rain at trial and of course also on appeal and i have to say this is probably the most issues i've ever had on an appeal i'm looking at six so i try to go through them quickly and whatever drew the courts focus  know well you know you you keep all of the issues you've breathed so if you want to focus on some and not others that's perfectly fine too but it's your choice yes i'm going to try to do that i'm going to start with sufficiency of the evidence and really focus on the substantive counts because never before have i been in a trial where the only proof of a substantive count is buried in a file somewhere that nobody ever talked about in trial and nobody ever testified so when you're looking at sufficiency of the evident count three concerned a wire transfer of one hundred seventy one thousand dollars there was absolutely no testimony nobody ever mentioned this transaction in trial the first time we hear about it is buried in a bunch of business records that were moved into trial there is a sheet that shows a wire transfer that's it that's your only proof of that count the jury had they there's exhibits didn't they said they had evidence of the w while the wire transfer may have happened but in connection with what and where is the fraud where's the proof that that wire transfer had anything to do with a fraudulent transaction because nobody specifically discussed that property or why that wire transfer was made or what the purpose of the wire transfer so there's no testimony in the record at all all you have is a document showing a wire transfer was made and the wire transfer in connection with  but the wire transfer was between a bank and a title company though that is all we know about it does it reference a person in a bar or a low number or anything like that or is just a sheet of paper that says going from one to another  letter it's just a sheet of paper showing money going from the bank to the title company was that piece of paper in a loan file i believe it was either in the title companies file or the bank's  really related to a specific law correct yes relating to a specific transaction not one of the transactions discussed by any of the witnesses that the government exhibit three which is the incoming wire detail says originated beneficiary info and it lists mr hussein's name as to that wire yes was it the how didn't he didn't he testify about i thought he testified about that wire detail it's one hundred sixty nine thousand seven hundred seventy eight dollars and eighty cents that's a different wire that's a different wire transfer this is one hundred seventy one thousand in count three we have the same kind of situation in count six which is it alleges the miami dade clerk received a u p s delivery from cendant title of a mortgage indeed once again there's no testimony all we have  is there's a real estate file admitted into evidence and in that file there's a receipt that somebody mailed documents but there's no testimony from the clerk there's no clerks records the receipt itself doesn't say what documents were maile and nobody testified about this transaction so it's the same sort of thing where there's a document hidden a piece of paper hidden in a file files moved in wholesale as a business record and nobody ever talks about it there was no testimony about what was mailed now there's no testimony at all they pull out the sheet of paper in closing and say hey this is what this is the that's your evidence frankly what went on at sentencing isn't much different than this but we had a lot of this kind of is what went on in the trial there's just not prove that you object to the introduction of these files which you believe contend that these wire transfer documents were hidden no they were admitted as business records and they are business records they were records of the bank or the records of the total company admitted his business records and they had the affidavit stude met them so couldn't the jury can through those and piece together the history of these transactions including where the wires for that or the transfers using commercial carriers came in and therefore isn't this evidence sufficient to withstand the conviction maybe in the forty five minutes they were out they could  october think they did and even if you don't know do you see it where's the evidence of fraud where are we getting fraud in this transaction well but that the transaction doesn't have to be fraudulent right you can have you can have a mailing that is a substantive wire or mail fraud charge that in and of itself is not fraudulent that you're using the mails or the wires in furtherance of a fraudulent scheme is that not the way the statutory scheme works yes so where is the proof that that wire or that that mailing receipt was done in connection with some fraud i agree with you the mailing itself isn't fraudulent but where is testimony that those two events took place in connection with a fraud you'd need someone to testify about the transaction and there's no testimony about it was another issue i raised here is concern to jury instructions a pinkerton instruction and a deliberate ignorance instruction both of which i claimed undermined the intent to defraud because first of all with deliberate ignorance nobody was there's no evidence of deliberate ignorance in this case the claim all along is that mr root marine had actual knowledge he's the mastermind of this scheme and he knew everything that was going on so there's no testimony that supports the giving of a deliberate ignorance instruction what the government was hoping to argue unfortunately i picked up on it and brought it up to the judge and he prevented