of michigan we have presented to the court seven arguments which we believe have merit on ask the court to consider them but for the brevity of time if i may direct my arguments or to argument one an argument five argument one deals with whether or not mr misawa was tried before an impartial jury your sixth amendment right to a fair and impartial jury if there is bias there is that the constitutional right is breached and at times may be implied by circumstantial evidence during the course of the trial a note was apparently issued complaining that the prosecution was working with or for the defense in the presentation of some of its exhibits and with respect to that issue i know you argued that didn't that you here in clarifying a curative instruction to address the issue that with the bias issue that you allege occurred the court after it appears to be an in chambers conference with counsel did give such an instruction to the jury the problem is at this juncture we don't know what caused that the jury to issue that note and whether in fact there was deep seated bias and whether or not the instruction given by judge lawson or remedied that because there was never a dialogue or between the court in the r and there would be no legitimate basis for a strategic decision although the government cites the perry case perry is substantially different in perry there was variously described as a shoulder bag or a book bag or a backpack that apparently was given to the jury as was exhibit and then there were some papers in that bag the jury sent out a note about the papers the book and the papers were retrieved apparently the papers and everything was examined in chambers off the record and defense counsel then proposed an instruction to give the jury to deal with it here we don't know what precipitated that note we don't know what bias existed in one or more of the jurors that they found offensive in the government helping out the defense and therefore unlike piri we don't know and that's why it begs raemer hearing should have been conducted sewer sponsored by the court and this court has previously indicated that the duty resides with the trial judge to conduct the hearing and unlike perry where they least knew what was presented to the court or to the jury rather shouldn't we have nothing at all and that's why it was more egregious and that's why the court respectfully should follow its precedent and mandate that the court conduct a rumor type period to determine the bias of the jury was presented or cause them to issue the particular note and to see whether or not it was rectified by a cautionary instruction then its fruit or exacerbated by a couple of days later indicating that we have questions regarding legal terms of law and when notes were filed as a matter of record so we're simply going on the basis of whether or not they were direct quotes whether or not they are paraphrasing and there is no way to know from the cold record exactly what was given and whether or not if the judges response that that's true but are we dealing with the i in terms of i am a juror am i speaking soley for myself am i speaking for all twelve or sixteen at that time of my colleagues again because there's no dialogue and there's nothing to s b jury to respond whether they're satisfied whether this deals with it simply giving a naked instruction without any response at all from the jury begs t question and then contributes to the fact that causes at least from my client's perspective that the jury was biased against him and it already started to liberations and it reached a point where it needed to know the thing all the speculation that's the ruled that it is not an appropriate strategic decision by defense counsel to waive a biased jury i can't comment on why certain attorneys did or not to do anything i'm simply going by the record that was presented to me two cases that have previously been published by this pick by this court and indicating that the court has a sewer sponte duty to conduct that hearing the the fifth argument deals with whether or not judge lawson in determining the amount of loss between two and a half and seven million dollars considered evidence were considered information that was not a matter of record in this government sentencing memorandum there were a number of loans that were included approximately two point three million dollars or a little bit over that no testimony was presented during the course of trial and defense counsel objected to then the court had a dialogue with mr shiffman who was co counsel at the time and there was some agreement that six particular loans were discussed during the course of the trial however in terms of the amount of loss that the particular financial institution incurred there was no testimony during the course of the trial and mr fishman did object to th objected both in his sentencing memorandum as with mr morgan and at the time of sentencing as to the amount of loss it was incumbent upon judge lawson to conduct a hearing and simply accepting allegations that are in a pre sentence report her government objections during the course of that hearing rule on them consider the evidence and ultimately make a determination to accept or reject without having a fair pretty hearing well the cases that i cite in the briefs indicate that the arguing as to i believe it was one point eight something million dollars the fifty third bank alleged was that the amount of loss mr fishman indicated he didn't know who computed but that amount weird came from a how it came from so simply because the government included didn't see the sentencing memorandum the preset the probation department pivoted in its pre sentence report the cases indicate that simply because the government percent c piece of paper at the time of sentencing if it was subjected to by the defense that the court go into it in greater depth and i'm not talking about proof beyond a reasonable doubt and i'm not talking about the formalities of a trial but i am least talking about the testimony should have been presented that whoever on behalf of the financial institution had presented the or prepared the that chart or those figures should have been called in should have been subject to examination and cross examination and the opportunity for loss between four hundred thousand and one million and it's sensing memorandum at the time of the sentencing hearing that was amended that they were green was between one million in two point five the government was asking for two point five to seven million the burden was on the government to show that amount and if the defendant was questioning it and there was no testimony at the time