so fortunate because today there are only two of us and one of him our first case is appeal number fifteen thirty eight thirty eight and it is united states of america versus david  like you're going to have to speak louder because one of us up here is there we hold out you got your honor like i said i represent david johnson and disappear and this morning i'd like to focus my attention vulnerable under the mean i've tried line three a one point one the one under their guidelines at two point enhancement is an imposed when an offense involves victim who are unusually vulnerable due to age there's a close or mental conditions or who are otherwise particularly susceptible the criminal conduct but we're samus victims under financial distress and they don't have any sophistication in the real estate area and so they have made them particularly vulnerable so those are two two pair of terrorist acts that may make victims vulnerable in other crimes but it didn't make them vulnerable here with regard to their general unsophistication there's no evidence in the record that my client david johnson  what the victims were here they were vulnerable i believe that there is a knowledge requirements written into the guidelines it's i believe i don't have my guidelines here but weren't many of them for kids me for a jew and interrupting many of them in in this country without proper documentation their set at least some of them were undocumented and and weren't weren't many of them individuals who the victims had both a translator and a representative from the prosecutor's office present at all stages during their both their meetings with mr johnson's codefendant and others as well as at the closing which is the only only interaction mr johnson was actually present for but you're not tonight in that he was present before these individuals who were being assisted by an interpreter during th the final closing transcript he was present at the closing where there was a need for him to a representative from the prosecutor's office so i'm you're not suggesting that they had any any kind of experience other than this experience in the real estate  don't think there's any i don't think that fully i think the finding was that they didn't and i don't think there's anything record that would dispute that even setting aside the knowledge requirement however  whatever nuance you could make it's plain or review the judge who sentenced saw all of the evidence and we have to give substantial deference to i don't i don't understand how we would right through a nuance for two points in the guidelines where we give substantial discretion to the trial judge i understand that it is plain error however i think the fact that it and it was clear from the trial testimony and then clear to the trial judge that these victims were assisted by a translator and by a representative from the prosecutor's office and under this circuit's case law the assistance of a translator tends to ameliorate whatever vulnerability the lack of being able to speak english might impose on a victim i think that is the biggest the fact that these victims were assisted by agents i think is the biggest thing that the vulnerable position generally as you can see i mean isn't that enough to sustain the district judge well one thing i'd like to point out is that the judge didn't rely on the fact that they were a low income or  how the victims may have been susceptible to homelessness that wasn't something the judge relied on in making his findings he was explicit in finding that the victims were vulnerable because they didn't speak english because at least some of them are undocumented because they had minimal experience conducting real estate transactions and because i previously thought of real estate fraud so whether or not they could be characterized right there that last one doesn't very completely in opposite to the case for the talks about repeat victimisation and how that makes somebody particularly susceptible this is not a a reloading case that was like a telemarketer reload johnson and some of the courts other cases the perpetrator of the first fraud was completely different than the perpetrator of the second fraud and obviously i'm not waiving hard sufficiency argument but assuming that those convictions will stand the perpetrators are a different story but that's still a factor that we can consider right now you have one factor going for you which is that they headed by czars and then there are a lot of factors that don't go for you that are not in your favor in this in the district courts discretion to weigh and to value which factors mean the most in terms of sentencing but one of the things i would say judge is that i think it's significant that the representatives from the prosecutor's office obviously didn't see on on their face on its face anything wrong with this transaction when they were representing the victims at the closing and three a one point one b one talks about unusual honorability and i think the question that's appropriate to ask is would this have raised red flags or would people have found out about it without that didn't have the characteristics that these victims dead now i want you to watch your life so i want to and that goes for everyone in th part but i think that's that's an appropriate question to ask here and the answer no is is no it wouldn't have raised red so now you realize you just have a minute left of what i did oh ok i'll just sum up by saying that that it didn't raise red flags among these people who would not have been vulnerable and i don't and for that reason i don't think it's inappropriate in here it's meant and i will reserve the rest of my time thank you maybe it would very much enhancement to mr walton and his co defendants defense level based on the district court's decision that mr walton was a public official who occupied a high level decision making or sensitive position the guidelines characterize those positions as someone who has direct authority to make decisions or substantial influence over decision making processes while tell me this would end of these sales happen to pool had not been matching private fires to particular properties and then arranging no your honor but i think that's a different question as to what what well in that sense he seems to have been a high level decision maker he was in a unique