may please the court richard plato was denied his constitutional rights in two significant ways by the instructions that the trial court gave to the defense counsel in the conspiracy count at the conclusion of all the evidence the judge acquitted on a rule twenty nine motions the other person charged with conspiracy his codefendant mr walker and  then the judge in response to a motion limine for the government tells the defense counsel you may not argue anything about conspiracy not even mention is not being here that that in response i'm trying if i'm the government the specific motion by the government as i understand it was that they couldn't make an argument that it couldn't be guilty apparently interpret it and more importantly that's not what he said and i have to be honest with you i think what this court's going to have to do is determine whether the trial judge said what he meant a minute when he said it and our position is is that he meant what he said know the proof of that is when mr cogdill and in the full hour long argument that he gave goes over the elements of all the offenses other than the conspiracy count there were seven mail fraud counts and to securities fraud counts he goes into the elements of all of those he does not mention what the elements of conspiracy are and what would happen that what the judge did affected arguing that mr plato could have conspired with mr walker in effect in all of the counts not just the conspiracy counts and because mr plato's moyer w holders that's how it started these two mr mr patel his lawyer was not allowed to and rebut that opening statement and he was not allowed to put in any art in his argument at all anything about conspiracy that's what the judge said the government says that's not what he meant we can tell what the defense counsel driver did and we think that it's really clear what the judge meant and he meant what he said  what's the harm the harm could be that the jury heard evidence that mr wagner had pleaded guilty and become a government witness this is the unnamed coconspirator that the government in our view used as a substitute for mr walker after mr walker got acquitted by rule twenty nine and the jury knew that what that wagoneer at the time of the final argument knew that wagner was the so called coconspirator and wasn't in the indictment and had pleaded guilty now all the sudden walker's not in the dikembe and he's redacted from the indictment it goes to the jury and he's not mentioned at all so it's a logical conclusion the jury could have reached the just the understanding that walker pleaded guilty just like wagner did and therefore mr plato had to be guilty of these other two guys pleaded guilty that's the mark here and we want to point out that the government does not even address the issue that these are constitutional rights to present a defense of theory and to be represented by effective assistance of counsel yes that's why we starting the argument with this issue your honor is because it is a constitutional dimension argument which requires this court to be convinced that it's harmless beyond a reasonable doubt the government doesn't even acknowledge that in the race so but for the granting in part of the motion and limit it what would the judge says you may not argue anything about conspiracy household then counsel goes on defense counsel goes on to say to be clear your honor you are preclude ing me from arguing that it is unlikely in or impossible for plato to have engaged in a conspiracy with mr walker if you don't say to be clear that you care i can't argue anything about m walker or anyone else he just says mr he's agreeing and this is a defense counsel to make it clear you're precluding me from bringing this up about mr walker not on here you're telling us that the decision that the defense counsel rightfully construed as a prohibition against him arguing anything about conspiracy not just about with mr walker but with anybody else that's right judge and that's borne out by what happened in the argument by defending your you know what you're saying but it seems to me is that you're saying there's what it appears to me is that's not what the judge said but to prove that you think that that's what the judge asked you are you rely on how the defense attorney misinterpreted what the judge has to prove that you just said something else well and up to enter judge the judge should have said in ip to make it clear the judge should have said you may not argue that mr plato is not guilty of conspiring with mr walker because i found mr walker not guilty on route twenty nine looks that would be an improper argument we can see that that's not what the judge said i mean i was the government's motion and before it the court has granted you may not argue anything about conspiracy not even mention  being here which that reference to him is obviously a reference to mr walker yes and course the government takes a position that that reference was not him was not here in the courtroom but in the indictment and we're suggesting that that that's what would would leave it up to your honor's to decide what whether the judge said would i agree with what he said were could have been a little bit unclear but i also know i'm not too sure the defense counsel properly understood the ruling of the judge that that may be  confusion if you will on what the judge meant to him it was an unclear because he didn't argue that there wasn't a conspiracy with with anybody he didn't he didn't even go over the the elements of the count count one the coconspirator said that he conspired with plato to defraud n p c investors if you look at the citation to the record a trial of twenty nine fourteen where that is given as the authority for that you'll see that that's the prosecution's argument and we believe this is contested between the parties really the standard to review about whether a person is in a position of trust or not is to be really reviewed to know though by this court and we rely on k two thousand seven case at this court for that and if this court finds that mr plato was not in a position of trust with the note holders the inquiry stops burson but that said very clearly set out in by the note holders as in jolly bore not not in the characteristics of money put in trust the jolly court held that that thing that there was just a present of a company seeking capital that's what mr plato was doing he was seeking capital for his own production company he was not serving as an investment advisor therefore there was no position of trust with the borrower and lender and in in the if you had not that the judge had not added those two levels it would have changed b the guideline range by two levels and the last amount is also incorrect we have a disagreement with the government understand interview on that too we believe but this court stated in harris out of  captive for the the collateral which was pledged in each of these notes the notes provided the collateral for any any collateral debt that in peace the momentum production company had served could serve as collateral for any other note and the defense submitted a tax appraisal printed in two thousand and eleven as of two thousand and eleven pretty into two thousand and ten he