in january of two thousand and eleven my client a businessman who'd never even been charged with a crime much less convicted of what was charged in what seems to be an afterthought prosecution in a conspiracy case and a claim that he had attempted to defraud the michigan government out of the better part of ten million dollars this had many earmarks of a political prosecution from the beginning because the attorney general's office had looked at the same set of facts that ultimately led them to act previously and partly at the urging of the director of the film office who was the suppose a victim who said this is nothing this is political this is nonsense this is the mackinaw center stirring everybody up the a g at first had said we're not going to do anything about this but the political pressure got greater the mackinaw center beat the drum louder the local newspapers got involved and the attorney general found himself in the middle of a primary race for the gubernatorial election that year it seems like stunning coincidence that the day before that primary election  before a charge was issued against the codefendant without the attorney general following their own procedures for writing up a request for a warrant which they call a request to initiate litigation there was none on the codefendant  popped up now they had time to issue a press release beating the chest of the attorney general and the governor for protecting the taxpayers from this savage action by these wrongful people but they didn't have time to to get a request for a warrant done according to their own procedures then they get around to my client a couple of months later they prepare one of these requests for to initiate litigation but they don't do anything with it the kind of falls through the cracks and later they say well it was out of deference to the fact we're going to change of administrations who cares unless it's a political issue if it's if it's a law enforcement issue what difference does it make that you might several months later be having another attorney general in there but the real problem here isn't i guess i don't follow the political motivation but it's where was the arrest warrant issued after shooting became the attorney general after cox i mean the political things you're talking about is when cox was the attorney general but nothing happened to your client you're exactly right and so was i that was going to follow your argument i guess that was going to be manic sense what exam with peters we've got to do something about buchanan because if one did it the other did it that's when they resurrected the prosecution against  but that's what started the ball rolling and then they got caught up in their own momentum what happened in speculation well it would be were it not for the fact that the facts themselves and i was kind of taken by the fact that this press release will answer the question the court asked what does this have to do with my client my client was in a situation where when defendant motley went in to get the warrant request he represented basically four things he said buchanan told the appraiser you will come up with an appraisal in excess of forty million dollars the only record evidence on that point was the appraiser who had no criminal background he was  businessman specifically denying under oath that it had happened however mr motley later in his deposition in this case will the reason why i felt comfortable in going in and saying exactly the opposite as to what the record evidence was was because he had told me in a private conversation the day before that that's what occurred ok wouldn't one have thought that if he was sitting and he was in that sworn deposition and the  appraiser says i was not influenced and i would not have allowed myself to be influenced that even then at least at that point mr motley would have prepared a memorandum saying this is not what he told me he had a very complete file loaded with his investigative notes nothing on that but even more telling is we have the testimony from mr motley as to what it was that he based this on and what he ultimately said was that all that mr adams had told him was that  started out by talking about amazing coincidences yes the same way well but here's the thing there were three other appraisals that had come in and even higher figures that mr motley never even bother to look at so yes is it a coincidence or more than forty i think is a film studio using an income approach yes in fact if what happened alternately was when the case was thrown out a mr rolleston in the attorney general's office was given the task of advising the attorney general should we appeal and he said well no and among the reasons that he gave for not appealing is that for every appraiser who'd say it was worth less there was at least one who would say it was worth more sometimes upwards of fifty five or sixty million dollars and they dropped that theory for that reason but this is one of the things that mr motley is telling the issuing magistrate is a reason why a fraud has been committed the second thing that he tells them is that mr peters and mr buchanan working together because this was a conspiracy had been repeatedly telling the film office don't worry the sale has taken place this sale has taken place don't worry it's done and the district court even found that the purchase agreement which is loaded with contingency saying what it will take including the issuance of the tax credits in order to enable the sale everybody saying that that meant that the sale had already been done we have peter's the codefendant and buchanan is being charged because of what peters did it's conspiracy we have peter saying to the film office would you hurry up and issue the credits because we can't close until you do and what and they go back and forth get e mails between this is helpful but maybe you could put this stuff in the context of you know so the inquiry is whether there was probable cause and it's qualified immunity so you have to show the establish that this kind of fact pattern did not creep probably cause so are there cases that you can point to where we look at them we go boy the government lawyer should have known this is that's that's the basic in here we are that's what we're supposed to be doing i've not found a case on similar facts i have and that's that's that's usually a really significant question for