i mean here today we have some of very docket this morning for sure and we assume that most of you are familiar with our procedure is just to double check we have the traffic light system i see the i see that in the first part we have a split representation for the defendant but you will get a yellow light signals you have two minutes left when the red light  conspiracy was the director of the twenty first century learning center this center provided youth services for at risk kids where they provided services such as mentoring teaching meals transportation for kids as well as recreation nichols as a director put together reimbursement packets that were submitted to whatever for tis the foundation that receives federal funding through d c o g d p s taxes council governments that had received federal funding in regards to hurricane relief funds that were distributed now the government's actual costs were for teachers for transportation and things of that nature i think the evidence supports the fact that mystical in submitting the reimbursement packets to the foundation consistently apply the unit cost for those services that had been agreed to in contractual terms through the through the agencies that were that were there or funding is now there is no dispute in this case that services weren't rendered that teachers were paid that they were in an inflation  of students or transportation the only issue in regards to miss diggles is the fact that the government states that she should have been billing actual costs rather than submitting packets for unit of well maybe she should have known what her dad was doing but the fact of the matter is is that her sole responsibility was just with this learning center and she has been given these unit cost to build a guest and that's what she does and so when she said miss those reimbursement packets those are also checked by the financial department in the foundation and it goes up and they are checked through the simply did her job and so on the argument here is that did she have knowledge that she had no knowledge that she was billing fifteen to seventy five dollars an hour for everybody and paying them ten to did she receive funds to pay for personal expenses through the church ministry there she did and there's no question about that i guess the argument though is when you look at what was her in did she intend to defraud what was her knowledge as far as whether she would supposed to be billing unit cost versus actual c she was a director she followed the instructions that she had been given she's not that negotiator she didn't go sit this contract she wasn't privy to what the rules and regulations were she saw that this is what you were supposed to bill based on unit cost for teachers for transportation and things of that nature that's what she did and then when she was interviewed by the agent the agent's testimony was that age i mean is it really believed that child she was in a thirty she isn't a thirty three and i yes you are and but i'm saying that she is not someone who again was privy to government regulations in the contract negotiations for the unit cost to herd knowledge she was billing based on a unit cost and that unit cost was approved throughout the process i just don't believe that the the socks of this case she was only charged and one  i understand your honor but i think that when you have a conspiracy a conspiracy is a wide net and when you have multiple defendants in the case gerson we tend to look at the overall rather than a three court can a looking at the specifics to see if in this particular case with this particular defendant looking at the evidence even in light most favorable to the verdict does it show that she had the requisite intent to commit fraud and deceit have knowledge of the agreement to suffice for the elements of the conspiracy and i would argue to the court that it's just not there when you look at her individually specifically didn't she did they give her a deliber and indifference and deliberate ignorance instruction your honor i do not recall well i'm not sure that it was mentioned in the briefs i was just wondering because didn't some of the testimony say that she knew that some people around town and said your daddy may be corrupt there was testimony that that was rumored in town but again to her the that's i don't believe that you have the inference that that c then a team to me the jury could to infer that there would be reason to be suspicious g guidelines and there is somewhat of a disconnect in in the what's put in the sentencing guidelines versus what's in the  application notes is a person is not misrepresenting themselves that's a fire chief who who solicit funds for a new fire engine but uses some of that money for his own parts of purposes so that's not m this sensing guideline says there's got to be that the defendant was acting on behalf of a charitable educational religious or political or run the farm and the fire chief says give money to the fire department he says he's acting on their behalf and people give money instead he puts is but the specific argument that i made was regarding the solicitation of funds there's in all three examples in that case notes there has to be a solicitation there has to be some going out there trying to get funds and there was no evidence in the record that rosie diggles ever solicited any funds on behalf of either the heart heart foundation the church or the learning center  so i don't think that there is sufficient evidence for judge clark to have found that there was a misrepresentation in this case now the way it was presented to the court was specifically on misrepresentation the way i presented it in this conglomerate of activities attributable to anita and rosie diggles it it doesn't specifically break those out i don't think there's any evidence that rosie diggles  have to be an agreement that she agreed to misrepresent she never agreed to misrepresent or that she agreed to solicit her our job was cooking driving a bus and drive a cadillac escalade well that was her regular her mere presence that she this she committed walk fraud and she committed conspiracy to commit money money laundering and i've started to the cold war the united states versus natal the specifically defendant's knowing participation in this scheme is to show as we've kind of put it in our brief both sides of the ledger so in anita's case it's very easy shortcut to figure out what she she knew a what was being represented in the paperwork by the foundation because she was the one