because of the likelihood of success on the merits to show are we talking about the merits of the appeal as well yes that's so that's what i want to address not to notice that your co counsel is from overland park kansas how appropriate because that's where this whole scheme was run from right well the service company task go on obviously i can only discuss one error at a time and there are many that have been raised i just want to ask you strong arguments that you make about the willfulness charge in connection with the rico claim related to new york usury is lending but the but but the but there are several but there are other convictions that supported the forfeiture so that if we were if we were to overturn the the rico conviction with back to use your ears lending that wouldn't invalidate the forfeiture the the fraud charge was based on on fraud with respect to the terms of the law and fraud with back to the identity of the lender well so and that has nothing to do with the with the arguments that you make about the intensive deceive and a lack of good faith the government had to prove a lack of good faith was to wire fraud and the wire fraud counts had two theories one of which was the true cost of the loans misrepresentations about that and the other based on this very pro government list of faction factors that was an exclusive list the jury was asked to consider and that was completely unnecessary to the elements of any of the of the charge crimes the judge wouldn't even really explain why he wanted it but that finding by the jury and they were told about the fact years and how they had to look at that question on the verdict sheet during the  instructions by the judge so it was in their minds when they deliberated on the substantive counts and i think that that certainly affected the jury's understand of the jury's opinion of the lender because they found that scott tucker was error go he knew he was because of all these factors the judge listed which were which were basically from the gut they were from the government's indictment and so they couldn't was and and and the defendant's alleged knowledge and belief that the indian tribes were just in ornaments in order to evade the state usury laws that was the whole prosecution and so by b i don't think you can look at this one charge that i the error that i think is very strong in order decide the prejudice of that error and all the other errors that we allege which went to the central issue of of the core of the defense that the defense was denigrated and in fact it was it was essentially the the judge gave a directed verdict with respect to the to the i i would point out i think i've done as as much like can do there's a lot of writing in this case as i'm sure you're painfully aware but there was a lot of evidence that  disclosure in the teela form as as to what the cost alone was but i point out that that was a very contested issue the the renewal feature was was in the  the disclosure form right under the box it was right there i have special appendix page two hundred and twenty six the the terms of the other automatic renewals are right there they also also the government only called a handful of borrowers there were hundreds of thousands i would suspect of loans in the country and there was less than a one percent complaint rate so they called a handful of bars and said they were confused but i don't think that that the that it was a slam dunk for the government that the defendant intentionally misled the bars because of these long terms which were in fact disclosed on the form so in the end back to judge parker your question overwhelming evidence automatic renewal process you got raftsman rafts of complaints from attorneys general better business bureau's address and so forth about the operation you gave these evidence of a major scale is substantial well not really that really depends on whether you subscribe to the tribal model of lending which the defense attempted to to convey to the jury and which in which they were stymied in presenting by exclusion of evidence including evidence by an expert and the limitation of the tribal interest rates and they they have a connection with the what the defense maintained was the service orm of the lending in kansas by having someone on the designated to deal with the loans or to get whatever information they wanted to the fact that the tribal account mr tucker was given a power of attorney to control that account but it could be revoked at any time which in fact it was by the miami tribe so if so they had the ultimate control or the lending they had no resources the the part of the experts job was going to be to to explain how these how tribal enterprises routinely connect with private capital to to engage in commercial ventures that are not on tribal lands because for example in this case the reservation had no ability to have internet access that was they were all very remote they didn't have any personnel they were able to service these loans they made so much money they could have built up their home everything lands if it was a genuine tribal model well your honor you have to remember there was no law on the government has cited no law that said this was not a legitimate tribal model and i'm not here to say that it was a legitimate i don't know the issue here is the defendant state of mind whether they acted willfully whether they accident or they lacked good faith for the warfront coun a tense deceive the issue is whether they believe leaved that this problem model which mr tucker had been advised about by lawyers and continued to consult and spends millions of dollars on legal fees throughout the char conspiracy consulting lawyers in part to in reaction to the civil lawsuits that were filed and to the extent that though the civil lawsuits raise concerns  the the consultation was there to try to address those concerns so it's an ongoing it was a it was a novel model there was no law saying it was it was impossible there was no law saying you can't have a tribal enterprise that's not on the reservation entirely there was just there was nothing there and so and so that was that's the central issue of the trial is what to the defendants belie and on that score i think all of the issues that we have raised have have an impact on the juries understanding of that defense and certainly with the specs rico but also with respect to the war four counts lender was a theory of misrepresentation in the waterfront and at the defendants were able to present their defense and the jury was able to fairly consider it there was a question as to  whether they they believed that the indian tribes were sufficiently involved in the loans to make the loans trival loans time has expired you may have noticed you reserve three minutes for about oh i think we have your argument we'll hear from the government but you're on my please my name