these cases this morning and we have four cases that are scheduled for argument the first is united states versus animal our hope i'm pronouncing that correctly and i see that this webster is here  counts together into one indictment and one trial evidence was insufficient to prove the last amount and other sentencing and hansen's and a cover for the lack of evidence the government attacked his religion and the veracity of his religious authority again without evidence he got a lot of the issues here and you only have fifteen minutes right now we have not previously conferred but i'm back down to five three issues that i think have a lot more merit than the others and we have fifteen minutes can i tell you what they you to tell me what they are ok and and so the first is you say that the government and the district courts consideration of religion at sentencing versus stevens it's in the guidelines why don't you tell us why there was a are there sharing so at sentencing the government explicitly argued that every penny that came into the tender temple in georgia was counts of fraud specifically as to the bank fraud mr adam i accepted credit card payment for for the services at the temple provided it and then for a very small percentage of the total and instead of just sentencing mr am i on the basis of what was proved at trial just a court determined that he wasn't a fraud as as a hindu high priest that he wasn't actually those things and the district court had no evidence to do that and had no authority to determine that he was a fraud and the fact that he said that he could determine that the entire amount of money that was paid into the temple indicates that he didn't believe and mr am i a spiritual authority or who is an a religious position of authority can't be charged with crimes of fraud but what we are contending is that the government can't come into trial and argue that sentencing and argue that he is entire faith is a fraud and that his entire religious authority is illegitimate and that's what they did we would argue at trial and at sentencing and the district court made these comments at sentencing that reflect that it's the one that you just mentioned about that it's a joke to call him a fraud it's a comment about that entire temple was a fraud in the so that every penny that came into the temple was a fraud all of those comments are plainly indicative of what the dish court considered and that is that mr animal i had no religious authority did not truly believe in the faith that he espoused and that he was a fraud  but what album do you have what direct evidence do you have that the religion was the problem all the proof of the calculation of the sun well i think it's t specifically i can think of at least one where he was given i think a two level enhancement for misrepresenting his authority as behalf of a religious organization he didn't he wasn't misrepresenting that he was acting on behalf of a religious organization that's only true if you don't believe that he is a legitimate hindu high priest or that he has no religious beliefs just a court also imposed an abuse of trust unhandsome and based on a similar reason similar theory and so on all of those one of the other issues that you raise in the brief is whether or not there was sufficient evidence for some of the bankruptcy fraud convictions my understanding from reading both sets of br that there were at least some counts where there was money destined to your promise to the initial temple that were then deposited into the second temples account is that correct with a couple of accounts i don't think that's correct your honor there were checks made out to the first temple they got to positive into the second temples account there is one check that was made out to the hindu temple in georgia but i think it's important to note a couple of things about that first is that the check was actually issued in january of two thousand and ten which is several months or five months after the the tam the temple declared bankruptcy and two months after the temple was fully shut down and cannot operate it was our first services rendered before the bankruptcy and before the shutdown or the government didn't present any evidence as to the circumstances that the check was issued and so we have no there's no evidence in the record to support the fact that it was based on services that were rendered prior to the bankruptcy petition being filed and i think that's sort of a stretch to argue that  under one fifty two section one the government would have to show that it was based on services that were rendered prior to the filing of the bankruptcy petition way back in august so the idea that someone was paying for services to the hindu temple that were committed or that were provided in august or earlier in january of two thousand and ten i don't think is the most logical and friends to make from that one more question can you give me the best scenario out of those bankruptcy fraud convictions where the money and the property that was involved clearly belong to the successor temple the second temple and not the first the best case you have the best  the best account that's how for your clients from your client's perspective where the evidence in your view was clearly for services that were done by the second at the second temple well after the first temple shut down one i think an important thing to note is the distinction between one fifty two subsection one and the other subsections of one fifty two so the government in its brief has responded are pointing to a variety of different evidence but that evidence doesn't go to section one fifty two subsection one which involves the property of the bankruptcy estate anything that was done after the bankruptcy petition was filed or for example diverting them out those are things that may or may not be relevant  for example one subsection one fifty two subsection sevens and not seven and i know but it's not relevant to one thirty two one which is what mr animal i was charged under so the evidence that they presented doesn't not i may i answer no we're not arguing that the government had to prove that he committed the substantive offense but we are arguing and that the government had to allege that the object of the offense was unlawful and so the agreement that to the extent there was an agreement between mr and amalia and has wife was that they were going to tell the codefendant to use cash and that doesn't rise to the level of concealing  harboring as you define concealing are harboring other circuits have generally defined that to require some some form of physical support so here even if the scheme was executed fully there was no form of physical brought up in order starting with the religion matter your honour's i think it's important to start with clarifying what what