good morning or to please the court the many of the issues in with regard to the conviction even if the court does not agree with me on the sufficiency of the evidence may relate back to the sufficiency of the evidence i wanted to address briefly why i think that this case is substantially different from some of the other fraud cases the court sees st you take that the government in its brief has conceded that they did not prove as to any victim or as to any even a single drink purchase but it was fraudulent in this case not a single purchase of a single glass of champagne was proven to be fraudulent now the government has instead put forth they put on a witness member of a former member of a russian mafia who had made various agreements over the years with the government and whose testimony changed tremendously from the st trial to the nd trial to make certain assertions or guarding his conclusions about generalities of practices but again when you look at the record and try to pin those things down even to a particular club much less to a particular event that mr feldman my client could observed or participated in it is very very difficult and so what you have then is what is what else is there besides this vague testimony by a witness who quite honestly should have testified with an interpreter because the answers are are don't match the questions in linguistic sense what you have is your point just so i understand the testimony for instance from some trick that you know did customers where they charge for bottles they didn't order yes did it happen at stars yes  no yes that's just not enough on the desk when he doesn't actually read that way it's just money it what it what it what it reads is it did happen when the question was asked did it happen it is my understanding of the testimony's asking i think he's actually talking about did it happen in his bars in eastern europe when the question is asked then the question is asked was feldman aware of that and then the answer is yes he did or something like that yes did you talk to feldman about this yes what did you tell him i told him exactly how it works in the beginning when we met i told him exactly how it works you know that's that's the ellipse seize version in the government's brief now there is if you look at the government's brief there's a portions of that and you can you can grasp out words like that but when you look at it in context he's not even really you can see from the st question he's not talking about stars because he from the nd question is did it happen it happened once it happened twice  he aware of that there was he aware of that question we don't know whether that relates to stars or that relates to some other bar and then he he was asked is judge newsome just pointed out whether this happened at stars and and said yes i understand that but is did it happen ever at stars this is a conspiracy to commit fraud and we're talking about do you have a conclusion in your mind that at some unknown time one or more times this occurred at stars and that's the core of their case in other words when they reach for something to prove this case they reach for something that doesn't prove a conspiracy it proves maybe something happened one time at this bar which again they never proved they simply proved a generic record recollection did this happen at stars did did did feldman ever observe it when the answered what did you would you when you asked him what did you discuss with feldman of the follow up to that is he goes back to pre investment discussions in other ways when he asked him did you actually discuss with him i saw this occurred stars it's not in the record because it never happened well the real question is  whether they had an agreement that this is how it would work isn't it that's the that's the essence of the conspiracy right it is and then when the question is when he tells him this is how it works he guinn's has a long paragraph none of which is about people paying for bottles that they didn't order because the whole premise of this bar and when simchat just ask again about forgeries that was the original we thought we might that they thought they might face forgeries when he's asked about forgeries of course forgeries is not part of this what do i need forgeries for i need  don't need people to forge i need people buying drinks and that's the whole thing this thing about unauthorized charges you just inviting somebody to say i didn't order five bottles our of you agree with me we need to look then at the context of that testimony and read all of it right you have to look at it every that's so important with the sufficiency and i'm only trying to move on to something else that troubled me and that is the sentencing enhanced meant about a number of victims if you want to say anything about that because i'm going to ask you it's directly related to my st point at sentencing they go forward and again they don't prove any loss at sentencing what do they prove that some customers made some customers made some complaints and their money was returned period that's it what you know do they it's not as if they did not were not able to bring in customers they called customers at the st trial mr feldman was acquitted of every single customer who testified at the st trial so they decided we better not call any more customers in the nd trial i mean i guess but they don't call in these customers or at the sentencing either all you've got is people who complained about their bills and their money was returned and that is not proving fraud and again it's complaining about the bill the entire bill for these people each person the entire bill is complained about not oh you didn't order bottle six or you didn't order bottle five everything about th context for a sufficiency argument is what else is there there's a police officer in the bar who brings the police officer in mr feldman is he on the take no is he getting bribes no is he legit yes w the bar security cameras who brings the security cameras in mr feldman what does mr what does mr simpson complain about mr feldman he's bringing in girls who don't know how i do business i had to go to somebody else to stop him from bringing in girls who don't know how i do business about fraud into feldman he talks to feldman daily when they do talk about anything criminal they always says no we cannot cross any red lines imes and that applies to the victims and the loss and everything else about the case so  responsible for having sent all of the those questions and and and then the follow