them all they want to argue that because they put these witnesses on  year and mr hussein mr khan people who had pled guilty to the frauds in this case they wanted the jury to draw the conclusion that those people pled guilty to fraud and therefore m has to be guilty of the fraud as well because they've already been pled and convicted of the fraud so he must be guilty of the fraud that's the connection they wanted the jury to drop when they started saying something that picked  that i drove to the judge's attention and he said well they're not going to be allowed to argue that are you going to intend to argue that the government says well i guess we won't now judge that you told us we can't these instructions were intended to lead the jury in that direction to say we don't care if mr root marine had an intent to defraud and keep in mind the whole defense was built on lack of intent to defraud that he put together this business plan and we argue it's a bad business plan my understanding of the evidence at the trial was that that he knew the borrowers were going to apply for a loan it's that he provided funding for them to make a down payment in that they did in fact apply for loans not having any and personal funds in the transactions and that there was then were presented to lenders as if the person me plying for the loan was indeed the person who in fact was going to happy responsible for the for the  property but i think what you've said is that mr rooper in the contention was that he knew that that's what the scheme was and that he knew that lenders were going to be misled with respect to who was actually applying for the loan actually his position was it didn't matter who was putting up the money because this particular type of loan the only thing the lender looked to was the credit score and the but the ones pretty well established that it's not the lenders responsibility to determine what it is that they're going to look at that they have a right to rely upon the submission of information that's true in the mr rooper in knew that it wasn't i've i disagree that that's what the law requires when we get into materiality i think it needs to be something that's material to the loan for us to sit here and say lenders have absolutely no responsibility from the money they lend that you can submit anything to them and they have absolutely no obligation to check anything do anything or perform any kind of analysis in making these loans there are courts that have said no that's reckless conduct on the part of the big not negligent but reckless and that is not what we are going to allow our banks to do in this particular case they were paying higher interest rates to get what they called low document loans which meant the only think the bank cared about was the credit score and when you looked at mr root i looked for that evidence of the bank only cared about the credit score and i couldn't find that in the dana admitted to that in his testimony i don't see where he did can you give me a cite for that you don't have to read it to me in the time you have remaining but just let me have the cite because i'm sure it's in that that was part of our issue with him he didn't do it he didn't say the bank relied only on the credit scores i couldn't find that is testimony i'm pretty sure he  did i'm looking at well anyway if you can find it you can bring that up in rebuttal thank you brief and there was other testimony i think testified also to the fact that these loans were based on credit scores and that's why the spreadsheets she provided to mr rubin a marine dealt only with credit scores that's the only information they had on their not income or anything else and so the thought was these other numbers really didn't matter and if i think what she was doing frankly was if she didn't have the information she just put something in because she figured it didn't matter anyway because that's not what the bank was looking at the bank was looking at the credit score and that's what these loans were based on i only have less than two minutes i really want to draw the court's attention to well three that i considered major were first of all failing to disclose the identity of the agent just because somebody is an undercover agent doesn't mean that that's sufficient basis to fail to disclose who they and i think the case law is overwhelming in that regard i've given you the cases in my brief in that issue also as to fraud loss there was no evidence presented there is mr childers and his spreadsheets with no documentation to back up his spreadsheets and cross of him i pointed out numerous discrepancies in inconsistency which are laid out in my brief as to why his spreadsheets were inaccurate and overstated the amount of the fraud loss there's also a two level wasn't there didn't the pre sentence investigation report indicate that there were over forty odd million dollars in loans and that twenty something million of those loans remained unpaid the only information the probation officer had was based on mr childers spreadsheets and the government conceded that at sentencing that the only information the government presented to probation and the only information they ha childers spreadsheets well there were one hundred eighty one homes eighty straw buyers and the loans totaled forty six million dollars was that was largely undisputed right right so the question is how much the banks suffered in loss from those forty six million dollars in loans wrecked ok and that's where we got into fair market value verses some of these you know were distressed properties some of them were tax or to gifts and that value  used and therefore you know it was