employees and his company of engaging in a fraud only one of those individuals testified at trial was subject to cross examination the younger other individual statements were contained in thirty two e mails and six letters from state agencies containing detailed allegations of the fraud accusing mr godfrey and his company of engaging in unlawful acts and accusing them of engaging in fraud none of these individuals appear to trial or was subject to cross examination the government used the substance of the complaints contained in the e mails and letters to prove the underlying fraud the scope of the fraud that it wasn't confined to a few telemarketers that his company hope they used it to prove his fraudulent hands that he knowingly and willingly  probative of the things that the government used them for t v extent the allegations are true and therein lies the confrontation clause violation in this matter mr godfrey was denied the opportunity to cross examine the individuals who made these complaints and instead they were admitted unconfronted in violation of this confrontation clause rights our position is it's it's improper to admit any of the substance of the complaints when there's a confrontation clause violation and so  clause violation but the purpose that was discussed at trial was notice in the purpose was notice of the fact the complaints were made not closing argument contents of the closing argument the it was they were published to the jury at one point that the government attempted to have an agent read the contents of the complaints of for offering the substance of the complaints or the complaints them selves it was other evidence offered in the case by the government that proved that mr godfrey had not noticed of the complaints it was the state  agent from florida who testified that he discussed the fact that complaints were made with mr godfrey those complaints were resolved if you so that it was other in one witness or two witnesses why it's less powerful on the issue of notice than putting in these communications i'm not sure i'm following extent that knowledge could only be inferred if the allegations in the complaints are true and if the jury is required to analyze well that's not true that the the point is is that if there are people who are making complaints whether they're true or not it gives your client notice that something is going on in gave testimony about misrepresentations that were made to them by hope and floyd the difference is none of those witnesses testified they had anything to do with mr godfrey they never communicated with them he never communicated with them the reason that the e mails in the letters were important is that allowed the government to draw the link between the the misrepresentation that were made in mr godfrey said knowledge of those misrepresentations they can only draw that link using the e mails or misrepresentations if those misrepresentations his testimony is the equivalent of using out of court statements of other witnesses interviewed by the government to corroborate births to prove that person is credible in this telling the truth on those points it all turns on whether the allegations are true there's no probative value if they are not true we offered to or we requested the district court rather  t the substance of the compliance in the district court declined to do that and the government of jacked the only probative value this had was for the government to get the substance of those complaints in front of the it repeatedly argued to the jury you argued an opening you'll see the thousands of complaints from complaints from the attorney general's office the better business bureau that used it to prove the scope of the fraud that it wasn't just a few bad telemarketers that was the whole company and closing they argued start with the e mails in that corroborate scallion versus testimony with all the other once i don't think there's any question that these statements in these e mails and letters were testimonial some of them were complaints to the better business bureau like the reports in cameron  they were given to an organization who says slow are unfortunate with investigating and prosecuting fraud scheme stuart and of those complaints some of the statements specifically contemplated criminal prosecution they stated that they had reported mr godfrey or his company to law enforcement or they intended to do so so within the structure of cameron and millions the actions the government of directed because they argue that the substance properly came in to prove knowledge but it knowledge of the fraud the emails and letters are only evidence of mr godfrey said knowledge of the fraud if there is evidence of the fraud and the only evidence of the fraud if the elevations are true yes we've heard that name before and the government could have brought it to you well two responses one we did a trial attempt to introduce the responses to the complaints the government of jack did they specifically said we're not going to get into how mr godfrey responded to the complaints and the complaints are only probative if we can't cross examine a piece of paper on cases involving now negligence certainly this was an a negligence case and the fact that he was on notice there were complaints really shows nothing especially when there was other evidence that the government that the other evidence showed that there was an underlying fraud the these the challenge exhibit showed that the defendants had notice of something now when you combine those two things it means the defendants had notice of the fraud but that's not what the was not with the jurors had to find but this evidence would have been probative irrespective of it's true the defense knew something that also goes to chief judge lynch's point about the redactions as chief judge lynch pointed out  the jurors needed to know what exactly it was the defendants knew whether that was true or not what did they have notice of it wasn't that people were complaining that the you know hopes telemarketers were using their parking lot it was that they were complaining that there was this false pitch that they were being pitched so the jurors were entitled to know that whether or whether the exhibits were true or not now also just to talk about what the truth of the matter asserted was it was that these out of court to clarence were to fight it wasn't that the nine massachusetts customer the nine massachusetts customers who testified at trial were defrauded