my name is can you hear me you would try to steal my name is baumgartner i represent mr mbai who was convicted of bank fraud and wire fraud and sentenced to thirty six months has no criminal background whatsoever and what he was charged with having done and convicted by a jury is part of a huge mortgage fraud scheme which no one suggests it wasn't totally illegal and his involvement in it was proven by and there were ten witnesses eight of whom were from various organizations thanks in that who established clearly  fraud and he was convicted by the jury but the two they testified against him had themselves done indicted along with him for those two charges they were looking at thirty years apiece one who testified against mr rayney had already been convicted on a prior scam identical to this from a democrat i mean in the nature of it and the government promised him that if you testified quote truthfully unquote and help the government that they would suggest one third less than what the guidelines suggested that with the subject it was absolutely and i don't have any comments about judge peters doing anything improper at all and the jury found him guilty no question about that the other person was promised that for the same in the same basis that he would that the government rather would not necessarily even ask for time served for time for him just simply they didn't they didn't state what would happen to him but he was looking at thirty and he could have been given nine imprisonment that's one issue there's two other issues and actually the second issue is probably can be broken down into two things and i should point out that mr mbai has never suggested they didn't do everything claimed factually it was his bank account that was used he loaned it to a friend and that friend use it and he himself allowed self was involved in the transfer of the various monies to the various people he's never suggest didn't do that the only thing you suggested is he didn't have a clue and whether he had a clue he didn't know in any way that it was illegal what he was doing i myself had never heard of  keen practices of mortgage law and didn't realize there were no doc these days which i'm sure if any documentation i had things were far beyond what i had a clue about he was a schoolteacher had been for i think sevent years and during up until trial was still teaching school at the chicago public schools he was not a real estate broker or you know who any kind of united states sentencing guidelines three c one one were used as a basis for having him given two additional points for obstructing justice on the grounds that he the jury didn't believe  there was nothing inconsistent whatsoever that he said there was no conviction of perjury there was nothing that he did other than tell what happened the jury didn't believe him i'm not suggesting that i know one way or another i don't but i do believe that he had a right to go to trial tell his side of the story and if he wasn't believed suffer the consequences which he's doing but he should not be penalized for simply stating facts even if they were not believed by the jury which they weren't in addition bank fraud as opposed to wire fraud is not probational therefore based on the the government decided what his sentence cap would be if he was charged with bank fraud and he couldn't get probation if you was given if he was charged and same identical facts with the bank with wire fraud he could get probation the judge it would it could be argued or could have been argued and i think was i honestly can't remember that the judge didn't have a right to give him probation because and the judge didn't under the law he could be going to time served he could have given something less the fact that the government itself the d o j the executive branch determined the cap on the sentence conflicts with its duties they could have charged him with one thing and they charge him with another for a reason which would enhance or limit his enhanced his punishment then they are acting as an executive branch doing something which is the believe that anyone should be penalized for going to trial and telling what that person thought to be and believed to be not a crime i mean that is  about and in this case the jury didn't believe him he should be sentenced i'm not suggesting he shouldn't but he should not be penalized for simply telling his version of what happened received one point three percent of whatever was scammed and it was scammed and he had no criminal history whatsoever and i don't i don't i'm not suggesting he wasn't doing a fair trial what i'm suggesting is that the sentence should not have had in it the concept that you're penalized for going to trial and telling the truth or telling who knows what is the truth the jury found him guilty so he's guilty there's no question he's guilty but there are cases where someone case has been reversed and g turns out that he was telling the truth and i'm saying it may not be often but it's certainly a if i may please the court my name is jill harmon i represent the united states has to defend it or go to trial he argues in his appeal today he claims that not that he didn't take the actions that were alleged against him but simply that he didn't know that this was a fraudulent just a not true and b even if it were true it would not be a reason to reverse his conviction this court has said on so many different occasions that it's not the province of the court to second just second guess juries credibility determinations all of the alleged reasons that mr bombard puts forward that jury could have questioned the credibility of the government's witnesses were disclosed to counsel such a cross examination the jury believed those witnesses and the so much more evidence that was presented to show the defendant's knowledge and intends just to go over a few of those things the fact that in a four month period to defend it deposited four checks into his own corporate checking account and then with through those funds immediately made payable to other individuals involved in the scheme i think there were fourteen