of course that there was agreement and agreement between mr chandler and essentially mr bo bell the mastermind of this scheme which we don't dispute at all that there was a scheme and so what was critical of course in any scheme is people getting money illegally and that is what was the essence of the defense was that mr chandler did not get anywhere near the bulk of the money why does it matter what he got because it goes back to mel moss not gain correct but it goes to the factual issue of whether he knew what was going on and there was a plethora of evidence all the way through the defense about everything that mr beau bell prevented mr channeler from finding out about the misuse of scripts about the issues of we funds not going out all of those things were building in the defense and so that's why it was critical that he was basically getting paid what a lawyer of his experience would get ordinarily so why would anybody enter into a fraudulent operation just to make what you would ordinarily get in a salary and that's why it was such a surprise  to myself to have this person come in when i'm expecting an expert and expecting to be able to refute the expert on actual forensic grounds the numbers actually being crunched and then have some by to come up there just as a bookkeeper and give this wildly inflated number and we have wildly inflated number based on books that she was responsible for for the company which means she can she can just flies away went to us that's right and that's what that's what the court let allowed it in and then struck it because saying that there was absolutely no foundation so then what's the harm because the court struck it and that is the rub isn't it because sentencing issue if it sounds like you're trying to talk about the conviction right now and in that regard the jury didn't have to find any particular amount of money did it they did not that's so it doesn't really matter i mean he made some amount of money from this right only that it that it was critical to the defense to be able to say that just like i don't want to repeat myself but all the things that impediments that were put in place to prevent him from knowing the extent of the fraud knowing the fraud including the payments so it was a critical part of the defense that we went right to argue those things the jury and they didn't believe you or whoever was his counsel right and disagree with that that's what happened that's true but it does it but the sequence of events that cause that just blew a hole basically through the defense to be able to be have the credibility in front of the jury about what happened to him in that situation  and that was true that it was and it didn't have to happen if we had really if we had had been able to have a sidebar and explained it there that would have been part of it but most importantly that we didn't get it in discovery it was a complete surprise  admittedly met for two weeks with the f b i prior to the trial and we don't get one report that was a totally violated ability to have a fair trial in that regard because it was a complete surprise which as we know but there's no judge struck that and told the jury not to consider that amount so i don't see how how in the end when the jury doesn't need to find the amount of money anyway and now the higher number has been struck what the harm is well the harm was and of course this is the reoccurring issue and that's why we have a supreme court justice saying if we believe that they can really just accept that and not take it into account in any way and then when most of the cases that had to do with the judge struck it so it's ok have to do with the legal issues here you had a factual issue that went to the heart of the defense and by the judge just saying that and in fact the judge failed to strike the other portions of her testimony about the wildly inflated numbers of how much totally was taken in  which no one could really completely quantify but allowed it come in wholesale over my continue objection about her ability to be able to do that but most importantly what's the surprise i could have prepared for her if i had the reports that said she sat down with the financial analysts and basically i don't think the reports would have said this but what it's what happened she just parroted your argument is that she didn't parrot it you had the expert report so if you parroted it then you wouldn't have this argument because she would have had so i don't understand how you could argue that in arresting that what happened during those two weeks and so if i had reports about that oh i sat down with the f b i and i said certain things and we had a report that said that then i'd have been expert couldn't and didn't and so you faced not just what the expert report said you face something more exactly and something that i didn't know about and that was what that's what created the lack of fair trial here  here so there was no chance to follow up in any way and we only found out later even though we had a lack of investigation to be able to lack of funds to be able to investigate on it that this person had been involved in mortgage default she did she came in and testified once again it was over my objection that i didn't have time to properly prepare because it was the f b i that went and fetched her and brought her broader there but there was no question about it that she was involved in mortgage defaults that would have been a basis for cause right there in fact the judge was surprised that nobody on the panel had that that situation it was unusual in this time period why do you say it would have been a basis for cause i mean maybe it would've been explored further and then we would have found out did you really lose the home and was it because of some kind of fraud or not it doesn't sound like her situation with anything like this case right only in the sense that i think that there would have been a good argument that she had been part of what was going on in the overall mortgage fraud killing business and she wasn't actually she just had a family emergency and missed a couple payments and then made the payments and didn't were it if the the record on that is very convoluted she actually defaulted twice she received notices from the bank she didn't get all the way to the actual dates of foreclosure but she did have that situation where she was involved in it i think i would it whatever with being granted or not it would be speculative but i think that there would have been a basis for her having been involved in the system that that would have been an issue that would have been an argument for cause to strike or see my time's up so please the court daniels up on behalf of united states your honor it's more than a year before trial in this case the united states notified the defense that intended to call patricia bryant to testify in its case in chief she was a bookkeeper at the company she was personally responsible for keeping track of the funds that came in and out of the various accounts she was personally responsible for calculating the commissions paid to mr chandler and she even cut his paychecks for him the united states also provided in discovery all of the bank records th form the basis of her opinion and she took the stand and testified that based on her first person experience as a bookkeeper at the company she calculated a total of eight hundred thirty six thousand dollars had gone to mr chandler this was her qualifications and the basis for her testimony and there's nothing in the record to suggest that as you suggested that the was somehow concocted testimony or that the united states knowingly presented false testimony from this witness she had first hand experience and she testified as to what she knew from the bank records let's work backwards for a second and your office have an open file policy with regard to disclosure i don't know if i open file policy and we go then what is that that defense counsel could fairly be expected