up there were days you haven't talked about the double jeopardy issue but it seemed did seem to me that the more i looked at it that there is not a double jeopardy problem do you acknowledge that because that it was charged as a single offense and alternate theories that that looks like that that that's the way the case would distinguish this situation from cases like grain and price but i spent a lot a lot of time going over all of those cases and i think it was obviously helpful to me too and what i divined from them is that there that context this is charging this is to avoid duplicity objection you put to two conspiracies and one count that's basically what it is and and the question is is it a greater or lesser i mean the st is a theoretical matter  i think we went on the theoretical matter even if before you can get to the actual hard facts of the procedure in this case of course it's is is there some punishment additional if the person is convicted of concealment will we know there's both a sentencing impact and as well as an impact on the case because the international promotion money laundering shouldn't even be in the money laundering statute because it's not laundering money international promotion laundering is clean money and it really is just thrown into the money laundering statute what the frequently does they frequently add have a nine hundred and fifty six count and in one thousand and fifty seven count and in rare cases simply the count here is a conspiracy count to conspiracy to commit money laundering when you look at the indictment and that's what it's charged as a single conspiracy and right alternative theories for that single offense right but it's really more like the case it's a conspiracy to commit burglary  and robbery in the same thing they're fundamentally different underlying fences it's not like a conspiracy to commit burglary bye bye bye bye trespass and then a conspiracy to commit burglary by entry it's two fundamentally different offenses that have computer components if you're convicted of the dirty money part of the of the of the count the count that we were not convicted of the st part you're subject to additional forfeiture penalties for example and i notice the court cite the ham side of the ham case and i think even though that case it was only the forfeiture issue the fact is that you have additional penalties there's the enhancement that the sensing enhancement that plays only because of the of the concealment provision and there's the effect on the rest of the case if you convict on the concealment then you are  essentially convicting on the rest of the case ok thank you mr you say five minutes for almost shipley good morning your honor just for the record with me a counsel table is like the kerr who was one of the trial lawyers in the case along with dick gregory who tried the case as well since retired from from the office in its opinion reversing in the tax law of one opinion the panel other than the one jury instruction issue on the theory defense stated the district court had done a nearly flawless job in all of its legal and evidentiary rulings and i would suggest that is an act accurate description of what happened at the nd trial let me go st to the issue of sufficiency just prior to your mentioning having testified specifically about feldman one thousand four hundred and eighty nine dollars page one hundred and ten dollars the main scheme was lying to the customers once they were inside the club to make them drunk so they wouldn't see what was being charged and the bottles they had not ordered they were being charged for having told him that he is a criminal and specifically having asked feldman when feldman came to him initially why do you want this why do you want to do anything with me you know i'm a criminal you know about my reputation and in fact what the record shows is that's exactly why feldman went to him feldman knew what was going on at caviar bar which is what feldman simpson was running at the time he knew what had been done in eastern europe and that's exactly what he was hoping would give him an avenue profits the testimony absolutely judge happy to walk through it you have two other witnesses at least who specifically testified about feldman's knowledge even aside from the circumstantial evidence you have for cina who is one of the bar discussed whatever happened at the club that night right what did she say that would suggest that what they discussed evidence this conspiracy but i think the entirety of her testimony was about the practices that would go on in those clubs including the pouring out of drinks in the overcharging i don't think in that snippet of testimony she spends specifically we talked about these activities but i think when you read her testimony that's clearly what the jury took from it you also had officer king who testified this is a one page seventy five feldman was very much feldman was much aware of what was going on in the club what was occurring at starr's lounge and again did help confirmed what was happening was it was overcharging of customers well fraudulent trip charging up customs i mean king is actually the one in stars lounge this whole time there's the undercover so he's all the things that the b girls testified to the three who testified at trial were corroborated by king we also had the video and audio testimony as well of some of these instances and i think it's important to clarify because mr clue has made reference to it as the brief this idea that there were no actual victims the government through king's testimony through the bigger roles established specific individuals in specific circumstances who were charged fraudulent were charged with things they didn't order who had items they were charged for that were then stolen back from them there's a one incident where somebody is literally drunken falling out of the bar and a girl charges him for a bottle of champagne and then takes it back as he's being pushed off into a cab and also what i think about what number of victims and handsome and so we're just doing or from the from the complaints by the customers that all of those are fraudulent that that seemed to be a stretch to me i don't think that's ultimately where the government came out in in this sentencing i mean it was certainly the government's theory as it had been at the st sentencing that look everybody who went in there was a victim of fraud not merely from the initial misrepresentation about the relationship between the girls in the bar but every customer was