he may have inadvertently forwarded a conspiracy but he was just doing his own job his job was that of a college recruiter he was not a financial aid person as a college recruiter his job is essentially to recruit students to have them come to the school and they would fill out an application to apply for the school that would then move its way through the system and eventually if they were accepted they would go to financial aid later mincy was working to just satisfy his job requirements like dr brew he made no additional money for his job he only made forty two thousand dollars a year he only worked at passing for two years two thousand and ten to two thousand and twelve during that time he made no additional money for more students coming in or less money for less students coming in like dr brewer he was the low man on the totem pole didn't didn't some of the students testify that mr mincy directed them to lie to other people in fast train about the fact that they had not graduated the testimony from four students in screen real walk ins april when gate and celina wilson were all very similar which was that they said i don't have a high school degree or a ged and he said well fast trains the place to go then because we can help you with that he believed that according to jose w gonzalez who told him who came from miami up to jacksonville to help do the recruiting and train the recruiters there that you could go to a school called a w a american worldwide academy and you could simultaneously get your ged or high school credits while you're in fast train he believed that and that's what he told the students just to be clear though did he did these students testify and he told them to lie to other fast train employees the students testified to check yes on the fast train admission form for either high school degree or ged that was the testimony of those four students and those told them to do that according to those according to those students at the problem is don't we have to i mean you know we don't we have to accept that as in the light most favorable to the verdict but even if you did that would not those that is not on the facts of the taking money from government charge six hundred and forty one dollars is but it isn't it does show that he understood and was a part of the conspiracy here i mean doesn't it show that he knew that they were lying and he understood that the reason they had to do that was in order to get money from the government whilst would you do that because he was told by jose del beacons all those that his he was a pastor and his he was a person according testimony by these students in fact ever wingate said he would go out on the street and help folks and even to her who became homeless at one point he fed her he helped her find a place to live he was a pastor in that community for thirty years and his role was to help these students when they said we want to get educated and he was told by jose dobbins all of here's a way that they can get into fast train they can get an education then he believed that and told them that yes you can do both simultaneously i'm going to send you to jose w consolidate and jose duggan sells testified to this that students would come to him he would charge them four hundred and seventy five dollars and he would take half of it and he said nothing about mr mincy getting any of that money knowing anything about what he was doing he was essentially running a scam within the scam jose dobbins allah is the one who started this whole idea of saying to folks at the jacksonville pass train office we can do both simultaneously and that's when they started saying that out on the street to students before that they weren't saying it they would put an ad out people would call and they would take the call and say come in for and missions interview there's one conversation in fact that's important here controlled call to mr mincy and in that he says that we had a recruiting technique called snatch and grab mr mincy response quote i couldn't do that just it just didn't make sense because you have to pick and choose jose in this case mentees says oh no we've got that covered we have them son on there who sciences is that they have not been persuaded by anyone on a promise to anything he says so that's going to protect us it's not on us it's on the student so they not only were recruiting i'm telling him do this they then had him sign something to say don't you represented that you weren't persuaded or told by anybody and that's how you student and the student is the one lying when the student states they have those credentials correct because that is what he is responding to to hose it is that he is saying i am not the one who is making this decision to do it this way fast train is telling me this is how we're going to do it and so this is the new way of doing it so this is what i'm going to do but what about what about when gates testimony that means he told her to quote keep it on the low not to say anything unquote when she told him she did not have a high school diploma for miss wingate as actually testified that jose w can solve is recruited her she signed up prior to mr meeting mr mincy but didn't she also say that about m mincy when i just said keep it on allow now that this is after she got in so that statement in that context is now that you're in don't do something to get messed this up you need the education it doesn't it show that he knew that there was a problem with that with admitting students who didn't have to plummet and telling them to check off the box whether it was april when or not he told other individuals to check off the box that they did have  play not but not as part of part of a conscript conspiracy doing it in order to help these kids get an education because he believed they could go through jose w can solve as which will win gay did by the way and actually sign up for american worldwide academy and get his ged or high school credits so he didn't have the mens rea a to forward discriminate spear say there's no one hundred and fifty people testified not one person said he was in the room when the conversation about the conspiracy happened that he talked about conspiracy that he knew about the conspiracy not one person what we know is