defense council has conceded in her briefing which is that they're not alleging that the government is biased against practitioners of the hindu religion and they're not alleging that the defendant was prosecuted because he is a hindu so setting aside the entire all the trial discussion the only thing i'm concerned about at least from my the district court judge at value a did this defendant based on his history and characteristics the court observed this defendant for a two week trial heard him testify twice at during the trial and again at sentencing and he it time and time again that this defendant was a total fraud the defendant had lied he tried to obstruct justice he gave outrageous testimony when he testified during the trial and taking that and combining it with the nature of this honor absolutely and i don't think that the district courts comments that the statements about the defendant being a total fraud i think that those comments are about the fact that the defendant business the company that he ran the hindu temple that sold religious services that there was a scheme in place at that temple in which the defendant systematically submitted false documents to financial institutions in which he threatened that you know that that's an impermissible consideration of sentencing your honor i don't believe so because the evidence that was presented at trial showed that the temple was being run as a business that don't think that those comments were set forth with the intention of holding the defendant responsible for every single penny in fact the court did not do that when it got to las amount however the the statement is being made in the sense that the defendants scheme as a whole and when you review the dispute documents that were supplied in this case the exhibits that were the evidence that was present in this case government's exhibits two twenty two twenty two thirty two and two sixty eight those types of dispute files when you see the types of things that this defendant wrote in those dispute files about the victims in this case when he submitted those to the credit card companies it does become clear that this was a total scam the defendant had recorded the victims and would submit recordings the defendant would send them empty packages with just to seek their certified signature so that he could submit it to bank institutions in order to say that they in fact receive services when they had not and when that they had agreed to services when they had not this was a very complex and sophisticated scheme and there were photos taken that were at the location of the hindu temple the three ninety series of photos car from the trial government's exhibits three ninety eight through i'm not sure where it stops but it doubles up to double a double b etc and in some of those photographs what you will see is there were packages one after the other inside the hindu temple office there were folders in the lobes that contained certified mailings one after the other after the other after the other all laid out because that's precisely what the scheme in this case was all about and i believe that's what inspired the court to make those comments that the hindu temple was actually just a mechanism for this defendant in order to fraudulently obtain money from victims and in your honor i do think that there's one other on the religion matter i do think that the cases that defense counsel cited don't don't support their position for example the the baker case talks about an instance where the judge said he had no thought whatever about his victims and those of us who do have a religion are ridiculed as being saps for money grubbing preachers or priests so in that case that the appellate court did not agree with the district court incorporating its own sense of religiosity and that is not present here what we're seeing here is what is permitted which is for the district court judge to be the embodiment of public condemnation and social outrage and in addition to judging this defendant based on his history and characteristics the district court did not say that the rituals were a fraud the district court did not say that the defendants religious beliefs were a fraud and the district court did not say that his own sense of religiosity is being harmed by the defendant and for that reason i do not believe that sentencing that there was an error at sentencing on the religion matter can i ask can i ask you a question about the bankruptcy fraud counts yes warrants a fair number of those charges predicated upon payments made well after the first temple went into bankruptcy and shut down and for services that could not have been provided by that temple honor i think that i will say if you accept the premise that the first temple in the sept second temple are different there were payments that were made after the petition had been filed and after the trustee had taken control of the hindu temple so if we accept those prerequisites then yes your honor that is correct then how can that be property the estate your honor it is not property of the estate be done how can it be bankruptcy fraud under this subsection big it is it is bankruptcy or excuse me it is property of the estate it is bankruptcy fraud under united states versus dennis i'm sorry i misspoke your honor under united states versus dennis there is the question fifth this court has said that the question of what constitutes property of the estate is a question for the jury and sure but there are lots of questions for the jury and the appellate court sometimes say that a determination by the jury needs to be overturned because the evidence was insufficient as a matter of law so that gets you part way there but not the whole way there that's that's correct your honor i do think that there are some other aspects of this that need to be highlighted based on the evidence that that the two entities were in fact one in the same that's what the government argued at trial and that's what that's essentially the theory under which this defendant was killed what does that what does that mean that they're one in the same i mean we respect the corporate form for bankruptcy purposes and so when an entity not a person when an entity goes into bankruptcy the people who are run the entity are entitled to start a new company providing same or similar services that doesn't mean that the new entity is a continuation of the old for purposes a property of the estate right that is correct  honor in instances where it is in fact a new entity and the corporate formalities are actually being respected and that did not occur in this case in this case the defendant never respected the corporate formalities in fact there was a photograph of the temple from the very outset the fronts of the temple the awning on the temple said hindu temple georgia print the seas