acquittal because there was not sufficient evidence from which the jury could find beyond reasonable doubt to refer draw reasonable inferences beyond reasonable doubt to mr hagan in fact had the intent to defraud and or series of passion agreements and we see that your honor and we look at the specific agreements and why performance of the contracts was ultimately not taken taken full there was unilateral abrogation of a couple contracts by the opposing party one contract was frustrated by an correct what what do we do if there was insufficient evidence with respect to the council one of the three here if i think the judge of the court can reverse some remand on any individual honor obviously not moot because we have one hundred dollars special assessment the sentence was forty six months concurrent on all counts but i think each individual count has to be assessed independently right we have the three counts of we have but i mean this goes to bremen i think your honor given a given judge harmon's description of the sense of the most vicious behind it and going forty six concurrent all of them and he didn't fact consider the thirty three factors i think at that point the remedy would be intreated judgment of acquittal on that you know and remission of the hundred dollar special assessment i mean he's made a determination it's going forty six months on each individual counts we would be asking  once in my life it's a scenic place and looks are were over to the east to the whetstone valley where the country is good but anyway how do you explain away that your client released the same trash or do several different people sure i mean i  think it again this goes to the factory you have to look at the counts individually right let's start with which john happened right in the twenty twelve grazing season hafner enters a contract for mr hagen to run his cab he's going to manage the going to track the water he's going to worm he's going to provide vaccinations in the summer if they're necessary he's going to pull the bulls for those cattle that are breed stuff so he's gay the management of the cattle for this five month period from may to end of september when they're out there and most of these folks we're from remote areas in south dakota we've got folks from to smith on city other places where they just can't see their cap so he's providing management of the herd not just the grass and do it in any of these years did you do when he did he perform any of those mr hagan got their cattle back they were in fine condition the drought heard bruce penner same answer he ran his cattle two thousand and twelve said no problems other than we had to pull early because of the drought and he acknowledges that if you look at page one two and one sixty three of the trial transcript he says hey it was a drug we had to pull these cattle everyone had trouble with their leases so to me that's one where you look at that count three and the claim is no involving mr hague in that john haffner same basic allegation he's charged with wire fraud the negotiation of the rent check or the management check in may he takes his cattle there or more accurately as hi his cattle up there to drop him off the hired man is approached by some local concerned citizen who says hey if i were you buddy i wouldn't put my cattle up they're not going to back beautiful hired man calls the boss and says i don't want to tell you but they're telling us we're not going to get our cattle but hafter describes i had to make a decision the moment i pulled the cab the next thing that happens is hagan calls the marshall county sheriff and says hey we got stolen cattle are supposed to be sixty six head on this pasture and they're not cause and at that point you know the question lies can someone cover and what are the damages but none of that happened right that's right but that i mean that's a breach of contract suit your honor and the key for us is yeah but if you do nothing and just hold on to the money right  mean don't you have some duty to do something you might have a contract to your honor but to remember right the act of fraud that's charged in the indictment is the negotiation of the check and so for m who ran his cattle for the better part of five months at the time he negotiated the check time mr hagan negotiated a check he was doing everything that was asked for him and continued to do that god intervened and said i'm going get five months out of this crazy season with mr hafner he decides i'm not going to run my cattle and in fact hagen brings up to him well you're in breach of contract you said you can run these cattle here so i'm not going to sit here and tell you end right if you look at count six and seven there are two thousand and thirteen years you get the critters and the sloop of families that are running cattle and we sort of got the opposite problem in that instance fraud it's complete right because hagan is represented i can run these cattle and they think he can but the act of fraud that charged our letter sent in august saying hey bring your cattle run your cattle up here and that conduct is post fraud it has no impact on the fraud and if you look at what we have to have to demonstrate intent to defraud there must be an act that precedes the fruition of the flaw that's the that's the nance case we say in every fiber to a third of second six fifteen or it's got to be an act that's intended to try and put someone off the disc sent to delay reporting or discovery we know  that these letters had no impact on their decision mr chris says at page two forty two line six i was nervous about this deal i chose not to bring my cat when they asked about these letters that were sent to them in august with only a paul you know that had no impact on the degrees and season's over you can promise me all the acres you've got i've got no no value in that contract that point so that's kind of the opposite in your honor that that we have conduct be fraud this just after any alleged fraud would have taken place and has no impact on facilitating the purported fraud the one thing i would tell you that then fits in the middle your honor is twenty fourteen and twenty fourteen that isn't fact the year that mr hagan had the fewest acres available what's critical in that instance is how they didn't have a careers he and his wife amanda holden had negotiated leases with her family members and they'd had them for several years in twenty fourteen they thought because they had a signature of a majority of the landowner block to lease that land that they wouldn't fact have that land around again to be id had different ideas and took that land out for a bi out for bid basically yes that they had a negotiated lease with them with the majority block landowners you can either have a new go she did lease that you do in advance with the landowners or it can go up to bid from landowners to get highest dollar they