a life term because it was forty years and he sixty seven years old for two counts of bank fraud two wires totaling less than three hundred thousand dollars which the government said were cash advance separate case and was acquitted actually of the conspiracy but convicted up the bank fraud which is one of the issues in this case where the government used against my client numerous errors in the trial each one alone i use incredible amount of for a for b evidence the use of an eye witness that was said to be a fact witness but instead ended up giving opinion after opinion sometimes about things she knew nothing did not receive a fair trial it was not just by ambush but a trial where he had to defend against four or five different charges which were not charged and didn't appear in the indictment where numerous motions of the many  limited his defense he was unable to defend because he didn't have documents that he should have had because his lawyer did not get sufficient time to prepare this is this is judge new so i think you're probably in your introduction read a little about eight different errors but you're not going to have time to cover all of those today so what horses you want to ride today well your honor i wanted to discuss st of all this efficiency because i wanted the court  to see that you know i'm not the st one i want to discuss i think it is very clear in our brief that there's that there was and it's almost exactly the use of the conviction possibly be the law right that your guy can get on the stand and say in effect well no one's ever been able to prove that my codefendant did anything wrong and you know invite the of this case are that all he said was there's a been all this litigation he never said anything about clarke's case he said litigation because the government had tried four different cases the s e c case the civil case all these cases that the jury knew about he didn't say the criminal case or cross criminal case he said litigation and his attorney said that to the court his attorney explained he said litigation and the court allowed the government else by a correct and then he said that's the theory of the prosecution i hear that i know that's not the st time i've heard that theory that's been in all these lawsuits and so far nobody's been able to show anything that is an impropriety what about that and i guess he was just saying well i mean he's presumed innocent but the question that led to this the use of the conviction against him is what i just read the court because the government didn't object then guilty and then he did it again in closing argument is itself reversible error but when put together with all the other errors in this case including the you know the fact that you know there are a reversal but even if there is some doubt in the courts mind about whether this is had self alone reversible which there shouldn't be because of what i just read exactly how the colloquy went and by the way the government didn't say anything then they just say i'm back in later ok so he couldn't fix it he could nothing i mean and then they use that conviction against him and there are a number of errors that i know briefs are very clear on what the there's no evidence that there was any you know material misrepresentation as a matter of fact the false statements have been minute to minute statements there were acquittals on the false statements and there was no evidence that mr schwarz joining a conspiracy to commit that's what he was not involved in the loans he was not didn't know anything about the loans there was and there was no evidence any new anything about the loans and the two people who testified that they wrote somebodies name in on the loan application for clark's relatives said that they didn't tell anything to schwarz about anything on the loan application so their signatures there's nothing wrong with the lease back there's a document you know they acted as if this is some conspiracy some ponzi scheme it wasn't they were legitimate apartments that were bought in a time when you know when later on there was a crash which he was not allowed to tell the jury this is not a  this is a situation where they put in a bunch of a number of people who said they bought apartments and lost money well lot of people lost money at that time because there was a crash he was not allowed to say that he was not saying that the banks  should have looked into it or done better appraisals like and pow he was he wanted his defense which is i did not cause these people to lose their apartments and the lease back there was a twenty page opinion from greenberg traurig a very reputable firm that says the lease back should be done later because otherwise there's security and because of that that's how they were done and that's why they weren't on the loan documents which he didn't see any way now at there's no evidence of a conspiracy here and i don't know who the conspirator what conspirator who did because fire when he wasn't even in the same department he didn't know anything about the loans there was no conspiracy to commit thank you  think my time may be over it's difficult to cause i don't have t sale through straw purchasers the so called sales were frauds because the paperwork indicated they were arms length transactions involving real buyers when in fact the buyer and seller with the same entity the father allowed kclub both to get cash from a purchase money mortgage without an in part to repay other debts the fraud and peter to repay paul the evidence proves that throughout the scheme schwartz knew sales were fake he charged clark's ownership accounts for the down payment and mortgages showing he fail to their argument about the continuance fails to account the fact this court is held relevant including the years short spent litigating same issues on the same discovery against the f t c the fact is the government handed him its case on a silver platter months before trial and   some pointed out i think if you read the record speaks for