should have been granted in this case i knowledge that joint trials are preferred and that judicial economy is something to be valued and i understand in this particular case the government had witnesses literally from around the world so i understand all of those concerns are important but if ever there was a case requiring a severance i believe this was it difficult enough to defend against criminal charges brought by the government it's even more difficult when you have to defend those charges against a person who's sitting across the table from you at the defense table well and  trials with different degrees of culpability as well as among the defendants are very uncommon i understand that and in fact it's inevitable nope no two people can have the same degree of culpability in a particular crime unless they both a victim but i think the real problem here was the extent to which the codefendant not only pointed the finger at mr jackson but called him names and basically assume the role of a prosecutor they did that constantly from opening statement had concluded and i understand your argument that going to the jury had concluded that that mr hurt was a victim of your client's conduct and still accepted your client's defense which i understood to be that he just didn't understand these transactions in peace and he had no intent to defraud people but but by definition if the codefendant hurt is saying i'm a victim of my codefendant man he's a scam there's something fishy about him the defense in some ways was more vigorous in prosecuting mr jackson than the government was and that's saying a lot  i didn't get off that's well but nevertheless given the circumstances of this case you have codefendant essentially prosecuting mr jackson and emphasizing things that you don't get a limiting instruction for the government brings in evidence of an unchallenged crime or prior crime who gives a limiting instruction but when codefendant brings in that evidence you don't get the limiting instruction that they don't seem to be as limited as the government does and that goes to the other issue that i would just want to raise mr jackson's evidence of his prior criminal conviction this i believe denied him his right to a fair trial i think there was too great a risk too great a danger that the jury would believe that he had a propensity to engage in florida law in crimes and that no matter how well intentioned the trial court was in terms of living instructions it was inevitable that the probative value of that evidence would be substantially outweighed by its prejudice and also the manner in which  that that evidence was relevant i think that the degree to which the government went the the lengths to which the government went to present evidence of that prior conviction totally swallowed up any proper purpose that the evidence who came into the court room and testified to the length of his incarceration the amount of restitution he'd been required to pay and even the terms of his supervised release all of these things could have some slight relevance to mr jackson's criminal intent in the current case but to the extent that the government went in proving these things i think was really a trial lawyer for and i was not did tell me about the  level of objections to these various points that you're just making now with a jet into as i recall trial counsel did object when the government filed a motion pretrial report put in the evidence right and then the question is the all the embellishments that you're talking about and the way it was presented was that there was no objection to that i don't think that trial counsel objected in particular to the extent to which the government presented such evidence of course the trial counsel doesn't realized the extent of it until the trial is over as it's happening you can understand as it's happening where you might be able to get a proffer from the government  it how it's going to present the evidence are all sorts of steps that can be taken i understand it could have been handled that way i don't think it was as the preparation officers testimony for  four be evidence or was it evidence of consciousness of guilt because as i understood it really that evidence that testimony was going to that the defendant concealed his ongoing conduct from the preservation officer i think to some extent it came under both categories and i understand why the government was presenting this evidence and i'm not saying there is zero relevance to it it's just overly prejudicial i think to the extent that they went they went overboard basically that's my position thank you sentencing amendment seven hundred and ninety four and i have i don't believe your honour's wrong panel when i've discussed this in the past but when i feel strongly about this and as the court knows amendment seventy four made a radical change in  sentencing in the regards of rollkur of culpability or role reduction it's a it's a major change it's a radical change and even the government i don't believe with all due respect in its  understands the significance of this as the court knows it previously when you had a defendant looking for a row reduction he or she would be compared with a fictional universal character somewhere out there in the country in the in the instance now of of amendment seventy four which came into effect before my client was standing about six months before in november of two thousand and fifteen and he was sentenced i think in march of sixteen now you're compared i can go into many details but in its memorandum the government of page ninety five in its brief says quote there is no dispute that heard was involved to a lesser extent than jackson's or the insubstantial participant and engages in many aspects of the fraud in years and whose guilt is very clear and and deals with many of the other characters who are in the fraud is not the guy he's not the chauffeur who's driving the person around he's engaged in the fraud and is playing it is substantial role but but one that's a little bit less than the other one that's rule seven hundred and ninety four that's the amendment that you're saying that the amendment says that you take the worst person and everybody else gets a minor role i'm not sure everybody else i think i know the worst person means the worst person and everybody else is not as bad i don't think i'd go there i think i think your honor i would say that if you compared on a case by case basis in this particular case there is no question that mr jackson was the mastermind he came up with these phony documents he found the victims he made the decision making he he did the planning he was like was there says i started to read from page ninety five of the government's brief the government says that there's no dispute that her was involved to a lesser extent and then the government says but you know this to court took care of that because they gave jackson  for leadership