counsel for mr anderson and i will be taking ten minutes co counsel be taking ten minutes i will only be discussing two issues and he will be discussing the remainder of the issues all right are you saving time from a bottle either with yes we're both saving two minutes f ok may please the court good morning your honors my name is tara hoagland i represent paxton andersen i will be discussing two issues this morning the insufficiency of the evidence in regard to the f d i c elements this is a case that falls squarely under bennett and davis and bouchard and dennis which i'll say that when there is evidence presented of multiple entities in a bank fraud case the government has the burden to prove that the entity to which it's saying was defrauded is f d i c and insured and it must prove the inter  the enter relations between the entities that are in the evidence and in this case there were multiple have and to tease in the evidence there was and then i bank and i marshal and i usually bank and i mortgage company also known as m i n c i cor there were several documents entered into evidence that used those terms but the jury it was never explained to the jury how these entities were interrelate joyce it was never explained of the jury the more that and i am c and i mortgage company is a mortgage lending institution and it was never explained to the jury that m and i corp is the parent company for and i bank because if it turns out because the cases say that they need to have it explained to them basically bennett and bouchard and dennis all say that when there are evidence of several entities the prosecution must present evidence of how those entities are interrelated so that they can meet their burden of proof to prove that the actual defrauded entity is f d i c insured in this case it's unclear which of those four entities was defrauded and that's why the case needs to be reversed under these cases it's a jersey requirement the case law is clear that the government can't play fast and loose with these with this element and in this case they clearly did they were trying to fit a square peg into a round hole they threw everything at the wall to see what would stick and went i'm sorry i'm sorry your honor i apologize are it goes to counts one four through five eight through ten thirteen twenty four twenty six through twenty seven and thirty three thirty one and in regard to tear one that just goes to count two that was another case in which there was insufficient evidence because the only documents put into evidence by the government on tear one didn't even say tear one bank they said axis mortgage and bank of america and that was never explain how they were related and mr billy masters testimony was completely veg and equivocal as to whether he even handled the loan in question and i feel like that subject is fully briefed actually so the only accounts that don't go to this argument are the tier one drawing request counts and i can give you those numbers if you'd like them otherwise i would like to just touch on a prosecutorial misconduct issue the district court didn't cite the right standard for a motion for new trial on prosecutorial misconduct it doesn't even seem as if the district court was aware of the standard and instead the district court record and to make meaningful findings of fact in regard to the question issue which is whether it's more probable than not than the misconduct affected the verdict but what if she found no evidence of misconduct what is there for her to weigh what is there for her to do well the evidence that was presented to her in the motion for a new trial and the reply of a motion for a new trial and in the restitution proceedings is replete with evidence of prosecutorial misconduct with you about that ok i still believe that under hanks and it says if the court does not identify the correct legal standard the case must be reversed you don't even go to step two and that's exactly what happened in this case question  what would the judge have done the judge would have had to have a hearing to look at all the evidence that had been presented in the motion for a new trial and weigh it right yes and if she finds no indication of prosecutorial misconduct is there where's the foul on the play where's the harm i mean we don't we don't typically i'm never a fan anyway as a former trial court judge i'm not a big fan of rain and for busy work right i having a hard time with this idea that the court can just find no misconduct without explaining it at all ok without addressing  is so complex and has over ten thousand documents and everything ties to something else it seems what's the misconduct the misconduct here is that the prosecution basically was charging a federal crime when really there are only state law crimes these loans and this money was controlled by and i and c which is a mortgage lending company just another way of stating your services your  that they didn't disclose evidence until after the verdicts that showed unequivocally which they had to admit in restitution material restitution documents had nothing to do with there was evidence that they gave to the new trial councils after the verdicts nine hundred fifty pages of evidence that once the new council saw those pages they saw that what the government had presented at trial was disingenuous and misrepresented to the jury and they found that one of the witnesses actually did perjure himself mr daly about greg slater's employment status and i bank when really he worked for and i cor now these are incorrect and the government knew the greg slater worked for em and i corp it's in all the documents in the employment files that the government had however they allowed mr daly to testify that he worked for him and i bank that's the problem with our site for duplicitous conspiracy count issue and the jury