her case of the day appeal seventeen twenty thousand fifty nine seventeen twenty seven sixty one united states versus adrian entire sentencing was vacated and the matter returned to judge simon for sentencing for both danielle and adrian targets a new mr leader those who was involved in the previous plea had a separate issue because he entered a plea of guilty and only  sion the issues before this court hearing this appeal i think is an important one and that is what is the true definition of a victim under the sentencing guidelines as this court is aware even though the sentencing guidelines are no longer mandatory determining the correct sentencing guidelines is a starting point now i think you need to ask you this question are the defendants aware that they could end up with higher sentences bigger for the vacate and re man to a different judge they are judge they are aware that in fact they were actually sentenced to harsher sentences when this case was remanded in this way even though the prison time and the supervised release stayed the same and the reset and saying they were given a fine of thirty thousand dollars each a fine is punishment it's not like restitution where restitution is to make the victim whole so their sentence actually  for punishment purposes was increased because they were given a fine of thirty thousand dollars each so yes stronger they are aware of this matter is returned again for resentencing that there is a possibility that the sentence could increase but going back to what i believe one of the main issues before this case is whether or not bank of america could actually be considered a victim in this case why does that matter i mean i was handed last night because for lost purposes and to be one point one i victim is if the individual entity or corporation is not a victim even for actual or intended losses based on the seventh circuit case law you wouldn't include that amount as to loss for a guy like calculations in this intended laws because the courts cite specifically to the part which talks about intended or actual law that that's just a recitation of what the guideline says that's not that doesn't make the tech and intended last case it was actual last case so it doesn't support your why didn't you take the case of both derek and detect it could affect intended lost because the question is how can there be any kind of loss intended or actual if the person is a coconspirator or cold hard in the criminal activity which is what we have here with bank of america you see the panel that heard the first appeal remarked and i'm going to quote now had the amount of fraud been made the basis of a fine rather than restitution the eight that the original panel agreed that the amount of the lost did not change merely because the bank of america was complicit is there a difference between the amount of the fraud and the amount of the loss for sentencing calculations if not seems it's a loss issue was already resolved in the first appeal in the first appeal for guideline purposes was was not challenge the only thing that was before the court was whether or not bank of america could be considered a quote unquote victim for restitution purposes the issue of whether or not they were a victim or lost purpose and are due to be one point one was not a rape was not raised before the court during the first appeal it was raised at the underlying court of the district court under the first appeal but was never raised as a sentencing issue before the court and what the court does in the first appeal is the other panel that was involved in the first appeal is they differentiate what a victim for restitution purposes is and what a victim for loss purposes is under the guideline because they use the victim statute to tremont whether or not bank of america could fall under a person or entity  entitled to restitution for the purposes of intended loss if the if the government must prove a victim made the trial its bad loans to fannie mae which subsequently suffered a loss right and judge based on my understanding the facts that was not part of the trial but if fact i recall as bank of america had to go back and buy these loans because there was a fannie mae was not considered to be a victim it was bank of america provided over one point five million dollars worth of the funds and fannie the money when restitution was ordered in the first sense to was going to go back to bank of america not fannie mae which is the problem that the first panel had because they said that bank of america is not worthy of and i believe that was their line worthy of restitution given the fact that they were involved at minimum rex the original  heard the first appeal at minimum said they were reckless there is testimony throughout even judge simon's quote at the original sentencing saying that bank of america was aware of what was going on i judge judge simon and then was presented with additional evidence if you look at the conduct of bank of america and what they did and who was involved because the one issue that's raised in barrett and v tech or via text apply company is whether or not these people were employees who were benefiting themselves or was the corporation were seeing a benefit from the fraudulent kind but this case is different from bear in biotech because you have multiple people who are employees or agents of bank of america  knows what is going on you have stephanie riggs the loan officer who was an employee of bank of america you have the underwriters who are proving and reviewing multiple loan applications from the same people and i believe the numbers were set out of the number of loans that were given the same people court and received nine loans and three months mchugh received eight months eight loans in two months hurtado received six loans in ten days stein got three loans an consolidate got two loans stephanie briggs who is a bank employee is the one who process these loans and part of our append a part of this appendix and part of the exhibits that were provided the second sentencing was a chart that indicates how stephanie riggs changes the information or supplies her own information to her own bank then moving forward from there judge that bank of america knew that down payments were not coming from these individuals and the evidence is in the trial at the first sentencing and also presented the