ideas forth so we're d conducting this session by telephone but judge pryor judge branch and i are very happy that you're all with us and very grateful that you're going to d assist us in figuring out these cases says going to give you a two minute warning when your time is running to a close and that way you'll know that it is time for you to begin to wrap up with that we're going to start with our macare those two cases are cited many times in the papers we filed with the court now there's so much in this case because it was an eight day trial and there was a lot of documents a lot of exhibits including exhibits that we as the defendant in the case brought to trial in the opening statements the party drew battle lines for what the jury could expect the government promised the jurors that they would prove this case was about lies for money nothing more than a telemarketing scheme in which my client tom white lie to thirteen individuals so that st call ventures i might call a c v from now on partners could cheat them out of two million dollars of retirement funds in contrast i told the jurors the evidence would show that f c v was a legitimate residential moving brokerage business growing to around one hundred dollars employees however f c v collapsed after an c today show report broadcast nationwide told the story of a young couple who had problems when s t v s t v failed to deliver their furniture on time  hopefully panel can take that into consideration but now with that overview in mind and now the panel as the initial brief the answer brief replied recent extensive pretrial  record it's at the point where the panel will have to choose between these radically different over views of what really happened in this case let me address the issue for we have four issues but let me go right to the issue for that sentencing error there were a number of enhanced judge bloom agreed to proposed by the government which were not borne out by even the preponderance standard at sentencing for example loss amount we argue should not have been greater than six hundred and forty four thousand four hundred and thirty dollars which corresponds to the four witnesses who appeared to trial and talk about losing their  argument at its answered re sixty seven to sixty nine but there was no evidence the government brought to trial to the sentencing hearing where it showed that anybody else except those four people ever felt that they had a loss amount due to anything that white or f t v had done wrong you cannot speculate that the other people believe they were the defrauded out of their substantial financial hardship of five or more victims the government did not produce that evidence at the sentencing hearing in fact they agreed that witness purchaser no did not qualify to be one so we were left with three others eliot and adam that doesn't cut it they needed five or more victims anything else would be speculation well what it what it the government say the government didn't present any other evidence but what did the government argue sentencing for this enhanced well the government argued that everybody who bought these notes were elderly people who had it ties into the vulnerable victim also saying that they were targeted they were elderly and they all suffered financial hardship after we got the government's answer brief at pages thirty two thirty two and our reply group so the government has the burner has the burden it's an aggravating factor and they didn't do that to get beyond even in the light most favorable to the government even including the trial record they never got through those four levels were asking to be removed from the guidelines the fraud and a scheme to do something else like lie the government's entire case was really grounded in and in the light most favorable to the government in a scheme to live that jiang reach who was in the investor department as the he told people that the company was doing very well it was profitable and so forth but this was this was at in the light most favorable to the government scheme to lie not to the front there's no evidence at all in the entire record of this case that tom white or anybody else at f c c and tended to defraud other words propose a bargain with the intent to harm the people who bought these your honor i would say that when the jury found tom white guilty it didn't do that as to each of the persons who purchased these promissory notes in other words it wasn't asked to a particular thank you there's no evidence from any of those other people who didn't come to trial that any of them didn't accept the risk that were in the offering materials that they were told anything which was untrue that they  there's nothing there about all those other people so the mere fact that they send in money and get a promissory note and exchange shows nothing more than that it doesn't show any any loss to them for any improper reason so for that reason it would be speculation we don't know what happened with all of those other people because they didn't come to trial or there weren't even there or even attempts to what was told to any of them the offering materials by s t v were very clear and they were legally compliant they all told about the risk that people could lose all or part of their investment all of the investors had to be accredited except i think it was adams and you know to put something in the case that's not there that wasn't proved by the government as to sufficiency what your judgment goes to this particular issue as well is just plain wrong that's why i'm starting with sentencing because there have to be evidence to approve these enhanced that's i see my time is up so i will i will stop talking now all right thank you very much mr good morning your