first point that i would like to make is that if indictments mean anything then the indictment is the document that is the charging document that established that the allegations that the government made in the indictment were just simply not true because the allegations that were made in the indictment was that mr  obtained money through loans by representations that he would use the money for real estate transactions counsel you can have your case how you want that one's not going to fly with me but i do have some problems  with the inextricably intertwined issue the confusion of the two possible crimes can you at least from my perspective can you focus on that that's going to be more helpful to you than the other one would i would say that's good advice counsel and i was making the one point because i'm so passionate about the diamond that i was getting that was the second one and that's probably the one that will spend most of time on your getting go and we could see that focus even more in your brief you referred to testimony from special agent flick do you believe to be improper in which she's describing the cashback mortgage scheme in the rug atory terms are there any other witnesses who testified to that same effect  well are you saying that used those terms or were there other witnesses that testified to the axum so let's talk about first other witnesses who testified to the cash back mortgage scheme  witnesses who were testifying as to the tracing of the proceeds from the loan fraud or where these witnesses who were testifying in a way that portrayed the cash back to cash back mortgage scheme in legal terms there were for sure there was at least one other witness that was asked about hud one forms and closing statements and so they asked that witness some questions about was this proper the money and to say that this money was a gift so there were a lot i mean actually i think we say in our in our in our brief that over half of the witnesses well more than half of the time substantially more than half of the exhibits were all evidence that were directed toward the other acts but by by far overwhelmed actual isn't the case is there a distinction between the government tracing the proceeds from the lo fraud scheme and indictment to purchases of the houses in the cash back mortgage scheme or was it go beyond that i'm not sure i understand your question well in the indictment they were charged with with the loan fraud the government witnesses simply trace that the funds from from the borrowers the the victims in the indictment or did the government do more in trying to pollute the jury in terms of the nature of the first  yes i mean i believe that the second is absolutely the case and i was going to actually use a couple of examples i wish you would because the reality is is that the government did not use this evidence for give you a hypothetical suppose that i came to you and said could i borrow some money from you to start a distribution business and you said sure and you handed me some money and you i then went and bought some dope some illegal drugs and i started distributing it all right now would it have been a fraud you know because i did exactly what i said that i was intended to do right that may be illegal so the point is is that you're going back to your original point right but the point is not to the indictment it's you know i'm going to to this issue about why they're using the  because the reason they wanted to use the evidence was when you use other activity it's it's other act evidence it's the active is important and i think if you had a chance to read it i tried to get into cock we would the district court judge saying judge you can't let him use this separate charge it would there is existing right now we're still pending trial in a case that it did wire fraud cases but it's turned mark into question is whether the trial judge fulfilled his duty to now now granted now did you do it happen in this case no no now i understand i mean i will concede that what you're talking about in two of those cases where this child pornography  so you could see the letter that was written by him except or if you're talking about literally hundreds of well you're talking about tens of thousands of pages of documents that the government used in this case was only as certain mean and when it said that the court to in quotes read every word in quotes i think you always are friendly questions in case of yes i do i do understand that but my answer is i can't take the words for what harmlessness if you will exculpation but do you read that as more of a structural error as opposed to something that can be subject to harmless there other words if the if the totality of the evidence presented  such even the district court doesn't read every word is that still ok to go forward and convict your client well i guess my answer would be it's not ok because the judge isn't doing their job but i suppose as a legal standpoint the we did address that in our brief and we say that they first of all the government doesn't even attempt to do that in this particular case answer my question is is there a harmlessness standard that goes along read every word aspect i mean i have to be honest about it certainly there would be i mean you know if you then looked at it afterwards and you said that look i get it but it's not harmless i mean if that if what we're trying to do is justice at these words and so what i want to be sure i understand is this are you confirming that from the perspective of the defense that even if the district judge did not in quotes read every word in quote that i evidence was such it was overwhelming or substantial that your client would nonetheless be convicted no i'm not saying that it wasn't what are you saying because what you're missing is the fact of the present the potential prejudicial value said ok so that's what i'm asking you is if the court didn't do that here a lot i don't know whether my colleagues had better luck than i did but i couldn't find in the record that the district court had done this maybe it did but i don't know where if it moment that it did not are we need to make our