us it is the cold lightly and post personal liability and government law enforcement when they violated something in retrospect they may have been wrong but that's in retrospect if the question is at the time they acted was there something out there that should have pointed yes i have seen that said we can't do that yes and here's the here's what it was i started to go through the several things that mr motley said but i want to jump ahead to the most important thing the statute upon which they were prosecuting both of these men requires that there be not just a false pretense given to these supposed victim but an intent to defraud the person at the end the best example i can give is the example in the people versus mccoy case which is in the notes to the standard jury instruction on what it takes to prove false pretenses in the mccoy case the defendant was the president of a company that needed to buy certain equipment that he happened to own in his personal capacity he knew because of the apparent conflict of interest that he wouldn't be able to get away with saying how about if i sell it to you so he turned the quitman over to a company that he created with a friend of his funneled the equipment back through that company to the company of which he was the president got caught at it and got prosecuted and convicted the court of appeals reversed the conviction by saying it may be an ethical and they were cited by the way supreme court authority people versus jury case this may be unethical it may be sleazy it may be a lot of things but there was no intent to deprive the company of its just do it paid for equipment it got equipment that is not a convicted bill offense we cited other cases i think on page twenty nine and thirty of our brief that deal with exactly the same point of law so you've got a standard jury instruction that says that it cites to the cases that say that and i've got and mr motley in their testimony both saying we didn't care about that every witness that i deposed in this case let me ask you this question so you are saying are you saying that there is no evidence honor because the false pretense statute has several elements and one of them is the use of a false pretense they had some reasonable suspicion that there were false pretenses where the read that one of the things that point in your view to reasonable suspicion i miss dad you're not talking probable cause right now but just using your words what what do you know or what are you aware of that they knew they had in their knowledge base before they went for that war while the war simple one of the things that they did relatively early on was to speak to my clients father father and son were at war by then and father was being sued by contractors who had done work on this project to get it ready to be a film studio so at that point father is pushing all of the bad stuff down hill to the sun and saying he had no authority to act for me i anything they didn't have a right now tell me what else that they have that was the main thing in fact i can't think of anything else that they had then to go on they claimed to have  representations to the film office of the sale had already taken place i contend they did not well you can ten they did not but they could yes the trouble is there's no evidence that they did and in fact the the e mails back and forth between the film office and the defendants shows conclusively that there was no argument that there had been any repeated representation of sale in fact mr peters volunteered up being asked we can't sell because dollars worth of improvements had been done on the building because the film director came to the conclusion contrary to the advice she got from treasury at the beginning that you couldn't use the acquisition cost of the building as part of the of the base investment it out there are some fishy about about the fact that the improvements hadn't been done they did not doubt whether or not there had been a sale because mr peters told them we can't sell we can't complete the transaction it's in escrow we can't get it out of escrow until the tax credits are approved there was no misleading there so the the main thing that was missing in this case for the prosecution was any evidence of an intent to do to deprive the state of michigan anything if you read mccoy and read what happened here and read every admission every witness who might deposed every single one said we never thought they were to take the money and go to rio that's the question i asked them did you think they were just going to take the money and go to rio you knew they were going to put it back into the studio and run it as a studio didn't you oh yeah but if the if there was enough evidence that they were trying to inflate values inflating values allows you to get a better tax credit than you're entitled to it's those things for which i think there is some probable cause that allowed the inference of intent to defraud you not to jump to were taking money from the treasury and running the caribbean you're allowed to start with a more basic points and it seems like there was some evidence on that and i get your point about inten fraud i don't think there isn't direct evidence of that i think you're right about it but that's not what you need here it's it's inferences from other things and it's just probable cause probable cause it's not it's below fifty percent and i did but on that point of inflating the value remember we've got three different appraisers saying that if you use it as a film studio you are into stratospheric dollars because of the cash flows that you can get on them there was no appraisal that ever said otherwise ever  you've heard our questions let's let hear from them thank you outside of things you've got three minutes or a bottle we'll make sure you get a chance to answer thank you very much  thank you and rockwood from the department michigan attorney general mr joe frederick is with me today and i think you for having me this is not a case where there is wrongdoing hiding of evidence or some improper motive this is a case where there's a complex and fluid scheme to defraud where the where the defendant or the well it was the defense in this case where the plaintiff was  constantly trying to mislead the film office why don't you talk about what the the plaintiffs who were defendants were aware ok when they put in the affidavit ok thought the