please the court i would like to begin this argument where defense counsel began closing argument at the trial of this case and he began by pointing out that the defendant my client mr dell compote disclosed to the bank that he and the seller on the first transaction were one and the same  witness told you it's two pockets in the same pair of pants and that becomes important because the transaction was disclosed exactly that way and handled exactly that way with no hidden agenda no hiding the ball no misrepresentation and while that's an able way to close no misrepresentation the better argument would have been you see good faith they were disclosing what they were doing but the district court had denied the defense request for a good faith instruction and so  counsel could not make a good faith argument referencing the good faith instruction defense counsel closed his closing argument by pointing out correctly that his  client mr doyle compote did not steal money from the bank he did everything he could to rescue the property he didn't walk away as the bank itself said he was not a fraudst again an able point to make by able counsel but what's missing what's missing my client was acting in good faith and that is why why doesn't the instruction that the jury has to find beyond beyond a reasonable doubt that the government has proved that your client acted with an intent to defraud with an intent to deceive or cheat someone not not take care of the issue in the words of this court's pattern jury instruction on good faith talk about an honestly held concepts of honestly held opinions and honestly held beliefs go more to what defense counsel was arguing in closing argument look my client attempted to disclose to the ba what was going on here my client showed the red flag to the bank my client was not a fraudster did he say to me sounds like i were argued i might have immediately followed that with words like we had no intent to deceive we had no intent to defraud did he say things like that i'm sure he did no misrepresentation was the way he put it was in there was a jury instruction was there not where the court instructed the jury that the two defendants on theories was that they contended that they did not intend intend to defrock yes your honor but again i come back to the point that i've already made which is i believe that the good faith instruction and its words are different from the words that were in any of the jury instructions here and that is why defense counsel was deprived of the opportunity to say my clients were acting in good faith in this case do not convict them and the misrepresentations the alleged misrepresentations themselves were hotly disputed the three essential misrepresentations were alleged misrepresentations were that my client failed as to one transaction as to which he was the buyer he was the buyer in only one of the three transactions he was tangentially involved at most in the other two in which he was not the buyer in the first transaction he had said that it was his intent to use the house as his primary residence the government claims that was a misrepresentation but in fact he produced a lease showing that he intended to rent his own home to his daughter at the time of the closing so there was there was a basis for believing that he was own house he was going to his own existing house to be able to move into i see very residence thank you  as to income the record shows that his business income was in excess of five hundred thousand dollars and if you add his personal income to that you get to just about the number that he said in the bank documents and his request for thor's ation for the loan was his income this is the kind of thing that all lawyers can say he was acting in good faith in in his statements to the bank to get the loan and the so all of this put together is reversible error you have disputed facts the jury should have an opportunity to say but to hear an instruction that when a person is acting in good faith with believing that he's disclosing to the bank what he ought to be disclosing showing red flags were red flags ought to be shown not stealing money not a fraudster and the issues are disputed as to whether or not this was misrepresented or that was misrepresented after all was he going to move into the house was he not going to move into the house the jury should have an opportunity to look at the evidence and to get instructed if you find a good faith if you find an honestly held belief you king government of the peel the non custodial sentence of a seventy one year old now seventy two year old retired lawyer with multiple health problems that the undisputed record shows would be life threatening if he was in prison government claims on appeal that the sentence was substantively unreasonable because it was too far below the guideline score of forty five to fifty seven months even though the prosecutor only made a general objection to the sen way that the other defend record i do believe though that the this case can and should be decided on the standard of review the prosecutor did not file anything in the district court in response to the after the sentence was imposed all the prosecutor said was quote your honor the government does object to the downward variance he didn't say whether the objection was for procedural and reasonable as a substantive unreal reasonable pnas we've never really decided this but you know when it's procedural read reasonable and it does seem to me that the objections have to be made and that is what i think are our presidents are pretty clear about that but if it substantive on reasonable ness that's the sort of thing that really you know only race for the first time on appeal we haven't decided that but it would seem to me he said you were going with the standard overview i thought you were going to be telling us that th yes it was a one day of time served which is really the day of processing and then six months of home confinement and restitution of court five years of supervised release and the restitution of war of one point one nearly one seventy one years old  convicted nine years after the crime no criminal activity in the interim no criminal history a low likelihood of recidivism didn't really profit in the way that the other defendants  however at sentencing it does it is relevant and this court in two cases kind of the flipside of this in chris cited by the government court reversed a probationary sentence or a non custodial sentence because in part because the victim was a small family owned bank that was particularly vulnerable in lives the the court reversed a probationary sentence because the innocent shareholders were built of billions of dollars i think if that's the if those things can be taken into account to enhance the sentence and the reverse is also true that here we have banks and i have never been able to get my head around this quite frankly at the very same time that the