circuit noted that the government quote stretches the reach of wire fraud statutes far beyond where they should go and at times quote expansive clauses in the mail wire fraud statutes have led to the little or liberal use by federal prosecutors in doing so he pulled out a number of applications to get those loans the government's overarching theory was that because of those emissions in the states he somehow induced the lenders to make loans they otherwise would not have the problem at trial though i think it was that that theory just wasn't supported by the evidence and i think the key one of the key factors at least was that mr roberts was extremely worth right about the huge amount of debt he was over five million dollars worth  was disclosing to the lenders and it wasn't just normal debt it was toxic debt that he was hemorrhaging money he was losing over seven thousand dollars a month or eighty six thousand dollars on these a year on these investment propert testified as the government's expert and i was actually going to highlight this because i think this is a really important point the government sites in their brief on page thirty eight some of the testimony by mr daughter and let me just misrepresentations material answer yes and is that important answer yes in other words important would that be the case number line answer in every loan that i reviewed yes wouldn't those loans had been made if the lenders had known  misrepresentations answer no so that was the test night but i think what you have is a great disconnect between those and what the evidence really bore out let me turn you to the government's exhibit twelve a subject line and she says to the lenders quote this is the fourth loan that i've closed with albert with be home lending mr roberts has closed other loans within the last six months with other lenders loans just not true i mean in his applications in question here he's disclosing not only that he stacking loans but that he's losing a massive amount of money on those one so i think that's that's important here because a key well i think of a number of things first that the payment there it's in disputed was not inherently illegal right the government doesn't dispute that in the brief that had to disclose that information on the hunt for a perfectly legal ok right your honor i think i think it's important because when you hear the term chip back you think you're giving it to a government person and i'm trying to bribe that person that's not the case or this is a transaction that could have been lawfully done right in theory at least but there's other factors i think that's important here mr roberts is the purchaser of the property here the saddler pin rod he's the one making these payments after closing the parties of course agreed to a purchase price right in the sales crown track on a couple of occasions when the third party appraiser came in to appraise the property they said hey this property is not worth that much it's worth less guess what the parties did they entered into a minute sales contract to reflect the wishes of the lender so it's not the situation where you have someone who's trying to pump up artificially inflate the sales price and i think that evidence cuts and  mr roberts favor and i think there's other factors these payments aren't being hidden from anyone there may be a check and on the check on the subject line they actually reference the property that the payments significant camouflage i'm just not seeing how it's camouflaged had they wanted to camouflage those payments they would have made them be a check or i'm sorry to be a cash or certainly not put the property address here i'm sorry i just didn't hear you any of the ones that are made after closing no i don't absolutely not right right i'm just saying if you're trying to show that the government's trying to shows that there's an intent to fry and the fact that they're being pretty you know that if i'm thinking i'm committing a crime i'm going to do a better job of that  to put on it just didn't happen there and i think a key point is that being a bad businessman doesn't make you a criminal right here you have we have to remember this is before the mortgage crisis bubble pop and a lot of people were over in their neck in toxic debt but failing to make your mortgage mortgage payments doesn't make you a criminal here and did mr roberts make mistakes absolutely did he things no doubt about it but i think the government focuses on my new show and excludes the fact that he disclosed of the bulk of truthful information so these are sham applications here so i think that's important the well i think it's this court evaluating the government's out and its and finding that there's a major problem with that and the problem is this here you have a similar situation where the businessman is trying to get a loan and he didn't disclose certain other loans he took out that he was nine hundred thousand dollars in debt and that his lenders were threatening to stop shipment  this court said that's you know that's a problem with the government's case and i think it's a similar case here the government focuses on other flaws in mr roberts winning information for example that he didn't disclose that he was going to live in some of the or that he said he was going to live in some of them and that that was a material misrepresentation but the bulk of them he put the truth one formation in they still extended the loan so i think the materiality is what's lacking here for all these reasons we've struck the smith that this matter should be reversed there's a sentencing issue that we're going to stand on our briefs on i'm going to reserve the remainder of my time for  good morning your honor so i think the key here is we've talked is that in this case there is sufficient evidence to find a verdict in this case there is sufficient evidence just on the point of all of the checks that were paid outside of closing that alone is enough and material and off to warrant a verdict in this case based on the schemes involved and i think the critical thing is here is to think in terms of the scheme and the instruction that was given instruction twenty two says a scheme to fraud need not be fraudulent on its face busted but must include some sort of fraudulent misrepresentation or promise reached recently calculated to deceive a reasonable person and i think that's the  this any fraud case has some sheen of reliability of reality to it but in this case under that are these payments these payments made outside of closing and these payments end of themselves could have been legal if disclosed but were not and the work camouflage was used because in a fraud case oftentimes an individual or entity will camouflage what they're doing in this case he's in the checks and