adeline that's got stone constitutional guarantees of a fair trial were denied at all stages of her trial in this matter as according to we aren't aware that in two thousand and six ms betts cast stone and her partner dimona ross a codefendant in this matter teamed up to start a foreclosure assistance program known as i j c and ms becka stone was charged with two counts of wire fraud related to two separate transactions that i j c n handle i'd like to focus briefly on two of the indictment which defendant contends was not proven beyond a reasonable doubt by the government count to involve a homeowner by the name of charles kimi x who died either on the day or shortly after he sold his home a day or so after a home that he had placed in i j c m's program the record is devoid of any evidence direct or circumstantial that ms betts gastown had knowledge of any false statements that were the lender was knew anything about this particular loan application the record is simply devoid of any evidence just in addition we know that charles  was not present to testify at his trial he was not present to testify whether he had proper notifications about how your i j c on worked whether he understood that he was placing his home in this program what was involved with that we do know that he was present  closing which would certainly strongly suggest that he knew he was selling it home so as to that particular homeowner there's simply no evidence that he is a scheme to defraud him that he went into this program you know without full understanding of how the program operated particularly since he had signed on to the paperwork associated with the program and was actually at his closing counsel the government has told us that your client told an that she personally arranged well she she personally arranged the transaction after charles i think in the act yes and she dealt with that homeowner and i don't think that's in dispute the question is whether mr kim e f was aware of the so it's our position that notwithstanding the fact that miss that's got a stone may have fully admit it and i think she did multiple times that she was involved in engaging  program or where she was involved in helping him get his products into the program that in and of itself wouldn't satisfy the government's burden without there being some evidence that mr kim yak you know wasn't informed of the terms of the program there's just no evidence that there was any scheme to defraud him and it's our position that you know the evidence that the government failed to present any type of evidence to support that in did the property was not being used for a lawful purpose again before we can even get to whether or not ms that's halftone knew anything about this loan application which we argue she did not there's no evidence to support she did know anything about the details of this own loan application there's no there's no evidence of what the loan you know that that's got don't have known what was checked on on that particular loan application how the house was being used similarly there's no indication that is that's gaston would have known that there was a box to check of of where the funds were coming from and notably the box the check is just whether it's coming from checking their savings for that in and of itself isn't even a false statement so i you know i think our brief sets forth this argument it's our position that the mere fact that ms that's gas don't admitted to the air d c investigator or anyone that she arranged for mr cain matched to put her put her house into this program is not sufficient evidence that she committed wire fraud as it relates to this particular property as as the government has conceded there's nothing inherently a lawful about how a program operates like this so long as the the homeowner is fully apprised and aware of what he's getting himself into and we have no evidence that he wasn't particularly since he was in fact at his closing in addition to reversing count two of the indictment defendant argues that both judgments of the conviction must be reversed where ms that's gusto and simply did not get a fair shake at this trial no one expects a perfect trial certainly but ms best guess stone really didn't have a shot from the beginning one of her primary defenses was that even if you believe jury that you that she had knowledge of false statements in the loan application influencing the lending decisions of these particular lending institutions the district court judge didn't simply deny the defendant the opportunity to challenge this element of the offense  misspoke the district court simply denied that that's that's cast on the opportunity to challenge or refute this and on to defense the child testimony shows that the government put on to two bank witnesses one from fremont and one from american homeowners home mortgage and was very few questions was able to establish if someone affiliated their income on a loan application could have an influence the lending decision yes several misstated how they intended to use the property opportunity to rebut or refute that testimony first she was not given the opportunity to present specialized testimony about these particular lending institutions at this particular time and with these particular loan products freemont is well recognize used a lot utilized the business model that depended on making huge volumes of loans that these lenders profited from the high transaction costs associated with these mobile products namely stated income loans and they unloaded the risk associated with the loan almost immediately and in one case even before they even closed on the loan by selling loans offer full principal value into a secondary market this information was outside the count of the average teacher  d even outside the can of the average lawyer i didn't even understand this going into this and this was a tool that the jury could have used in assessing whether to credit the conclus testimony of the freeman and american home mortgage representatives the district court judge insisted and i think the government to some extent insists that you know offending to simply trying to make a reliance argument and that's just not the case in fact whether the lenders would have made the loans irrespective of the misstatements is really beside the point although i'm i suspect they would have but that's not the point of this argument the at and as this court is held in re the question of materiality is the issue of the nature of the types of statements and not on the nature of the statements but certainly the types of lenders that we were dealing with here are the types