own determination based upon the totality of the other evidence or what's the standard we use to determine whether the court's failure to at least record its reading every word or say something about it is that is that enough for us to override any problem with the for a for b analysis i guess i would say that the we said read every word was read every word that's what i think that ultimately that case said and that was the the third case and i think the progression of the three was the that kryten case the waters case and that mcveigh mcmurry case and i think that's funny what they said i mean they said no we're not going to keep doing this do your job and read through the stuff i mean you know you're saying that macmurray says there is no harmlessness standard i have to go back and i think what it said is no read you know read every word we meant what we to follow mcmurry and the previous case well i think that i argue i think we are you in our brief what are you arguing today i the government argued that there is that that's the  hear you get to it but i want i mean i doubt what your think it what it is what is their harmlessness standard and what do we what is the what's the standard we use to determine whether it's harmless if i could follow up on that same question was there harm in allowing the admission of the sevens in this gives well absolutely i think that we spend it would you identify it because i think that it does a couple of the other issues that kind of talk about this i think that ultimately what happened is that because the evidence absolutely showed that mr cisneros used the money for a split sanction all the money for real estate transactions that the only conclusion that you can come to is the only way the jury could possibly even come to the decision  they came to was that they were looking at this other evidence and they were basing their decision based upon the and by the way it's not the actual acts it's the characterization of the acts it's  decision based upon how the government characterized the acts which is a second point i want to get to the answer your question because the reality is that when you're talking about other back the other act evidence you're talking about the act and that's why i tried to engage the district court judge and to say example because it's kind of what i was trying to tell the judge if for example you're going to use other act evidence to establish identity of iraq and you put on evidence that this individual had pled guilty to a previous robbery where he had gone in with a very distinctive polka dot bandanna so that what we're trying to do now is to prove identity so now we bring in this we bring in this individual went into the convenience store with a gun and he had a very distinctive poke about bandanna on right it's the acts that are admissible to prove what you want to prove in this case is there any doubt that the government could in this specific case discussed harmlessness what what what what was the harm versus what was harm was about it in this case my in my answer was and still is the only possible way that the jury could have come to the conclusion that they could have come to was to not focus on the allegations in the indictment but to focus on this other evidence and the reason is because that this the prosecution was in properly allowed to characterize the evidence characterize it because the evidence was here's the allegation indictments were the record as well wh set forth a number of those terms because here's the point i wasn't trying to defend against whether or not there was a cash back mortgage fraud or struck by it because in fact there was not and i will tell you it maintains our position it was not and we intend to prove that in june when we go to trial what happened was is that they were allowed to use the facts and if you think just think about it the indictment says use the money for real estate now why would the government come in and say yeah he used the money for real estate it's contrary to what their allegation in the indictment is they didn't want to do that that's what the act was what they wanted to do is to say he used the money for real estate but we call it a cash back mortgage fraud we call it a straw buyer we call it lie lie lie lie lie because that's what they want to call it but that's impermissible because it's the act it's important not the characterization of the act so let me understand what happened  a government filed a motion to admit the evidence there were a couple offers of proof and the district court stated it would review it may hold a hearing i didn't see it in the record showing the hearing happen you eventually file a motion in limine the court tonight is untimely what was the gap issue up so that we could properly address this issue i asked it on multiple occasions but you have to keep in mind i was a second counsel in the original issue was what was decided before i came and got involved in the case so i was only within a couple weeks because if you recall th if you recall what the judge at one point said well we can try to bring this up but i'm in trial next week and so it's going to be hard for me to bring it up and i think the trial started the week after that that's why we didn't have time to do counsel you reserve your time yes  very well will hear from the government  one of your questions was whether or not there is a harmlessness test and if you look at the mcnamara case which is from two thousand and fifteen in that case one of the problems was that the government did not address the curtain case or claim that there was any harmlessness that's different than here on page sixty eight of my brief i do say that there was this was harmless if i thought your position was it was nowhere test is whether it's more probable or not that the well that we get to that i assume then you're implicitly conceding that the judge did not review every word of this controversial admission of evidence the judge did not review to the fifty some thousand pages of disclosure in the case that is true so i think it's it is fair to say she did not review every word however  is a four zero four b