honour's may have please the court this is roger crews on behalf of the united states now the evidence in this matter showed at trial that tom white orchestrated a sophisticated fraud scheme more importantly for purposes of this argument i'd like to turn to anderson versus city of bessemer city supreme court of the united states where there are two permissible views of the evidence the fact finders choice between them cannot be clearly erroneous and judge in this case as mr fagan bomb pointed the parties did have at the beginning of the trial two different views of the evidence but his view failed your honour's job according to th circuit case law states simply that it is not enough for the defendant to put forth a reasonable hypothesis and then in essence which is what the defense wants you to do and the issue is not whether a jury reasonably could have acquitted but it's whether they reasonably could have found guilty on a reasonable doubt judge in this case we have tom white who patched and orchestrated from inception and maneuvered until the very end ripped off this was a ponzi scheme by his design it was set up by him to benefit him personally to fleece nearly two million dollars from these victims he personally profited over eight hundred and fifty thousand dollars which the record clearly shows the extensive trial record including white's own testimony supports what the jury found and that's that white was guilty of his inbred investment and if you look at the record there was no jury instruction it was actually at the very end withdrawn by the defense they did not ask and seek a an actual attack a lot because i think they saw what judge bloom had ruled an initially which was the mail and wire fraud and conspiracy pattern athlete supported and captured what the government's allegations and what the evidence showed he honors that what he said if we could turn it we could turn to some of the sentencing issues that mr white has raised mr feigenbaum says that you did not and i haven't gone into the actual sentencing record yet so that's why i'm asking this question the surviving bomb says that you the government did not present any evidence with regard to the number of victims who sustained a substantial financial hardship and as a result that enhancement was not warranted can you talk about that the government is put to the test of proving beyond all refusing by a preponderance of the evidence that there were sufficient individuals that were defrauded and in fact received a substantial financial hardship we went through in detail outlining by name those individuals and certainly some of those individuals did testify at trial but on top of that we were able to prove at the sensing hearing and satisfy judge bloom's analysis which was in fact was mary j adams deposition transcript in which she testified under oath the jury heard that she suffered financial hardship she was the most devastated in fact she was living on food stamps had a sisted in government subsidies for energy the woman gave tom and his coconspirators a large chunk of her retirement funds and she testified in trial that she had suffered  financial hardship and judge bloom supported her as one of those individuals the other individuals that testified at trial and two of them elliott linda elliott testified at trial and she purred again at trial testify that she's suffered financial hardship from this mortgage her home she took on another job at a church she had two jobs based on this direct harm that this defendant and his coconspirators cause that's too but we didn't stop there you are at the sentencing hearing again on other individuals that testified at trial coupled with the agent who was seated to my right relying in relaying to judge blum his interviews and yes hearsay  judge not asked that you look at the chart the sensing transcript to support the fact that we had more than five we were able to prove beyond a preponderance many individuals if i could ask you this how many individuals the da just testify about think if i'm not mistaken the record supports seven alright thank you yes wrong but just i started with the two different series because of the tax law and i see that mr fagan bomb is also attacking the last of the if you like me to address that i don't believe we need them i should spend too much time essentially based on the fact that he's claiming that my our loss should only be tied to the individuals that testified a trial that clearly not the case law which is clearly the the office of the district court judge can in fact rely on not only direct testimony but she neared it merely needs to make a reasonable estimate of that last that reasonable estimate of the last was proven through several means but if you like one particular piece of evidence government exhibits thirteen a s and capsule it's the total loss of the victims and i want to remind your honour's that this was a rip off from the beginning john reached testified that he had conversations with white about the extent of the fraud scheme and it was hatched at the inception this company was bleeding money to use white's own words with the with the reach from the inception and the crux of the fraud scheme and involved making sure that they raised as much money convert the notes debt and then leave these victims with the proverbial bag bag full of empty this is of course what the evidence showed what the jury accepted  the initial the initial business although it ultimately was failing at the end the initial business was not a sham right it was a legitimate company providing a legitimate service although maybe not making money at the end right judge i take issue with any legitimacy the label given to this business again the at the very at the very at the