like that one was a seventy nine hundred dollars tax certificate and that was used to account for how much the bank actually got when in fact these were properties that were being flipped that were being sold at a discount by  the government proved fraud in this case by both direct and circumstantial evidence and of course fraud is that's that's the beating heart of any any fraud case the beating heart of the fraud is the misrepresentations and laws to the bank that people tell to try to make the bank part with its money and in this case counts three and six the substantive counts were the two fraud counts and government exhibit three was all of the loan documents that pertain to a particular house north northeast twenty six place in homestead you know one of two jack government exhibit six was all the documents that pertain to another house which was northeast for st homestead unit two zero five is from all hosain testified as to both those houses he was the straw buyer he authenticated all the documents in government exhibit three and government exhibit six he said these documents are everything that i originated in connection with the loans that were fraudulent so i mean this is very clear from my brief i just i'm aghast that  there was being representations made that there was no evidence there was no testimony because hussein was the witness you testified about these transactions well let's talk about one of them i think a document in a loan file with a wire transfer the chances are pretty good that you can trace that wire to the loan and you can explain circumstantially or directly why that loan or that wire transfer was in further of fraud jury so i don't think you have any issues there and i speak only for myself but miss colder says that with regards to one of the substantive counts which was based on  mailing to the clerk of court that there was no testimony concerning what was mailed is that contention correct i don't think so if you what was what was mailed what was mailed was  deed some form of deed to the county appraiser's office and that deed had all of had hud one of the uniform residential loan application attached to it so it was clear from i think it was  a fax or a letter to the to the county court saying this is the documentation in connection with this property and it says on it received by mail and of course like i said hosain authenticated those documents he said this is the these are the documents that i originated in connection with this transfer and action so it's not like the jury had he made he mailed it or somebody else mailed it somebody else mailed it how could he authenticated then because he's the one there were his documents for that house that he bought he bought at least two houses from roop narain one was the subject of of count three one was the subject of count six the count three documents involved a wire transfer of money to a closing agent the documents in count six involved a document that was mailed to the county appraisers office concerning the property that he bought on connection with those two loans was there any objection to the admission of that evidence at the to give a quick summary of the loan application process and because i want to be clear about what the government proved with respect to the fraud every loan application process concern consists of two primary such documents the hud one which is a government form the settlement statement itemizes the cost of the borrower ok the evidence the hud one contains one of the biggest and most materialize in this case and that's cash from borrow and hosain testified this is the hud one for my transactions i didn't put down this cash from borrower even though it says it on the hood one route noreen put down the cash downpayment on my behalf and the the evidence showed that in every case rubin arena reviews the hud ones now remember the hard ones is part of the loan application process because the bank and this is d e three fifty nine and sixty four the bank looks at the hud ones to make its loan decision so that's a material document to the bank all the hood ones have cash from borrower on it that's a lie in every case because root noreen has already told  straw buyers don't worry about the cash to close i'll put that down for you on that basis alone the fact that route noreen reviewed the hud once for every transaction in this case the that's how he got his little charges a little color chart which with all his figures on it he got that information from the hud ones which he reviewed in every case on that basis alone the evidence was sufficient to prove his fraud as far as the second set of that's material in every mortgage loan application and you've got your it's the uniform residential loan application it's another standard government form fannie mae one zero zero three ok the government approved the uniform residential loan applications by circumstantial evidence because there was no direct evidence that route noreen actually reviewed the uniform residential loan applications what he did according to  hired people to be processors he pay a bunch of young women who work for century stari pay them a thousand dollars a week they process the uniform residential loan applications but as hosain testified all i gave him was my source security number and credit score i never gave anybody any other information and yet i'm looking at this uniform resource loan application it's as my income for the month was fifteen thousand dollars a month that's not true my cash to close which is also on that twenty one thousand dollars that's not true my liquid assets eighty seven thousand dollars that's not true nobody asked me about