clinton road and representative palin ease of around the one thing i can tell me probably only thing i can tell this court with certainty is this is a false statement case beyond that i'm not the smartest person in the room but i don't think i'm stupid and i couldn't tell you standing here today what the government is really legin the false statement to be and i submit one of the reasons for that is because the form shopping went on this case and the government trying to squeeze an eastern district case in the northern district is there want to in the plano sherman division the agents prefer to take the cases to the plano division guess i think they're more willing to take questionable cases but be that as it may the indictment in this case says that the false statement is quote the w to pay stubs and themselves false and they were somehow presented at the closing and that's true documents when in fact they were false documents and those were the statements of statements within those documents that were present at the closing as the false statements never less than we presented our motion to it left at the close of the government's case the government's position was clear that it was the uniform residential loan application to your allay itself that had the false statements because the government's position again it was clear was that that's certainly the government's position as i said i'm not it is the government's position my question as well is what's wrong with that this and that was certainly my interpretation but let's credit the government's interpretation for a minute just the point i'm going to get to is no matter how you skin the cat there are problems and honestly even to this day i think the government it's brief at one point argues it's the  alay that contains a false statement at other points it seems to argue that it stays under long documents that we want you to make them out to be such a big difference between the w to the underlying documents and then the loan application self but since the w two information in the rent information is included in that the income information the rent information was put onto the loan application and i know there's a one missing in one of the boxes but it's basically the same the way i look  looking at it here why does it really matter i mean in other words if the dummy utusan the renter false then that same information put in the loan application is false right or no well it matters for for a couple reasons if it is is no one is arguing that the government to itself was presented at the close right but the falsity in the w two is of the same in false information as in the loan application which was signed in the eastern district well that that goes to illustration is the not two thousand and nine adams case where you're taking then is the statement in the you are laying the statement that your lay says the information provided in this application is true and correct as of the date set forth opposite my signature it's fifty rent in this box at the but monthly income rent eight hundred dollars that's coming from the rent verification form i understand the court's point not that's what what what happened in adams and adams it was a ten forty acts that purported the  being false i don't see how you could focus on at the end of strike me looking at this of the whole trial was about the falsity of these document right the falsity of the underlying documents not whether the  documents were never presented the closing were false or that they say the information in the you were a lady is false but and that's what it comes down to just as an atom's the government could have alleged these figures in the you were a layer faults they they didn't do that why they didn't do that is sort of the question that that the adams court raised why didn't they allege that ten forty x three years revolves around the schedule c and it's the same exact argument in this case they get to they get to write the indictment they get to live with the indictment and this indictment was a mess from day one because of this dissident to squeeze this northern district case into the eastern district that's why we had two trials  but so even if even if you take a minute it if you go on to the assumption that the it was the underlying documents which as i said even to this day the government's brief seems to take both positions but if you go und the assumption that the underlying documents of a constructive amendment pompously government at mit's are admitted at trial or during the discussion emotional like that that was not what was presented to the grand jury and this is sufficiency problem because we know that the w two  verification for not present at the closing in the eastern district which the eastern district line in or district line was probably put me in the court in this case where the title company took place i believe in the that it's complicated but the city of dallas and the collin county and there's a little smidgen but in any event but if you if you take the other position if you operate in the assumption the government's was alleging that it was the affirmation that was false not presented at the close my position was and i had case not support this effort i think it was the next case but in any event that at the close of the evidence the government would have to elect which of those false documents which of those documents it was really alleging was the false statement notice three or four years as to what i recently thought the indictment was saying now granted i guess they it wasn't anything they had to respond to but they were on notice that i thought it was these underlying documents i was going to expect them to elect at the end of the government's case pursu affirmation or the juror out in the you are a lay that's really the false statement that was presented the grand jury in that was allege in this case you have a venue problem and that goes hats off case in the reese case this fourteen which is very similar statute in cadsoft the false statement was a financial statement was made and submitted to the r t c in atlanta wasn't clear how it got to atlanta but it was prepared in the eastern district o submission and that case took place in atlanta there was no evidence of how they got to atlanta here the submission took place from the northern district of texas where the title company was based or the lender was based  thousand one false statement cases saying it's where the false statement is made establishes venue which also just seems to mean that that's the criminal act is making the false statements it seems to be so well i can add and therein lies the rub you know even th the the third circuit in the fourth circuit where workouts often reese aren't have the same thousand and one interpretations but they're their interpretation and really it's the only cases that discuss this in terms of a non thousand and one sort of lending institution it's the submission to the government agency and that's what the government