thank you the next case i'm on for argument is united states versus mostly number eighteen to three mosley has been convicted of rico based on a single judge's answer to that law school hypothetical and answer the judge himself acknowledged was not a homerun and was not  business wouldn't it be your position that if someone incorporate some cells outside of new york or targets new york residents with you serious loans right they are soliciting people for these be abused with a predatory practice isn't that your position in fact there are many federal court cases as this court recognized in the midland case before remained to the district court there are many federal district court cases that say that the new york policy i knew serious not so fundamental that we will disregard of appeal snyder v phelps which says that the purpose of usury laws from time immemorial has been to protect desperately poor people from the consequences of their own desperation and the new york city court in and i pronounce an a c c new york has a strong public policy against interest rates that are excessive and that this policy must be in force new york courts have said over and over again that this is a strong public policy the court of appeals could have been clear we don't want people who are desperate being subjected to predatory practices there is a conflict in the law and this code if you look at your decision in the midline case recognized that the case law was divided on this there are cases that say it's a strong public policy in their cases that say well we favor choice of law provisions generally or apply the validation rule which says if there's any contact with the lending transaction not the jurisdiction and that jurisdiction would favor the lending transaction then we will apply the law of that  well let's just let's just assume your honor that this was an and forcible engineer call and that was the basis for the district court's decision is the only basis for the decision here really  what does that mean will new york still has to figure out what a plot is this is a basic conflict question whether new york would apply new york law because one bar in this state six hundred and thousand is by no means clear new york might look to his own conflicts law new york has applied the validation rule and this court said so in the spirit case and that has not been questioned by missouri then the loan or the lenders were in missouri and the customer reps were in missouri the banks were in missouri the borrowers residence in this case new york was one contact a single contact of the five bor who testified only one was from new york is fine no means clear that new york would apply new york law of the fifty states remembering by the way that payday lending is not a legal across the nation it's not a federal crime in residence in new york who would have accepted online right and again as this and paid the money and the money was paid by new york residents in new york right we know i suspect that in many cases that's true although it's not proven in this record that every new york bar where used in new york bank but is this court said in the oto missouri case internet transactions a new thing straddle borders and it's a novel question which applies  when a question is novel when the courts themselves can't agree she's baseball it in the tie should go to the runner in a criminal case that mr mosley under due process principles and principles of lenity should have gotten the benefit of such advice of counsel part from his own testimony there were those there were numerous numerous letters from counsel written to state regulatory agencies saying things like state l that's not advice to him well the court decided that it did come in as advice of counsel because he relied on those letters for the proposition that his those force of law was legal he started off right at the beginning meeting with counsel and there were he met with counsel he never having seen opinion letter despite that we have we not have party introduced any e mails i would like to point out that in the see if the consumer finance protection board case in missouri the council was sued and they have several and the terms of the settlement are obviously confidential but there was clearly evidence in that case that canton was quite aware of the nature of the business and had extended him advice that this that these choice of law provisions war enforceable and if you know this that e mail they found the government pounds about your business is in peril well that can mean many things it could mean you're not going to be able to enforce these laws these loans in certain states because of particular state's interest rates doesn't mean it's a rico violation i don't think there's a shred of evidence in this case to suggest that a single lawyer ever told him that if he did what the government the government's position in this case is always been just fine his argument about shams and everything else if you and if you had six hundred and fifty thousand bar borrowers if you extend a single loan to a single buy in a single sta areas you violated rico i don't think there's any way that mr mosley was on notice that rico would be interpreted in that fashion and i think there's anything in this record that's expressed language that makes criminal the enforcement of loans at twice the usury rate doesn't i mean this is unlike most of rico this is very much in the t i have read that letter in which so many times and it is you could read it as being clear if you ignore the fact that this has been used this way because this is not what it was intended for it was intended for loan sharking we have a system in this country  fifty states with fifty sets of usury laws and no federal crime involved in page lending and sure you might be able to extract out of this language of rico in one case a rico violation but at this point in time mr mosley is the only person in this country who's been charged with rico for this offshore model i know they're in the tribal entity cases that ray is different issues about sovereign immunity with dr tucker pending right here that you have turkey pending and those are very different issues this is more of a contractual choice of law issue and i and i think the far reaching use of rico morning may it please