second sentencing and how they know that the down payments are not coming from the individual buyers because that's the one thing that was argued consistently throughout the first sentencing and the second sensing is this the title company the testimony at trial indicated that the title company knew that certain ones certain checks were coming coalition from concern for certain checks were coming from the defendants the title company is the agency quest to follow the rules provided by bank of america to the bank plus given the fact that bank of america was hit with a sixteen billion dollar mortgage fraud because of these liar's loans are no doc loans they had full knowledge of what the defendants were doing so they can't be just reckless in their conduct because they had full knowledge of what was going on so at some point they become not only a reckless participant in the activities of the target knows but they become active participant in the the fraud and because it wasn't a target of those who put bank of america's money at risk it was bank of america who put their money at risk and that's what the tech supply company talks about as few put the money at risk they are not a victim under the definitions of the guidelines are to be one point one and based on that we believe the judge error in finding that there was a sixteen point handsome and under the guidelines i see that i'm going to my rebuttal time i would like to save time for good morning your honor splay please the morning my name is nathaniel whalen and i'm here to be at the united states america the issue in this case is not whether bank of america is a victim the guidelines do not even relate to the loss either intended or actual to victims they don't use the word victim in there they don't say that he tried then a five victim for intend to thoughts really the issue in this case is what did the defendants intend to have happen here and that's what intended lost focus on whether the bank put its money at risk not whether the defendants you know it's what the defendants believe or intended to occur here the defendants own these properties issue in this mortgage fraud they took buyers they knew were not going to be able to pay off mortgages made the buyers look much more attractive hid the source of the down payments from the bank and then got loans on behalf of these buyers they knew the buyers were never going to pay back they didn't care if the buyers were going to suffer the last meeting characters bank of america they don't care if it was fannie mae they didn't care for those downstream investors they didn't care if there was government the point is they wanted to get these properties off their hands they wanted to get money in their bank account and that's what intended losses that's what this court focuses on you know that the that were much riskier than the lender realize that america didn't require much convincing it's a bank didn't care about the level of risk it was assuming if there does apply here the point is that the defendant did take steps to ensure that the bank didn't know what was really going on here now we understand this court's opinion in the previous matter that was made abundantly clear to us that the bank  isn't a victim worthy of restitution because of some of the steps they could have been a take but the fraud in this case was about the down payment and it was about the defendants writing and signing under oath that the buyers were providing the source of the down payments that wasn't true for the defendants themselves for giving the down payment to the buyers and then the buyers would give it to bank of america the defendants did this mr leto's testified because they understood that if the buyers couldn't make these payments right off the bat redbrick the defendant's company was going to be blacklisted so the defense did just enough to prop up these buyers to get the mortgages and then to continue to first make the first two payments the defense didn't care what happened after that they knew that they were the buyers are going to default now let me address the argument that bank of america knew that these down payments were coming from the buyers there's no evidence to support that the tar tare on those have cited testimony by mr leto's that someone from coalition of concerned came in and and he said that coalition of concerned is this third party entity that the defendants hid the down payments through so they would give the money to coalition of concerned coalition of concerned but then give it to the bank  it was still coming from the defendants so during one of these closings mr lee just says someone from coalition of concerned comes and gives the buyer the check and then the buyer hands it over to the title agent even in that transaction the defendants are still signing these documents under oath that the source of the down payment is coming from the buyers themselves if anyone is closed on a home before it knows that you know checks are flying all over the place and people are coming in with different documents and providing lots of different things bank of america didn't know that the down payments were coming from these buyers the defendant took every step they could to cover that up now in terms of defense are you related the first i'm not in fact i wanted to point to the first case because the defendants now argue that bank of america was a coconspirator this court already decided that wasn't the case twice this court says that the district court judge rejected the defendant's argument that the bank evidence that baker of america's a coconspirator now the district recognized bank of america didn't have clean hands in this but there's no evidence that the bank was in agreement with these defendants to engage in this fraud and that's what a coconspirator  s your honour's i'm happy to just briefly touch on the minor role reduction yeah because the government it's  sure several times the fact that daniela had a real estate license but you need a real estate license to do anything things that she did here my understanding is she looked at prices of comparable properties but is that information not available to anyone with a computer it you know at this point in time why does her license matter to whether she is a minor preaches you're honored to be able to find comparables in the m l s website which i apologize i