also known as the ship of vishnu temple this temple and always operated under multiple names and all those different corporate formalities were commingled as described in pages thirty six to thirty nine so what case lets you obtain a conviction under section one fifty two one based upon a piercing of the corporate veil i think  united states versus dennis provides for the jury to decide that these that's not my one that's not my question under georgia state law which was examined and discussed and in fact the court excuse me that was a jury instructed on piercing of the corporate veil the jury was not instructed on that your then how could the jury have made any finding that corporate formalities were not followed that that the government argued that corporate form now doesn't matter what the government argued if it's not in the jury instructions how can the jury have been asked to make that determination assuming it were sufficient well in this instance judge the the defense counsel argued that they were one in the same excuse me that they were different and that exactly what your honor has presented here today i thought the jury was instructed on property of the state and nothing else and you're telling me today i think that the reason that those counts should be and i know there is one that's different because there was a check made to the first temple i understand that count but you're telling me that the reason those other counts can be sustained is because there was no respect to the corporate form but that issue wasn't submitted to the jury the jury was only asked to find whether or not the fraud occurred with respect to bank to property that was belonging to the estate of the first temple what am i missing the judge at the instructions also contained an additional sentence protect that the defense wanted to be put in and that sen substance that an individual may go and work for a new corporation and may go and work for themselves in the future and earn more money and earn however money however they wish and that is not property of the estate now that is what the defendant argued at trial that he was in fact doing something new ok but good but again i go back to the same thing and i won't bother you anymore after i say this what makes the property earned legitimately or illegitimately by the second temple property of the estate of the first temple the first temple and the second temple your honor one in the same and property that is acquired or earned through the property of the state so money that is  ed after the estate has been created that money is also considered property of the estate to the lawyers that blew it say it say that again money that is earned or acquired through pre partition assets like the goodwill associated with the name hindu temple of georgia the phone numbers that were used by the hindu temple ga the merchant services accounts which were under the control of the hindu temple georgia at the time of at the time of the declaration of bankruptcy which i think your honor would also foot back a number of those convictions because those if we were to take your honors to that post petition assets to take the view that they're not one in the same at least well no my my point is that they they have to be different right or they can't be different for you to get on a firm and so on the convictions they have to be the same right yes and that's what the jury found when it decided that this was all property of the state through the through its own fact finding and we so this would have if you had not discovered the fraud going on at the second temple for another ten years everything that temple was still doing would have been property of the first temples estate because it's all just a continuation and there's no respect to the corporate forms the first temple my lips on in perpetuity forever as long as the second temple is going is that an exaggeration if the diff if if the property which it was was property of the hindu temple of georgia then yes that would be considered part of the fraud and it would have been so it never ends if it had been yes judge if it had been concealed from the trustee and continued on into th from the trustee there operating in the open the your honor the transfer of the the merchant services accounts for example that was done without the knowledge of the trustee the diversion of the proceeds that would have gone to the hindu temple georgia that was done all of the actions identified on pages thirty six to thirty nine of the government's briefing all those instances were instances where the property where the trustee was not made aware of what was going on with the ship of this new temple and in fact didn't know that it was operating and using for example those merchant services accounts that were the property originally of the hindu temple of georgia so based on that your honor and based on the commingling of these two entities and the fact that they had the same employees the same defendant the same had a leader which was the defendant the fact that they used the same excuse me that they diverted the hindu temple mail to a different p o box the fact that they used the same merchant services accounts in the same email addresses in the same marketing materials and they had the same names on the magazines and they had the same name on the store front from the very beginning of the temple it was always one in the same your honor and that's why it was property of the estate to begin with and that's what was argued to the jury and that is what the jury decided was actually true that it was one in the same turning out let me ask you a minute about the money laundering this court of sale in the past that the attempt case the the defendant hid his actions from the trustee so that was concealment of designed concealment from the trustee by using multiple entities new bank accounts he created a new corporate entity to try and cover his tracks he didn't tell the trustee that he was continuing to operate the hindu temple georgia and continuing to obtain money from the hindu temple georgia and on pages thirty six through thirty nine of the government's briefing it lays out the things that can were concealed from the trustee during the bankruptcy and all that all of those facts that show the concealment that occurred during the bankruptcy those facts also show the design intent by the defendant to conceal for purposes of money laundering and that's what cases like united states versus dentist tell us and the other cases that were cited in our briefing including the blankenship case which talks about an affirmative duty to disclose which this defendant never did follow this defendant hid his actions from the trustee and he was running the same temple at the entire time how about the conspiracy to conceal or harbor a future so if i go to