violation now we're talking about whether that can be overcome by harmlessness not exactly i was just answering your question as to whether or not there is a harmless and now the question is was for zero for three and four or four be complied with your honor what i'm not conceding is that it's necessary for the court to review every single word of the proffered evidence of this doesn't that w those those cases involve specific circumstances where the defense objected to a specific piece of evidence now in curtain in waters we're talking and there's sort of a first amendment consideration there in that we're story involving a child and in intimate contact with an animal that the judge did not read in that the court held should not have been admitted it was overly prejudicial waters had to do with anarchist articles the third case merkle mary had to do with a defendant's interview from a prior conviction however there is another case which is major from two thousand and twelve and that case says the careful review of potential prejudice may be based on counsel's representation and the same considerations whether or not it's cumulative so no this this circuit does not say that there's a blanket rule that the court has to basically have a trial before the i think somebody said some about p s r in one of the cases but in any event in neither case did the district judge look at every word in kirton they use that terminology i gather you're distinguishing kirton waters and  is distinguishable for two reasons one reason is that in those cases the defense made a specific objection to specific pieces of evidence whereas here the defendant throughout the case has said this other information th the the the cashback mortgage fraud scheme is relevant and it's admissible but i'm objecting to the scope of it and there's only one particular piece of that evidence that i am objecting to distinguishing occurred in waters that is also in those cases the judge made a definitive pretrial ruling this is coming in whereas in this case our judge looked at the matter fourteen times and made rulings for pretrial rulings including a hearing on march twenty second two thousand and thirteen where she said this is it this is she said virtually this is intrinsic inextricably intertwined evidence it's coming in but whether four or three balancing weighs more heavily toward exclusion i will continue to look at throughout the trial to kill ten times during the trial she'd reevaluated that but is there a distinction between the government simply tracing the proceeds of the loan money saying that was used to buy a house versus it was used to buy a house with a straw purchaser this part of a cash back mortgage scheme is that the distinction that argues place here well the issue with that is that the defense here was i have a legitimate real estate portfolio i'm a legitimate real estate investor and i was i had no intent to defraud that the evidence in a fashion that impugns the motives of the defendant the the jury's entitled to a coherent and complete story a picture of the case and the defendant's inten specific intent obviously is an element of the fraud scheme so the government had the burden of proving that he intended to defraud these individuals me ask you along that line let's assume for a moment that the government had never talked about what  call the cash back scheme not a word of it nothing related to it could you have convicted the defendant in this case that would have been difficult because it would have been difficult to prove intent as the district court ruled during and after a trial that intrinsically evidence was necessary because it was highly relevant to intent this is important because part of the standard of this whole thing is what how been unfair to the government in its presentation of the case to have carved out carved out certain pieces from the full context that i so so really feel sorry for the government but i just i want you to tell me that could be could the government have won the case if this had not been included anything related to the catch back work that's a very broad category so it would been a very very difficult would not it's difficult for me to answer that question if the government were limited to hypothetically the defendant borrowed money from these individuals and was not entitle to show that he lied about whether he intended to pay it back and lied about how he was going to use it and lied about the high returns that he promised then the government essentially would have not been able to present a complete case so in other words without this evidence the indictment could not have been proven that's that's a very difficult question to answer but but you know so i'm asking it well i think think i what we have to bear in mind here is that this was and the defendant conceded it at trial firstly a trial said what did you say he conceded what that this was intrinsic evidence that this was evidence that was part and parcel of the case even though there's another indictment out there and it was a separate skeen the flow of the money which the government is and has a right to show what money is a load what is cited the record in answer to just gallop question what in the record would you cite the defendant conceded that this quote was part of this conspiracy the first day of trial beginning on page ninety three of the transcript defense counsel said court correctly ruled inextricably the interest in extra intertwined acts are relevant he said i do not dispute i'm skipping a little bit i do not dispute anything that would show the flow of these funds is clearly relevant it's in extra quickly intertwined the counsel the issue is bad act i have no objection whatsoever with anything that traces the funds and then he said the only issue i have is with this  say the defendant use the funds first personal use you present evidence that effect versus present evidence that if it use the first personal use for just cocaine or something shocking like that is that we have here not only the fair use  funds well i mean you're saying you're asking whether the characterization or the labeling of it is is for zero