forget what that stands for the government's expert testified that it needs be a licensed someone with a real estate license to be able to go out go into the go outside and pull these comparables and that's what you give to the appraiser so if none of the defendants had a real estate license they could not done that but regardless of the real estate license a lot of the stuff she did in this case she didn't need a real estate a real estate license to sign all the downpayment checks she did need a real estate license to attend the closing and commit fraudulent statements under oath she didn't need a real estate license to provide these kickbacks she certainly didn't need real estate license  to the buyers about the fact that there are these renters that are being shuttled back and forth months all these houses to make them look more attractive the district court sat through four days of trial the district court heard numerous arguments and saying it was able to  credibility of the witnesses and didn't clearly error in finding danielle was substantially was not substantially less culpable than the average participant and that's the standard was she substantially less culpable than the average participant briefly on the principal arguments in mitigation it's our position that these aren't principal arguments in medication they're borderline frivolous if not frivolous entirely but the issue is waived because of each judgment had not yet been imposed because the judge says i'm going to impose the sentence and i'll give counsel a chance raise any other arguments they want here's the sentence have i addressed your principal arguments in mitigation counsel says yes your honor and the court says in adrian sentencing do you need any further clarification counsel actually at that point asked for clarification on the fine so they knew it wasn't frivolous to question the court's reasoning at that point then the district court says and i'm not going to impose the sentence as stated this is a any other questions on anything we would ask that you affirm the sentences he thank you bets cast on which was the argument was made that the defendant not caused a loss to the bank because the bank had already sold the loans those were the facts under that case in this case those are not the facts here you have a bank who was involved in the conduct and there is more than sufficient evidence to show that this bank was involved and knew of the conduct and didn't care and approved of the conduct because it was their employees their agents their people who knew the facts of what was going on with their loans the loan applications were taken by a bank of america employee by the name of stephanie riggs she is the one who modified the information provided by the buyers before she sent it on to bank of america the underwriters where the say a majority of the one or two underwriters worked on the entire files they had full information bank of america about how many none of this is relevant under the decision  that's cast on which sent the lenders contact me might have made them inappropriate recipients of restitution signing dos but it is not relevant to last amounts of this whole argument is that it's to do well and see well judge in that case there was never an argument to be made at the bank was part of the fraud here the argument is being made that the bank is part of the fraud just not relevant to determination of loss amount under the guidelines for her own who is the victim whether there was a victim well that's our position judge that the bank is not a victims and that doesn't matter for intended law well judge if you take into consideration the way the case law is written and how they talk about i know you said you're invited if you believe it's in passing but both parties appealed invite tech because the issue was before it on last calculation on whether or not the soap the supply company or the meat provider had knowledge whether or not the meat was tainted by the unapproved f d a product and in that case invite tech it was said that the person who is in charge of the meat process read too many acts here you don't have that situation if you look at the first sentence in this case it was based on actual law the second send sense to all of sudden the government decides now are you intended lost because they have a problem based on the court's first opinion or whether or not bank of america is a victim or not that whether or not bank of america is a victim both for intended or actual was is an appropriate argument because whether or not quote unquote there is a victim first of all if someone is a codefendant or is part of the fraud there cannot be a victim at all because they were part of the participation of it again is by take says they put their own money at risk by knowing what the other defendants were doing and they had full knowledge of that through their people their employees and their age to address the issue of minor role that was brought up before the court minor role the question is whether or not daniela if you look at the average participant and what we raised at the second sentencing was whether or not the court took into consideration who all the participants were to determine where daniela felt fell in that spectrum and what we raised before the court that there wasn't just three active participants and to look at those three individuals determine what her role was but there was a whole host of other individuals who had involvement in this fraud couldn't leto's including danielle including adrian joseph acquire and mr rodriguez for the recruiters you had victor martin who was  recruiter you had the closing company who was involved you have the people the coalition for concern you have stephanie riggs and darryl maimane who are the ones who are altering the applications so if you look at is this is the whole all the people who are potentially involved in this fraud where is daniella fall in that and the evidence at trial even by mr leto's end quote unquote buyers who you could argue are the victims indicate that she was just there with the keys i think that was one of the quotes that she showed up to the closings but if you look at the totality of who provided what services daniela was a minor participant in the activity surrounding this matter unless this court has any questions i have five seconds i'm going to ask that