and that solved the government's concern about about the amendment that's not what the amendment does but mr jackson gets by way of enhancement four levels or less doesn't help us any we're entitled to it to a reduction b involvement is clearly obviously under any facts and even the government agrees less copiable less involved in mr jackson and so he deserves some sort of a reduction that's that's that's what seven hundred and four dollars says and i know this court is having been here on this are you before i understand some of the the issues on that the only other point i wanted to i wanted to know is is the issue about the false statement the one thousand and one dollars charge against my client he met with agents and they gave him a trick question did you meet with people in north carolina about this case or about about loans and he said no he was lying but the news was that a trick question because they knew the answer to the question they were just testing him they knew  no they can absolutely they can do it but the question is does he get a does he then charged with making a false statement you know which wasn't material to the investigation by the agents or did they just ask him this just to test them out to see if how good as a government says how good he might be is as a cooperating witness could they turn him to use them and could they believe lies at a basis for saying it's material because it's not it's not germane or row of an to i think that the investigation itself in this investigation where they would have to call additional witnesses to prove the fact that who was he might admit at that by the way that north carolina case was not one of the the claimed frauds in this particular case but but  may in this circuit is the court knows there's only one case that broaches on the subject and that was a summary order foxworth i believe that was it was a summary order i won't go further than that and so even though other circuits around the country of address it please the court good morning your honor saw my name is mike mcgarry says united states attorney here on behalf of united states of america each of the two defendants have made multiple claims in their briefs and touched upon some of them today in  directed both at the proceedings and at the sentencing with respect to role as well as with respect to restitution and we heard a little bit about severance and again a one thousand and one none of could direct your attention to one of the yes and i was one of the trial counsel below the other assist united states attorneys also here in the courtroom with us today and i think the court touched upon it in your questions separate and apart from the knowledge and intent element of the prior conviction there are also the facts f a c t s of the conviction and the fact that for instance the defendant had travel restrictions and he had to report to his occasionally makes business trips but over the past four months the significantly increased volume of the complex transactions have literally had him glued to his office that's not a true statement he wasn't making business trips because he was had you know restrictions on his travel and if you were making trips he had to get permission from probation so that that's one of the reasons another reason why it was it was relevant  in the sense that he also put paid money to want something called reputation changer which what would happen in reputation changer is this service would make up fake news stories or other information to push any negative stories to the nd page of a google search so that if any of the potential victims can just draw your attention back to travel the government's position at trial was that he wasn't travelling because the he had restrictions and so representations that he was traveling were faults it was kind of both your honor yes because the he did get permission to take a vacation i believe to the maryland eastern shore and a t m withdrawals showed up where he was traveling using victims money so the fact that he had asked for permission and got permission to travel and then did travel and then victim money was spent through the a t m machines and that the hotel where he was traveling was a factual issue which could tie him to the bank account which was in the name of a company which some victim money was spent to correct in that instance it also the fact that he didn't ask for permission and didn't travel to new york city when mr hurt the other defendant did go to new york city to meet mr mclean who had traveled from south africa in order to get a loan establish that these statements from these brokers who were other participants not coconspirators but participants were making no false statements because that's not why mr jackson wasn't going to new york presumably and i think it was reason reason for the jury to conclude if you were going to travel to new york if you were going to travel to new york he would have to tell his probation officer the purpose of his trip she would then inquire as to what business he was in and he had certain restrictions because of the large restitution figure that he was in to engage in certain financial transactions he wasn't to take out loans so therefore he was not telling his probation moving a little bit from the travel him his not telling his probation officer about jaylen realty capital management and american capital holdings by not telling her about that it showed consciousness of guilt because one would think a defendant would want to tell your probation officer what you're up to certainly also if you all one one million dollars in restitution and you're making these fantastic loans and you're making these great commissions maybe you're able to pay more in your court ordered restitution clearly the millions of dollars that came into his account were not used to pay his restitution because it was not a real job it was fraud and so just wrapping up with your question your honor was not simply introduced to show knowledge in ten absence of mistake but there were various factual points in the evidence where having the probation officer come prove those factual points and i would submit your honor that there was there was nothing there were embellishments these were factual evidence that were put in and there was no improper use of the prior conviction and i ask you a question about in this did they know they know that jackson was on probation i do is there and let me rephrase it is there evidence i don't believe there was evidence and i don't believe this evidence induced a trial that they were aware that he pointing that out because of course we know the judge can rely on things beyond what was just in trial again i don't think we established an i and there is no evidence there was nothing presented to the judge as to whether or not they knew he was on probation or whether they knew that he had a felony what was presented was the fact that they knew