just didn't do that so we rely on god out of this court that he should have now the guidelines technically say at the time of sentencing but the case law in his court says if you don't have something that that tells exactly what the property realist real property is worth at the time of sentencing you use your best estimate the trial judge can and we suggested this court that that tax appraisal price stark county tax appraiser is the most reasonable estimate at that time and we have the the government takes a position that m p c and implemented production somehow are not the same company they are the same company and if you was arrested in two thousand and eleven and nobody was operating those fields but that doesn't mean they weren't worth what the tax appraiser said they were and it should have been delayed the route what would have happened then is that if you agree with us on both of these we moved from two hundred ninety two hundred thirty five months to two hundred ninety three months which is what the trial judge used to be sentenced at the lower end would have moved it down to one hundred fifty one morning your honour's may please the court john ted if the united states was to plato raises numerous challenges to his convictions for mail fraud and conspiracy to commit mail fraud as well as a sentence i'll address them in the order that mr plato's counsel just addressed them in his opening fact an argument that's made in this brief that simply because mr walker was dismissed from the indictment that there cannot be a conviction on the conspiracy count no under the law of this circuit that's improper because in the indictment the government alleges that not only did mr plato conspire with mr walker but also individuals named in the named in the indictment and it's inaccurate for mr plato's counsel to describe the government's arguments solely as one throughout trial that mr walker was the only coconspirator but the theory of the character that he would conspired with mr wagner even though mr wagner was not part of the indictment yes your honor it was the theory of the case that mr wagner as well as mr walker were coconspirators and in fact was the government's theory an opening i would invite the court to consider record pages for ninety three four ninety two i sorry your honor also down it was in the opening on record pages for ninety and for ninety two or it talked about how mr wagner was the accountant of the company and how the two individuals worked together not only to create the promissory notes they met day to day in order to discuss the finances of the company and that mr wagner would be testifying about his involvement in the conspiracy it happened during trial during this to wagner's own testimony and this is another inaccuracy that was brought up during opening argument wagner on record page seven forty four and this is in our brief on page twenty six admitted that he quote participated in the mail fraud scheme that mr plato was engaged in and under this court's precedent united states for cisco are the admissions  that he was involved in a conspiracy are sufficient to support a conviction on the conspiracy count so it's inaccurate to say that mr wagner did not admit to conspiracy and that this was not an argument that was pursued by the government during trial  instruction out of context but it doesn't even appear apparent based on the record that it was taken out of context this was an instruction that specifically addressed mr walker and his dismissal from the case that was not an instruction not to argue conspiracy whatsoever and this was borne out in the party's own arguments during closing argument the government addressed the conspiracy count on record page twenty nine fourteen and stated that there was a conspiracy that mr wagner was the coconspirator and it did not draw from the district court or any sort of a comment from defense counsel now if the instruction had properly been no conspiracy can be discussed whatsoever it likely would have drawn some sort of rebuke from the district court there was no rebuke to the statement that conspirac discussed during the government's argument then in response during the defense counsel's argument defense counsel also addressed conspiracy and i would invite the court to consider our brief on page forty two as well as record pages twenty nine thirty three and thirty four where they talked about thirty three and thirty four now one more point on this instruction that's the supreme court is held in harry versus new york the district court has great latitude in limiting the scope of closing argument that's exactly what happened here this individual had been dismissed from the case district court indicated that it was going to give the jury a proper instruction that mr while walker is no longer in the case now if if the court had said anything more explicitly on this issue for example had told the jury mr walker is no longer in this case because i didn't find that there was sufficient evidence to convict him of conspiracy that would have resulted in even greater prejudice to mr plato because that would have been an indication to the jury that the court believed that there is insufficient evidence as to one defendant but that another defendant was still in the case because it believed that it will twenty nine motion was improper so the district court really issued what was the proper course of action here which is that the parties couldn't address walker and that they could only address the other potential conspirators in the case i e mr wagner moving on to mr plato second argument regarding the abuse of trust and hence meant mr zimmerman wants to argue that it's been over with you however i would invite the court to consider the very case that he claims for support which is united states versus right it's not brief which explicitly states that ever attended the fifth circuit bar association workshop whether he has a right i guess i'll go back and check the record on that so following his release from prison for for those convictions he immediately replied moments of production corporation mr wagner was his tax advisor and he had this idea of investing in defunct oil wells and they initially used some money i'm not sure they got the capital from to invest in there but due to mr plato self dealing the company was quickly in the red they had very little profit in that mr wagner and mr plato developed this idea that you use promissory notes to raise cash and it seems that they contacted a tax advisory group solicitations to potential investors and they also hired mr walker to use contacts that he had largely in florida from retirees who were looking for a little bit of a nest egg to invest their funds in and mr walker royals another employee of the company testified about how mr plato was the only individual that had checked signing authority mr wagner testified about how mr plato was essentially the one that was in control of the entire business and how we use that authority to write checks to indicate and in addition to that that case is largely irrelevant it has to do with the interpretation of the securities investor protection act in the context of brokerage firm insolvency it has nothing to do with the united states sentencing