putting together the paperwork that listed the teacher's cost at seventy two and ninety six and one hundred ten dollars an hour and at the same time she has these for example she put together a spreadsheet that listed that they were getting paid eight to fifteen dollars an hour  than it's not even double it's all it's close to double but why is there such a disconnect but if it looks like they were getting eight times the money but then they end up getting hardly double the money i'm not sure i think it may be this in some packets they just they weren't mess representing to the same extent i think the main if there's a question i think the question lurking behind that is did these teacher expenses did the list of teacher expenses that cover some other things like you know meals for the children or something like that and i think the answer to that is no because in that paperwork in the real reimbursement paperwork at this time separately you know rent to the to the church listed meals for the children list and of course the transportation was part of early part of it was the money not belong to as many hours or billing a much greater rate of course but they it seems like some of the math is that they want billing they actually worked more hours and they were building right i think that's just got to do with lack of careful paperwork i know there is that exam when walters brief and we don't dispute that in that one instance for example it was i think laura forward was one of the teachers so that they're the overbilling was over you know it was only to the you know to the tune of twenty five dollars an hour or something like that and there may have been more examples like that but the defendant have never directly confronted asian goodson's testimony about what the total is i mean he went walked through these things packet by packet i think the question is could the jury have credited that testimony in light of the documentary evidence and i think the answer is yes i have a question about the basic program did all these services have to be for hurricane victims or evacuees and you have two thousand and ten these this financial literacy program i guess i can see if if the financial literacy program is your people who are you know with lost their homes because of the hurricane are needed to get their finances in order but we did there have to be that with the people coming to the financial literacy program hurricane victims or was that a i mean does it seem like your case is really based on these recipients not being victims  but i think i think they do have to be hurricane related expenses because of the representations that walter made so there's two levels of false of occasion in this case one from the foundation to debt card then there's that next level from the debt talk to the texas health and human services commission and walter used to difference and he certified every single reimbursement from you know from texas health and human services to that time he certified that i think the words were that all outlays were for the purposes set forth in the documents quote unquote the word documents were hurricane relief award documents and the purposes listed there in were yes a number of different services services for hurricane relief and i think i think there was testimony from daniel not i don't see an allegation that these are the recipients one hurricane victims now i know that it seems to me i'm not sure that's five years after katrina and who's determining if these people are victims or not the recovering to the church right i think it's i don't think it turns on that i mean i think it's strictly it really is an overbilling case and i think it's we can establish the wire fraud that way that there were at so i think the district summarized it really well in the rule twenty nine conference and you'll see this at thirty four thirty two and they have a little bit of what they that were going out the door here i don't in the record i don't think that there was this exposed to be honest i don't know i think it's some point was that it's some point it just became so brazen i'm not and i'm not entirely sure that it took this long to discover as it did and that's i think the point i think the point judge jones was getting it was like i guess a contributory negligence to a conspiracy charge but the government just opens a door and it says that the district court stated on which pages of the p s sorry so special conditions could be found that's correct although i did do that and i would acknowledge it did do that as it was imposing the  conditions which may or may not be relevant and they are going to defend the bathroom and open court rather than when he's got a court appointed lawyer and you've got to pierce are that they've run and why isn't it sufficient for the district judge simply to by the district judge is required to personally direct them they have to orally we've studied them because i suggest to you that turns this condition the were no she said between the district judge the sentencing judge and the pushing you a little bit here because i'm surprised that the government so quickly relent on this well i think without backing away from our concession i think we agree with you about the underlying underlying problem with we've destroyed for that reason there's also united states versus wrong if i'm saying that correctly conditions in it and if the defendant if the defendant says right then and there i read these and you know i don't have any objection to them i think that is still fine after revisits try to revisit try to distinguish is ruined so i think that procedure is still available  and there are other arguments we you know we could have made in this case about you know whether these were all quote unquote special conditions that are subject to the rebbe's try to rule i think because for us it was conditions again because this predated we've destroyed i think the i think our practices will now change a bit but there's also and i've seen a recent case from the northern district of texas where the judge had a written document at sentencing of the conditions and asked the defendant to sign it after you know reviewing it and confirming knowledge with it then attorney and i think that could be distinguishable from a vista strategy because the whole idea behind it is really the presence at the defendant is entitled to being present at sentencing and  present you know to engage on the special conditions and i think that would be so have a chance to object knowing what they want her to be