warrant i think that would be the relevant there's a wealth of it so i'll answer your question but it'll take me a moment but that's what i want i think that's most important that other information that doesn't fair fair question mr molly had among other things in his thousands of pages the boss or day affidavit from best to worst just hit us with the really key stuff the so much there's the interviews of the witnesses who were involved who said it was a fraud there's deposition and we went through all the things that she was receiving or not receiving and at the end of that the plaintiffs council maybe subconsciously or otherwise said on the record or them the way you're talking this last thing you make it sound like my client so dishonest and she said yeah i thought before the age even got involved there was fraud here and she used the word fraud so i use that word but you're have the purchase agreement that they did early on when the plaintiff admits he did not have authority to sell that was clearly to lead the film office to believe there was a sale in fact without that they couldn't even do the application because the statute the film tax credits that as it existed at that time require that you be the owner of the property you have m motley meeting with mr adams several times and during one of those conversations mr adams indicates that the plaintiff and i used sr and jr because they both have the same name father and son were junior told him as to what he wanted in the appraisal the appraisal was inconsistent with public records the appraisal was inconsistent with two recent appraisals that mr adams had done just a couple years earlier where he did the whole property for like six million and now they're just doing two units and all of a sudden it's worth forty million it's never been transferred into a studio and in those it's interesting because in those very recent appraisals that mr adams did he has you know footnotes that appraise s do and they have principles that they follow and he says in those it would not be appropriate to use a pre placed medallion for this property now all of a sudden junior comes along and they whip up something in a week which it's another thing if i take a property that's been listed for a million that i bought for four million that i've had appraise for six million and i represent to you it's been transferred into a film studio and we've invested forty million dollars and when they're top end of the film office they're talking about capital outlays in what they put into it but at the same time they say the film office where you can look at the the invoices for what we've put into it more than keep that information from you and then they also reference in their brief  all along we want to do an appraisal well yet if you look at the film office e mails and there are thousands of e mails that mr motley had you see that the film office was constantly pushing and pushing to get its own appraisal and they said we need this information from you so that we can get the appraiser informed we want to do an appraisal we want to see what you put into this we want to know that what you're saying is true and they wouldn't give it to you so i am summarizing in fairly short order  some of the key points your honor has there as set forth in our brief mr motley probably had a hundred different pieces of evidence that illustrated this important for the record to know what they are so i think it was important and i hope i've hit enough of order to get it and it's it's not unlike for example if we were to say to a bank robber on trial in the brink up or gets up on the stand he says what i was going to do good deeds with this money what doesn't matter if you're going to do good deeds with the money that you rob you still rob the money and what the court the district or pointed out in footnote fourteen point if this is page thirty four of the court's opinion plaintiff could have intended to defraud the michigan film office in violation of the statute even if you ultimately intended to intended to deliver a film studio by securing the tax credit by unlawful means in derogation of the statute by fossil finding information by inflating the tax credit in fact he should have even gotten a tax credit because unless he had a forty million dollar investment you don't get a ten million dollar credit the most you can get is twenty five percent and you have to actually put the money in it's not like you can go to wal mart and say give me the coupon for the rebate but i'm never going to put the money in so they never put the money in to even get that the tax credit loan anything near forty million dollars that would go back to property developers that try to do this all the time they may try to do this sometimes your honor but i think what the real such a wealth of opinion or i mean a wealth of information showing that he did have probable cause interesting there's an admission that they had reasonable suspicion yes or thought ma'am and context that distinction is not all that great and so i think  there's no reasonable person requesting the arrest warrant would think that they have probable cause when it's already conceded that they have enough reasonable suspicion but a reasonable person would not think that this was enough for probable cause i find that interesting in another very interesting point that dovetails with that your honor is you know you look at the information that mr motley had and he didn't ignore anything by the way he went to the seniors a very experienced well known attorney and he and his attorney drafted those and he said repeatedly in this is a transcript because mr senior actually taped his conversation with mr motley and then it was transcribed so he wasn't just go meet with mr miley's got a tape very very detail person and he said junior never had authority to sell even after my interest went into escrow jr never took a position alpinist he never had the authority he never reached the position he kept for saying that i'm the one that helped draft these i'm the attorney look at these documents he never had the authority so what does mr motley do to see ignore that no he then turns to the plaintiff and says tell me your side of the story the plaintiffs i'm going to talk to you and yet in this case now the plan it comes in after the fact and said i want to give my spin on the information i want to characterize the testimony