prosecutors here are saying that  the underwriters would of not approve these loans there in new york arguing that the countrywide was engaged in this massive fraud of underwriting and that they were trying they were intentionally circumventing the end writers so i i that that's something the court could and should take into account in terms of the reasonableness of the sentence on the district court didn't it seems that this record in mention it and the district is court didn't mention the reason the objections or the the arguments made by the prosecutor either but i think this square can still take those into into account and whether the there was an abuse of discretion the government has raised by my count five reasons why they think the the judge abuses discretion only two of which were ever mentioned in the district court the first was that said that the sentence did not it recognized the serious offense sufficiently and i think about that issue i think that that makes relevant the fact that he didn't kingpin profit he didn't know about the this representations that the banks had already approved the loans before he ever got into the picture the second objection the government makes is that he didn't get deterrence enough weight because we should send b the court to be sending a message that professionals shouldn't engage in this kind of conduct and i think that again this is where countrywide in chase's conduct comes into play nobody got prosecuted in chase or country so what meant what does it what message is the court sending when it sentences somebody like mr king seventy two years old prison and doesn't prosecute the real ringleaders of this massive fraud this judge did the grunts that are doing these individual frauds well the message is more complex than that now the government also raises three additional arguments never mentioned by the prosecutor the first they say unwarranted sentence disparity and it didn't cite to statistics about how seventy percent of fraud defendants get prison time well thirty percent don't and there's no sentence is only unreasonable if it is outside the range of reasonable in this i was i would say that three percent of fraud defendants don't get any prison time you're within the reader are within the range of reasonableness the court i mean the government also accused judge of unsound reasoning by saying he didn't really benefit from the offense i think the record is clear that he as we've already discussed that all he got was his routine fees and those actually went to his business so we don't even know how much mr king actually got personally the other you could also keeps con right well that maybe the government speculated that was some sort of part of the motive but there's no evidence of that in the record that was the first time he ever mentioned that isn't there bri the government also argues that the unsound reasoning was because they were speculating is we were just saying that he plans happy but then the judge said well who knows for sure so the judge really didn't rely on that issue so the government's complaint that the judge had unsound reasoning i think is  not supported by his comments good morning in may please the court eileen can on behalf of the united states we believe the district court committed a clear error in judgment when it imposed a non custodial sentence on mr cain a highly experienced and unremorseful title agent an attorney who played an instrumental role in a mortgage fraud scheme that caused nearly one point four million dollars in but we see no compelling justification in the record or in the district courts russia now for a variance of this magnitude all the way down from a range of thirty five fifty three a factors in a way that we hope would serve the purposes in that statute we don't think this court needs to dictate the particular sentence now that would be again in the discretion of the district court once it goes back down when you say they should re the factors and he did weigh them so would you say way this one more than you did or way that one less than you did essentially yes we've we believe that he unreasonably balance the factors because he so drastically minimize the seriousness of the offense and then he elevated the defendant's individual characteristics so far above all the remaining statutory factors that he alternately imposed an unreasonable sentence so you agree that  should have weighed the personal characteristics and he should have weighed specific to try guess you're not complaining about specific deterrence it's only general deterrence that's correct your honor we're not taking the position that mr king himself is likely to commit further fraud we don't think that's supporting the record but we do believe that a very strong message in terms of general deterrence is necessary and that's a principle that this court has been quite receptive in the in the let in the white collar cont particularly in cases such as crips chris and hayes and i would point out that in those cases you have defendants who pled guilty and cooperated and in many cases provided substantial and critical systems we have quite the opposite here in fact we have a defendant who the district court even commented showed no contrition in the district court on two occasions i think in the transcript commented on how surprised the judge was by that lack of soda but so he weighed that and he had that before him to weigh it as well yes and it sort of kind of begs the question what the defendant would have received if he in fact had shown some remorse i don't know how much further it could have gone maybe i'm just at least raising questions about the language can't can you tell me a little bit about how you look at sending a message as opposed to the concept of general deterrence you know sam goldwyn used to say about movies if you want to send a message use western union it kind of grates on me to say that a judge in a criminal sentencing should be talking about sending messages to the world but how do you distinguish that from general deterren by when i say send a message i mean the classical interpretation of general deterrence which is providing a significant enough threat to would be white collar criminals not to engage in this type of deliberate and calculated fraud in the future so if you're are you saying that it's going to take a bigger sentence for some other seventy one year old man who's going to lose his law license any way to deter them from that that prison on top of that is really necessary you know not it's it is necessary because the standard is no greater than necessary yes your honor we believe a meaningful term of incarceration in this case is necessary and it wouldn't be greater than necessary and the reason for that let me just factually speaking cain was roughly six years old when he committed these three counts of bank rod which we submit are quite serious offenses each of which carries a thirty or statutory