very honest about i don't see why special conditions differ from like from the statements in the p s r why not have the judge and review that practice as well so the special conditions here included you must pay any financial penalty that is imposed by the judgment is thought inconsistent with judgment it's again i think that for us the simplest way to handle this at the end of this lengthy brief was just to concede across the board and i get i'm not trying to back off a concession i think but arguably that's that's not a special condition and it's not something that conflicts with the judgment there is a mandatory condition in the judgment that specifically without the approval of the probation officer you must not participate in any form of gambling all of them are obvious conditions to you to assist in the payment of some restitution i mean i think you're deprived of all monitoring unless you somehow get to resign but i think two points that i think under rule thirty two point one c and section thirty five eighty three which we cited at the very end of our brief i think we retain the ability to but i guess the second point i would make too is that the court again not trying to back off a concession but the court does not have to accept or it can independently review i mean there are any number of cases that stand for that proposition if the court will undertake its own decision in its own analysis the question insufficiency you were i think we started getting in to questioning you but you said a need to has both sides of the ledger there's clear evidence of both sides of the ledger for her what about with rosie i don't see where rosie had knowledge of what they were asking the government for she was dealing on the level of she knew what they were actually paying these folks so how do you what's your strongest evidence as to rosie the strongest evidence or is not something we've emphasized i think thoroughly enough in the brief is this that she also had she also had signature authority over the church account which is really important because the church account didn't have very much money in it at any given time and you'll see that i think at the pages escaping me but it's aging goods and testified about for example when the close out money came into the church account and that the balance went from something like ten thousand dollars to you know one hundred thirty five thousand dollars all at once and we are exceedingly rosie would have seen presuming you know she has signature authority over the counter presuming she pays any attention to it at all she's going to see all these excess funds coming into that account and then spilling out to each of the individual defendants so she knows and she's spending this money herself she sees walter for example spending one hundred sixty nine thousand dollars on his credit card bills from that account and on and on emphasized sufficiently to this point is that all this evidence has to be taken together so you connect that up with the fact that you know we've we've mentioned this stonewalling episode rosie disagrees with us about that characterization but i don't think she can deny that at  minimum there was this interaction shana fuller's coming to the foundation's offices and yes she's generally dealing with evelyn cheatham but she she is coming to the foundation's offices rosie being there one time and saying you know i'm looking for records about about how the foundation is spending its money and i think at that point rosie acting in good faith would say well you know we we've actually been spending a whole bunch of this money ourselves and i thought that was totally fine and we better get to the bottom of this she does it she doesn't say that at she just says now the records are not all available i think her we may not be here with rosie but for her false statements to the agents i mean these were critical i think as well so there isn't there isn't this dearth of unlike with walter and anita walter had you know nothing to do with the foundation other than you know providing advice when requested rosie it walter didn't control of the foundation he didn't he wasn't involved in the reimbursements from dot com to the foundation i mean those are so directly contrary to the truth that the jury could say that's evidence of consciousness of guilt that her role really in this was to keep her mouth shut collect payments and if somebody asked her about it and notably her story is consistent with walters the denial walter gave a statement to agent goods and said the agent goods and i didn't control the foundation i didn't control its payments but of course that is totally false as we know from the memos that walter sent to r c horn directing he his role in doing basically walter's bidding is strong evidence of of walter's guilt which we haven't really talked about and if the court has any other specific questions i'm happy to respond to those but i would just otherwise  making any false statements anything like that almost fall are said was she didn't get all the records she wanted with regards to what the government said about miss diggles knowing that all these funds were going out that they evidence that all the funds were being spent i don't think there's evidence in the record to show she had that she knew where it has been spent and as far as the signature authority it's not really clear in the record when she got that signature authority or she knew what she was signing i mean she was signing checks she was trained as an accountant to write he was trying as an accountant but there's no evidence in the record that she ever reviewed in the of the books are anything like all she had his signature authority on that came out that was the extent of her authority with regards to her the rebus astride of issue since mr ross brought that case i will tell you as a longtime practitioner in the eastern district that prior to this what the court would generally do is what happened in this case they were deferred to the p s r since then and usually it's not twelve issues usually it's one to four special issues what they do is they just simply rate the rhythm into the record and go on it's a very short process takes about forty seconds and the court doesn't seem to have the concerns to the judge judge higginbotham as it comes to that so i do agree with the government that they should be struck thank you thank you thank you very much and  bailey mr ross your court appointed you done a great service for the court and for your clients and we certainly appreciate your s