had to required fifty one percent landowners going into the bid process and it went out to be it's their appeal exactly was based on the fact that that man should have in fact gone out to be and how did they were trying to get the land through people we think are acting goofy starters could i take a minute and with the permission of course or judge woman not taken off your clock because the students out here could you explain how comes to pass that there are landowners and the b i a is is leasing the land i would note that you said not of my clock at two minutes and forty second drug i did i did t terms we will from the government if it's necessary absolutely how they're come to be landowners involved you know how there are landowners and yet to be i a s is leasing the land sure so you have land that's held in trust for individual indians your honor by the b i a and in many instances as that land is passed down through generations it becomes fractionalized it started out i one hundred percent of land then my three sons and thirty three percent theirs on smaller and smaller and smaller percentage so what happens in these instances is that the essential acts as a broker they will facilitate aggregation of those leases for approval through these negotiate leases or the landowners can simply say hey you handle it all take it out to bid place it with somebody and we'll just get our check so that's how that happens and it was unique here that we had mostly to go shit leases because the vast majority of plant we're talking about with this holy will we're her family mr hagan was acting in good faith when he negotiated so the only count on twenty fourteen is based on a check from the burkes it's both a wire fraud and a meal fraud count because the check is mailed the and i agree they didn't have enough acreage in two thousand and thirteen degrees as much as he collected for fourteen is is my understanding of the government's view of the yeah that is their view of the evidence rather i would say that you have to do two things to separate out if i m it will one you are looking in with counts for an eight only at those cattle that mr bird was going to run which is one hundred pair of hundred animal units the conspiracy does incorporate some more cattle but when you look at counts for it it's only bird and this issue of the volume of cattle that could be ron was not an issue b s of b the less or less see it was an issue visa v the less or in the a which provided a base animal unit amount that could run but as they described that could be modified the hagen holy will company head extended the number of cattle hagan's knowledge about what he would have to what his knowledge was at the time he accepted the check was that land that he had had for approximately ten years as negotiated leases had been sent out to be had and he had appealed that because in his belief under the b i's own rules he was entitled to that land and that's important because he is in fact acting in good faith to try and enter these contracts in good point but he he had no assurance your honor but remember we're talking about the intent to defraud right so he has to have the specific intent only tends to be related to reasonable probability you're a literary person who is a character in dickens macabre who always hoped that something would turn up i feel like this more  from minnesota south dakota and north dakota and tried to steal more between two thousand and twelve and two thousand and fourteen keith eggen and his partner amanda holy bill placed ads in the green sheet which is the stars hunting or some place where you can buy parts for john deere number five or more that went out of production in one thousand nine hundred eighty seven so it's a wonderful publication and that this is where you go if you need past advertising land and calling up people who will be needing land for me to be calling them and offering them pasture land that they did not half and knew that they did not have and that's what the evidence shows they demanded the money up front usually thirty five thousand dollars or seventeen thousand five hundred or forty six thousand dollars and then they were at the bank the next day trying to get cash for that check they could couldn't get cash they wanted money orders and then to the typical scenario was when the time for grazing would come in may or may fifteenth they would try to put off the people for a while socket ready yet ready for you and most the time they were never allowed to have their cows graze most of the victims in this case they would stop answering call contact would cease the people would have to sell their herd because they had nowhere else to put it and they took incredible losses far beyond the the money that was stolen from them up front and that's the essence of the case we eat now well there are there is one global count that covers about thirteen victims which because they were egregious as well be count one in of itself covers the entire conspiracy talking about this land the v a s role one of the reasons the b s a is involved is because there is a history in this country of non native american cattlemen ranchers trespassing with their cattle on native american lands and destroying those lands and so the b a has set up a very strict system to try try to prevent that abuse and make sure calf pair her six acres and you know if you go to exhibit thirty two or fifty two in this case prepared by the f b i in two thousand and twelve but what's the significance of that in terms of  regulatory for me well the if that's your case i've got i don't understand how we could maybe the entire be a regime in that the regulations are twenty five c f r one sixty six particular talks about grazing rights and they empowered the b a a to set these ratios based on range management range management science and that's what the ratio was set on and that the testimony of the b a compliance officer is that they've set that at one cow calf pair per six acres and they don't allow more than that and as testimony of general times you've now give me the case a secondary authority that says  file ation of that grazing regulation or rule is fraud well it's fraud to deceive somebody and attempt to take their money deceiving them are you are you saying that th interaction between between hagen and his clients always he was always ready what was in the context of that ratio yes yes you've got testimony each each each of the the  what you consider victims was relying on ig and complying with the one in six ratio no the testimony is that they were lying that they would be able to have their cattle there and then he had the leases sufficient to house whether it's two hundred cal calf heirs or hundred that that they could do that and he had the authority to do that in the land available to do that and he didn't it was a lie and i'm going to have to read this the money that that  mr bird