of loan products what have allowed the jury to conclude you know i'm not sure i believe that these misrepresentations that we're talking about really could influence these lending decisions and fact i think maybe that they were inviting these types of invitations because they had no worries about whether or not this loan was ever going to be repaid since they were going to sell it all in a matter of a month or even before the closing happened and those were the tools that were denied to this jury in assessing that it but it goes beyond that it's not just that the tool of expert or specialized testimony were denied to this jury but through cross examination defense was greatly hampered in terms of how to get really challenge the materiality element as set forth in the sentence brief there are specific examples of questioning of fremont representatives and i hear from home mortgage representatives that where we're stifled and it was telegraphed to the jury from the very beginning that whether or not these lending whatever these lending institutions were whether they were sub prime mortgage line lending institutions  irrelevant to anything you have to consider that the judge routinely telegraphed to the jury that any suggestion on the part of the defense that the lending practices of freeman and h h him was relevant to anything should be disregard the attitude of the court that was pervasive through trial and there's no question that the jury got the message loud and clear to add insult to injury frankly even when counsel attempted to get clarification of the court's ruling and to try to make an appropriate appellate record to understand is the court just not allowing expert testimony as a court not allowing any reference of a sub prime mortgage lender it was impossible it was impossible to get the judge to clarify that ruling the record speaks to it and it was also i think in another layer of prejudice to the defendant was that because the court refused to hold sidebar hearings and refused to do any pretrial conference is or any conferences outside the presence of the jury everything had to be done in front of the jury it was which was exceedingly prejudicial to the defendant a cold record cannot capture how difficult it is to preserve a record make arguments that are valid arguments and in the process to be admonished over and over again and this goes to sort of the fundamental underpinnings of the arguments that i've presented in my  due to the defense attorneys who choose a path of litigation are generally thick skinned and can accept the judges may have different personalities some may be irritable some maybe even rude but no attorney should have to deal with contemptuous district court judges that's not what our system is about and it's not really about whether it hurts you know and to the feelings or whether even degrades an attorney which it did more importantly it's about the impact on the litigants right and us throughout this trial the district court telegraphed  i found a number of statements by you that would have provoked a lot of other judges to at least mention that word and send a warning to you question are you advocating for the government now i didn't realize the court was doing recross for the government that is absolute abdicating your job as a judge i didn't realize the court was a finder of fact if the court would like to take off its robe and come down here and do the government's job for it it certainly can do that those are a few selections it's tell tell us why we should treat this as misbehavior by the district judge as opposed your honor the the only way that i can respond to this is that this is a very difficult child from beginning to end and there was no opportunity to raise issues with this court with with the district court judge those those statements that the court has has  identified was were said and there are different statements throughout the trial and i think i know the record well enough to know when they were said but when a district court judge has taken over a attorneys examination of the witness recross examination and then dismisses that juror that witness from the bench without allowing  let the attorney to do his or her job and that's what happened it was clear that the judge had taken over the role of the prosecutor at that point a judge entitled to clarify any testimony that was on clear but it judge isn't entitled to take over and and act as an advocate and this was not something that happened once or twice it was happening from the very beginning from the minute i stepped in that courtroom it was impossible to do my job there is no scenario under which i have it as a litigator you have an interest in battling with the judge but is your court judge refused to held any sidebars so that any of these issues could be vetted the record shows and he did not even deny that throughout these proceedings there were contentious facial expressions there was an attitude that was telegraphed to the jury that made it impossible and effect and in order to attempt to respond to that and still preserve my client's rights yes things got heated at various points and i and i understand that without without taking the whole record in context and just cherry picking a couple  statements it might seem that the attorney was being contemptuous but the record shows that i tried very very hard to respect the judge's wishes get clarity do my job protect my client sixth rights and the district court judge simply was resistant to that from the beginning and did advocate for the corps and did advocate for the prosecutor i mean i i believe that that's what happened and i think the record reflects that this isn't a personal thing about you know i it wasn't about trying to goad the judge it was trying to in a situation that was almost impossible to protect my client's right where not only was there a prosecutor trying to convict her but from my perspective and from what the record i think reflects there was a district court judge that was helping along to bar evidence of victims negligence or misconduct themselves those rulings for both john prior to the trial beginning the judge not just of users question in granting those motions guarding two of the indictments a properly structured jury heard probably made evidence that the defendant created and participated in a scheme to use raw buyers to obtain equity from various homes including the  home and the straw buyer who is used in that transaction and the defendant has failed to show that no reasonable trier of fact could have found based on all the evidence and abuse what inferences drawn there from that the