the transcript what's that what's the other person to use cash instead of a debit or credit card who's that is no your honor there were additional things that were proven as overt acts and the things that are listed in the indictment  well i can walk through the overt act starting on the day of the arrest there was testimony from agent rod roberts who testified that he had looked up chin at tom b s address and it resolved to the houston hindu temple address that's on page thirteen fifty nine of the trial transcript and on that day which was nov fourteenth the defendant animal i was arrested and chyna tom b was not found on that day that's page thirteen sixty two of the transcript so we've got one defendant arrested the main defendant in china thomas still at large later during the trial agent rod cotton testified and he testified about communications that occurred on the date of november fourteenth which was the  why and the date that was not found and on government exhibit fell five hundred four and pages thirteen nine hundred sixty eight thirteen ninety eight of the trial transcript there's testimony about how there was a phone call at approximately eight fifty four one five five two five five three and one hundred two and all of those exhibits discuss an e mail that was sent about five twenty pm that's on page thirteen ninety nine three fourteen zero two of the transcript in those talk about question and here's why it's because the issue here is whether there was circumstantial evidence of an agreement between the parties between stephen audio on china tommy and defend an animal lie in order to conceal and harbor animal tommy and that is separate and apart from what would be required under ten seventy one to prove a concealing or harboring charge so in this case the government presented an overt act along with other overt acts and they were there more  related to the defendant be he's hiding an attempted flight from the united states but the the key is that this defendant was part of that because he was talking about  cash and trying to interest use cash instead of a credit card and then i'm looking at the circuits opinion in united states versus stacy in the fifth circuit says giving financial assistance to a fugitive or even making false statements to law enforcement officers regarding the whereabouts of the fugitive that's insufficient to constitute harboring or concealing under section two hundred seventy one seems like that's more in stacy than we have here honor i i do think these two cases are distinguishable and perhaps stacey is there is more happening there than there is here based on the specific actions of defend an animal why at that time however i do think it's also important understand the animal i based on the trial evidence was directing beat in all matters so the fact that he was telling his wife to then tell me to use cash that was an instruction to trying and hide that individual and not to and i also think it's important your honour's to recognize that ten seventy one and three seventy one that one can conspire they can try and conspire to to hide that individual in fact that's what their discussion is about and govern exhibit one ninety when they say he'll get caught don't use debit card or he'll get caught that shows their intent that shows that they are agreeing that he does not meet that that they want to briefly some of the points on the bankruptcy fraud issue before turning to money laundering and that's ok specifically i would just like to know that every substantive count of bankruptcy fraud charge in the indictment happened well after the filing of the bankruptcy petition so none of that none of the counsel occurred prior to the bankruptcy petition and therefore they cannot be property of the state well that's not necessarily true right because you could have property gain after the bankruptcy petition is filed or services rendered before and that would certainly be property of the state right sure yes that's correct it has to be either a property that exists at the time of the commencement or proceeds from the preposition assets here there's no evidence that any of these counts and bob three petition assets and respectfully mr am i and has and the services that he provides are not assets of the new temple of georgia he's an individual person he can go to a new corporation and and provide new services i just like to point out a few other facts there was evidence at trial that changing the merchant services accounts did not result in any money and those are mr and my as assets and i think that phone numbers and things like that may be relevant to other forms other subsections under one fifty two but not the one that he was charged with so  turn to the money laundering issue because there's insufficient evidence on the bankruptcy fraud counts the money laundering counts have to fall based simply on that because in order to be convicted of money laundering there have to be proceeds from a specified i'm lawful activity without bankruptcy fraud there is no specified unlawful activity and the money laundering and then there's and sufficient evidence to find that mr am i was guilty of for money laundering aside from that issue as to the money there's also the issue that there was no evidence to conceal the transactions that were charged in the indictment then diamond has three checks and five mortgage payments the track the checks are made out to mr and on their face the mortgage payments were checks that were paying for mortgages that he owned in his name there is and that is clearly insufficient or this court's prior case law and the supreme court's decisions to constitute concealment does not show that the purpose of the transactions not just the effect was to conceal them although we would also argue that there was no effect of concealing because the who the property belong to is obvious from the face of the transactions the other aspect of that is that that i think is somewhat startling is that when the government argues about bankruptcy fraud it's all about the fact that the corporate formalities have been ignored and that they mr and operates authoring temple as one that when we get to money laundering the facts that they point out are that they are two separate corporations that they're entirely separate that the ship in this new temple is basically a third party account and i don't think the government under i would also argue that the the lack of evidence on the three sort of counts that we have discussed the bankruptcy fraud the money laundering and the conspiracy to conceal our hardware is exactly why the improper join refusal to savage the counsel trial was so prejudicial because here the government and the jury just it didn't just hear about bank fraud and heard about all the different counts and that is why but yet the jury after a