that he that's a rare case where they where the defendant talked about being in that compares or even being in the room though what others are talking about it there isn't even an implied good morning please the court a number of issues some of the most important issues i think are the complete deprivation of all procedural statutory constitutional rights with regard to for pitcher the underlying issues with regard to the correct calculation of loss in particular whether credit should be given to loss for students who actually were eligible after their st quarter or semester and nd secondarily the it with regard to the conviction the issue of i think the government said there was no precedent in the circuit for this type of use of six hundred and forty one dollars to cover a false student loan application  that again i understand that the government likes to charge everything is that but there has to be some line between fraudulent loan applications and theft and i think this case is that is the place to draw that line and  then rd and this one affects simply all of the sentencing and forfeiture issues this is a district court's decision restricting the application of the luis decision in the supreme court to state that even though in luis the court said that certainly you have a right to access untainted funds for your defense even if the government has a theoretical claim or a claim that may become a turn into a lien at some point until that my reading  until it becomes a lien it's still untainted it's still excessive all of the defense and for extensionally i think is about eighteen months in this case the defendant did not have access to those funds during a period of time when his  six minute ride still applied to the completion of his sensing perceiving because forfeiture again is not like restitution it's not a it's not something that stands apart from punishment forfeiture is a fundamental part of the punishment component of sentencing and until a defendant has a right to counsel to go through all of these fundamental aspects of of trial and sentencing in which he has a six memorized to counsel in and of itself and arguably he does not have a six member right to counsel as to eighty the judgment of the original sensing judgment comes in a couple of months later may hearing this the motion i think st formal motion was made in march when was the senate seeing hearing the fine the imprisonments finals there were several sentencing hearings it was more than one sense in your but the final one was may nd of two thousand and sixteen and that is two months after the motion yes and that was when i completed on the restitution notice restitution is a month later in june and in that district court pronounce this the nice seven months or whatever descent may it goes it goes like this there's a oral application sometime  before march and as i understand it and there's a formal written application in march the imprisonment sentence in the hearing is in may the restitution hearing is in june the final forfeiture order the final for jurors in july of the next year but it and i'm not correct he didn't want the jury to decide the forfeiture he wanted the district court i mean he's he's they took that count he said it's however it came up out his said he would put it off and we do this lighter before the court is that correct he did not he did not demand a jury trial right and  objection was like this the district court said something to the effect of we're not going to we're not going to go forward with forfeiture right now we're going to wait till we finish with restitution and the council says i'm never seen anything like that can you even go do this with restitution and then there's a conversation about well the government just filed a motion for forfeiture do you want me to not give you time to answer the respond there for future motions of the defendant as defense is presented with again he's denied counsel denied resources is presented with the option either either you're going to have any opportunity to respond to the government's motion for forfeiture or we're going to push it back and they end up pushing it back for more than a year and you speak for a moment to prejudice what is the prejudice to your client as if we were to find that there was a violation what is the prejudice have you shown that he that new counsel would have been hired that new counsel would have been would have done anything different what is the prejudice the prejudice was the absence of the specific prejudice on the record that was made by the counsel again i'm i understand of course talking about the prejudice in violating all the procedural rights relating forfeiture and not the luis violation this immense prejudice from luis violation and there certainly were other counsel being sought to be brought in this counsel who had been who had been retained under restricted funding and had been kept on the case now for eighteen months after conviction to litigate was clearly over overwhelmed by it there's plenty of prejudice on the luis violation on this violations principled thing that was mentioned was we don't have our forensic accounting and again when you're talking about forfeiture there's a number of things that motions for eighty dollars fifty one cents in the docket mentioned that as well as the discussion on the record of the applications the government discusses it in its brief the government says well we didn't have a forensic expert but i refuted that in the in the reply brief on my discussion showing in fact we did we just weren't able to use it because we didn't have the money we speaking i didn't have any money you know i wasn't even in the case that point i'm on the outside waiting for money to become in to come in i mean i actually am part of the prejudice but that's not i don't think that's clearly of record but and so there was plenty of prejudice in this case but even just in some cases you say well what's the prejudice that you had the sentencing at the forfeiture hearing fourteen days later we're talking about a forfeiture hearing forfeiture process we don't have a for hearing at all and we the forfeiture process occurs fourteen months later we have a tremendous amount of work that has to be done tremendous amount