instruction issue because they're related clearly there were two conspiracies alleged in count thirty two of the indictment and then during the trial there was evidence victims a short quote from the indictment government described the conspiracy in part as follows it was an ongoing conspiracy to obtain real estate based on loan applications material information to the lender and misrepresenting to drive requests that reuse for construction expenses when in fact that the drugs were used for personal expenses of anderson very importantly at least one of the overt acts alleged in the indictment that would be thirty to dash for involved a property that was built and sold at a profit anderson was not the builder in that case it was given as a sense how are they opposing when we have one the first conspiracy involves the fraudulent loan alleged fraudulent loan applications to build and flip homes clearly there was a plan to do that at least early  on in this involved what might be called straw buyers but investors builders are buyers right and then there were the allegations about forgeries to get the advances i'm going to summarize but how are they conflict ing right well the  second conspiracy was alleged to have andersen siphoning off those very funds that were being borrowed by the people that andersen was supposedly working with to defraud the banks to buy and flip homes they can't do both because if you're siphoning off all of that loan money or some of that loan money clearly the coconspirator most of the coconspirators in the first conspiracy are not involved in any statements so the money actually comes into his pockets and you deliver it to some of these other people well that that's been why why it's not just one plan well for a couple of reasons i think that would be counter once you give me one reason well one reason i would want to say yes one reason would be that he involved friends and family members close associates colleagues and that sort of thing in the fix and flip plan people that you wouldn't expect him investors only involved in the first conspiracy and they were the victims along with the bank in the second conspiracy so again clearly to two different things two different kinds of bank fraud alleged in the indictment and an evidence of two different   think for that reason the indictment was duplicitous and i think for that reason a space especially unit unanimity instruction was required so the jury knew which of these theories they should under which they should find bank fraud and they did not have that instruction case law says they're entitled to that i'm running a little short on time and that was asked for them i mean part of me that was asked for when where mr slater will work but of course you've got the criminal standard here is there another page and i'm supposed to be looking at the testimony hart point even in contradiction it's probably well i believe that in his testimony he specifically identified a false documents that he said had been submitted to the bank in support of that would which bank it was submitted to and we know that breaks later was on page eleven of the transcript of that same transcript that he was an employee that was there with they were told he was employee of m and i think and so so i'll give you that link in the chain but then it says i believe i submitted those documents probably he says probably to greg slater what if he submitted them to a different loan officer at a different bank documents submitted to tear one in support of that one and one was a false fear or keep verification of n q counts and the other was a false summary of bank accounts and he even testified that he specifically cut and pasted false numbers on to the bank of america document two zero one seven that's a huge where the tip of the question is and which lending institution was that and the answer was i think i might have actually done two with her i believe one with to tear one and went off and one went to m and i bank she did t loans i believe so and then we go on and and then later on the there's a suggestion kind of a leading question about what that the first loan i think the first one was a bit in my in the second one that you're one of my sources but again if there's no other place in the record i don't want to have your time tick away but i'm just trying to make sure that i'm looking at the right pages you want me to look at i think it's in the record of volume ten of mr please excerpts of record from pages twenty twenty five to twenty twenty seven ok again from twenty sixteen to twenty actually extract that money for the defense benefit and i think one point that's worth making on unanimity is that the judge in this case actually did give something much more than a general unanimity instruction instead of the judge instructed that that your jurors needed to quote find that there was a plan to commit at least one of the crimes alleged in the indictment as an object of the conspiracy with all of you agreeing as to the particular crime which the conspira was part of the discussion that resulted in the rejection of a similar unanimity objection here what's also important on this point is that there really was i would submit no real risk of juror confusion on these issues because the jurors returned guilty verdicts on twenty three substantive bank fraud counts of conviction in which they found guilt for both defendants plenty and andersen so in other words the jury unanimously found that is to those twenty three very specific instances of fraud the two defendants both committed those crimes and there was overwhelming evidence in the record that the defendants were working together throughout this conspiracy recall that mr plenty was the office manager for m anderson and was his c p a he was involved in all aspects of the fraud trip throughout the conspiracy