defrauded inside the clubs in exactly the same way so that was a government that's not the dairy of the enhancement right i understand i'm just trying to lay the foundation for where the government came in its numbers at the nd sentencing what we did was put together a chart we stood by that theory that said we are to avoid any possible conflict with what had come out of talk love one we're going to refer to the charge backs and what the government did was prepare was exhibited a to the government sentencing memo i'm not sure if it's actually in the record or not if not a happy to put it in the record but it listed specifically was i did to defense counsel listed specifically by exhibit number by the individual the chargeback documents that were found in that purple binder one of the  office so there were links to the number of victims it wasn't just an abstract infer there were more than ten people it was linked to specific complaints of fraud and when you look at those documents in the chargeback binder they're not some abstract obviously a bank could charge back a transaction for any variety reasons but these customers made specific complaints of fraud they said they were defrauded i was charged for things i did not order things that were i did not authorize were put through and that's why i'm seeking reversal you see  chargeback binders which are contained in mr feldman's office so it was not an abstract wasn't purely an inference that there were more than ten people in the club and they were all defrauded so that's how you get more than ten there are specific victims of which there were far more than ten identified on this exhibit and really there was no you read the sentencing record there is no drilling down on that there's no dispute about the amount there's no dispute about whether it was ten more or less i think the only defense are going to be enough in the record to show that their complain was in in more than ten stances one of frog yes absolutely you see that from the documents in the chargeback binders and you see that specifically listed in the exhibit that was provided at at sentencing and relatedly as to intended loss i mean i guess the two sort of travel together but relatedly as to intended last will be enough on the record to show that the entirety of the disputed charge was fraudulent such that it could be attributed to feldman's intent yes i think you have that same document again working off of customers who actually again the government narrowed the universe from its broader argument which i still think is a valid argument that for intended lost purposes which focuses on what the defendant's intent was you have enough that everybody who came through there was intended to be a victim of fraud and you can look at the entirety of their expenses in the chargeback documents however which is all the government used for its sentencing number which is why it went down from the after the st trial to the nd trial we only looked at individuals who we could document as having taken the step of making a complaint to their card company saying i was defrauded at this place in one form or another some refer explicitly to the word fraud some say was unauthorized i guess the reason the reason i wonder is that i'm assuming like if i call if you know that this is really my style but if i spend six hours in a club on south beach and you know walk out of there with you know ten thousand dollars call amex the next morning kind of shake it off call amex the next morning and say i dispute the ten thousand dollars it may well be that the st two thousand was on me right and the next eight thousand was on the beagles i dispute the fulton one thousand can you really attribute the st two to feldman that's my question you know again hold aside the broader issue i mean if you were stepping away from the the larger argument which is that all of this this was all a fraud operation so yes you do count that initial two thousand dollars i don't think you had any dispute about that at the sentencing hearing if that were an avenue that somebody was going to pursue they could have done that they could have taken gone back through these chargeback documents tried to develop some kind of argument to bring the last figure down i don't know at the end of the day whether even if you take out those st portions for example whether you get to a lower category of loss because this issue wasn't framed this way this is so general issue of you didn't call any actual victims and therefore the law should be zero there wasn't a more targeted more focused approach so i understand you're that's that's a reasonable discussion topic but it's not one that reflects the record in this case or the advocacy that was made about it and i would stand again on the argument that even in general even in your scenario this is a fraud scheme intended loss we're simply trying to get a reasonable estimate of the loss by preponderance standard and you certainly have that just based on on what the government submitted the double jeopardy issue put government have charge this is two offenses on the on the money laundering you know i think as as mr kluger knowledge we what we face in some of these charging decisions is a potential duplicity type argument and so we tend to do these even though i agree with them they really are promotion money laundering really is a creature by itself in some ways from what we classically conceived of as money laundering in the sense of taking during the charges th can right in terms of a money laundering conspiracy and these are the two objects of it so could have been broken now possibly but i think he would have been met with some arguments about duplicity and i think the general practice is to treat them as two objects of the conspiracy and even on a substantive count you might be able to in the government's view there was one agreement to launder money in two different ways they were two objects of the conspiracy right it was a conspiracy the had they were it was a multi object conspiracy the district court instructed the jury you could find either of them and the way you argued and proved it was that everyone who agreed to the st object was it was the same exact individuals who were agreeing to the nd object yes judge that it was the same these are the same ambit of people the same participants who created these they really involve distinct conduct they involve the same participants the concealment piece was dealt with primarily the creation of i have a marketing and jellied a marketing these sort of sham