there was an independent evidence of that they were cross examined so that that evidence was fully tested doesn't necessarily go to whether that i think that goes more to the heart was their point then it goes to whether these were admissible under the confrontation clause and i actually i've i've can't believe i haven't mentioned it until this one of my article but the most important fact in this case is that the jury was specifically instructed by the district court three times not to take these for the truth of the matter asserted the defendants the defendants have to get around in some way the supreme court's decision in in  the decision in richardson those cases say that jurors are presumed to follow their instructions even in the confrontation clause context there's no good reason to think that was violated here so let let me just this let me just s know well i think what we were saying there the point we were making there was that when you combine notice with the other evidence in the case it shows what the defendants actually knew and does it is knowledge of the fraud but when we talk about corroborating mr burris his testimony sorry i think that's right i don't think we did but the instructions were read after the closing argument i believe so that the jurors would well have understood that they could still only take these for a limited p in section two fifty which deals with knowledge of the speaker that's not the relevant section here actually section two forty nine deals with knowledge of the listener and provides a really good example of this of how you know sort of dismissed metaphysical issue works which is that mccormack gives this example of in a civil case a defendant hears from a tire inspector that the tire is defective now as long as mccormack says as long as there's independent evidence the tire is defective and as long as the jury's told they can't take that out of court statement for its truth but only to show what the defendant would have known or would have gone to investigate then that's fine that's admissible that creates no hearsay problem now of course that's a civil case this is a criminal case involving  to notice and manage well i think mr mr burris is testimony was also reinforced by independent documentary documentary evidence in this case that could not have been perjury that is there's an e mail for example from mr godfrey to his hope telemarketers and this was in april of two thousand and nine and you'll see it supplemental up the next pages twelve and thirteen in that e mail mr godfrey says to his telemarketers you know tell tell the customers congratulations you've been approved for modification and make no mistake about it that is a hope document that is not a d c financial document there are scripts on mr godfrey computer that are d c financial documents that's not one of them but of course those scripts to show that he was he knew what the pitch was and  in mr imposers testimony is key as well because he's relaying complaints to the defendants personally and in response to that the defendants do what they don't ensure that mr kelly is giving a correct pitch or that mr burris is giving or correct  i think also one thing that connected the massachusetts customers to mr godfrey and mr fisher was the fact that even though there were multiple telemarketers that were pitching to these different customers they actually were giving the same pitch so as we point out in our brief we think this suggests some top down ordination within the confines of hope's office it can't be a coincidence that mr godfrey has this pitch on his computer that all of massachusetts customers are receiving the same pitch it's just that's what those cases point out that evidence if it goes to what effect it would have had on the defendants that's not true the truth of the matter sorted it is admissible i would turn finally to i think much of what i have just said goes to the harmless error point but but i do think there is strong what if the jury if the error was that the jury ignored its instruction that would be that would mean that they took these exhibits for their truth which would what the exhibits went to if they had been taken for their truth would be whether there was any fraud i don't think there was any of dispute really about whether there was fraud you'll see in the defense opening statement at page four ten of the joint appendix you'll see it in the closing argument as well they say well there's no question that these massachusetts customers were defrauded the question is who defrauded them so whether there was a fraud or not was really not the prime issue at trial so the error if any  responsible as part of a defense that your client knew nothing about this that being the case why would the content of those e mails and l cause harm to your case well the question of mr good reason tenet was a close one who's your evidence presented at trial that he refund to customers money it was evidence that he reported  telemarketers that he's suspected of fraud to the police it was testimony that he fired telemarketers for making misrepresentations the fact that he did all this cooperated with the state of florida to refund cost rich money mr impersonally described him as professional and he worked with the state of florida to resolve the complaint but also mitigate against fraudulent inten somebody is intending on the fraud ing thousands of customers they don't do lives things and the government to overcome that put in the substance of the complaints there were other ways the government have avoided a confrontation clause problem they could have called as witnesses the people that made the complaints they could have had the agent describe it we emails that contained customer complaints with ok getting into the substance in the e mails required the jury to evaluate the truthfulness to determine whether they were evidence of the fraud if they're not true riverdance of nothing  so for that reason there was a confrontation clause violation in terms of the harmless service standard that there were thirty two e mails in six letters from the state the sheer number of the mill yes but that's the question judge thompson asked you at the very beginning of this argument and i thought you were going to make wild argument then you did not you made the argument that any one of these e mails would have caused a confrontation clause violation and i thought you were stating your case that well in terms of harmless error i am sticking my case