maximum they're all class b felonies for which probation isn't even statutorily an option so he was i think mature enough to commit the crimes when he was roughly sixty years old and none of his personal characteristics either alone or in combination may hit make his circumstances or this case so extraordinarily unusual to justify  that mr king would require a higher level designation within the bureau of prison and it was very much a resource driven argument about this imposing added a basically an added drain on the federal government it was never up an argument about b o b not being able to manage his health conditions and the district court when when it when it referenced his health just said very generally quote serious medical issues there was no or significant medical issues i think there was really no record developed as to whether b o p could handle that claim and that's precisely because that was never the argument raised by mr king and so yes the government didn't put on particular evidence to suggest the amount of gain with respect to mr king it is true sort of that if you look at the discreet financial gain on these three transaction is not a lot of money in we knowledge that but i mean it really is a big contrast for him versus other usual free and but is nevertheless now jointly and severally for the full amount of restitution and is not really in the same position as someone who is the c e o of corporation or c and and and participated in a you know billion dollar accounting fraud and that kind of said yes your honor i understand that the dollar psalms are can be viewed i think more offensively obviously in those mortgages cases in terms of discrete financial gain but i would urge his court not to look so exclusively on that dollar some figure because i think it really does obscure the real harm here we're talking about three point six five million dollars in fraudulent loans that were dispersed by these banks were not for mr king's role in this offense and ultimately an actual loss of almost one point four million dollars i think that makes his case quite serious when you look at the last amount also looking just at that the customary gain i think needs to be viewed in the context of what we have which is an ongoing professional relationship in a title business with which a sort of built on reputation and even if you take the district court's rationale which is he was just doing this to make his law partner clients happy that to me can own stuff connotes at least some inherent profit motive for for future business i'd also say that this type of argument that i only made customary fees is something that's routinely made in the mortgage fraud context we're talking about title agents and title attorneys and it really never persuades because they and mr king in particular are operating from a position of trust he's a highly experienced lawyer with almost forty years experience doing these types of closings and for him to glaringly violate that trust not just once but three times i think sets his case apart in a certain way and also the fact that in most of those cases that you're referencing where the dollar sums are higher you have defendants who cooperate and provide critical assistance and then i would finally urge is court to look at chris it is a pretty go all case but i think factually it's probably most similar to ours in so far as the last mont there is roughly half a million dollars the defendant the defendant there acted at the supervision of his i'm sorry at the direction of his supervisor and there's no evidence that that defendant gained anything beyond his standard salary as an employee so i think it too restrictive of a view on the financial gain here obscures the true harm caused when somebody of mr king's stature as a highly experienced lawyer blatantly violates  duty three times in the context of a very serious crime  i wanted also respond briefly to the notion of the six months home confinement that is part of the sentence but we just feel that qualitatively it cannot serve the purpose of general deterrence in any way that a meaningful term of incarceration would  and so we just don't think it changes the calculus whatsoever we we do believe the sentence truly falls outside the range of reasonable outcomes and we asked this court to vacate six months home confinement component doesn't change the substantive and reasonable is about the sense of the sentence which is truly a drastic deviation from a sizeable guideline range with no compelling justification  reasonableness of the sentence well first i'd like to say that the the grounds for the departure of the variance don't have to be extraordinary as the government has argued as to the cases they've cite chris in addition to being pretty good all it the major reason it was reversed was not simply the sense of self or because the judge put too much weight on the payment of restitution and also in that case they also pointed out in my initial argument the court also was concerned because the victim there was a small family owned bank that was particularly vulnerable so we're back to the issue of if we're going to look at the victim let's look at musgrave a sixer case and went up twice to the six circuit government sites the first reversal and what's interesting here at night goes back to the whether to be plane air or review the prosecutor objected in that case at sentencing that the judge didn't consider deterrents enough six or reverses to give the judge a chance well the prosecutor here didn't make that objection if he had maybe the judge would made an explanation but in any event it goes back up the judge gives the same sentence probation again and that was they defrauded two banks garlands or fifty seven to seventy one months more than here the sentence was one five years as one day served five years of supervised release two years of home confinement in a fine and  restitution in particular the court disregarded b o b o p's ability in that case the government actually argued the b o p had the ability and the sixth circuit said no based on a two thousand report about how the b o p can't really do that take care of elderly prisoners so there's plenty of evidence out there that the b o p couldn't really handle this and the government didn't try to prove it so i think that the we're back to the point of the record it's their burden they're the ones that had to show this was unreasonable so they had the burden to prove that and as to the to the loss among the seriousness of the of the offense i just have to come back to the fact that these loans had already been approved by the banks before king got involved and countrywide the underwriters had twice rejected it and as to countrywide in particular we brought up a no no no i know this would be only on reviewable for plain error but we now know that the bank of america bought countrywide south of that probably a bargain price in two thousand  would take third case