of trial as to the accuracy of that amount it was incumbent upon the court to conduct the proceeding and as both cases from this court of appeals as well as other court of appeals that have indicated in my briefs talk about the says city to conduct a hearing in here findings of fact and not simply accept words are on a piece of paper if the guideline kill kill ation is incorrect through the appellate court has no way of knowing what the court would have done by way of sentence headed accurately calculated the guidelines so it is error and it should be reminded back good morning may it please the court my name is emily copeland i represent and schneider i've reserved two minutes today for rebuttal and i'm going to focus on mr snyder story convictions because frankly those convictions troubled me this is a case where the government presented a amounts could be approved or they weren't making enough money and that's all would be those papers in prison and to morton ross kerry who is a representative of the title company came in and testified again this all came in after the fact and procured title insurance that they backdated in this whole l jumping suit instead against my client the government present circumstantial evidence is circumstantial evidence for instance like on the wyoming property there's a fill in the blanks purchase agreement that my client apparently faxes  buyer paying earnest money in that transaction my client got five hundred dollars in legal fees he prepared articles of incorporation in a second mortgage and norton gets thirty five hundred dollars his accounts that he had no understanding of what in there is always doing i mean it's just kind of stretches the imagination to believe that he was so stupid that he didn't know what was going on and the jury is and is the agency that we have in this country were deciding on circumstantial this case it's a case a lot like parks that this court decided there was innocent conduct by mr parks that the government attached an inference to my client is the good i guess the victim of that inference here you before we are two things never mind whether mr schneider is behaving ethically or in the best practices of an attorney isn't the issue in this case whether i think that they said if he's acting inappropriately in that or not governing are not meeting his own responsibilities under his duties on his out can't walk into a jury rightly determine that that's evidence of of other impropriety as well when you look at this case in the circumstances and that thousand dollars check your honor and that negates any argument to that effect at more than testified about that check he did receive it from schneider and schneider's office has all directed snyder to write a thousand dollar years there are two letters the government contends were signed by schneider as either a treasure of altar investments or as genius developments which were in this office company the twenty two thousand dollar letter from alter net no one could identify schneider signature on it they were asked morton was asked he said well the first name almost looks like edward this almost looks like the signature i'm odd shadow several times is asked it whose signature is this i i don't know who signatures  actually there actually was a substantial debt from the mackie's to hussein is all at this time mackey testified that the debt probably was as much as five hundred thousand dollars and was a five hundred forty nine thousand dollars letter that m on both of these letters i think it's interesting that but the letters the jury saw it does say if you have any questions about this debt amount to contact sam is all it doesn't say contact schneider discount of segues and i'm sure what the government will point out is that when mr schneider was questioned by authorities thirty to forty five minutes upon i guess an executioner warner's arrest in this case mr schneider denied being any sort of officer or member of either genius or altered in development and they hold this out as what did he know and what was his intent and the proof was put on much most of it circumstantial against him although there are these one thousand dollar check potential signing these other things and then it was up to the jury to determine what is and you know you might have won the case in the district court if the jury had returned a different verdict but as a witness there are things whited out nobody knows who fills and then things are misspelled schneider gets new money from this for the vandyke properties he makes three thousand eight hundred dollars in legal fees ever two lines when you look at make sense that he would be participating in this mess all is getting a nine hundred fifty thousand dollars personal guarantee torn up here in morton is giving getting twenty thousand dollars from his all mostly in hundred dollar bills mostly in cash meanwhile my client's performing legal services and makes five thousand three hundred eighty eight dollars over a three year period in the course of very close thank you time's up c we did not have a ram or hearing in the district court that that was a mistake there was no reason to have a member hearing because there was no evidence of any extraneous influence on any juror in the case and that's what a ram or hearing this for unclear about who had issued the note and it was not unclear at all the pronoun i is used and in discussions about that note the court and mr wish now who represented mr schneider said we're going to address the note from juror number seven it was very clear that it was a note from one juror in particular and not a community note so to speak there's also a suggestion that there was a fundamental bias there is a structural defect there are other cases where jurors have been scared of the defendants given the violent nature of different cases and indicated does this defendant have an opportunity you know right live things like that that was the fourth case and that did not rise to a level of bias or structural fact that it would have required a mistrial or anything along those lines so there is no evidence of bias in this case and methodology the court used by giving curious instructions that were agreed upon by all attorneys charge had three columns there was a original amount and offset amount and then the final amount the original amount was the loan amount and that most certainly wasn't evidence because that was what you know the two week trial was about every one of those numbers  that column was direct evidence from from trial test and it was an opportunity and it was direct evidence of an opportunity to cross examine those amounts during the course of the