marketing companies that took the money from the stars land bank account and then dispersed it back in cash to the girls promotion dealt with the wire transfers that went both from the international investors who were simply cohorts and also the outgoing share of the profits but it was the same same participants there's no issue of a divergence between who was involved in these different activities if the court has no i'm happy to dress any further questions court may have and there is substance but i wanted to with the court's indulgence address a matter that was not raised by mr clue i know it's not the practice of this  court to address matters that are not raised in opening brief that your option because then he'll get an opportunity to address it for the st time in rebuttal and you won't have anything to say about well i think that's fine just because it calls out for the the  accusations that are made and the language that appears in mr houlihan's brief and especially his reply brief is outrageous and we hold prosecutors i think rightly to a high standard of advocacy you expect court expects us to make arguments that are rooted in the record that have a good faith basis and are not founded on innuendo and slander and i think it's appropriate to apply that standard to advocacy and  brief the allegations regarding feldman which are to me off the deep end of advocacy by any standard accusing the government of an atrocity of racism vile anti semitism  extreme i'm anti semitic beams these are extraordinary allegations and they are utterly false they are a disgrace they are unfair to mr gregory one of the most distinguished prosecutors in the southern district of florida to mr  distinguished judge of this court there is no foundation in the record for those allegations none whatsoever none and i would ask the court i have to ask one is of course to affirm the conviction in this case but i would ask that you go further as a matter of fairness and state in whatever opinion you do render that those allegations are unfounded and unsupported by the record so i appreciate the court's indulgence in that it's not a path i would usually take an argument but the record needs to be clear it's outrageous those kind of arguments would never be countenanced from a prosecutor on this kind of record and they shouldn't be no matter who makes them there should be a different standard simply for defense advocacy so if the court has no further questions i'll rest on on our  no basis for fagan being the most file reference to jews in the english language in the english literature that's that's the government's argument there's no basis for your citation after say taishan some of the most distinguish scholars in the united states and around the world have pointed this out over the years i had no intention of raising this issue but to attack us for bringing it up to try to stop it from happening in the future as it any similar to so many sematic violence is not a problem in this country as jews don't feel what other people do not feel when they go into various communities in this country i'm not jewish but i have some familiarity with it to complain about it to ask  not be done that's the outrage it had no no intention of in any way be scorching anybody and it may well be complete ignorance that led to occur but it should not happen again and it should not be complained about when it's pointed out the point that is drives this case is not whether there was error there was error in this case there was not a single theory of money laundering there was a conspiracy to actually launder money and there was a conspiracy to take money and send it overseas to pay back investors the real question though was there that the  charge is is not the underlying money laundering the charge is the conspiracy to commit it and if it's charged as a single offense with two dollars different objects that does seem to be a situation where there's not a double jeopardy problem judge i just read each of those cases and in each of them the distinction is whether it's basically it's means and the next distinction is does the court tell them look you only have to find one means you know we're looking for one means here and judge in this case made it very clear to them look there's different there's different offenses here different consequences one is a laundering offense one as i've explained to you is not really a laundering motion and so it was it was in every way possible every one of those cases including they'd been in by justice white supports us in in she chose completely supports us because of the way honor and i have had arguments insufficiency cases or i have an argument from your honor insufficiency case before and i'm not sure that our our view of sufficiency is the same for me i have a very high standard for sufficiency to me the word substantial i place a very high value on it and i think it it that word in and of itself is the is one of the great protections that we have walking down the street and this is essentially a small business prosecution man's being charged with trying to get people to drunk to know what they're doing not by selling one hundred and sixty proof tequila but champagne this is the very notion of this this this conspiracy is if you're going to get people so drunk by drinking champagne that they're not going to know what they're doing and you come up with the government now in their argument says well there were two instances where we have somebody saying i recall some unknown person some unnamed person nobody names anybody and i tried to switch a bottle on you was was feldman there with all but aware of it did anybody tell him no did you get away with it no it happened no even us to those people we don't know where there's last we don't know whether a single person in this case was overcharged so you have a small business guy he invests in this company simply comes in he'll say the worst things in the world you make the was conclusory and things in the world say but the one thing he won't say is i know i saw feldman i had a conversation with feldman i told him we're doing this and we're doing this and we're doing this in this bar because simply said he wanted to skate above the line that's why he didn't do forgeries and this this one random referenced that is very vague about were there bottles ever ordered is not substantial because it doesn't match the video it doesn't match king it doesn't match the case thank you mr pluto i know you were court appointed now you weren't pro bono well thank you anyway