what they were saying was false and what also was presented that after they made these false statements they receive commissions in the thousands of dollars and when i say thousands small thousands compared to the whole fraud but for instance on october th and th one of the individuals mr kept k o e cooper and royalties describe jackson as a superstar to mr mclean the individual from south africa and conveyed his competence and his ability and a big basically were talking him up even though and they never mentioned the fact that these other broke these other individuals were having trouble getting loans they were also statements made your honor again i could say you government's exhibit two hundred and eleven there's also two hundred and twelve into thirteen which are in the record around two way it is our role to filter in new intake and then they go on to say does far danielle and myself have enabled david mans which is one of the aliases for mr jackson has enabled david mans to be perceived as a superstar by his colleagues at bright way and we intend to keep it that way you run it there are these there were no loans there were no loans closing for this so for them to say that they were the gate keepers and that they were helping  mr hurd is the ultimate decider he's the big boss it's great that you're going to meet with him in new york because he's going to decide on your loan they made statements to individuals the individual submitted fees and then they were paid and no loans ever closed so to the based on that evidence the fact that the judge found him to be a leader was clearly appropriate additionally even if you need to as i looked at the record the district court doesn't tell us specifically which of the escrow agents in which of the brokers the evidence supports the finding that they knowingly participate directly i think she wrote that all or said that all of the evidence presented shows clearly and easily by a preponderance of the evidence that mr jackson was an organizer a leader of this criminal activity that involved five or more participants who identify then a fight earlier and which she identified earlier was cooper and  this as brokers she also identified ferguson from the ferguson law group she also did identify tony hard stone from c e s which was the escrow service and the evidence there that we talked about the brokers was that for instance a one million dollars went to the escrow service and they were supposed to release it when they got information of approval from both jail in and from the perspective loan people in this case it was ram a runway asset management yet they released it and they sent it to brightly they sent it to jail and that happened and i believe three occasions and anthony can forty testified he was from the telluride it was they were building some condominiums out in telluride he put three hundred thousand dollars in escrow he said do not release unless you have my signature yet they released it and he never got his money he never got his loan in applying a leadership enhanced mint is it necessary  to find that it was otherwise extensive the court could affirm on that grounds because you've got the brokers that's the alternative direct versus otherwise inclined on a proxmire to use the alternative you would look at the number of participants the number of unknowing participants and the extent to which the services of the unknowing participants were peculiar and necessary to the criminal scheme which a r o z z e l l a you're really looking at the activities of that particular defendant and the extent to which the defendant is kind of calling the shots correct keeping some people in the dark may be not correct and i think the court distinguishes from the typical cab driver i mean when you have the escrow agent and there's getting sent a one million dollars and then on his say so they're releasing the money that i believe is is you know particular to this scheme it's not the cab driver as as this court has has distinguished i will say this i know we're last on the docket i'm happy to stand here for as long as you want i know my time is up but if you have any other questions regarding  severance or anything else i'm have an answer them thank you two quick replies to the government i think when i was listening to the argument regarding mr jackson's prior crime evidence i just i got the impression the points that the government claims it was trying to make through the introduction of that evidence are really kind of significant in the context of the charges in this case so i don't think that it was really worth it or necessary to preserve this substantial amount of evidence telling the jury that mr jackson has a prior fraud conviction try not to let that influence you in this trial where he's being accused of fraud i think there was just too great a danger of prejudice balanced against what i believe was just too slight probative value of the evidence in question as far as the leader organizer role it just meant i think the government was arguing that the broker and the escrow agent knew what they were saying was false but they haven't presented any evidence to support that statement they might have engaged in a broker's not surprisingly sometimes exaggerate the quality of the services they providing i don't think there's anything unusual about that i don't think the government really presented sufficient evidence that the participants the brokers and the escrow agents that they were criminally liable and since that was the basis upon which the district court determined that this should be a four level increase in the sentencing guideline i think that was ever proceed to a lower thank you what's tough tough to do about it when the government doesn't mention your client but the one thing the government did go into some detail about was just how bad mr jackson really was really is and i just ask you to consider that in terms of my seven  so thank you so if i can before i get to that the government st came up with a large amount four and a half one million dollars which the assessed against mr jackson and then the amount the assessed against my client was was about half of that which again shows the relative culpability of the two of them in terms of my objections to it we went back and forth with the government in the final list that they had  purportedly just included matters that upon which my client might have had some some involvement as opposed to anything that mr mr jackson did some of the objections at the time i think were made during during sentencing but no further was there any objection in a pre sentencing letter yes yes that was it my presents memorandum went into detail about objecting i think the government he was that that the government came up with it's it's it's listed at two point two five five against my after that after then the amount came down yesterday and was there an objection to the amount that was actually