that but yeah it ended up on the resort uniform  residential loan applications what is your are what's the government's argument as to the appropriateness of the deliberate indifference charge i'm pretty sure in my and sit aeration that the government put that in because as to the two substantive counts there is no direct evidence that brute noreen reviewed the uniform residential loan applications he let other people do that for him even though he ran the operation and he everybody reported to him took their direction from him there was no evidence that he actually reviewed the uniform residential loan applications with with those materialize on it so where's your theory that in the charge conference that the government was permitted to say there are two people there are two parts of these transactions one of which we believe he knew about and yes he didn't hear about and more than that there was evidence that he i did not want his name on any of the corporation documents the for the companies that he ran so that he could later  say i had nothing to do with this this was all done without my knowledge by the people that work for me well that's deliberate ignorance if you're if you're going to say i'm not guilty of the substantive counts because other people did it and i wasn't there and you have proof that he didn't he told people don't put my name on the corporate documents that raises an argument that he deliberately closed his eyes to the wrongdoings of the people who work for him but again i mean this is just to me this is an academic argument because it doesn't matter the law your law the eleventh circuit law says that if you have evidence of actual knowledge which he did in this case and if the court properly instructs on then it doesn't matter if the core also instructed on deliberate ignorance because that's harmless air and that's it but that's the whole problem mr de rosa that if if our view is that it's always harmless then you always give a deliberate ignorance instruction no matter what the circumstances and that can't be right correct again it can't be that they're giving him a deliberate ignorance instruction is ok because it's always harmless error right that can't be the reason i think that's one of the things i think that's presumes that there is some evidence to to give the deliberate ignorance struction of what i'm arguing is there was evidence the judge didn't improperly give the instruction because there was evidence that he deliberately closed his eyes to crimes that were committed by the people that work for him but wasn't he giving the cash to borrow or as you said how could he not no well i mean that's that's just one of the materialized cash to borrowers that you said it was one of the critical yes but if he knew that because he was the one providing the cash how could it be deliberate ignace as opposed to actual knowledge is your only well you're talking about one material live in if that's where it stops fine we win but you know we had other things as well we had other materialize that we put on evidence of and those weren't so clear like i said those were based on circumstantial evidence the lies around in uniform residential loan applications as to those it seems to me that the deliberate ignorance struction was appropriate not necessarily to the to the to the law about cash from from borrower on the hard ones because that was proved by direct evidence know please go ahead and just going back to to having applied for loans on my own property that we've bought usually the application is what starts the process and you submit that to the lender and then it's the hud one is prepared in connection with the closing as well as what you're saying is there are two events what one event is the applications which he allowed to go forward even even though he was providing the down payment and didn't care much about them because he knew that he had to have that predicate to the process but that he didn't know what was on that one i'm saying that the one is also part of the loan application process and that's why i gave you the cite d e three fifty nine and sixty four the testimony shows that the lender reviews the hud one before making a decision whether or not to disburse any money to the borrower so it's not the uniform residential on occasion is not the only set of documents that's necessary to a real straightened transaction it's not the only set of documents that the lender looks at before deciding whether or not to lend money at that point if a lender got an application that disclose that i'm a borrower but i don't intend to put any of my own money in the money that's being put even though he didn't approve hussein's loans and self personally he worked at the same bank he was an underwriter and he testified that this is the kind of things banks look at we look at stated income we look at liquid assets we look at cash the borrower the only thing is with the uniform residential on up patients the government didn't have the direct evidence that route marine knew what was on there as opposed to the hard ones so that you know that made our case a little harder i think i've gotten lost in i'm not answer your question i'm sorry about that your honor but i'm going to go to a different question i'm not saying i was lost i would never admit that but i got lost why didn't this is just from a district court perspective why did why did the government not want to disclose the undercover agents name well that the government stated reason and its motion  a was twofold one we have security concerns i don't really know what kind of concert security concerns you can have in a mortgage fraud case i thought the