifically testify that there's internal accounting transactions that were done to basically to to pay that money back  calcutta all third parties in this case all those statements were made so that he could present an inevitable choice to the board of directors and that is i'm either in the deal this where the other way ok and he's bluffing right he's bluffing to whom everybody he's bluffing to everybody that's correct but right this happens in the ocean issues correct but i think the steps of regular negotiation from becoming a wire fraud is intent that a fraud which we have here because he made direct misrepresentations to the board and he made both orally and in writing about other people's intentions correct in their negotiation he gets about about what would happen the key question in essence was what happens if we go back to the berks to the board members and say we want to renegotiate so that you know since we cut wyman out of this deal right that's the key question he's asked  there are different care that those are that misrepresentations and different misrepresentation that mr mr is decent to working kalka which is what you're referring to the normal negotiation not telling somebody they're stalking or well but by the time by the time those representations are made the conflict of interest is way out in the open the board is going forward i don't see how they can trust why murder at all at that point on those kinds of issues and i don't see why why representations about anybody's negotiating position should be material to them but more importantly has said well look you can all anybody in any negotiation can say i trust of the person i was dealing with right most most happy to go she ations that end with a deal involves some degree of trust but let's let's take the hypothetical ok what suppose i was going to ask you about the car buying a car but let's let's make it buying a commercial building ok i'm the buyer i'm i think the building might be your it it's on the market for thirty two million in ok i think it's probably worth thirty and i offer twenty seven seller comes back and says not that i'm not going to take twenty seven but i'll take thirty i respond no that's not good enough but eventually we close at twenty nine turns out all long if you've got if you look at the negotiating teams emails you guys go in and investigate you look at the negotiating teams emails the sellers reserve price was twenty eight million the buyers reserve price thirty really close at twenty nine they've each mis represented to the other in order to gain an advantage in the negotiations their bottom line positions and it looks like each has committed wire fraud and defrauded the other out of a million dollars and they can't be right right that's correct ok so what's the difference between that case and this one the difference is that there's intent that a fraud in this case and there's no intent there but how do we see  if i'm if i'm the i'm trying to get more of your property that you're selling for for less than i'm actually willing to pay for because mr emerson and go shooting position against his board of directors he's  party to the transaction at this point he's not yet they haven't they haven't waive the conflict of interest that's a point he gets them he induces them to waive the conflict of interest by misrepresentations at that point they're not they're  his idea to be part of the deal so you know where she was earmarking the deal so he's telling the truth yes and that's evidence that he knew that the burkes never required him to be part of and in my hypothetical i knew that i was willing to pay more than i told you i was willing to of is a very very first thing that mr mr myers said when he got up here which is this closure somehow he disclosed to the board of directors what was going on early through an e mail that was sent by the attorney to mark the issue that he's raising let you see that's that's that is truly quit but i don't think that's true that wasn't a testimony the issue that he's raising it is something that was covered by this court in turner's been covered over and over again which is the broad it's dangerously broad is justice scalia has is often written for example but can you direct us to comparable cases in which the fraud the what the c e o of of the insurance company which was kind of worth the insurance corporation what with the c e o was telling the misrepresentations that occurred and the  position that occurred as the c e o essentially telling rob co insurance other insurance corporation run by another party we will share profits from the premiums at thirty percent will will pull up thirty percent but in reality they had they had come up with a scheme to pull out ninety percent was that a misrepresentation to the insurance regulators know it it was omission from insurance regulator because if the insurance regulators never knew what was going on but however the the the misrepresentations that occurred were misrepresentations basically to the kennel with a kind of worth corporation c e o is negotiating with rob co and essentially saying rocco let's come up with a plan where we positions in the process of negotiation rather than concealing the terms of your final transaction from insurance regulators i don't know the answer that but but but this is this this case seems to me debate break very new ground so i don't think so involvement they require me to it's not a statement of fact that's a statement of their intentions how they will respond to a counteroffer the changes that term right it's to it's a statement of fact and he's saying that they require my involvement written in his writings that i believe are statement of facts i have i had i had no intention of being involved the seal my my involvement in this deal is truly evolutionary it's an inadvertent thing is what he called it those are all statements of fact statements of fact that he knows to be false statement statement statements of fact that he makes somebody who is not in arms like negotiation if it simply conclude your honor by asking the court to affirm the judgment conviction affirm the district court's post trial so he knows he's being used and he's also willing to buy this if he gets a good deal with the simpson imagine he was a little baffled as to why even a half million didn't beat an eight million dollars that was not the testimony of mr kaka testimony mr caucus that he did not know he was being used that he actually was told been eighty eight point five and you're going to get it i would think so ok why didn't he get it i think the testimony was that he did resign even get it's because the bricks were able to negotiate with bank of america who had  that was used to summarize the testimonies from doug timmerman and mark temperament the information that is contained on the charter was all a listen did during the testimony now the court also asked about or there was some discussion about constantino that was one mission to regulators which had impact on policy holders who continued to funnel money into the insurance company that was the real fraud or the practical consequences of the fraud the mr call did wonder why he didn't get the deal i believe that it was because the ultimate contract required due diligence which would have taken mr caucus time to complete burke's could do it because they are already half owners if i leave the court with this thought in two thousand and eight very when people were finding commercial property there was always a question of are you trying to unload a turkey on me and there was frequently jamie diamond in the most famous example you have to have some skin in the game and