thank you and good morning your honor man please the court and counsel you hear me i tend to back away from saying my name is tracy stob and i am here on behalf of my client mr von crossing i would i will try and reserve five minutes for revival we'll see how that goes as a pulmonary no i'd like to indicate to this court that mr von krasik has made it abundantly clear that he wants to fire me and he's done that with communications to this court and myself as well this court however has appointed our office after giving the surviving cross a cover a lot of shien's and i have proceeded in that manner i will continue to work on his behalf until the wi that was charged and ultimately convicted with sixteen counts three counts of mail fraud and sixteen counts of mailing a threatening communication on appeal he raises six issues five of them concerning sufficiency of evidence on the mail fraud counts and one of them concerning a jury bias or jury partiality concern relating to all of the charges just as a very brief factual background both  statement or a promise in the indictment the government alleges that the false statement concerning the validity of the trust recommended by mr von crossing in specifically the government asserted that mr  ted and they well that they could protect their property by putting it into a common law or business trust when in fact he knew that these trusts were a sham and that was the indictment in its response  the government acknowledges that quote no government witness testified that the trusts were sham trusts and that was on page twenty five of the government's brief instead the government has which restatement of laws which were cited in the briefs indicate that a statement of the law may be a statement of fact or a statement of opinion a statement about the legal consequences yes i think that what you have correct when you put those two steps together this trust is going to be safe and i'm trusting the it's going to be safe is someone qualified is going to be safe from everybody  yes your honor i believe in again i was but i believe i can see all this they were your honor i understand that and i also understand that there was evidence after the fact that they were suffering from certain forms of dementia  and that but at the time that the trust documents were created they had not been declared incompetent and there were next evidence by the banker that mr wells appear competent at the time so it is true that mr von krause they told them this kind of trust can protect your assets and then he became a trustee he didn't make himself a trustee obviously then give him the money right for educational purposes as the jury and title say wait a minute that's just a little bit too convenient and and this is the now and i and i struggled with this is well going through my mind i think what it comes down to though is that the government has to prove a false statement and i at the very essence what you're saying is that false statement is that this will protect your assets when in right i understand that received and i have a way to move it away a truck or or something i think was the evidence and knowledge that that's a little concerning for my client but the technical argument on that the two mailings there were three mailings three counts of mail fraud the second and third mailings occurred in june however mr von cross that had been removed as trustee and i believe that the trust had been dissolved at in february so the government theory of the case presented in the jury instructions and throughout the trial was that this trial was the vehicle used to defraud so well and yet the trust no no value given for the lane but known in the sense that said and say well knew about the wanes so like i say the trust was no longer in possession of any of the to the bank and i believe the auctioneer but i could be wrong on that that he had a lien on this property that was superior to the bank's lien and the auctioneer's like now the mailing has in furtherance of the scheme and the scheme is the use of the trust to obtain control but if the trust if he's no longer using the trust to obtain control then the scheme is no longer in operation scheme has that particular scheme alleged in the indictment has ended assets assuming that it is false the question is the government has to prove that that is a material false statement and in this case mr van cross told the wells's go talk to an attorney and they did go talk to an attorney and the attorney prepared the trial to the attorney i don't he gave them a name that is correct however there is no allegation by the government and no proof in conspiracy doesn't mean that there wasn't one you know but the failure to include a jury instruction that mr von cross check was responsible for the actions of the attorney does prevent the government from making him responsible for the attorney's actions  he posed questions no he did not we were that was a crime i don't know that it would be his responsibility your honor it's the government's burden if the government wants to argue a coast conspir these these trust before and that mr todd knew mr von prospect but again the attorney there and there were two of them in this case there was no allegation that the attorney had committed a crime or that he had committed malpractise or that he was a don't know that he was unavailable afterwards i agree that mr von krasik and the wells's created documents subsequent to the creation of the trust to manage the trust including well that the one attorney was present when mr von crossing became a trustee and that was known about so again there's that she had a fiduciary duty to the wells's before mr von crossing did as a trustee so is her involvement constance wells i think are not wells constance norris was her involvement and the involvement of mr pod and intervening at in a sense that no longer made mr von cross statements material i have about five minutes left so unless there are questions from the crowd reserve that for  good morning your honour's here please the court my name is when you also nominate assistant united states attorney for the district of idaho i was trial counsel below for the united states i'd like to start my comments this morning by addressing  mainly by the defendant to corporate auction house which was the auctioneer for the wells property count three charge to do fifteenth two thousand and five mailing from the defendant to farmers and burton state bank which had financed the loan to the conservator of the estate to get the property ready to be sold i think in examining whether those mailings are in furtherance of the scheme to defraud it's important to look at the entire his called the angelo assembly which