better reason was that we have ongoing these agents are involved in ongoing investigations that will be compromised if their true identity is is is given where they're working undercover capacities yes and they were working not only in this case but in other cases so not only did the government not want to compromise the ongoing case but they also said that they didn't want to compromise future cases on that same score let's assume that that is a valid reason for not having them disclose their names at trial so i'll assume that for purposes of my question why would the government not turn the true name over to the defense so the defense could do its own investigation there are times when the government know mistake human beings make mistakes don't turn over everything that's out there because they don't know that something's out there and the defense figures it out because it does its own investigation why why would the defense not get the name under some sort of protective order of the agent's true names i can't imagine i just i can't i mean i'm not a big fan of the government's action in this case i don't think it was as well thought out as it could have been we even talked about in preparing for this case you know giving them the name now you know my my gut reaction is the government just doesn't want to trust the defense with that kind of information because they figure well if we give out the name then that's just one more person who can it out on the open market but you can extend that argument to say well we don't trust him with the underlying evidence either so he won't give that like i said this isn't the kind of practice i would like to see done in these kind of cases but again this is a moot question here this is an academic argument this was invited error your law says that you can't even review cases where it's invited error and to the extent that we're talking about why didn't the defense who  invited the or would that error the defense attorney because she said we we don't care if they testify as an as an alias he can tell us right from the jury is an alias right but it's one is named for the record right they were right so the testimony without the real name may have been invited or may have been waived but not the disclosure of the name to the defendant's right about that then the concern in this particular case is purely hypothetical because even if he lies in the future on another case it's not going to make any difference to this case become a what if he had lied before what if this agent yes i'm going to play out the parade of horribles so what if this agent had lied before had been the subject of an internal affairs investigation that found some level of misconduct right and the government by mistake no ill will doesn't turn that over to points on that and then trial goes forward the defense doesn't get the name so the defense can conduct its own investigation jury returns a verdict of conviction now what if that's a problem for the defense it's you know and for us for the government as well and for the court but first of all she didn't ask for the name to be on the record so that she could go back and do a search for credibility problems at the age and pass her concern was strictly prospect of so you're putting in a hypothetical that doesn't it doesn't apply to this case and i know it is my concern it may not jibe with the defense's can only way that i can answer that is to say that as we all know the government is bound by its duties under brady and giggly zero to turn that information over i know the problem the problem is to the roses that although everybody acts most of the time in good faith both on the defense signed the government side and additional side people make mistakes and so there are times when defense lawyers don't do what they're supposed to do and there are times when the government doesn't do what it's supposed to do and there are times the judges below it and so there are there are a failsafe mechanism in the system to try to take care of these potential problems i'm i'm not here to sanction this procedure i don't think it was a good idea my argument is  that there was no prejudiced of the defendants substantial rights in this case what what specifically was the district judge told about why the defense wanted the name only thing that the district court judge was told why the defense wanted his name is your honor in case this man lies in the future we need to be able to know who he is so that we can  get that information and then come back to this case and say you know he's an incredible witness that was the only reason that was advanced by the defense was there was there any reason advanced to the district court saying we need to know the name of the undercover agent because we have the right to go back and see what his contact was in the past that might impact his credibility was or who it was strictly prospect of nothing about his past conduct and i think that's important because like i said if if you have his name and you find out he lies in the future not going to make any difference to this case because his credibility wasn't at issue in this case the only thing this agent did in this case was authenticate a tape  itself so again the perspective reason it is purely hypothetical and it's not a reason to overturn this case i want to say you know obviously the court hasn't questions they can they can ask but i did want to say one thing about the last issue which is the do it do it quickly is we've taken you five minutes over your time almost fraud loss if you look at the status report  in this case you'll see that the defense attorney met with the childers the agent