of work and no money to pay for for fourteen months it gets litigated it gets thrown over to the on that issue but i don't think the court needs prejudice where you have the precedent this court in the petri case and the chicago case we cited in the th circuit but you simply can't handle forfeiture this way restitution is different dolan explains you can go beyond the limit in restitution because it's really not part of the criminal punishment in the itself it's a restitution a remedy that's thrown into the criminal process forfeiture is part of punishment it is just as much a punishment as the prison if you're taking in this case two million dollars from a guy it's means just as much as arguing about one month in prison even to thank you very much i recognise when i asked to have one question on the forfeiture did he have his retain you your honor jason wu in behalf of the united states one of maja's that mr moore named just school fast train to convey the idea that it would take students where they wanted to go in life but it might have been more aptly named the gravy train as it exactly right we have to take the witnesses as credible draw credibility inferences in favor of the verdict and so that means we accept as true the student testimony that mr mincy coached students to lie about their eligi bility specifically their status as high school graduates and i think there are too he says just the fact that he coached them to lie about their eligibility doesn't necessarily mean he was aware of a conspiracy because he was just trying to  yeah he told them to lie but he was just trying to get them an education and he could have done that separate and apart from any kind of conspiracy that's what he's arguing did you want to respond to that i mean i don't know you might want to talk about what judge paul was mentioning yes precisely so as about to say there are three interrelated categories of evidence that confirm both what he did and that he had the mens rea of the couple mens rea o while doing so the st category is the student testimony that you mention the nd piece of evidence is as judge paul mentioned government's exhibit eighty seven which is the recorded call transcript on which mr mincy confirms that he knows this is wrongful the key of that language that judge paul has already quoted is that he knows it's wrong for the students it's illegal for the students to lie about their eligibility and their consequences are of the lie that's precisely and exactly the conversation he's even talking about an attempt to evade and conceal the conspiracy by having them paper the record with this disclaimer for so right there you have knowledge of wrongfulness combined with the acts which are the wrongful acts the rd and final category of evidence on this front is that mr menzies coconspirators testified that they trained him and so mr arriola who is the head of admissions for this university during the relevant time frame  testified a documentary for ninety seven pages forty seven to forty eight that the jacksonville contingent including mr mincy came down to be trained by him and then jose gonzalez his other coconspirator testified a documentary five hundred pages one  thirteen that he went out on the streets and recorded with mr mincy and he said something to the effect of i saw him coaching them and stuff so again we take all that testimony as credible and draw inferences in favor of the verdict those three categories of evidence confirm that mr knew about the conspiracy he knew about the wrongfulness of the acts that his coconspirators were asking him to accomplish and that he actually carried out those acts in the last with the students have already been mentioned today the argument turning to mr moore's points i think he touched briefly on a few so i'll touch briefly on a few and then we can focus on what your honour's spent most of the time questioning him on so regarding sufficiency again he reiterated this claim that we should not have charged this as a six  one i think that's answered there are a few ways to answer that the st is simply to look at the text of the statute this crime fits within the text of the statute within the list of elements that we cited in our brief so the fact that it could be charged under another statute is immaterial there are many overlapping statutes in the criminal law and we have the discretion to charge what we want you also said that there's no precedent establishing that six hundred and forty one dollars cover student aid funds i think that's not accurate the evidence case that we cited in our brief is  pre split th circuit case and so that would be binding precedent on the issue and then the whaling decision we cited is post split one thousand nine hundred and two but it deals with a similar student loan title for funds fraud that's also i believe charged under and forty one and in any event there are similar cases where government loans the theft of government loans or fraudulent obtaining of government loans charge under six hundred and forty one dollars as for the loss calculation as i understand it the only poin he raised today was whether there should have been an offset for the six credit hour rule and i believe it's worth talking about that a little bit to understand both what the evidence was at trial and why it doesn't apply why that shouldn't be an offset to the law maybe it's best to begin with an analogy because i think this is the argument he's trying to make imagine that i defrauded the charity i said i need ten thousand dollars i have a rare illness and in fact i don't have the illness i take the money i go to las vegas i blow five one thousand dollars of it at the craps table and then when i get home about a month later i find out lo and behold i actually have contracted that illness so now the lie that i told to get all the money turns out to be true after the fact that's similar to what he's saying these students applied for federal title for fun they lied to get all the money because on the actual application the fafsa they said i am a high school graduate now when they go to the school and arguably complete or don't complete certain  coursework there was disputed testimony about that eventually they get enough credit hours from fast train that in