they go record just for he couldn't really adequately explain what that was other than some other entity that he had that he represented through the wells would secure their trust property and those lanes will put not just on the residents itself or a bank accounts all but on what he had told them was the trust property that was another handle for him to get his grips on that property and in june of two thousand and five when he sent the mailings when eighty three are excerpts of record eighty twenty three but he testified that he was sending that mainly on behalf of the trustee still view themselves as a trustee as to the june fifteenth letter to farmers and merck and state the the problem with that argument is that it doesn't include what all of what is charging that he is charged with using in executing him to five to get the property by telling them to put their property into the trust so he could gain of the crime yet as the court is well aware as both parties agree false statement is material if it has a natural tendency to influence the decision maker in this case that decision maker is the wells and i would submit that there was that and they put their property into the very trust instrument that the defendant recommended now much has been made on appeal and sort of been narrowed down in for this role of the lawyer mr taught but i would submit when you look at the full record all of the evidence of mr von crossings involvement with precisely this kind of what they call a trust instrument that's massachusetts business prosper a common law trust these were his trust there was evidence introduced into the record of at least two other trust that he had been involved in one was called the holes and present process which is included at the back end of the supplemental excerpts of record another into the trust or actually two of them were the terms were identical to the trust that he had the ranch or the tree guy but he has his property and and when you compared the terms of the trust and s there's this mortal baldwin who plays a piece in all of this too got her uncle involved in a similar situation and who was called by the defendant to talk about that process i think to try to bolster his claim that this was not a not want the government to get access to their assets who may be concerned about tax i think feral testified that one of the this was a kind of a trust that although not in this case was typically used as an abuse of trust in tax types of cases that that clear from the excerpts of mr paas testimony which are possibly excerpts of records one eighty to one ninety mr von cross it is there throughout he's in and out even if he's not sitting down for the conversation guardian was able to remove the wells from their home in early january of two thousand and five they were under the thumb of robert vaughn crossing they did what he influenced them to do they made financial arrangement he was present when the court visitor came out when the guardian ad litum him out to make an initial assessment whether a guardianship and a conservatorship were were necessary he told those individuals  that accomplish his objectives in gaining access to their property your honor i'd like to conclude my remarks this morning by making a comment about the initial argument that mr when there is a statement made about an entity with legal at applications i think the evidence was clear and the indictment was clear that these were the kinds of trust documents that this defendant knew a lot about that he needed factual representation and that that's what the evidence at trial were out as well i understand mr hobbs point that that may be a question of the greek because it also can be when you look at the element of did he make a false statement there is no false statement if in fact he was giving legal advice i would submit to you that the evidence has shown that he was not giving legal advice he was making a false statement that was the evidence was presented by the government those are the arguments that both sides really made below and the jury you know the defendant did testify that he brought in a lawyer though see a lawyer in the jury was free to reject that advice they were the ones making the credibility best evidence is that he got the hundred seventeen thousand dollars and we frankly don't know where it is now although i suppose someone is a veteran of the v s s wherever he might be thank you vital i think that what's important to remember and the government argues that this was a sham is that the wells's went into this with their eyes open they had two attorneys representing them the i r s agent indicated that it was very easy to tell from these documents who was in control of the assets they knew that mr von cross check was obtaining a lien against the trust property and so everything was up front and clear and the district court indicated during the trial that people can enter into contracts and you don't have to call them trust i can enter into a contract where i give you all kinds of discretion and that is just the nature of the contract it may not be a massachusetts business trust it may not be a s but if we both go into it with our eyes wide open we can enter into that kind of a contract so your bottom line is that we should resist having done wrong here everything is on the up and up i'm not saying that you honor i and i have questions and concerns about one hundred seventeen thousand dollars just like you do know however again if that was a misuse of his power there is another crime to be charged but the government can't claim that to stop their asses from being quote stole quote right and the jury found that was a false statement because that sold that document plus the power of attorney post the name trustee post the acts showed that at all times he had intended to steal their property himself and they may not have wanted this purpose i understand that their original will that were in place indicated that the grandchildren would get a small amount of the property and everything else would go to educational purposes so this may not have banned how you are and i would control our estate but that's not to say that this is not what the wells wanted and again the bottom line is that when these were created the well was after they were there the money should go wells's and the bottom line is that the wells knew he was in control of their assets when they signed those documents there was no deception here and they had two attorneys to ask questions to and advise them on what kind of protection this trust would give the attorneys were not viable heads they had a duty of for you sherry and they had a duty to advise the clients thank you your honor if you like both counsel for