and he showed her his spreadsheets on this is how i got the fraud last figures and she said well i don't i don't really care about your spreadsheet to see the underlying documents well the prosecutor told her the underlying documents that he looked at to do his spreadsheet are all on public internet sites here are the u r l s for those public sites she says ok well it's going to take me some time to look at those she got three continuances for sentencing she put it in the status report that she had looked at those public sites and in fact if you look at her sentencing memorandum she copied out a ton of record screen shots of those sites there was no complaint in the district court that she didn't have access to the same exact information that the government had so i want to make that clear that and she used those documents that were came from the public sites to cross examine the witness at sentencing so there shouldn't be any issue here about the fact that the government somehow didn't turn over backup documents those documents were available public sites equally accessible to the defense attorney sixty pages one twenty five to one twenty seven where he said to process the loans the back bank would receive a credit package from the broker they then ran their own credit report the bank did not verify income or any information other than the borrowers credit score the loans were made solely on verification of credit score so that came from mr kidd dana what about our sweet case that says the even if the victim is negligent that's not a defense to fraud there are other cases conduct can go beyond negligence to recklessness and here i wasn't even trying to argue that the bank was negligent it antron into a high risk and it charged more money for that lo because it wasn't verifying any of this and then for mr kidd dana who didn't even process these loans wasn't involved with any of these loans to come in and say all this information that the bank didn't look at didn't verify really didn't care about is still material to the loan we wanted to challenge that but the standard for materiality is whether it's capable of influencing the victim that's a pretty low standard isn't it but if the banks not looking at it and not evaluating it doesn't care about it which is basically what the nature of these loans were we should have been allowed to explore that and bring it out i'm not trying to argue that the bank was negligent and so it suffered its own you know faith that wasn't the argument the argument was you try to challenge his claims that all of this was material even though the bank didn't care about it because of the nature of the loan but that the testimony that you just quoted to judge prior doesn't that lay out all the evidence you needed for that argument that all the bank did was there if i credit score that nothing else really mattered and that provide the basis for your argument on materiality to a jury yes except that mr  dana went further to say that all this stuff is still material even though we didn't look at it or we didn't care about it he actually testified to you know but on that you could have cross examined him right because he had already testified that i was the only looked at credit score i wasn't allowed when i argued to the judge judge but she testified to this i should be allowed to cross on it i wasn't allowed to on it just to get because i'm almost out of time first of all your second ok an application an heard why aren't those that was my next issue you are exactly right about a lot of finish my question go ahead are the signed under penalty of perjury by the borrower but i don't believe so in fact very often the original the hud ones the bank uses at the end very very often they're not even signed the bar were signs them at the closing they have them sign the the loan application at the closing no but they still they still sign it saying that the information in that i'm submitting in connection with this loan is true and accurate yes they do and they do and the application is well right they do so why can't a bank rely on the on somebody signature and they're at a station but is is look i'm sorry couldn't couldn't the jury have concluded that the reason that the bank was only looking at credit score was that they were accepting the borrower statement as to income cash that he or she was putting up or the like and if you assume all of those things are true then all you need to look is credit score to see if someone is a likely bet to repay the loan couldn't the jury have come to that conclusion it except that in most loans they verify the source of the down payment they verify income they do some sort of income verification over these were no verification loans  exactly which means which means probably that the bar doesn't want to disclose those things on why would you pay more money for a no verification one if all of your information you know can be verified and you qualify for a long that has a better interest rate and lower fees there quicker to process in a borel might say it's more important for me to get my mortgage proceeds than it is to go through this regular process where you have to verify everything but there's no what evidence that it was quicker to process i mean it's still went through a certain verification process with the credit scores i mean so they were still processing and still got caught up in the bank's bureaucracy there is nothing to say these loans process faster  colder we've let you go a little bit beyond your time and i know this derives as well because we had questions for you but we've got to move on to the next case so we thank you very much for your argument