itself the district court didn't abuse its discretion it offered to defend and redirect if there was anything that needed to be cleared this is the docket to seventeen page seventy three what happened and lie through his teeth about something and the other party the government is hamstrung from doing anything about it if you why you lie and lie element to witnesses credibility i mean it's different right it's only for impeachment right if a person up in teaching the witness because they lied about the existence of the conviction i don't think that's what the statement you think possibly harboring do you think is there some difference in your mind i've been sort of struggling with this is there some difference in your mind between i directly in teaching the question is going to be which goes to you know exactly what was said that needs to be impeached and if you just nudge the door open a little bit that's different than swinging it wide open and walking straight through higher so that would be a floor and that's sixty seven million dollars which would be a plus twenty four dollars instead of a plus twenty six dollars but again that makes no difference in the ultimate calculation of the guidelines because the total offense level was forty nine  with players pointing out specific substantial prejudice which is that he has to identify the document or documents or evidence from a witness that would have been introduced at trial that would have led to a different program so that it doesn't the sales don't become securities securities now if the chargers were securities fraud i could see how maybe that would be relevant that wasn't the charge and that's the difference if you go back  where you say you're selling it to someone and that person is not actually buying the property nobody ever told him that he doesn't testify any of that there's nothing in the record supporting it by six counsel defense which is the very  in mid november or maybe late november how long has he been on the clarke and sports conspiracy mr smith the trial attorney was appointed on october st i'm not asking about mr smith i'm asking about testimony eight hundred and sixty six thousand pages just of the e mails alone how could he not be ham strong by not giving given more than basically ninety days looking at the standard which is that he needs to show if you had had more time he would have been acquitted and he hasn't done that but the nd more substantive answer is that was available to how all of this discovery came from him  his bank records he knows exactly what happened and she has been litigating these issues the same issues essentially against the f c c for quite some time so if there was there there if there was some smoking gun printed in essence he knew what it million dollars all of the one hundred and fifty associated companies the one hundred and fifty seven associated bank accounts how can one solo practitioner who did they ask for continue to repeatedly now tried to get into the dr when i was preparing and i had to have help to get into the dr it is an enormous drive you cannot find anything this index that they say is an index is not an index it is not searchable the eight hundred and thousand e mails are not searchable and the evidence is undisputed in the record short shorts testified that when he left he left all the documents and there are just pulled twenty three documents we don't know how many more there are but this document does greenberg traurig it's not just a document about the lease by the government used to lease back as if it was some fraudulent scheme that wasn't told to the bank and it wasn't they were done after the closings because the lawyers told him to do it after the closing also in those documents there are financial statements towards testified that they're related transactions there's nothing illegal about them were put into the financial statements these t financial statements for both related transactions you know both years for the two thousand and four and the two thousand and six and that's documents twelve and thirteen counsel did not have that document because he didn't know he couldn't search and there's also a document that shows that one of the back employees was fixing the loans and altering them and he pled guilty short didn't know anything about that there's a list of all the numerous you know the twenty three documents and there may be others and the reason we sent this list and the reason we pulled them is so the court could see that not only was it obviously just from the time period and the amount of evidence in this case not enough him for counsel to prepare but that there was actual prejudice for the court to see that this was an unfair trial could not defend because his counsel didn't know he was he also asked for help to have another for not being prepared for trial in this period of time i'll just say that there is no evidence that he did anything but to prepare your honor i mean he was appointed on october st on the crowd took place february st there's no evidence that he was not prepared in fact he did really well in cross examination he prepared as best he could but he did not have the documents he  have enough discovery that it was a valuable to him to be able to mount the defense that he needed it's not because he wasn't that he could tributed to it he did the best he could but he did evidence which you could not find he had to make a choice i'm sure to look through it and know the case or spend what took us like a month or two with another attorney looking financial statements that is one of those documents that were in the drive that defense counsel did not have and the government keeps talking about the related sales as if there's something wrong with them they're not but not only that but the only thing that shorts the only duty he had was to reflect them in the financial statement he was not sales he was not he was not dealing with the banks he was not doing anything with the loans he did what he had to do  thank you thank you