theory they could have separately applied to either fast train or a different school and claim this six hour ability to benefit criteria but of course that's not what they ever did that's not what their application said so that there shouldn't be an offset for a fraud where the law you tell you know happens for independent reasons to come true at a later point and i think that's the overarching reason why this is this argument lacks merit i was confused in reading the transcript as to whether or not the district court actually does not sion from the for whatever one million down to one for some of this you saying there was no deduction for the six hour credit student correct there was no deduction the because it was deduction for some of the things exactly the single biggest deduction was related to students who were either still paying or in forbearance and so the district court thought it was inappropriate to yet count them as loss who knows whether they'll end up being lost but that's a separate issue the other thing i want to bring up about the six credit hour rule is in reality the six credit hour rule was never used by fast train in any way and multiple witnesses co this mr ariel again was asked the documentary for ninety eight pages twenty seven to twenty eight whether at least on paper what was faster and policy about who was permitted to enroll he answered pretty much they have to have a high school diploma or  follow up question does it say credit hours on their not at all does it say clock hours on their not at all is there any mention of ability to benefit on their i have never seen that a fast train know so the reality is fast train never relied on the grounds of eligibility and so it should not serve as an offset for mr more at loss turning to the final issues which are related the restrain of assets and forfeiture i think judge rosen you got it right and so far as you ask what's the prejudice from this and also this is related to judge hall's question about timing because i don't think they sufficiently showed any prejudice below here's the timing and i think this is what why it also goes into this issue of prejudice there were three sentencing hearings this is split up there's a st sentencing hearing in march april may the st time this year more ever asked for his funds to be released is orally at the nd of the three sentencing hearings in april he follows that up with a written motion  that written motion he does ask for funds to engage professionals to assist him in contesting the lawsuit now on that front the court st of all denied it is untimely because it happened in the midst of sentencing and it's an issue that he should have been aware of on the front end so that's already an independent basis to affirm but moreover there is no prejudice because the last calculation was not a detailed forensic accounting type calculation required no knowledge of gap principles no knowledge of tax law nothing that you would expect you'd need an accountant for in fact mr moore's own counsel said at some point during the sentencing that he wished he had some magic skill or science to apply to this determination that's a documentary five hundred and thirty two page five but he did not and he said i had i just had to do some analysis i just looked at the list and i see these blanks and that's really what it was it was a methodical task a laborious task but it was not a task that required expert assistance and so there's no prejudice at least in the sentencing phase of this from the denial of this request how this important thing to realize in the timeline is that he did not then renew a request for an accounting expert prior to the restitution in the forfeiture so there is a nd request which mr moore alluded to that comes shortly after sentencing however if you look at that one i believe it's docket entry five hundred and twelve dollars it specifically request that the money be released to pay for pending legal fees in other words for his trial counsel bills and for the assistance of appellate counsel so he abandons the notion that he needs an accounting expert and never asks again for an accounting expert either to be paid out of restrained fund or a judge all alluded to out of court fun and so we believe he hasn't specifically shown any prejudice to a forfeiture because he didn't make that request the final issue all discussed briefly is the timing issue and we i tended to lay this out in the supplemental authorities i'm happy to elaborate on it if this court desires but my understanding of the line in the case law is this if the defendant knows about forfeiture before at sentencing he's notified the forfeiture is coming then there's no prejudice to him there's no ultimately no see violation of rule thirty two if the proceedings continue after the point of sentencing that's the conneaut case that we cited and the characters case continued for ten years i mean there has to be probably some where you can't hold you know for a defendant's head anymore sure well of course rule thirty two dollars gives us this rough guideline which is that the forfeiture should happen as soon as practical or at another point in the rule that says unless doing so is impractical it should happen at the preliminary or the should happen before sentencing so there's definitely this guideline of crime you know in each case the amount of time it took was practical precisely and the reason is that this is a complex ther you then you go forward i understand your honor and in simpler cases that special way it's supposed to be certainly and i think the rule contemplates in mind run case that's the way it should be yes so to give an example in a gun prosecution  twenty two dollars g commonly the felon has to forfeit the firearm involved that's a very easy case right you get your verdict he's guilty preliminary for george or the gun is ours however in this case it was a diff you know there were difficult issues surrounding loss amount so that it was not practical to enter a preliminary forfeiture order when you did not even know the amount of the money judgment did not know how much property would need to be seized and that's why the rules thirty two dollars i believe it's at the rule not to get this wrong and no forfeiture expert be