is hagen scott and i'm assistant can raise the protium a little bit but that is that well yeah you can even raise the whole podium well leaving aside the question of prosecutorial discretion that actual tribes trying to make money for their generally impoverished that is citizen credibly different than tucker trying to become a billionaire even as a legal matter there it might actually have been difficult to show will here the evidence was overwhelming so some of the defendants are right in arguing that it may be illegal but not prosecutable if it was really run by native americans i think or at least they might have been right back in two thousand and four you would know you're telling me that the government would not have pursued if the ana dagoes and syracuse new york opened a payday lending and did everything on their territory  or are actually doing everything on the reservation right that might actually be legal otoh missouri looks a lot of factors that would be trolled legality and if everything is happening on the reservation there's a good chance not only is that not prosecute what's actually  saying the sovereignty is coterminous with the geography are you so as this court laid out in otoh probably the principle factor is where and that's how this course was going there's also a substantial amount of who need actual tribal officials tribal personnel to be not only controlling but also conducting the landing but the ana dogs could advertise in manhattan couldn't they i mean they could put an ad in in any newspaper or online and it's track customers not from onondaga county of the onondaga and still is as long as the deal was done on the lands the bookkeeping the letters everything they would not be prosecuted i can't make i'm all but i never met as i know you can't promise but you think it's unlikely all i can say is that the facts there are extremely different than with fraudulent concealment and fraud with respect to the representation of the terms that aspect would not be prosecuted no actually not around i took judge pullers question and maybe i misheard it to be solely about the unlawful debt question there's no dispute never has confess starting with the question of of unlawful debt i want to start with this idea the tribal model that i do want to come of instructions and judge of all you said that's a concern i think an important point idea of a tribal model is forgetting what the actual was one of the four that i was counting there are at no point did the government suggest that this legal concept of a tribal model is a fraud or a sham that the legal theory is invalid or so crazy the defendants couldn't believe that the proof was that it was a factual sham that is whatever the legal theory is what you did look nothing like it and i think judge parker a numerate a lot of those reasons but i should know one more this was extremely easy to do because both sheltie two of the attorneys who testified for the defendant had told tucker that what he was doing was not entirely consistent with their opinions and so when they testified we were able to walk through their advice and look at the things these attorneys had told the defendants more important like location the activity travel control and this phrase that kept coming up that the tribe could not be a mere conduit for the defendants loans and then say the defendants didn't just lie about facts they lied about is correct yes it's not in iraq why was that proper why wasn't that in effect erecting a verb so that everyone knew what the interest rate that was defined to a single element of of more interest than the state laws allow the district court was absolutely right to instruct as in be a suchi that is one of the things we had to prove if we if we can't prove willfully charging more than the state laws allow we don't have anywhere to go from there but there's no reason t your honor and a couple i think it was much less confusing for a jury that had sat through a five week trial and four hours of legal argument in which the lawyers were telling the jury the whole time look the whole issue here is did the defendants know they were acting illegally you see that in our summation you can see that the defense summations and the course of trial having heard all that when judge castille gets up in the st definition really the only definition he gives words is that this five year the interest rate they were cured will he says willfulness on this particular element and i don't think it's that uncommon although it may impair clarity in some sense for federal statutes to have different levels of mens rea or different ways of proving mens rea or for different elements interstate commerce you seldom need any mens rea at all some things only need to be reasonably foreseeable such as use of the wires but you still have to have specific intent to defraud the you want to prove a wire fraud count and another reason i think your honor that the jury would have been particularly clear here talking about rico counts one through four absolutely and i was just using wire fraud as an example where different elements can have different mens rea as in we do assume juries can figure that out and i think a particularly clear reason the jury willfulness heat talks about the advice of counsel defense and i think you can see this most clearly on pages three thousand three hundred and thirty three or one of your transcript i can take  that this is a mere four pages after these contested instructions and and he says in order you're looking at tucker you need to consider advice of counsel on the issue of willfulness and actually in the appendix the page i'm going to read from is to seventy two intended for his acts to be lawful if he did so a defendant cannot be convicted of a crime that requires willful and unlawful intent so i think a jury hearing that has just been reaffirmed that wilfulness means the opposite of trying to it leaves no doubt in any reasonable juror's mind that what the district court is saying is to convict him of the counts as a whole you must find he was aware of the generally unlawful nature of his acts i see that independent basis for the forfeiture here and judge castile certainly did not abuse the discretion and did neither steve forbes juror on that basis alone there are however other factors one problem with respect to the money cost of maintaining this property if a state he was granted there are four and a half one million victims of tucker's fraud in this case and the government due to the complexities and seeking to make those victims whole there was no restitution in this case rather the government applied to have the forfeiture directed to victims three remission process which has continued to date as the government provided and it's pretty  also incurs significant costs those are all costs which if a state had been granted would continue to be incurred and would