defendant participate in such a that then it was herself a real estate attorney who is familiar with loan applications and with mortgage documents she knew that the straw fire was buying the property under false pretenses and intended to deed the home back to a company controlled by the tenant immediately after the closing does showing that the tenant knew but the straw buyers was engaged in a sham transaction and the defendant knew that the homeowner wanted to save his home even while she was arranging a transaction that result resulted in him having no legal rights whatsoever in the home he wanted to say based on all this history here and are bound one particular incident involving representative of one of the lenders at issue in this case a man named norman i conan who used to work in fremont she's referring to the dish court cutting off  clarify exactly what happened there that witness had testified on direct examination she was cross examined at length the garment on his recrossed asked various believe only a handful of questions accordingly i do have a few questions mr lee about some of the friction between the district judge and defense counsel at one point my notes say page four thirty nine of the transcript i'm not sure who the witness was but i believe defense counsel was trying to approach a witness to show a document the district judge refused to allow her to do so because the document was not in evidence  usually you have to show a document to a witness before you can get into evidence at least if it's going to be contested what was going on there do you recall the incident i don't recall the specific document that was being attempted to be shown to the witness sikes davis yes well did defense call her as a witness no she did not and i don't believe she made in that document and later in her honest and there was another incident of a little later where  defense counsel wanted to have her assistant at her table just as you had your case agents at your table to help with documents and so on the district court didn't allow that can you give us some and said instead said that you all would have to help her in request later during the trial is that fair you get to have your your assistance your or your case agents there courts i don't leave it to rid this question and granting witnesses at appropriate times the government did assist her at times it was any documents as we customarily do that's customary in this district well the government will present will be shown what showed to witness  jury emotions people's experience in dealing with the subprime mortgage practices that caused so much damage to the the  sidebar with the government and with defense counsel neither side raised any objections to how that should or to handle the questioning of those potential jurors and both sides proceeded with pre that i did request for assistance i counsel table and the judge denied it and relegated my assistants to the gallery where she could not access any documents or be of any assistance to me that request was again renewed unfortunately in front of the jury because there was no opportunity and i and i want the record to be clear there was no opportunity to address the issue with the judge outside the presence of the jury the judge walked on with the jury and the judge walked off with the jury and never came on the bench  between to address the issues that may have come up which made it very difficult to address these issues there were times when the judge ordered me to put documents up that i didn't even intend to have the witness look at and it seemed frankly as to ghent i was there when you're doing an examination and trying to deal with electronics to get documents up and even when you don't feel like you need the documents up in order to display them to the jury  seemed when the judge had never done that for the government seemed like an effort to impede the examination and that's the only inference that i can draw regardless it was exceptionally difficult to do my job in the process at one point there was just a wire transmission that was made up completely of phone numbers almost a few words here and there that had a very you know not a particularly important point in the direct examination but the judge had the defendant read out the transmission beginning to end which is just numbers there's no good purpose behind it other than again it was you know it was something that i can't understand why the district court wanted to do that for the purpose of clarifying anything and they didn't serve to clarify anything so again a cold record is kind of it's very difficult to us to show what happened in this courtroom but one thing is certain the defense was denied the opportunity to have a cyst it's now with respect to the wide dear as important understand that the judge did ask us or we were permitted to submit questions there was no discussion about the questions the judge said i looked at em i'll take care of it that was pretty much it and that's and the judge didn't even indicate to the parties how he's going to conduct was here it wasn't until we started going through the idea that it became clear that it was going to be such a superficial process from the defense sampling and at that point during sidebar i did attempt to indicate judge this i don't have enough information to make meaningful decisions here there are no case specific questions and even once somebody offers up  that they might have an issue it would be good response from the court was what in picture impact your ability to be fair will know and that was it that happened routinely and that for to suggest that i did i didn't object is just simply not with the record reflects i jacked it as much as i possibly could again under the confines of having to do this with a jury sitting in the rome at all times which made it exceedingly difficult and lastly judge judges your honors i would ask that the court consider certainly the sentencing arguments that the defendant was intitled to challenge the law some of the sauce amount was greatly  exaggerated there was no supporting evidence behind it and to the defendants did defendant did put affirmative evidence forward to say these last months are not under any definition of loss amount are not valid and we should be able to challenge  them particularly as it relates to the one property that was never mentioned until it showed up in a memorandum by the government to the probation department but that the defense has no further argument unless the court has some questions right thank you very much the case is taken under advisement the next case for argument today united states