to know or anticipate at the time when he's preparing for trial i mean he knows this woman is on the witness list to say no anything else about what she might say he would i mean what he had in this case was all the bank records the following basis for her testimony any reports that she had at the f b i had generated from past meetings with her ballistics expert or something that was testifying about an expert area that he wouldn't be able to have any knowledge or would be surprised by i mean this was his own bookkeeper talking about his own income so the idea that he was somehow surprised by how much money he made when his own bookkeeper testified to that he had all the bank records the fact we provided a different expert doesn't doesn't make this a rule sixteen violation could you address the sentencing issue in the last amount i'm struggling with where the district court made a finding that matches the last range that was the basis of the sentence yesternight obviously the court did not give a specific dollar amount in this case the united states presented several different bases for the loss amount of more than seven point five million dollars was there ever an amount that the government proposed that was between one million and two point five which would be the range that gets you to this sentence no we always recommended higher and the court the court specifically addressed our recommendation and said i don't think that you've met that higher amount and i think the issue here is you know argument was ten million thirteen million dollars were both testimony as to the total amount of money that came in from consumers  question the issue is some of those consumers did receive loan modifications some of those consumers did receive refunds so there is a sort of a gray area we argue that the full ten ten million thirteen million was payments for  something that was falsely advertising that they didn't receive the services that they provided but there's an argument on the other side that it should be lower than that and i think the law is clear that on a fraud case like this the court doesn't have to get an exact number it has to make a reasonable  addressed our last calculation and said i don't think that you've made enough i don't believe that the law requires the court to have a specific loss amount in there there are basis for that finding in the record beyond what he said i mean for instance there was a lot of  testimony that mark spencer one of the salesmen and when he took the stand he said that he's already paid i believe one point three million to the victims it was also the united states had a lower restitution amount so there are a lot of different numbers out there as to what the proper proper amount of loss was the fact that the court didn't specifically say the number i don't believe warrants a reversal in this case and then event th defense never objected procedurally to the court's lack of explanation and presumably he would've provided more of an explanation for how it got that number and because of that lack of objection and because ultimately it's a plain error standard then he would still have to show a reasonable probability that the sentence would be different and i think in this case all the evidence would suggest that it might be different but it would be a higher calculation and then all the numbers provided seem to suggest  it greater than one point five million so are you a sensually arguing that if the court had given anything lower that you would have appealed it and we would have had a ground to reverse is that really what you're arguing and so therefore it's not playing  object and say your honor can you explain yourself more why you only give him one point five million dollars last night when it seems to be the proper amount to be significantly higher so ultimately even if the court didn't  proper or more thorough explanation under armstead do you think it is an error and you're just arguing that it's a harmless error that doesn't meet the plane or standard i mean it does seem that we have law that says they do need the district does need to calculate the loss amount and it doesn't seem like we have that but it sounds like what you're arguing is ok that under the plane air standard he doesn't meet the rest of the plane or standard that would be a secondary argument i don't believe that on the facts of this case when you have both  from sixteen levels he must go back to the range of support sixteen miles even though he didn't say the number of dollars well he announced that after specifically addressing the government's argument as to what the loss of that was equal  that's that i'm not trying to cross purposes here if i'm going to be sure i understand your argument and i take it to say your knowledge you didn't announce a dollar amount he announced a number of level ups your argument as i understand it is that the number of levels equa es to a dollar range so that must do in the range you found yes that's correct as far as the juror bias issue there was extensive testimony from the court and from cross examination that juror testified to repeatedly that she one didn't remember receiving the defaults and two that she didn't understand the request to me that she thought the default and then losing your home and she had actually earned a profit on her own so at the very out the i think by my friend from the southern district when he said they decide substituted another expert for the one that they had originally designated was really brings home the point because if i had a report with numbers and what's going on or isn't visitation to find out well if there was a great deal of testimony that is in the record about him lacking that that ability to do that in the ability to even order refunds that he felt were appropriate because the mastermind of the operation was controlling the books and he was the one that was stopping the refunds when they should have made even know many refunds you know if you agree to be the front man sometimes you're held accountable for what goes on behind your back and that is exactly  problem with that is that there's no doubt about that but that doesn't mean that and absolutely civilly liable for for it but does he have the intent to be criminally liable to the tune of the highest in the bag but i think it would be expect that he's going to be held accountable for whatever is in the bag i understand that if there is an initial agreement that he's going to go in and rob the bank well his and that is what is that his signature to send the letters that they're sending to these clients i mean he is he is a key part of this endeavor he was a key part of the endeavor that he considered a an operation that was truly trying to do  work to get these people were lief you know we tried to make they are going to know that it is just last week was foreclosed by this court about the banks which usals to follow the federal law but that's what he was working on in that in setting up the operation and there was a physical difference there so the fact of him getting paid like a lawyer would normally get paid for that was critical to our notion that he was not did not and are going to remain for a criminal and he might have argued he got paid an amount similar to what a lawyer might have cop but i don't know of any value and i was a lawyer for a long time who got paid like he got paid it the company was put in his name and he was given a piece of it and he might i don't know how big a piece of was or or how big the pile was but i never practiced when i was made the president of the company and told to be nominally the front man that's not real typical the other part well even more than he should have gotten a lot more he didn't he didn't have a boat he didn't have an eight thousand dollar watch he didn't have offshore accounts that the mast thank you thank you thank both council for your helpful arguments case just argued is submitted that those are calendar for this morning