guidelines or the interpretation of an abus trust and has been this was a company where you had one man who was the head of the organization soliciting investments from thirty five individuals they were arms length deals even invited these people to a ranch at one point to see how the excuse me to the oil fields to see how the oil fields were doing this wasn't some sort of broad based thing with with massive amounts of stockholders moving to the argument regarding lawson now again mr play toward use that this is supposed to be a di lines meaning whether this property existed in the portfolio and p c and if it had value if it should be deducted the government conceded in its response to mr plato's objections that if indeed this property was owned by no means of production corporation and that should be reviewed for wasn't a legal question of the method of calculation no you are dispute about calculation though you are going to have fractional question about the amount yes it was conceded who would have been to the yes your honor i would invite the court to consider a district court docket entry to ninety which we cite in our brief in which the government responds to mr plato's objections and concedes that if this property did have a value that it should be deducted what more the controversy lies is whether or not m p c did even own this property and if it had any value and on the issue of whether or not it on this property if you can if you look back and forth of the briefs and the way this was litigated the law in this way was litigated here record up circs thirteen is the document that mr plato relies on to indicate that m p c owns this property they can see that in two thousand and seven these these properties were sold by moments of production corporation to another working as a ship and in the government's response to mr plato's objections we cite the indications that these properties were sold in two thousand and seven now in response he says ok we sold them when we bought them back they were wrong and record ups are thirteen is the documents with proves that we bought them back now if you look at record excerpt thirteen by the courts consider carefully there's no indication that a company called momentum production corporation repurchase these properties what it is is it's an assignment a bill of sale between a company called  though that's in the record excerpt which is the only note that contains the collateral there's no mention of a company called m p c energy incorporated being obligated to pay the debts of momentum production corp in fact the government wasn't even aware of those properties existed until it was mentioned in the response nor is there any indication as the government pointed out in its response that that any party had attempted to civilly recoup losses from this m p c energy company and mr plato was a sophisticated fraudster we can see that based on the fact that this is his fourth separate fraud conviction and it appears apparent that it's just as likely that momentum production corporation of these properties they're richer plato brought them back under the corporate name m p c energy incorporated in order to insulate them from any potential collection and therefore they were not the collateral of momentum production corp and could not be docked so that's one of our arguments as to why it was proper for the district  not to deduct this value the second argument is that even if you assume there's some an established relationship between m p c energy and momentum production corporation the government submitted subsequent evidence which reviewed under we're ever the district court was was allowed to consider and to credit the momentum production corporation or excuse me that these properties had no value that indicated that there was no production coming out of these wells and mr plat argues that it's not as reliable that it's not as valuable and of an estimate that's an improper consideration before intel or do you want to clear earth you the district court was privy as being closer to the facts to consider these two documents and to credit one of the over the other guest it having no value your honour's unless there are any further questions on any of the other issues that the parties raised we would concede the remainder of our time thank you i think we've already explained it was in our brief and i mentioned earlier there's a difference or tween not producing because nobody is operating those fields and whether those fields have value and leave it at that they clearly have value and the estimate that the trial court could have used that was close in time to the sentencing was to twenty eleven document that we have a record excerpt number eleven that shows it to be in excess of a million dollars the trial judge didn't make any finding of fact who owned or didn't own that that that property so that speculation there the record actually thirteen shows the actual document this property was bought and sold between two same parties and with two thousand and seven and then they bought it back in two thousand and ten and you can see the bottom that it says return to momentum production corporation questions of the court was whether or not he personally had anything to do with marketing these he did not personally ever he met with one note holder prior to a note being bought but they didn't discuss purchasing it which social function in florida the the the only time that he saw the note holders was when there was a organized trip that came back to corpus christi so that they could go on a field trip if you will to observe the wells that that they had invested in and with that regard to them being elderly investors they weren't very sophisticated i point out to you that for that testified we say this in our brief four of them had a net worth of in excess of a million dollars on one hand it actually a net worth in excess of six million dollars two of them had m b a degrees one graduate from harvard and one graduate from tulane not your average and i say this because i'm seventy two elderly investor who's not very sophisticated i think that that's an incorrect characterization of the people who bought those notes are lent that money via the notes i think when counsel of mr walker because of the fact that there was no intent to defraud not that there's no conspiracy with mr walker because the judge acquitted him that had been wrong we all know that but that's not what the trial counsel interpreted as and he never argued that there was no conspiracy with mr walker which he should have been allowed to do that was the defense of theory with regard to mr and mr wagner and think counsel down to the two times in an argument that the word conspiracy was used and it was and we got that mention in our briefing cited to the record there was that was not an argument that mr wagner was not in a conspiracy with mister mr plato what he said was you heard all they said testimony and now the government wants you to have an analogy that there was some unspoken conspiracy with mr w that that's not arguing the defensive theory with regard in our view that's not a full blown attack on the the conspiracy count that he didn't conspire with anyone because he had no intent to defraud that