i want to say what you should have thought when none of that was available to mr motley because of plaintiff's fall so i think that's what  say because the plaintiffs fault because plaintiff refused to give that information to mr motley to come in after the fact and say people's exercise their fifth amendment rights against them true but if you're going to come in afterwards and say you as the investigator should have known that my spin was this you should have known my care zation was this and you should have understood that i would have argued this how would i know that if you won't tell me i go to all the authors i go to all the witnesses and getting back to your point your honor you have mr boster day who was involved who clearly in his interview with mr motley called it deception you have missed lockwood who said it was deception you have missed law who said it was fraud and you have senior in senior goes on and on and they say we should belie sr well sr was credible for all purposes that we know there was nothing to show that he deceived anybody and in fact there's never been any finding that he had any role in any section and what senior said that was interesting on the value and this is in the transcript of seniors interview he said nobody was going to sell that shell building for forty million dollars you're not fooling anybody with that this is what he tells mr mali as to the alleged all of that before yeah one he told that in july before before even mr peters was head of war and he told them this is july twenty fourth two thousand and ten for the record in its underlying page four four three one of the record on the underlying record and he says  to that forty one million dollar value quote no one is that dumb and quote and then he says the state did what they should have done and then quote the state isn't stupid to believe the forty million dollar value so he sophisticated attorney who owns the property who's drafted the documents who has all the financials who is involved with the purchase of this and he says there's nowhere near forty million dollars for value all of this wealth of information that mr motley has this isn't a case where we're going in tears were skinny on one or two pieces of evidence this is where mr motley has so much evidence literally i need a wheelbarrow to bring it in though so you're saying you don't look to the point the time right which would support issues of the war as opposed to the later point in time where the record was developed to testimony other me yes you have to look at what the officer had available to him or her and what they could have reason to believe in was there any primer facia evidence and here i would submit there was more than prime official evidence and to say well later some court said there wasn't probable cause or if the defendant were on trial later the defend it was found innocent if that were the standard under section one thousand nine hundred three would just say well everybody was found innocent automatically gets a judgment against the government that's not what it says so you have to have some wrongdoing here and some some include going out talking to people interviewing people repeatedly calling people this is not in a situation where somebody was you know fooling around with evidence where there was some kind of animists of some sort it's just not there you question so you are in the list so go ahead thank you mr mets stated in defending why he wasn't looking at the elements of the charge why he didn't feel constrained to figure out whether there was an inten said i was just the investigator that's in his testimony that i just investigated fraud is usually circumstantial and you look at the evidence you very rarely have direct evidence where somebody will admit it they're guilty intent so you look at all the evidence and can you infer reasonably infer intent based upon the circumstantial evidence and they say yes they could and speaking to obviously the magistrate when you found no probable so the point that i was the investigation i thought he reviewed the evidence and determined or gave his approval to seek the arrest warrant i did realize that mets as the  actually went out investigate this that he did he was taking depositions he he sat in on the on the dog at his deposition he did the accounting deposition mr weiss all by himself he did the king the deposition who was the real estate broker all by himself and every subpoena he issued was intitled the investigative subpoena and then as i indicated a moment ago when i was pressing him why were you looking to see if you have probable cause on the intent element he said that wasn't my job my job was to investigate the facts and report them to my report them to a superior he did so in his request to initiate litigation he has two sections in it one i'm asking for a warrant two facts and every other word that's in his document is under the heading facts he makes no analysis he doesn't say why he's saying what he's saying he just says here are the facts boom boom boom he had no no role in the decision to initiate none he was told on day one here's the charger going to investigate his superiors told an e mail your charge you're investigating raises the beginnings of the other side could have a chance to respond to her in a time i'm sorry rather say i mean you didn't know ahead of time how much time yeah i did but the questions threw me off  and all i can tell you just in the briefs i mean you're right i didn't raise it in argument it is all over the briefs on this issue i think we're going to ok all right well your time's go go ahead use your time why you want to use it the other the other point that i would make is that if if somebody feels they have plenty of good evidence why would they give bad evidence the record shows that mr motley misrepresented what the appraiser had told him had no good explanation for why he had written a memorandum if he was going to be impeaching the appraiser and misrepresented the other facts concerning these repeated sales if you have good stuff you don't use bad stuff we're claiming that he misrepresented intentionally in the brief covers that as well as it is we think we can you write a thank you we think you are thank you mr wood we appreciate your briefs your written submissions your arguments and thanks for helping resolving the case in the answering questions the case will be submitted