the court my name is david abramowitz i represent the united states on appeal and i also represented the united states at trial the judgment should be affirmed that the government's position in this case is that there was a rico violation and the r statute is very clear it is illegal to participate in the affairs of an enterprise through the collection of unlawful debt this is not a case about one loan to new york or among six hundred and fifty thousand loans there was evidence of thousands of loans going to new yorkers from mosley's company but now there's very little or even no published authority construing unlawful debts to apply to these kind of loans is not right york's usury law which is undisputed it is very clear there's a maximum interest rate of twenty five percent and here we were dealing with interest rates at a minimum of six hundred percent that is all the analysis that's needed here there is no need to get into a choice of law or anything else of that sort i would note however that even if you were to go down that road which is not necessary the defendant still loses here for multiple reasons for one there cannot be any choice of law issue where as the jury found here in many cases there was not even a meeting of the minds there was no contract he was convicted of wire fraud and the fraud was that as witnesses testified including at least one from one victim from new york the fraud was that there was no agreement the agreements were a sham that the so called borrowers never saw these agreements and didn't even realize they were getting loans they were dropped in their bank accounts and then withdrawals were made every other week for as long as mosley decided to make those withdrawals are you familiar with the litigation in the appeal and tucker i'm somewhat familiar with it i don't believe that this is conflict of laws but i'm just i'm just wondering whether you would know enough about it to know it concerns both payday lending and tyla and disclosure it's not as very similar setting except with the added overlay of a tribal immunity it is similar and it was charged around this case was charged around the same time this case was charged and it is a rico case against a payday loan or it's not a so called loan sharking or a mob case or anything like that i would like to make one in the supplemental appendix a page three hundred and sixty three and that is an example from a two thousand and eight contract that mosley was using and for the reasons stated in our brief it is misleading it is enough to constitute a violation of the total of payments box is simply untrue but one thing i'd just like to make very clear is that there are other examples of teela violations in the record no point to in a moment that are much more thousand and thirteen and if you look at the boxes there talk about the total of payments the payments that are going to be made on this loan they are explicit promises that a lender a so called borrower on a three hundred dollars loan will make one payment that's what it says on the box one dollar payment of three hundred and ninety dollars and i know in the defense brief there's a lot of discussion about in the box that was printed there about the fine print under these boxes that talks about automatic refinancing well if the court looks at supplemental appendix three hundred and seventy one dollars they will see there is no such language anywhere on that page about automatic refinancing or automatic renewals or the need to take some affirmative steps to ensure that it's just one single these usury laws are designed to protect as was the case here but more than that mostly concedes in the reply brief that even under missouri law these these loans were unlawful and that's in the reply brief pages fifteen dollars to sixteen dollars the missouri statute that was in effect does not allow licensed lenders to charge interest rates above i think it was seventy five percent mostly was not even license but in any event the interest rates he charged were all undisputed at a minimum of six hundred percent so even under the validation rule missouri law does not help it i would also add that there was no indication to any of these so called borrowers who were really victims that anything although everything was happening in missouri from the lenders perspective that wasn't clear to anybody who received these loans they actually didn't go on a website of the of the lender they went on a website to enter information to send out to lots of lenders to get offers for loans there was mostly trying to hide the fact that he was really in missouri so there's really no road we can go down that that ends with the result that some law other than new york law other than some law that there's no road you can go down that ends with the result that these look these loans were appropriate and were not  understand your opening position is then there was no agreement in most of these cases and if there was an agreement and we apply the validation rule then missouri law would apply and it doesn't permit these is that i got it wrong you know if if missouri law applied it still would not permit these loans we don't think the validation rule applies we don't think we need to get nearly that far but even under the forcible because twice the interest rates alone is unfortunate because the miseries used usury laws there is a wealth of commentary that missouri welcome payday lenders that they did not consider these loans  fact there was a statute in missouri at the time that said parties can agree on an interest rate that is would not be permitted under the statute in the law that the government sides for the st time in its brief is a law that says a bar can't be required to make good on more than six refinancing charges it doesn't say that and they haven't signed it in missouri case and i haven't found one that said if you charge the th want to make the  to very quickly turn to this notion that these laws that there were no loan agreements that this was all a sham st of all if you take the rico out of the case we've argued prejudicial spillover and if you take the rico out of the case  the wire fraud case despite what the government says was very conflicted it consisted of evidence from their cooperating witness who says the st day from ford four separate times