very beginning at the very beginning judge i would i would submit to your honor's to look at the record and the testimony of one john reach as well as goldstein in the recordings in which we were able to show that at the inception of the inception of this case at this moving venture it was to instead of providing legitimate services using those what appeared to be legitimate services to steal money from victims that's the cookie cutter as to use the words of john reid to testified and to remind the panel john reach is the codefendant who pled guilty and testified against white and in this case he testified that the cookie cutter method was to open up these c rooms to have a widget it which in this case was this moving service that appeared to be legitimate to raise as much money and from investors and to fleece them and then shut it down and open up another one dollar that's what recordings to demonstrate tom white had from and inception of st called ventures the plan the motive and the pattern of stealing a victim's money through these what appeared to be legitimate businesses so no you honor i disagree i do not believe this business was legitimate from its inception i believe the book ends if you will of beginning and show that the plan was to have a business that appeared to be legitimate but in fact as far as the rest of the enhancements your honour's the the targeting of elderly as well as the fact that these individuals were susceptible to loading and reloading i would i would rely on the government's brief we cited elderly the the actual enhancement for for the vulnerable victim sensing and has been is applicable that's that's where judge bloom found that there was a sufficient a before and that was four levels and we're asking that that be removed because the government had to find that there were five or more participants in the criminal activity at the sentencing hearing i off there was no evidence that the government presented at the sentencing hearing showing those additional three people were participants in the criminal activity so we're asking that that that enhancement for four levels be taken off that cause putting obstruction of justice aside which is carefully explained in our papers that would bring it down to twenty three dollars would bring it down the total offense level down to twenty one and thirty and that the government not be allowed to try to read litigation and here they have enhancements that they didn't bring the evidence during the original sentencing hearing now getting to the overview again but mr again this really i must tell the panel this is really troubling to me because in the briefs in the exhibits that were presented a trial and in the witness testimony there is of course some of the advocate for my client feel so strongly having been in the trial that this was a legitimate company we brought witnesses to work there this was not some kind of a boiler room or a fraud room we brought a guy who was in charge of the call center for a while and then mark goodman you can find this in the initial  starting you know we go through the witnesses starting at page flyer and we get a summary of their testimony but it's page nine you have mark goodman who you know he's a former army ranger and he was working for the state department at the time we brought him to trial and he trains and anti terrorism classes overseas we brought the c p a who did the tax returns for st call ventures and he orders to do the moving the company would have made one million dollars at least in two thousand and thirteen that's what they are on track to do from sales of residential move to give the impression in light of all of the witnesses that we've brought including and i teach guys from st call ventures who set out the computer and the software system and all that stuff i've been just although we of course in our initial brief go through his testimony is just absolutely it's like it's not even the same can't be so i know it sounds passionate about this but i'm so concerned that an injustice is going to happen in this case it's like tackle law and my character there's something fundamentally wrong with finding that tom why should stand convicted of these crimes this was a real company with real people growing by leaps and bounds we documented all we have exhibits that the government did not object to the government did not go out and find the c p a for the company the government had nothing to dispute the figures from the company people made a bargain investors when they bought promissory notes they made a bargain they said we're going to give you this money we get eighteen percent interest but you have to use the proceeds to build the company and in our version you'll see that we talk about what were the use of the proceeds what was in the terms she that st call venture and tom why promise they did it all and when you look at the tax returns which are part of our existence admitted the trial the tax returns the profit and loss statements all show that these things were done many employees hired big payroll software expense computer expense all the same this company was booking something like a one thousand and one hundred and eleven thousand two hundred residential moves per month this was the testimony of witness mark goodman the state department guy believe it is where we have the testimony of mark goodman we have the testimony of robert monella the c p a and then on another day we have the testimony of the i c guy so this company failed because of one and only one thing it was the today show nationwide transmission of that report where one couple didn't get their furniture and it's devastating when you see that tape people who saw that they canceled their orders that caused a cash crunch