trial it's absolutely right and i don't think there was any dispute that those were not accurate amounts  mortgages for four hundred eighty five thousand dollars that was the amount then the government went to the bank and said were there any offsets that credit defendant because that's the right thing to do if they sold the property of the credit should go to the defendant and then that happened and began to report back from the bank that went to the defense they had an opportunity to look at it and that's really what i think the issue is here it's not that the original number was wrong that the defense didn't like the offsets and thought they weren't enough and that's when judge lawson said to that well what do you have and they said i want anything but it's the government's burden and he said well no if you have something else you've got to bring it to me and i can compare them but and they bring me numbers from the bank with offset numbers and you say i think they're too stingy that's on you to bring me something else and they didn't bring anything else and the case is that the washington case where that defendant made the same argument and they said no you've got to bring up something and she did not and in this even if the defense didn't bring anything two hour sentencing hearing it was it was both defense but was a very long hearing and a very detailed hearing where all of these arguments were made in detail   tourney risk its license and his freedom for five thousand dollars earned by doing some work over several years had it was there any other paying zero any other  wouldn't approve and it looked to me like it was five thousand two hundred dollars well i think there's a couple things there i think mr shiner was his mistress trying to work with mistress off for a long time and that was a very significant client for him  was on record as treasurer of g m s development and that is really important not for the reasons that ms copeland size because that was the payoff letter for that one transaction and that's not why i'm interested in that document it shows that he has a vested interest in g people did like mr mister you know put in pay off notes and he got more money that is true it doesn't actually make a lot of sense why someone would do that but the fact is that he did it and he did it over and over and over  morton he was involved in wyoming present at these meetings did testify that famous i was the translator and anything that needed to be communicated he translated into english that they could communicate with people who did not speak arabic on the vandyke transaction i ninety seven zero one van dyke mr shiner put in a twenty two thousand dollars payoff letter to benefit all turned busman's there's been an argument that maybe that wasn't his signature or his name but two witnesses said it looks like edward to me there's only one hundred in the case and it was faxed from edward snyder's law office and to mr martin for the transaction so i think the inference that the jury made that that was h particularly where they were able to see his signature on multiple documents in the case where he signed as a witness or he signed a check or he signed something else they had an opportunity to take a look and see if they thought that that was his signature and apparently they did because they convicted i don't have anything else really unless there's more questions thank you nic thank you you just briefly in response of the government's argument that there was no indication of an extraneous influence on the jury that's one of these city is things when you don't have a hearing because you don't know whether it's extraneous  without some type of ready or inquiry from one of your or your number seven without knowing whether or not the juror just woke up one morning and decided to do it on his or her own or whether it was collaborative effort and that individual is the only one that wrote it because again there was no dialogue there was no inquiry so we're left to speculate and that's why i believe the rember hearing would have alleviated where there was just one isolated sure that maybe could have been of this court indicated that it is the trial judge is sue a spine to duty to conduct the inquiry and that counsels as it relates to some questions that you previously had in terms of the amount of loss and also if i may respond to judge merit at that during the course of the trial the issue was not the amount of loss the issue was whether he was guilty or innocent and i'm unlike a drug case where elaine would indicate that maybe an element just a quantity of t i understand but when it comes time for sentencing and you've got facts that we're not going into with the time of trial and mr fishman is objecting that go into they were the loans were discussed during the course of the trial not the amount of loss the judge used to charge of one point eight million dollars there was not reference during the course of the trial that mr fishman indicated that was the reduction that benefited your client if the if the law was for four million and it became one point eight it was because your client got credited with some payoff money but the government was advocating a sentence predicated on the one point eight million which is the reduced amount and was incumbent upon them to show that it was the equitable mount when defense counsel objected and the case i could have just left it at the full amount of the line and increased the lost by that amount moment ago we were complaining that defense counsel didn't do anything viz a viz the jury notes now the defense counsel is articulating objections at the time of sentencing i would submit that the cases that i cite in the reply brief as well as in my opening brief indicate that the court should have conducted a hearing in to ensure your honour's question regarding that the fact that there was a variance this court because the previous i believe in young which is cited in my brief indicated that even though there's  variance if you nischelle calculations were correct then you remain back so the appropriate calculations are conducted yes or ten what what the amount of the variance would have been at that juncture no thank you think you all being a profitable and long time client the only other evidence of that it trial is a twelve hundred dollar and voice that agents found in mr dissolves home at this search i think was on a seven mile property that mr schneider did something about so if you want to up the ante to seven thousand dollars over three years in legal fees that simply doesn't explain why mr schneider would engage in a massive fraud with mr mazhar who benefited greatly