position to run these deals  through on behalf of the city absolutely unique he was the in he his position found its home within the department of metropolitan development the department of the metropolitan development was run by a director seven administrator and then sixteen to twenty eight system administrators why wasn't he responsible for introducing the resolutions for the land based bank transfers and as i understand the evidence his superiors rarely reviewed those resolutions no other words they had faith in him trust in him and those resolutions passed he was responsible for introduction but i think we have to be careful with how we use that word even his supervisor supervisor who don't really the best evidence of this the trial testified that that amounted to really nothing more than him filling out a form it's not a form that he signed that form then went through she testified herself three levels of bureaucratic r she reviewed it herself she signed off on a cover sheet she sent it to a legal department and when you say reviewed it cheat sheet all the way up to the mayor never had any knowledge of the transactions it was up to him to arrange th transactions i'm not sure the fact that there's a number of people who review it is in any way dispositive of who has the authority to make the determination i think it is if we look at what well first of all i think you have to look at what what his direct supervisor testified to and what she testified to was that explicitly the evidence that we have in the record was that he had no authority or influence after that form passed out of his hands and it's max we have testimony at trial that in some of these transactions he was unable to get approval to put that property in the land bank and his co defendants themselves also by that he took extensive efforts he made extensive efforts to cover his tracks he required cash payments he key key he made sure that his name stayed out of the  s and you know something his stealing really did hit a load point when he used this process to quote help unquote the victims of a different fraud  the fact that he had these supervisors who were asleep with the squid which cannot help i think what you're really addressing there your honor is whether or not he had the specific intent to defraud when you cite those factors about whether he was concealing his involvement but when we're looking at this guideline against that which does make a significant difference to his sentence we have to think about does he fit within what the guidelines called what the guidelines said with direct authority to make decisions or substantial influence now i think if we go further in this case and we look at some of the case examples cited by the government we can see a big disparity between the cases where this enhancements been applied and the case that's before you today and for example both parties rely on hill and who was a deputy liquor commissioner i know you well you your honour's are familiar with this case and this this court said he had an inordinate amount of direction over the that in that case this court said he exercised defacto authority and that there was no oversight by the mayor in that case and in this case i don't think mr walton could be described as exercis standards you've just described is well within the rubric of what the facts are here for your client it might be instructive for us to look at another case cited by the government watkins which was a six circuit case i think that case that that might be the case that has the most missing from this case you don't have any testimony we don't have a testimony from anyone on the board who said what factors they looked at and the government said in their brief that  the government and laid out in their brief that there was testimony that they relied upon mr walton's judgment now with respect i don't think that testimony existed that sounded wrong to me and when i come back to the had that level of influence you know wotan argued that he would have shaken the same actions whether or not anyone had paid a kickback why would anyone pay and why did you arrange to receive fax for doing were that he was already being paid to do by the city i truly could not understand that argument i think that  wood yes your honor no relation that i'm aware of bob ward on behalf of the government there are many times the court i'd like to start with the court's permission with a few quick responses the first is this point johnson strict then that makes the bikies less vulnerable course the prosecutors were going out of their way to help the kims and they put their trust in a pro city employee i think that's that's very reasonable for him to do defendant given the advisory nature of the guidelines of the fact that the sense there was substantially below the guidelines here that's true as well and there's no indication that even that with or without the reduction to two point four point like this one where the judge went well below the guidelines but the sentence or it was left guessing as to whether woulda made any difference because he didn't say anything and in fact harkens makes a point of saying you know it really help if tester judges or just tell us whether what mattered so if johnson the court really just said that he was incorporating his understanding of the testimony at trial there's no really good finding of his knowledge was that he said through trial he listens not on to the victims but also with people who try to help those victims and based on his read his memory of everything that happened at trial he saw the victims as  and so there was some evidence in the record the problem is not spelling it out that's how i would see the full extent of the fullest extent of the problem in the district's first station that is that the district court set through many many days of trial there were three three or four victims testified and three or four people who helped them testified and instead of accounting all the ways in which he saw them as callable in the johnson sentencing and even in the for his finding but there's any number of facts to support it in the record that would be a very harsh plain error standard so i'm not sure that what you're saying is the judge heard testimony at trial he made a judgment i can't find that sentencing there's any real discussion of this question of