for example cared about how many when you run run my hundred head i'm i'm sure he he was assuming that if his list or it was going to be in compliance with agency regulation as you said and he was allowed to it said at the outset this is fraud because he violated the one in six ratio and i used at the end of the day isn't it you know i want enough grass and water and manpower to leave my cattle on this particular pastures could be overgrazed are going to turn it permanent damage to the land get these cows out of there absolutely they did and joe thompson the the compliant they were trying to chase these cows off the land because they were sending letter after letter after letter they win rs inspecting the land and it was powder in some cases as testified and so the fraud does not consist in the fact that there may be more cow calf pairs out there than there what the magic one to six acre ratio is the magic is it that at protect that so that it can be maintained absolute future right in that some point when there's seven times the number of cattle on that pasture than ought to be there that's a problem right and is that where the fraud lies absolutely and when mr fulton says that can't possibly be where the moment that the contracts entered into why is he wrong he's wrong because in the cases he cited the nantz case in and i think it was the attack it case they say that  someone into feeling secure that a crime has not been committed that there has been no fraud an attempt to do that is certainly actionable mail and wire fraud and here it is letters these are the the last two counts involving mail fraud in two thousand and fourteen these letters were sent towards the end of the grazing season the cows were never brought up there they'd been sold already but they were saying hey just so you know we're sorry for all these problems we would love for you to bring these cows up right now that was attempt to prevent the f b i from getting involved and to try to keep this in the civil arena i would suggest and the tactic case makes clear the sentence right before i think on page twelve forty four right before the sentence quoted in the in the  says that very thing so that's part of the fraud if you're trying to protect the ponzi scheme from come from falling apart and this was a cattle grazing rights ponzi scheme everyone has promised i mean there are they're promising multiple trespassing this is a trespass they wouldn't respond to be and the most important testimony this case of course it so whom were those letters sent they were sent to the holy bible cattle company and that's the year then joe thompson's going saying this is powder two thousand and thirteen fourteen none of the victims are allowed to even let their cattle get up there two thousand and thirteen they had enough land for about seventy and a contract prefer hundred eighty kouka years and then two thousand and fourteen they hadn't they only had forty acres they had enough land for seven about and they contract it for three hundred and here's the worst part of it two thousand and fourteen after they knew they'd lost the bi bid meeting as happened the bids are open they knew they'd lost what it keith hagan do he went out and signed up about two hundred more head of cow calf pairs knowing that taking their checks and susie got the check they cashed the next day at the bank and what happens they start they don't answer calls after that they never these farmers are left out to dry they start calling can i put them up there kind of up there they don't even get the courtesy of a response in most cases text messages over and over call me please call me i need to know what's going on my dad is worried these cows need help no response the seat may be lies but what about mr the argument that the fraud is over committed after the and all of this the worst thing the thing that seals this is the testimony of amanda holy bull the coconspirator she admits testifies on the stand i knew it was wrong we didn't have any land but yet we still took the money to be able to provide for our family how do you know keith knew that because like i said he was the one who would tell me what to say when i go to the b a a he into all the mail that came from the b he was miffed with me when we went to the v a you were still aware you you and keith were entering into contracts with producers knowing you couldn't fulfill them yes knowing you were defrauding producers yes and you did it so you could support your family yes and you and keith were in this together yes on and on and  on this was easy money yes this was a scheme it didn't start as a scheme to start as a legitimate company with a little a small amount of acres in like two thousand and five and it was there with the rest to sion award of two hundred thirty six thousand dollars yes hundred thirty six thousand dollars was entered as restitution on count one individually and on each count so but none of these counts should be remanded each count was an act of fraud as admitted by the coconspirator on the stand now the jury didn't have to believe her but it did this court does a real way the testimony mr hagan never never testified what we have from mr hayden about these stories about drought and things like that come from well those of the that's what he was telling these producers when they're saying you have to take these cows off my land because of the drought that's what he told them the reality i would suggest a reasonable inference and if you look at the v a compliance office testimony is you refers to several issues which offenses your office didn't reply choose that case and if so why not i don't think so i think those are all part of the  factual story that's being put forth by the appellant now from himself but through him trying to piece together the testimony at trial each everything has an answer ok well thank you briefly your honor if i made i would just say this in reviewing the counts it is critical that the court look at the individual act alleged because the timing is crucial on several of on all of the substantive counts a greedy conspiracy is overarching but on the individual counts you have to look at the act alleged and did it did it could it have impact on the fraud and you know particular count six and seven on the letters there after the others you have events after where the other contracting party or an act of god intervenes and disrupts the performance but what is the principal defending our defense a lack of inten d correct i mean and again your honor i think that's why obviously for us the hardest count to address is in fact the overarching conspiracy because the full body of work gets considered there letters were enough and i think in those individual counts it's the it's the reasonable inference that the jury couldn't drawled when we know a little bit how juries work great i mean when you start going guilty on the overarching