allege here that it was submitted that this was this was a crime because these false documents whatever false statements whatever you consider false statements to be were submitted to hook or they weren't submitted to haul it until they were mailed from the northern district to the district of colorado and in fact the judge in this case and that's where the thousand and one case kind of come cases the only place where they would be venue would be they're sent to colorado is that right then i would agree that without whether someone in miami signs all these false papers in a closing have to be prosecuted and in denver no not necessarily if they're mailed from i mean florida has so i guess at the southern district of the mail from the southern district of florida to the district colorado you can prosecute the southern distribution where they're sent from a where they and your you know i am i'm on a had an argument because the cases are unclear but i would concede for our offices say well we were only going to do five kilograms or more cases smaller more rural districts say well it's less and so for fraud it's dollar amount so dallas might have we're only taking million dollar cases eastern district says we'll take hundred thousand dollars casey anthony is i don't know the three members of that community deciding you know when there's a crime and busted once because of that and i think that's why we see all the problems because they have to go to the machinations well what what documents were actually presented in the eastern district how district court in term of the year in their own venue when did you raise the question of venue i was shouting venue from from the very first day the first trial now as far as a dismissal i did not file a motion dismissed because the the indictment adequately alleged then you went for all i knew the governor was going to come in and say aha this w to see it was presented in most of the corners your argument is and his version prove it trial of the venue of life correct the government alleged that mr brown knowingly made false statement false entries in the reports or statements submitted to hud namely by making inflated statements about the buyer's assets and rent history knowing that the statements were fal in connection with an application for a home mortgage and specifically with respect to count three it alleged as mr braun said w to pay stubs and verification of rent for the buyer sandra johnson  fraudulent and were firm this true at the closing in the eastern district of texas as a judge shall realize in the district court the only possible document that that last statement affirmed as true at closing in the eastern district of texas could be referring to was the loan application and mr brown's argument at before judge shell was well the government didn't establish that those three underlying documents were presented at closing and were shown as false at at the actual closing and judge felt realize that what makes those documents important is not the documents themselves but the information conveyed by the documents and that the document that in fact the information from the underlying documents fed in to the loan application and that those documents were proven  trial as falls in terms of the specific legal arguments raised by mr brown in terms of the variance there was a long colloquy back and forth about this whole duplicity issue and defense counsel said well the government must select one document to be submitted to the jury and after a many many transcript pages the prosecutor said ok we we choose the loan application it meaning the document that it as a district court said to the material the materiality argument your honor and just one point i would like to make to just clarify the record on that in mr brown's brief at page forty to forty one he says  the case agent told the court that hot is already on the hook because it's an f h a loan by the time it gets to closing and he cites the record at twenty six eighty that statement was not made by the case agent it was made by the by the prosecutor and she later later clarified just a few pages later at twenty six eighty four that hut is not it risk of financial loss until that loan closes and that just makes sense that the closing of the loan is what sets everything in reason but he understood that didn't i meant only allege that the underlying documents were false and yet he can see that in the district court and the jury instruction just asked about the underlying documents correct so isn't that a venue problem because i think everyone recognizes the underlying documents were not created filled out signed in the eastern district is where the jury never made a finding of a criminal act that occurred in plano did it two two responses to that you know one that's that's not mr brown's argument i know that but he he he did not raise that as a ground in the district court i mean to me you see those these jury instructions if your contention is that the government must elect they elect a loan application and then the jury instructions only ask about the underlying documents that you're contending have nothing to do with the eastern district of texas and you don't yell up and down why are you asking only about the underlying documents but there but there was no objection so that's what the jury was asked about and even on appeal the argument is still not that the jury was asked about the underlying documents and there's no venue for that but it is true that what they were asked to find did not occur in the eastern dallas or northern division did district ride but what i would say your honor is that the closing is still what sets everything in motion and that's what this court decision talks about for continuing offense statutes it's what's sets the district in which things are set in motion is a district a proper venue so the closing is what sets everything in motion the closing is what causes the loan application to be sent to the lender in the northern district  our court then it gets tried again there's now you're back here in a venue problem and it just seems there's a lot cleaner ways to prosecute these cases in the district where the core of the conduct occurred and i do think it's because i've seen other cases mostly drug cases where you know someone drove from indianapolis to dallas that was a common that was this drug route for this major organization and the cars they drove through east texas and they really do anything there that's that's venue in the  reality of that case was that in the end of u s attorney's office it was you know below their thresholds and we have a prosecutor that is very aggressive works all the time took that case but the arguments and the   the northern africa texas they used to destigmatize and so it all blends together and it's out of that reality that we're getting a lot of these problems that is that it's no longer of the rule part of eastern district and these two district it's part of problem well there's no question that