knowledge because the parties are obviously focused on much larger issues before the judge right and on a plane or a standard i'm not sure it's our place to to fault him because he didn't take great care in him explaining his reasoning and i don't know what is the knowledge component that the guidelines that they're in the commentary that uses the phrase knew or should have  known it's not part of the guideline itself but in the so it's really in a to potentially both the subjective and an object of state right in the objective standard i think is the one that applies here given that as your honor pointed out he was present when all the victims were present heat the prosecutors were present everyone in the city knew about this cases in the papers would well be guilty of anything if he didn't gauged in exactly the same conduct but had not take in a share of the proceeds for himself and i ask this because this program seems you have allowed the use of the charity as a pass through with immediate resale to a seems like a reasonable rule and speaking of reasonable madness or lack thereof the land bank operations do seem to although probably designed to permit flexibility and the in addressing a ban at home issues in the city seems to have been crafted to allow for a lot of around the edges or even drags on the middle did manage to taking the government show that the city received less for these hicks family for example who this this wasn't in the government's brief it's mentioned in the appeals brief who had come to mr walton and offered six thousand dollars for a house and he said oh six thousand dollars that sounds like just the kind of money that i would rather have and share with my friends than give to the city and so he said here's what we're going to do you can buy it for six thousand dollars i'm back from from indiana minority aids called coalition and so he used that process instead of with the process that he was supposed to use which was to say oh i have a bitter who's already told me what they believe what they want to pay for the property let's have two assessments and see if that's an appropriate price and we'll put it up to the public and so that's one way and the other ways there was a lot of testimony or also evidence from wiretaps of mr wall and mr reed discussing what they saw as the f market value of the properties and their opinions on those matters came from some of their outside investors that it's broken and they would say for example this property that never that they never in fact sold was  allocate or could he take a property that was of substance appeared like it would have some value at sale and say yeah but i think and i'm talking without kickbacks to say i think that this particular nonprofit would do really well or it's a good program and i want to give them a little money so i'm going to send this potentially valuable property to them at no ten essentially no cost i think that's the intention of the flexibility built into the system is to allow the land being directed to say the city's best use for this property is either route one money for the caulkers route to a beneficial charity for that goes back to judge others question is he would have been able to do this he could have made this judgement without any without any kickbacks upon it with your honor's to your honest question about what it was he's guilty of anything other than taking money which i don't care if you take out the kickback and bribe what he ran afoul of was what he new with respect to his specific intent and he says that what he did was like them the key differences between those are intent evidence and his repeated concealment which your honor mentioned and the kickback those so if anybody else had done the same thing it would be hard to show that they had any specific intent it did the same thing without a kickback and without concealment it would be basically impossible to show that they had the sort of specific intent that a jury would accept i guess is kind of the point of the law in that we don't know what he would have well there were there was evidence that mr walton would send lists of properties the full list of properties or even sometimes cold list of cherry picked properties to people he knew both might be interested in buying these properties first financial amount of money and might be willing to do so through the methods that he preferred and then there was a public list that was available if you showed up at the city county building and  maintaining a private and public place no it was so it was with your mind by mr walton that as as i understand it the way the government understood the present of the evidence was that these lists were value should go into the private sale category there's nothing the deprived nothing that directed him specifically read the triggering it was his decision is decision triggered whether it would go into the public  and it was responsive that was supposed to be is designed to be responsive to the interests expressed by non profit on the one hand or private investors on the other that he makes a decision whether to shut it through the public or the law was the government again and getting what we want is a personal benefit so i think it's fair for the jury to and then we have a minute of access and make sense to me getting what you want  that it was at the expense of the city i think that he knew what he knew that it was a at the expense of the city because he knew that one was getting he kicked back or other one right well i knew that he was getting a kick kickback and he knew that the money generated from the sale instead of going to the city would go to charity but separate from that your honor if that's as i suspect maybe not the most convincing position your honor he also with cash  watkins was violating public trust violating criminal statutes by taking the kickback and t s decided to stay involved because he was getting properties funnel to him whether for good reason or whether for public benefit he knew the way it was transacting was a crime yeah and i guess that's a much more much more legally well articulated way of saying what i was trying to say which is that he knew that it was one of the other the money would go to benefit who a deep dive on dividing it up there was evidence of money going into his personal account that was traceable to some of this