three the problem and the district judge did address that and say well that if you could give me just a moment i apologize if i could just have a moment down but it is it is part of the the trial record only this occur where in that was this was on day seven page eleven and she also if i can just find it here ok if you look at page thirty eight of my answering brief for page eleven on the day seven day of trial the district judge ruled it's ok to call it mortgage fraud so long as the jury could reasonably find by a preponderance that the acts occurred and that the defendant was the actor and then if we look at the huddleston case there's no requirement for a preliminary finding actually that's not really relevant to this but yes the judge was was sensitive to that objection and said you know if you were referring to some other act by the defendant say he had committed an armed robbery you could call it an armed robbery even if it wasn't charged in this case there's a practical issue too which is the defense argues that there's a problem the jury instructions because there was a risk that the jury confused the two schemes and convict the defendant for the mortgage fraud scheme as opposed to the investment fraud scheme now obviously that was clarified during the jury instructions the verdict forms closing arguments by both parties you know but which i want to switch before you run out of time on this thing what's your comment about the  consecutive conspiracies were proven the government admitted it the district court said i see two conspiracies and that's a case where there should have been a specific instruction because there was a genuine risk of confusion but here and in part because there was a distinction made throughout the trial there's the investment fraud but the private investors and then there's that and the label was used to mortgage fraud or cash back scheme which was the the scheme that involved banks as  portions of the indictment describing that investment fraud scheme they distinguish between the two different types of schemes so in part that labeling was necessary in order to keep them separate in the jury's mind there were no questions there was no indication by the jury that there was any risk of confusion between the two schemes when the judge judge jorgensen made the ruling with respect to allowing the references to mortgage fraud was she making a ruling with respect to four zero four three and four four at the time of that specific ruling i believe so and again nearly every day of the trial that issue was raised and she said and she did exclude some evidence and said this is too this is too far from the intrinsic nature of what we're looking at here but she never looked at the delete the the evidence that was being introduced prior to trial well she received that eighteen page notice by the government which was very detailed and included it also included and i got about a three page graph of it in specific detail the transactions of the government proposed to introduced and then again there were only five transactions that the government brought in they were all tied in time and by the flow of money to these specific victims and that's in contrast to this other case that's out there where there's an indictment that alleges approximately i think eighteen transactions in a number of different defendants so that really is a much bigger scheme and the government was careful to limit  could what it did introduce about that scheme in addition during the trial when the government said we'd like to introduce another panel talk transaction we'd like to introduce evidence that the defendant never filed tax returns the judge did for  and for three analysis and said no that's not coming in we'd like to introduce a second day album lease no not coming in so the government was asking and the court was saying no i'm we're going to keep this limited and it was limited to time thank you if the allegation in the indictment was that you borrowed the money and didn't use it for real estate and the evidence that the government wants to present is it to use it for real estate do you think i would want that evidence of course that that demonstrates the problem with the curb its position it wasn't the evidence that they wanted it was the spin that they wanted to put on the event which by the way it's not a cash back mortgage fraud i sit here and tell you right now it's not a cashback mortgage fraud but i wasn't there to defend a cashback mortgage fraud i was there to defend an allegation that said you bought use represented you going to spend borrow money and spend it on real estate and you pulled money and spent it on your personal use that's what this is about the about what's about is not the evidence it's the spin that the government put on the evidence and yet the judge said you can do it why because i kept complaining s right you don't allow the conclusion that somebody committed a robbery to come in as other act evidence you allow that act that person did so if you trace the money find that interesting money and let  show that the money was used to invest in real estate why wouldn't i want that so what this is what the government's position i guess now is that the distinction between the current case and this is this if we give them the specific evidence ahead of time so they have an obligation or they have an opportunity to object then the judge has to do the proper analysis but if we don't given the evidence ahead of time because it was a trial counsel apparently if you if you heard the posing counsel comment she at least i heard her say that your side waived any of these objectives because if the argument is if the allegation is he didn't use the money to invest in real estate and in fact he did use the money to invest in real estate how is that not relevant see is the characterization of it this transaction which i never tried to prove or to disprove i said yeah that's the facts the acts occurred he took the money invested real estate doesn't that disprove the indictment it wasn't about that it was about the spin very well thank you counsel the case just argued will be submitted for decision