checks written to other people in for to himself for the mere use of his bank accounts he was paid in excess of eighty two thousand dollars over a four month period that obviously was evidence of his knowledge of the fraudulent nature of the scheme and his intent the fact that as witnesses testified he signed a verification of employment and that there was also  payoff letter that not only identified him but had his phone number that he was orally available to confirm the fraudulent nature of the scheme evidence of his knowledge and contents that the defendant engaged in the scheme after engaging in a comparable scheme with the defendants where he personally purchased property five properties in one period i think he acquired over one point four million dollars in debts the one of those properties that are gone into foreclosure by the time this scheme began obviously knowledge evidence of his knowledge and intent the fact that he lied to a postal inspector when first questioned in this case and then he then got on the stand and lied at trial all evidence of his knowledge and intent so there was overwhelming evidence that the defendant knew that this was a fraudulent scheme and he was a willing participant in it with respect to the enhanced meant that the district court applied under section three c one point one the defendant gave false testimony  pages thirty five thirty six and forty six of the sentencing transcript and i and those quotes are contained in the government's brief but i think or maybe best summarized when judge shater called it really perjury or for jury s testimony for administrative duties and when questioned about that one on direct examination he suggested that what he was really writing here at the time was the administrative duty he was performing in writing a check and that was made very clear on cross examination and judge she referred to that specific claim as just i think the quote was nonsense and the fact that that was offered as an explanation on why he was kind of trying to dress up these checks being paid a codefendant was nothing more than the redistribution of the fraudulent proceeds of this scheme was obviously offered as an an effort to lessen his evidence of his knowledge and intent it was just to draw that into question and the court said that that testimony wasn't in the quote was nonsense the court also said that the suggestion that the defendant was and i think the term cheater used once again was hoodwinked into participating in this scheme by allowing his company to be used by his purported friend whose ch codefendant was totally not believable and that that testimony was also for jury and he says this on pages thirty six of the fencing transcript those two statements he said were lies and that they were obviously intended to  mislead the jury and that was perjury is testimony the court also identified pages five and six of the government's sentencing memorandum of the court said you know almost difficult for the court the district court to reiterate them at the time of sentencing and one of the arguments that was made on those pages the government sensing memo is that the defendant thought that payments of over eighty thousand dollars to deposit four checks and write fourteen plus four more to himself was essentially a thank you for the use of his bank account was also a false statement and that was the defendant's testimony at trial those were all lies they were all intended  influence or fact issue under determination to defend its knowledge in a tent and the court found that those lies were intentional and pejoratives and the ways in which he said that in this court has said on a number of cations that when applying section three c one point one's enhanced meant for perjury it's best if the court analyzed the individual elements of perjury as to each lie what judge cheater may not don that he made it very clear that each one of those elements was in effect dealt with when he talked about that the manner in which the testimony was dishonest in this enhanced but always sought whenever the defendant testify no absolutely not  but in this case the statements were so i think it's fair to say i'll use the court's words that were so obvious and they were really producer is testimony on  the core issue of his defense the fury of his defense that he simply did not realize that the checks that he was cashing distributing had been obtained from fraud because it went to that element it was appropriately sought and the court appropriately applied and judge said it was very clear that he really listened to the testimony here and he really believed that this testimony was so contradictory to reality that it had to be they had has been had to be applied thing that was of the greatest weight i mean he looked at the letters that were supplied for the defendant took account of all of the thirty five fifty three factors and said that the thing that led him to impose that sentence and he talked about it at some length during the sentencing proceeding was the testimony that the defendant had offered in his own defense at the time a trial required in the court's eyes that sentence and it was nevertheless a it presumpti were millions of dollars stolen one point three percent is what mr m by took from it which is almost nothing and this was ever result of him helping up boyhood friend who was a broker himself and what i'm suggesting is that not as kind as your honor asked me what you have to do with it what's this have to do with the invalidity of the conclusion of the jury it doesn't what it has to do with though is the fact that what has just been presented t court makes it seem that my sleeve this was just clearly perjurious and it wasn't at all it was hardly it was hard fought because well i'm not going to tell you to do it because i'm i think my position but rainey one of the two one of the only two people testified against him reading himself had already been convicted on another sky identical scam and the government in no way suggested well gee if you did that you must to perjure himself what's good for the goose cetera thank you