using the statements on the checks that they were consulting for consulting fees gives it some sheen of reality and so in that case that alone is enough to warrant the verdicts in this case to establish a scheme over these twelve homes that something was going on and the jury saw that and the jury made that distinction but beyond the checks and there were six significant number of checks totaling on the twelve homes about eight hundred thousand dollars that was paid to the end of it to mr roberts in this case beyond that there was many more points as we if you've seen on the applications and that includes whether they were living in the homes what the income was many other things like that that the experts said were material and they would have if they had these facts likely not have given the loans in these cases know we had actually three people kind of touched on that point one was for sun trust which was an individual that represented the banking entity sun trust for one of the two homes that was involved or may have been to it both of the two involved and he testified in that case that it was material and that they would have had a problem with those loans had they known about the circumstances of the loans and the payback but besides him again we had the expert and then besides him we had was the cooperator that he was involved in he was a mortgage broker who had pled guilty in another matter and testified in this case as a like a cooperating witness  involved with mr penrod and another defended mr brown in a similar type of situation in a similar type of circumstances and he is well received kickback checks and associated with mr brown in this case receive it was a similar plan a scheme that mr penrod was involved with mr brown very similar in its nature and coarse and so it had that relevancy it it it showed he showed that there was an understanding of what was going on in the kickbacks yes well as i mentioned the sun trust lender was one of the individuals involved but we had other people testified as well so i don't i don't know if that answers your question sufficiently but that's the evidence was presented  lenders well the lenders his pissed background was in the mortgage business and he had done a lot of work in that area had reviewed a lot of loans had been involved in a lot of loan activities and he was familiar with the different elements that are necessary to make a quality loan in a decision to make the quality low and the key to that is all of these other elements but the one thing that's kind of irrefutable is these kickbacks checks these kids back checks come after the fact and that in and of itself is enough to push this thing over the top i think in skin get the verdict in this case so in regards to the right exactly and the way that work is usually after the after the sale shortly after the sale a check was written and in some cases would cover both the closing costs and the down payment and then would might often have an additional  mout over and above that as a payment like a payment to buy my home basically that encourage the individual to purchase the home and in this case that's what mr roberts did and there was a couple of other people that like mr roberts had done the same thing the hague received kickback checks as well that received that testified in this case and had an artist charge of subsume big case that case went to trial he was found not guilty in there was a long close and testified in this case but she did not plead guilty to this matter so she was not aware that of the of the kickback checks after the fact no one other than mr penrod and miss hastings who was the real or who did plead guilty and was fine and then pled guilty in this matter world were of the kickback checks so was mr penrod mr roberts in this hastings  well i think your point earlier was that in this case there was no money down by the individual purchasing the home so there was no risk involved so the individual that's purchasing a home the banks not aware that they're having any risk involved they want the individual that's putting the money down to have some risk of the stay with the home in this case as it legit as it goes forward in almost every case mr roberts defaulted on the homes where he defaulted because he had no interest in the home he had no risk in the home in almost every case on the penrod homes he had not put any money down so he had no risk and that's why the the lender wants to know that they want to know that person's going to invest and stay with that  zero i don't know exactly what it was fairly shortly after in fact some of the homes were he stopped actually paying mortgages on some of the homes as he was purchasing other hoes but at the end of the day a believe the twelve so he was able then in his case in that case he was able to sell the homes faster he did not have to market the home he did not have to list the home and he could sell the home quicker and turn it over faster so that he didn't have to have as much money involved in the home throughout the process if he was i believe he was charged with conspiracy as well but it may have been it may have been just false statements i can't remember exactly off the top of my head but in that case there was multiple other homes besides the ones that were called mr roberts in this case so so as far as the evidence the government's concern has presented we believe that the sufficient evidence to support the scheme to support the convictions without the conspiracy charge in this i think your honor i think another important factor that we haven't been able to touch on really is that he was acquitted of the overarching conspiracy theory if you take a look at the indictment i think it's a twenty five page indictment and that's twenty four pages of when you were talking to him about that the evidence a lot of this evidence came in in my view is hindsight that asian i think all the witnesses that testified were not actually there extending the loan at the time of two thousand and six two thousand and seven so it's easy to look back and say oh no no we wouldn't have done it that way but i think they lose credibility when they they say well had we known the true extend the debt we did it says on those documents five million dollars you knew that it was losing think there was some cross examination but i get your point i mean i think it's a fair point but i think at the end of the day when you're seeing conspiracies you see fraud fraudulent documents where there's a hoax and there  a lot of evidence of this where every fact went on these documents is fraudulent that's not the case here mr roberts disclosed that he was a teacher discloses that disclosed is the bulk of his assets and for all those reasons motion for judgment acquittals appropriate thank you