to see states that you can enter a general order of forfeiture when the court cannot calculate the total amount of the money judgment prior to sentencing and so that's exactly what we reported that they were trying to come to an agreement on forfeiture just three and a half weeks after the trial and so he saw this coming the whole way at sentencing the court notified him that it would enter a forfeiture order once it determined the appropriate amount and that's exactly what it did in the post sentencing proceedings was there a general order forfeiture at a time your honor what we did identify the general order forfeiture of the common practice in our district is what's contained in the judgment of docket entry for eighty nine page seven it states the defendant shall forfeit the defendant's interest in the following property to the united states deferred until restitution hearing and that's the standard practice of the courts in our district is to input such a general order stating that forfeiture is coming when its not jury if you know of course it's not exactly clear on the record but in docket entry for thirty one dollars which is the joint status report that's december th two thousand and fifteen we state both parties that we're working toward coming to an agreement eighteen months calculated from as you understand i think you may be saying from it's possible he may be saying from the verdict which was november two thousand and fifteen to the final orders which are entered in may two thousand and seventeen ok so that's right and the reason did that take so that took a few months so i'm afraid i don't have the exact dates but i would also like to stress that the reason the magistrate judge did not have jurisdiction is that mr moore withdrew his consent to the magis jurisdiction or at least informed magistrate judge goodman of that would draw all of consent at the forfeiture hearing so in other words it had been fully briefed they show up to court and then toward the end of the hearing mr morris said by the magistrate judge he would do his consent but of course that that did waste a few months you could say with the referral after after mr moore withdrew his consent magistrate judge goodman asked the parties to brief the issue of his own jurisdiction and they did so after that hearing so in theory if that had been raised before the hearing this might have taken a little less time the hearing alternately resulted in the forfeiture couldn't have occurred during that period is that that's right and i should add on the hearing front  judge leonard when she of ultimately entered her preliminary order forfeiture noted her belief that the parties had never requested an evidentiary hearing so although they brief legal issues extensively there are many pleadings on the record and no point in mr morris say i want an evidentiary hearing in front of the judge on a specific fact issue these are all legal arguments some of which we've discussed today and some of which are covered in the papers if there are no further questions we respectfully request th there there's really no evidence of mr ariel properly recollecting instruments in coming to miami for any sort of training it was contradicted by all the other witnesses who are in that training but the important piece here is that if indeed there is a conspiracy at all mathieson volved and it is that of him and the students to get those students into the fast train not of him and the fast train staff to defraud the federal government he is asking the students to state that they have a ged or a high school degree in the application for a fast train not on the fafsa as he is not even in the room when any of the financial documents are being done so he understands what the consequences of lying on the on the application is the application for way the government has nothing to do with that he is in the recruiting of students into understand what he was doing so my point being that he is my question is what could he foresee as the consequences down the road of what he was doing in conjunction with the other parties involved well since his role is to recruit the students and use for seeing that they're going to get into school he sees that the people are going to school every day it's a real school people are getting educated in a community that's a general order forfeiture that has needs has a very specific requirements and a rule thirty two point two none of the requirements of rule thirty two are complied with to have a defendant purportedly sentenced but not sentenced for eighteen months is complete violation of rule thirty two dollars to have a defendant never have a forfeiture hearing is a complete violation there is no need to go to prejudice once you've denied the forfeiture hearing period this claim of well he didn't want to forfeit your hearing in front of the magistrate judge that he had have ject eventually how long does it take you to get to the refer all its or do you know it i don't know whether it was an immediate there was a status conference and then what was the referral for it was a pair it was my position as the magistrate judge la to make a forfeiture determination because that is part of the indictment and part of the proof beyond a reasonable doubt i agree that he had no jurisdiction your honor but because it is not it but it so whether what w reference what with what the judge say the magistrate was supposed to be doing she just referred forfeiture to the magistrate so and then never he doesn't conduct a hearing because we contest his jurisdiction correctly and that we're being punished correctly contesting is jurisdiction we in writing we say we want an evidentiary hearing we didn't get any hearing at all and were denied counsel this is well beyond peachtree i want to just make one brief reference the government says  evans and wailing resolve this issue st of all the issue was not in any way raised in evidence of the funds can be government funds the issue is not whether the government is paying the the money the issue is whether when does a loan fraud become a  whaling it was because there were specific funds that were converted at the time and used for a different purpose and use than were authorized to be used we understand your point your time