error analysis and in this case specifically we have there is no and the government can never show any harm under a can trouble now so specifically both in the opinion that addition to that that he planned on giving you know after what he calls an alternate sentence and then once again in the transcript and in the excerpts of record i believe it's a page four ninety four the government specifically asked him given what the having been said i believe that the it's not that different than the many whether opinion as well which is cited in footnote four and in the many weather opinion specifically the court this court found that the district court was not going to do anything different than had manifested that through and milly in that case on the basis of a couple of her e mails in this case however the what d by mr ramsey in the trial court as for all for be evidence which are these are in charge transactions which the judge baird prior to judge ray getting this case and specifically struck from the indictment given the fact that she had struck it from the indictment given the fact that the government then for the first time introduces her starts to introduce this evidence in the course of the trial at the time the trial lawyer makes a an objection says that this is in the nature of formal form the evidence have no discovery of this how can we defend against as it's admitted anyway that we believe is prejudice to the defendant that can never be cured the fact is that discovery was never to was a case in which she went to trial believing that she was charged with six instances of fraud she gets into the middle of trial and all the sudden there is why rang program so what ends up happening is that gets it needed in there and the government's theory for the admission is well it's an adoptive admission they said i left and that kind of figure out how broad the  borrowing was and therefore how likely it was that a reasonable person would have objected that saying you know it and women didn't happen or whatever well the it actually has to ramifications it's broader in the sense that it reflects the agency that they are claiming was defrauded here so within the context of the trial it's extremely broad you're talking about hope fraud here is a have department from the standpoint of miss davis it's not that meaningful in her practice because it only goes to specific types of loans and it if you're going to talk about a percentage of the by no means the maturity of her loans that she's doing now does that mean when you say goes on specific types of loans does it not go to all loans processed through hard and i do not believe that the hundred debarment goes through all loans that were through her but even if it did if that's believe as a percentage it was not the majority of her practice that's all i can or her business so there are but you know i have a number i don't have a number and i don't believe that's in a unfortunately i don't believe that's in the record anywhere all i know is that  the her position was no harm no foul i don't care it's not a big it's not a big part of my business so why am i going to why am i going to dispute it i understand that client and am hand the other and pretty fast to say you know what that's a mistake well i don't know if you know it's an interesting business decision and i'm going to go out in america or hire a lawyer who's going to charge me x amount of dollars to engage in a protracted  medically rather byzantine process trying to get a government agency to reverse a department which i believe was only for a short period of time or is the opportunity cost i don't care if i'm out of this element for a year on the classic expression of the trial by ambush this would be this is more trial by avalanche in terms of the number of boxes of materials i can tell you that when we eventually asked for and got the discovery it is multiple bankers boxes of the tearoom to him and he never even had the benefit of any of that and i can also tell you that there was clearly disputes contained within those boxes as to whether or not what the government was alleging was true which is was part of the we got into it in terms of the sentencing hearing so i know from at least personal experience post trial that this was not something that was a before a small issue or something that couldn't have been combative but when you combine that with the letters with the the barman as i call it i think that that's a fatal flaw i i also and i we did a sexual or request  that he made a motion for in this trial memory if memory serves i do not believe he asked for a continuance to get the discovery i believe what he has the remedy he wanted was the last trial frankly i believe that opening statement in general in these cases you've already decided on how you're going to cross examine certain witnesses certain way a continuance of this point when you've already picked a jury and the die has been set so to speak as to how you to try the case a continuance and live trial especially given the sheer volume of information that was then that he would have had to i digest i don't see how anybody could have done it very competently might well but he always is in that situation i think any competent lawyers remedy that situation is to request in this trial and start over again so that you know whether or not this is how you want to approach it how you're going to deal with it and maybe to make one of many motions in terms of excluding some of this and hope that the trial judge at that point understands the damage that's been done over they how the lawyer has been caught by surprise i think that it's clear that the lawyer of this case was reasonably well lying on the fact that since judge perry had struck this information from the indictment that he didn't have to deal with it i think that if the government was going to introduce it that they should have under the rules of for for they should have given them the summit and by not giving notice and by dumping it so to speak in the middle of trial how do you how did remedy that other than by requesting this trial which was the night i said i've got some time left but i'd like to if i could good morning happy mccaffery on behalf of the united states the defendant in this case argues for a judgment of acquittal based on the fact that they claim that the government did not prove the element of causing a wire transmission and the further into the scheme in order to prove that element the government has to show that the defendant knew or it was reasonably foreseeable to the defendant  ordinary course of business here mortgage lending that wires would be used after the government proves that element or that fact the government must then show the interstate next to the wire transmission mortgage lending transactions and in fact in this case the parties agree that true of the six transactions charge involved and out of state lender out of utah the government proved in its case in chief that the use of wires was reasonably foreseeable to the defendant or the defendant knew of the use of the wires through evidence through documents that the government offered settlement statements showing w argument show wire fees in connection with the loan various verifications in employment that were offered show the phone number of r e mortgage and and the phone number of the employer  the employment for the bar or now with respect to that throughout the trial the government presented ample evidence from the real estate agents who brought these fraudulent loans to the defendant and the did not argue that these wire fees referenced in the settlement statements were the wires specifically charged in the indictment the government argued that the settlement statement showed that wires were sent by ari mortgage and as a result the defendant knew or reasonably foresaw the use of wires in the mortgage lending business given the ample evidence presented to support a finding that the use of wires was reasonably foreseeable to the defendant the government's the district court found that it was an adoptive admission and in its response to reply