so really the evidence showed but one conspiracy there was something much more specific than a general unanimity instruction and there was really no risk of juror confusion here given all of these pacific words that were incorporated by reference into the conspiracy count what was incorporated by reference i couldn't hear all of the underlying substance being fraud counts or incorporated by reference into the conspiracy thank you thank you well i actually thought that the special verdict form was helpful to you in a different way because the jury didn't just check all the boxes guilty guilty guilty it seems to me that they were pretty careful and on count one there they had different results count to count eight guilty not guilty for each individual definit that's that's right your honor they carefully parsed through all of the that case was convicted on a substantive count of i believe it was passing counterfeit currency and the court recognized that because the jury had unanimously agreed that the defendant had engaged in that criminal act and because their criminal so with respect to the rule thirty three aspect of the motion for new trial i think if you look at that she carefully read through the district court's order it's clear that she was and applied it in this case and there is a reason i said it is because she recognizes explicitly that rule thirty three is one of the grounds of the motion she says that on page two of her order which is at  but proceeded with the case and now she says on page five she makes findings that the evidence was sufficient she says it was unclear how these unadmitted materials are even relevant under rule twenty nine but then she goes further she finds that mr da testimony along with other admitted evidence at trial provides sufficient proof that the violations of the being fraud statute involved in f d i c insured financial institution and then she goes even further from there and comments in a footnote on that same page this means is that she was engaged in the process that rule thirty three requires which is that she not only looked at the bare sufficiency of the evidence but she also independently considered evaluated the t rial evidence in determine that there was no basis to find misconduct and no basis to weren't a new trial so i understand that the hinkson case says that the district court is to identify the possible standard but i don't think hansen forecloses the conclusion that you can look at a trial court's order and determine from the entirety of the border that the judge was aware of the standard and appropriately applied it she also the judge here had also reviewed the parties briefs which discuss the standard and she was really in the best position having observed all of the pretrial and trial proceedings to conclude whether the rule thirty three standard was met whether the defense had met their burden of showing a preponderance of the evidence weighing against these these verdicts competent to make a finding that there was no nothing suggested misconduct during the discovery phase or later she did there were some comments about the you know some of the misconduct allegations and we we heard two specific assertions one was that the government withheld evidence by producing one thousand one hundred fifty pages after a trial that is an assertion that is made in the defendant's briefs on appeal but there is no there is no meat on those bones they never explained what those documents were what issues there related to how they might have been prejudiced there by the motion for a new trial that was filed in the district court after the convictions relied entirely on exhibits that were based on information and documents that had been disclosed in pretrial discovery and it also cited various public domain matters that dated back to the one nine hundred ninety s so slater didn't work at and i think that that personnel file showed that to be the case but there's testimony from will daily that he did at least back when will daily did is the problem a timing problem that greg slater used to work there but not at that  e these events are going on or or what's your response to the argument because i've asked counsel to come back with cite for me or so my response to the argument is that there was ample evidence in the trial record time mr slater to and i've been there were uniform residential loan applications that he signed in which he signs as an employee of them and marshalling is sleep bank there were multiple witnesses who testified that they were referred to him and i had been in order to get their loans and when they found out that the drawer requests were forged that's who they called right and that's the part i do understand forgive me for interrupting but i i don't want to get too much your file was produced to the defense the employment file contains documents showing that he was employed by eminent bank however it's somewhat imprecise it also contains documents with him and mortgage corporation logos on corp keep in mind this was not information the defense counsel used to trial they made no effort to challenge these facts before the jury trial even though they had all of this information support a claim flicked in the evidence but that this evidence wasn't withheld from the defense and there's no basis to find any actually false testimony was given by mr da but we did this in response to statements in the defendant's opening briefs on appeal the deeds of trust established lender identity and we did it to further show that there was no prosecutorial misconduct no bad faith effort to to have any questions about any of the other issues right first the district court's order on page five that appellee cites to show that the district court knew what it was doing with the  actually the opposite of what he says and the reason is this i