take away from money that could be given to the victims indeed with respect to the aspen vacation home because the stay was not granted the government has been able to put that on sale and there's currently an offer that has been accepted and there's potential closing that's going to happen would head of state be would a state be granted now he would then put that whole sale process delayed again for several months if not longer until there's another appropriate time to put more of the house on property house on market so for those reasons your honor the government summit's that  to see the court charge the jury that the defendants could be found guilty either by proving spic specific knowledge of the interest rates on the us loans or by showing their general awareness of the unlawful nature of their actions and we approve that char the either  the court they are the defendants there were as i remember it not the actual loan sharks but they were people who had funded the operation so their defense was they didn't know that the rates  so high and so that they wanted that charge and the and the judge the court gave the either or instruction and when this court reviewed that either or instruction it specifically said that it was not required for the defendants to know the interest rates charged and and that the the knowledge of the generally unlawful nature of the acts was necessary that was that was sufficient to support the conviction it also was dealing solely with new york law which has a criminally human or usury statute that has the mens rea of knowingly and so they so the the court there gave in knowingly willfully chores that can join the two elements we are focusing solely on the willfully charge and which the judge agreed to give in terms of all the all the willfulness instructions and for all the counts that you had to be really aware of the unlawful nature of your conduct and so i think the b s sujit case is really sort of an anomaly we clearly recognize it but i think the facts are different the focus of the defendant in that case were different the focus of the judge in fashion the charge was different and what comes out loud and clear from this court's opinion is that the the main mens rea for an unlawful debt prosecution under rico is that the oh my goodness  charges at the very least i asked the judge this is after the after the no this was at the charge conference an objection to the charge and i think i that it was said that we rely on all of our exceptions for down the road with this was litigated endlessly below and so i don't judge parker's question was what did you take exception to after and i particularly interested in knowing whether you took exception to the willfully charge that wilfulness is satisfied by knowing the interest rate your honor i believe there was a filing in which we accepted two instructions you know objections to charge and compromised requests question were focusing on is when the judge had completed the charge and had the opportunity at that time to correct any thing that was improper he'd rule generally requires counsel to call the judge's attention by an exception to some things that the counsel would like to have changed and corrected so that the judge can clean up any mess that was made well i will look back at the record and file something in addition if there was such a letter but i think the the possibility that the judge would retract this charge after he gave it were less than zero because it had been heavily litigated in the refused to do so including refusing to break out knowingly which is knowledge of the interest rates from willfully he refused to do that we need steps taken after the charge and before the jury and that's something that certainly if if it didn't if you if the judge did not mean that that wilfulness is satisfied by knowledge of the interest rate that is certainly something that could have been i also want to go back if i may to the for the fraud here the wire fraud had everything to do with the identity of the lender who was the true lender who whether the defense believed that mr tucker or but i urge you to look at that section of the brief because i think that that interoperate tory directed the jury to find that mr tucker was in fact the lender based on certain factors that were in the charged with the deciding whether the defendants believed that the tribal model was sufficient to make the tribes the lender there was nothing in any of the elements of any of the charge crimes about the identity of the lender that was not an element a relevant question for guilt it was not charged in connection with any of the substantive instructions given on the counts it was it was at the end  yes and that and that question for the jury was a question of fact based on the evidence it was heard and was not allowed to hear about the defendant's belief about who was the lender not who was the lender we are not asking we didn't ask the judge tucker didn't ask the judge to decide whether the trial the trial was in fact as a matter of law and fact the true lender or whether tucker was our defense was they had a good faith belief that the tribal model as it was set up on advice of counsel was sufficient and the you know it is to up to it's two thousand and nineteen now and there's been a lot of you know case law and concerning indians in the gaming law on the mingle parlous and all of that stuff but during the course of this charge of conspiracy there was no law that criticize this kind of model or set forth what was required in order for a tribal model to be sufficiently really related to a tribe to  well that that that that thanks the question will all due respect your honor whether it was a scam because if you look at it from the lens of the state of mind there certainly was evidence that the jury could find that they didn't believe th but there was a lot of evidence from which they could have found that they did and that included the advice of counsel from mr cohen who i will just tell you on page twenty six of my opening brief he never said to mr tucker if you do it this way you're going to be in trouble he adores this wall and said that you know you could strengthen it if you did some more stuff but there's this is fine mr schultz who is an expert in indian law also endorsed this model and he advised mr chalker throughout the entire course of the conspiracy but we weren't allowed to present a lot of that evidence because we were happened into the period during which the the model was conceived and so there was a lot of we haven't even gotten into the the limitation on evidence that we complain about but there's a lot of evidence to the the could rebut some of this evidence you're talking about if we've been allowed to present it but we weren't and one final question on your weather report i just want to remind you that the weather report idea came from a cooperating