papers the defendant argues that nothing was introduced concerning the circumstances surrounding february two thousand that would have shown that the defendant counsel argues that the limited in our participation wouldn't have had an effect on the defendants business that is not the record in this case the moment in our participation letter told the defendant that she would be  that they did all f h a loans with the defendant and one testified that she did one day conventional an f h a insured lunch with the defendant and given the testimony offered by the real estate agents and their ms davis has said well this was just sort of a business decision that she just had to figure out whether she was going to spend her time writing other lawns or responding to the hottest didn't care about that part of the business when the rest of business is going well what are the consequences of conventional loans only now with respect to the defendant defense counsel's characterization of the letter the government requests that the court focus on the actual limit in our participation matters the first letter which is exhibit one of nine states this is the allegation you should respond by letter if we don't hear from you in thirty days you will be to part second letter we have not heard from you your departure there is no transactions real estate tell agents testified about various loan transactions that being gauged in with the defendant that contained fraudulent information the real the document forgers testified about numerous document created at the defendant's request fraudulent employment documents for inclusion in the loan f h a insured loans and the testimony by the agent concerning the initiation of the government's investigation is just another piece of evidence i went out to read to investigate ari mortgage and in the course of that investigation they found that the defendant had eighty loans in claims or default status and that was more than any other case and the defendant's role in the scheme the government never contended at trial that the eighty lines were fraudulent nor would that be necessary for the testimony to be relevant to describe the initiation of the investigation and the focus on the in response to the defense's argument concerning judge barrett's prior rolling it is not clear from the record what judge baird based a ruling on but what is clear is that the defense counsel did file a motion to strike because the government is not required to prove the amount of loans in the scheme to keep to prove the wire fraud charges any ambiguity in judge barrett ruling was cleared up by judge r imposed the same sentence the government does not believe does not agree with that interpretation on the record in fact if you looked at the if you look at the sentencing transcript as a whole the district court after finding that he w constrained by the jury findings stated that what has not been taken into consideration by the calculated guideline sentencing range is the defendant's go magnitude and the level of continued commitment to the scheme because of the defendant's involvement in the scheme and because the scheme involves only those loans insured by etheridge f h a it cannot be presumed that many more fraudulent loans were submitted by the defendant to other financial institutions therefore the tru scope of the defendant's conduct may never be known the defendant argues for leniency at sentencing arguing about the facts of the a fact that any term of imprisonment may have on our daughter and judge ray responded why didn't she think of range was more than justified given that given the circumstances of the kings a particular note is the district court's order of restitution the district court awarded restitution as two million one hundred forty six thousand five hundred sixty four dollars finding out to be the last resulting directly resulting from the defense of the defendant's offenses after finding that plainly vs washington did not court focus on the actual transcript and government's excerpts of record for ninety four to four ninety five because it is clear that the district court was referring to his order of restitution twice during that colloquy when the government was requesting an alternate sentence and when the different district court was saying he would order the same thing he kept saying you didn't you said that it didn't apply to restitution didn't you and i didn't think that restitution applied in the government produced a loss calculations setting forth each of those properties two weeks before trial and in the context of the discovery process with the government the defendant had the right to review any underlying documents are referenced in that last calculation summary yes and judge rate so found and it's true and here's our findings of fact in conclusions of law that the defendant had access to this discovery two weeks before trial there are no further questions thank you thank you ro excerpt of record the council sites here on four ninety four four ninety five in response to the government's question and says and they ask why we want you to give an alternative is that this this idea that it's restitution i would suggest any fair reading of that transcript suggests the otherwise otherwise they're asking the judge ray to give an alternative sentence and he says repeatedly twice it would be the same as far as this idea that judge ray felt that he was not the problem is you've got a defense lawyer and a defendant who are sitting in the middle of trial and the ruling has been changed well that's fine it's his case but at a certain point it's also the defendant's case and the fans got a right to have his one year or  of that but the it still remains that you've got a trial lawyer who was relying on a pretrial ruling saying that it is not going to come in and there is no for all for being honest if they wanted to bring that in they should have given notice back you know where are we going to send it back to somebody to get a third judge to determine or divine what it was the judge ray had wanted to do judge ray made it clear he made it clear in his published opinion you need a clear with a different standard of proof than what was at the you know deuced into the trial it still remains that all of that comes in then lead to course or mini trial as opposed to before trial giving notice as to what a defendant just before the language that you and the government's attorney are pointing to one for ninety four forming five which says well i get the same sentence then when he talks about the length of incarceration as distinct from the amount of restitution he evidence as it seems to me fairly clear the status faction with the length of the stands he thinks he is permitted to impose he says as per the court's or think i'm compelled to follow then we've discussed restitution then the judge is asked by the government for an alternative tennis at which point he says it would be the same now and then there's more discussion of restitution i'm frankly he's saying that he believes that six months is more than justified we believe the obviously that no time was justified and that's what we were arguing for and i believe that you will read in that context what he's saying is who was there arguing the sense in the six months is more than justified given that what has been presented to me i don't think that you can read that out of context of the published opinion which was the exactly thirty days before where he uses the same terminology i'm going i plan on pronouncing an alternate certains and when the government as you point out asks for that alternate sentence he says it would be the same so obviously he knew and  recognized in the published opinion that the state of flux in the law at that point and said that he was going to give an alternate the government knew what they were asking and asked for an alternate and he responds by saying that it's the same and  appeal on top of that the i think the only the government can't show under control under many weather or anything else that there has been plain error here because he would have done the