we don't indict cases that don't have a connection to the eastern district of texas and in this case i mean i think it's a very important connection here because an arguably yes the documents well the loan application was made and signed in the history just for the underlying documents there's no evidence that that they were but the closing took place in the closing is really the arguably the most important activity in these whole of the in the whole system because what is not liable for mortgage insurance unless the loan closes and i can assure the court that you know we analyze cases in our district just to make sure that there is a sufficient connection to the eastern district it might not be the the where the best place or where most of the conduct occurred but of course it just has to be a place where some of the conduct occurred you know such to provide protections to the defendant where his family is located you know things of that nature in terms of the material argument again this goes back to comparing the indictment with the jury instructions mr brown argues that the evidence was insufficient that the loan application was material lending decision and there are two problems with that one is again the jury was not asked about the loan application as mr brown concedes he concedes that it was only asked about the underlying documents and mr brown conce in his brief that there was evidence that the underlying documents were material to delimit decision to focus on the lending decision i think is inappropriate because the lending decision focuses more on the  what one thousand and six what the statute talks about is making a statement to hud so the important purpose for hud is the insurance of the f h a loan and i point out earlier that  brown refers to the case agent making some statement that hud's already on the hook by the time of the closing that that was not made by the case agent so is not evidence in the record it was made by the prosecutor the prosecutor later clarified that hyde suffers no risk of financial loss until the closing takes place and there was evidence from bill stokes it was the quality assurance representing the from who testified as an expert in the case that hudson quality assurance apartment and in these types of loans takes place post closing that what they do is once they get the loan package in colorado they do checks to make sure that there were adequate protections and that the information was correct and that the lender we have relationships with should have made these loans and so the loan application would have been sent to  colorado so if it can taint false information it surely would have been material to hud if that information was false and the test for materiality is simply whether it has the possibility the functioning of a government agency and there was evidence in the record of that here going back to venue he says that it doesn't want to clear in our district it's where the statement is made counts for a thousand and one false statement he tries to distinguish baptised saying well that's not a statute word has to be received by a government agency like what your response to that i don't see any difference between the cases that talk about prepared or signed or made would somehow be a proper place a venue just because it was mailed from there in the closing that set everything in motion and where mr brown assumes that the statement was made him where he admits that loan application was signed would not be and one case to that point your honor i did not cite it in the brief but it is along the lines of there's certain decisions that we do side seven circuit judge woods opinion and united states v clark seven twenty eight f three d six twenty two in there the court says even if the completion that this is also a section one thousand one case she says even if the completion of a section one thousand one offense requires the submission of false documents to federal authorities it does not follow that the making of false documents cannot constitute the beginning of the offense and there see makes the same point that we do in our brief that one thousand and one just like one thousand and six makes the false statement itself it's the very wrong that that's the statute describes and i mean it just seems common sense that the place for the statement is made which is that statutory language to use would be a place of proper jewish briefly on all i have this briefly judge shell didn't think i was a crazy man he just basically said ok i see how you're reading this indictment mr broden i see how the government's reading it then the government i can understand the government's waiting so he was clear that i was some crazy man just reading the indictment crazily on the venue and you said when you were up here last time you that your position is there's venue from either where it was sent from put in the mail or were to receive our purposes to write you this didn't you know based on the indictment whether that whether it was the w two or the application maybe you didn't find out later which it was but whether it was either of those didn't you know before trial that the documents were not mailed from the eastern district or received in the eastern district no i didn't i didn't know how tall the they were testifying a trial of the progression of eastern north in colorado i don't know what the government was going to do they want to receive their new  warrant no i honestly didn't know at that time i meant there was no discovery or anything in this case that them in there and i was about to say in fairness there was a colorado office but whether it went to a eastern district office and then to colorado where there's a main repository no i did not to be quite candid with the court in relation to judge taken bottoms optimism i will point out that this case involved the same process one of the same prosecutors a arguments and there we work on the part of it and i've been critical of the process like i said in that opinion but it's you know for decades the eastern district of new york in the southern district of new york of have been trying to get venue over cases and it's a similar county jury there aren't many people buying low income houses in dallas county not going to just well i understand you going to get kaufman or were were after but i think there is a difference and i think any trial i would tell you they'd rather try in the northern district but all this comes down to i think is the juror in the in the closing statements which says the information provided in this application not the w two or d or their verifications is true correct as of this date so couldn't even be referring to the w two spaces as of this date those documents submitted ten days earlier and that's when we go to the latin phrase and adams my mother wanted me to take latin but includes yo and basically says when i talk about this application it's talking about the application not the w two not the verifications were alleged by the government in