and there was evidence of the ball purchase beyond that there is not i am not able to recall at this point a lot of good evidence indicating that money didn't go to iraq he also yes i would stand up here and say that some of this money did not benefit the am already its coalition was his primary occupation which makes me think that he must have he was a good you know that's what the what was in the record in that regard the record was that he was in charge of it too he was to take a moment to talk about this other question that was a focus of the plaintiff's counsel or the defendant's counsel and that is this whether he had a sufficiently superior position to be a public after drafting the wrote resolution but his influence was baked entirely into the drafting of that resolution but what then i mean the one problem with that argument it's always true if he's been convicted of a kickback that p was directly involved in must have controlled something so when does a guideline draw distinction between someone who is at a lower level control didn't hit it enough so this appears didn't see it and when is it sufficient control that it becomes subject to the four point enhanced is a guy does going to have any not right i'm sure of there's no indication for example if it was an intern who was always successful at doing this hiding it from and he told people i can get to this result every time he was confident that he was i highly influential in the process he was in fact highly influential in the process i i'm happy that that's a different case i don't know if it sounds to me as though that person is in fact extremely influential that in turn that will in turn but they were not to be convicted of a crime in your hypothetical and that's true here and i think that's what the argument is then i would say he was in a position to to effect a conspiracy and to get his kickback but he was not in the greater scheme the scheme of things in charge remotely in charge right what if i would say the contrast i would draw is between a case where walton successfully accomplished his aim of pushing these properties to the land bank sometimes instead of effectively virtually every time if we found if the government found evidence that someone was engaging in a defective kickback scheme by luckily eking through some properties and getting kickbacks and telling people i'm good we're just going to shoot these through that and hopefully they'll get approved and when they do i'll put them through the he had the so called high level decision making in thinking through the line drawing that your honor is asking about through the prism of this case without trying to think more broadly that's the best line i can think of to draw is the sheer effectiveness of this demonstrates his influence as your honor put it none of these deals were got done if not for him and the evidence of deals that didn't make it all the way through scant and now at least snow that's what he asked me for cash payments he wanted to be sure the city where they were in the sense that there was this deal going on with the amos victims as far as i know the city was aware and i think circumstantially you'd have to point right when they cite with it i'm sure that when the m d c signed off on it at the very least they identified the victims or they identified the people who were involved transactions you know i saw your chart of course but you're not even cousins i don't think that ok and just to respond quickly to a couple of questions that's part had been there was testimony from jennifer faults who was david i'm sorry reginald well the supervisor that the city didn't know about the sale to the same respect ons she testified that the city couldn't just sell the properties today most victims that they had to sell through a nonprofit using a  nonprofit as a passthrough and the nonprofit could charge whatever it wanted as a fee she also knew imax was selling the homes for four thousand dollars each and she signed off on that also i believe in the sentencing hearing transcript that lastly i see my time is up i just wanted to respond to the government's statement that it was reasonable for the prosecutor's office to rely on mr walton mr johnson and i think that  certainly was reasonable for them to rely on it but as the government said the crux of the crime in this case was the kickback and as that pertains to the vulnerable victim and han kind of fraud is just not the type of fraud that would particularly victimize undocumented or unsophisticated people it's sort of it's sort of similar to have a person  actually i mean the fraud isn't but perhaps this example you know i am not and he is me and an undocumented person is not particularly susceptible the person actually are something else they are undocumented status in this case didn't make them particularly susceptible to this kind of fraud because even people without those characteristics were for lack of a better word do them so for those reasons we would this hypothetical in turn what mr wood pointed out with this if this hypothetical in turn were subject to this handsome and he would be promising a result he'd be saying he could get it every time and he could in fact and that those are the facts that are in front of this court reginald as another court or the sentencing commission a ticket lated a standard these are the necessary components to divide someone from this position other than that than the overarching standard of your highly placed or i wish that they had but there is nothing in rand's there's nothing in the commentary to the guideline no and i could not find a case that was some point that would suggest some sort of test but so if level of control throughout these transactions in other words he's it he he decided which of these and he had to sign off on any plan that was put into the to the not given to the nonprofits or sold to them in a very low price and th for this purpose that he had he had the ultimate say he was the decision maker i think that if you think about the facts in another way he's the bottom of the totem pole like he's where the process starts that doesn't mean acting in to crack a way and in this case we had testimony from the government's witness that he was not and with that we would ask that you reverse engineer thank you thank you thank you so much thank you and thank you for taking on