don't understand his argument to be that she cited the right standard at the time at the top of page five i think he's the bottom of page five where she makes a finding that there wasn't any misconduct right that's what i'm talking about to actually ok at the bottom of page five the district court says having concluded that there's sufficient proof that m and i bank was the lender for the loans there is no basis in the record for the court to find prosecutorial misconduct on that theory now the problem with that is she used the jackson neville's standard to conclude that there was sufficient evidence of an i bank so she used the wrong standard to then dovetail it onto in the last paragraph of the second sentence she says assuming this argument is not waived having concluded that there was sufficient proof that m and i bank was the lender for the loans there's no basis in the record for the court to find that prosecutor right during the discovery phase there was misconduct shown post burdick's and i have some citations for that dish to share with you as well ok i'll go to that right now now and i think what you're arguing is that the government allowed witnesses to testify this later worked at the bank when he didn't yes yes rising ok and another example of that is the government introduced exhibit eight forty one during sanchez testimony and had mr sanchez testified that it was proof of count one that there he had submitted a fraudulent document verifying employment when you look at that document it was signed ten months after that loan it closed and later in restitution proceedings the government admits that that goes to overt act eighteen which has nothing to do with the defendants so they used a document from an overt act that the government later admitted had nothing to do with  defendants in its case in chief to count one and there's a straight line to that if you would like me to tell you all the i've got my pen ready ok so if you take a look at trial exhibit eight forty one and greg sanchez's testimony regarding count one it isn't x i'm sorry the exhibits were transmitted to the court so those will be in the exhibits i don't have a forty one in the excerpts of record at least not on mine that specific misconduct does not know i was just giving an example of what the document is a c p a letter admitted during mr sanchez is testimony that they used to have i'm sorry ok let's do that right now we're getting a feel the first that you asked for was will they be daley's testimony that's at for my volume for excerpts of record tab eleven it's ma fourteen two thousand and fourteen at pages eighty five through eighty six the other site i would like to tell the court to take a look at or ask the court to take a look at is the f b i last spreadsheet pages right now i'm talking about the f b i last spreadsheet which is volume eleven excerpts of record ten twenty two at pages three and four and that was a document that was given to the council after the critics which shows that the bank they were claiming last sun was ammonite mortgage company corp i'm sorry and i am c not and i bank now the copy in my excerpts is very blurry and hard to read however i think it's in the other counsel's excerpts of record and i know that you can get it on the d c t document so i heard you do that another exhibit that shows prosecutorial misconduct is demonstrative exhibit trial exhibit seven thirty three dash zero zero one it is the blank draw consent form that the prosecution used during the testimony of mr daly where they asked him they were trying to get him to explain why that form said and i mortgage company at the top and he said well that's just the form that i am and i bank uses however if you compare that blank form that they used in trial the actual drop consent forms that they also put in later trial exhibits any through any for and sixty five which can be found at excerpts of record volume eleven company on this form it doesn't they cropped it i mean the corp i'm sorry yes and then further down next to the signature line it says loan number but on the blank form it just says loan number and then in the excerpts tab thirty one that we're talking about these each  joint with an affidavit the contractor also has at the top of that and then i mortgage corporation loan number that isn't included in the blank form either so they showed a blank form to mr daly that is not the same form that was used the top ok so you know there's there's not a cross examined on this yet correct so what's your response you know i'm going to ask a question so what's your response to that response is that mr feder was over overwhelmed he tried to get off the case and said that the case was taking over his practice and it was taking him down and they wouldn't let him off the case and so i think he did a poor job however it doesn't change the fact that the prosecution altered these documents when they put in front of the jury well or used an incorrect document cou show that this form was very innocuous and that it was just boilerplate and they were just using it because they were sloppy and they didn't change the name of the banks when really they changed the blank form seems like it but i'm sorry so i might have another i have another site that i would i would like the court to look at which is the government's response to the objections to the pre sentence report and that can be found  document three nineteen at pages nine through ten and that's where the government admits that counts it is not in the record of excerpts i'm sorry it is in the district court documents three nineteen at pages nine through ten and they admit that counts three counts fifteen and nine of the overt acts have nothing to do with the defendants at all and this is all evidence that went to the jury which further confused than and conflated the issues and