good morning welcome to the united states court of appeals for the sixth circuit please call our first case appeals his convictions for conspiracy to commit mail and wire fraud and conspiracy to defraud the government and related substantive offenses mid last century judge learned hand made defendant has as much right on the constitution and basic principles of fairness to develop his case as does the government under issues four and five of our brief we've a challenge to the fairness of mr parks the struggle of both from the respect of the district judge's rulings during direct examination when mr barker's took the witness stand as well as the ineffective assistance of his own attorney normally this court is reluctant to address ineffective assistance claims in a direct appeal however in a recent case united states versus washington the court the agreed to hear such a claim similar to the one made here that mr that the defendant was denied his right to effective assistance because of defense counsel's failure to call the defense witnesses in this case mr barca's had numerous witnesses he tells me forty nine witnesses that he desired to call to support his defense that he was trying in good faith to negotiate the sales of multiple businesses in order to satisfy his loans to his lenders and also his good faith belief that he did not owe the government  tax money you've got like got a lot of issues are the two that you just mentioned i see and or have forgotten the first one they the two they want to concentrate on this morning no i just wanted to touch on that and all of it a part preferred that i would help at least two with my respect in my respect if you could tell us what what is the issue you really want to concentrate on today well actually the primary issues i'd like to concentrate on and also the structuring of the indictment the government's theory of venue in this case was that steven health got disbarred and now despite attorney with a practice in cleveland ohio was part of the conspiracy if you remove mr helfgott from the picture you have alleged multiple victims none of whom are sided in ohio you have defendants that were cited in california and if you remove the health with the problem is basically this that mr helfgott was not guilty of any crime it plaited to me that's correct and and i know judge you're you're thinking well if you pled guilty meant maybe he's a guilty but he had already been implicated in an entirely unrelated crime he knew that he was going down for a period of time in prison and the charges in this case were just kind of a a freebie it made no difference in his sentence and the concern here is that when this court's case law states that the government can elicit basic information regarding a cooperating individuals plea agreement with the government in order to take the sting art of the defense getting up there and say ah ha you haven't told this jury that you struck a deal with the government and they're hoping for leniency that that's the extent to which the government can do that but that's not what occurred here the government used these plea documents that's the information the plea agreement and the judgment of conviction as substantive proof that mr helfgott was guilty of the crime of conspiracy to defraud the government and that's where we have a problem and how where do you what your support for saying that it was used as substantive proof the fact that the entire information in this was a very detailed information that tracked the tax conspiracy count of the defendants indictment word for word that was don't do it in the southern district of ohio where all be stipulated facts are set forth verbatim in the plea agreement a but he said that they were true great that's true and that's the way the government started out the direct his testimony that said it was true he was on the stand right yes and we submit that that is inappropriate because the government rather than starting out saying ok what happened the government started out having him but the government could've simply said did you do this because the government kind of read each allegation through and from a separate piece of paper and asked if he did all those things and he says yes and so you have venue don't you know because actually when you get to the meat of mr health god's testimony where he was on aided by these documents he basically denied involvement in the crime he said that he was directed to make certain transactions through his lawyers trust accounts but no one week i think it was a week or ten days before trial he told an agent that he didn't know about the t putting aside the plea documents he never admitted to committing any crime he said that he was unaware of eight tax issue or a tax lien until two thousand and six and i think this was before the last loan was made but he never said that he is the one the proposed using his lawyers trust account in this manner and he never said that his purpose in doing so was to assist the defendants in taxes the whole the whole predicate of your claim here then is omit whatever is in the plea document our case law as i thought clear that the government is entitle to put in the terms of the plea and they're also entitled to put in the entirety of the agreement so there then the queues of only showing the jury selected portions of that so while theoretically i suppose you might be correct that what he said absent the plea agreement may not may or may not have been sufficient we still have to focus in on what was wrong with what they did with the plea agreement here it's seemed to be in accordance with our case law just mickey if you look at your prior cases such as the only thing that this court has said that the government can do is to put before the jury the nature of the crime that the cooperate or pled guilty to any promises of leniency that were extended to him and his ultimate sentence but not to to give the jury to take back in deliberations basically a script of the government's case this these documents were used as a look so is the allegation is that claim here th that you can't show the jury the plea agreement at all or that there was something unique or unusual about this plea agreement that means that outside of the case law that there would be the latter i think you you summarized what i'm trying to get that  very simply judge right and it may well be it that this is unusual as you alluded to earlier but is there any case law that suggests that the trial judge is supposed to parse the plea agreement to say this one's ok to show to the jury but this one's not ok to say to the jury because it contains x y z but i think you have general case law that says that the line is crossed when a plea documents are used as substantive evidence of the guilt of the person who is on trial in that different when ok isn't it different when you have the witness on the stand and you're actually asking about each of the allegations in the in the pl agreement and you have independent admission of those facts and in your honor we would submit that that's entirely improper cooperating witnesses like any other witness you just ask the witness unscripted questions and you know that the government calling the witnesses stuck with the answers but to start out saying ok let's go through all these are overt acts that you pled guilty to don't try to wiggle out of them now aren't these true and then the jury knows that a district judge accepted the plea agreement entered a judgment of conviction that's where the line is crossed and it lends it to the to the jury the jury's been told that a nother branch of the court displease made findings that these were the facts and that this cooperator is bound by those facts and that they can apply that information rather than what the witnesses actually sane and trial  said i don't have a criminal tend i'm not guilty and then when he tried to get in testimony regarding what tax and accounting professionals told him that was excluded allegedly hearsay he said that he was trying to sell these businesses to generate funds to pay off his lenders but it was just basically his word that but he had witnesses lined up to to say yeah you know he was negotiating with us and we thought  that one of these with the businesses in particular was viable and we were trying to arrange a sale you know that the government calls i don't know how many witnesses they called i would imagine thirty five forty maybe more witnesses and and the  es impressed with all this and then here's one man who takes the witness stand and says oh i am not guilty i mean that for the testimony of those witnesses it yes in the in the in the motion for a new trial mr barcus mr jones here's going to test it tell me this result legal didn't do that proffer at the time no no he didn't judge and that's part of our ineffective assistance that the real criminal rule is clear that even someone with retain console can ask the court for funds to bring in the witnesses and defense console did nothing he said i'm counting on the attorney for the codefendant who it was a in the point of attorney to do all the legwork and bringing in these witnesses using his entitle meant to c j funds to bring them in and i don't have to do anything and it what is the record show as to the reasons for the attorney's actions nothing incompetence i mean the judge the district judge basically that your view no that's the that's the district judge's view she said i'm denying this motion for a new trial because defense counsel did nothing during the trial to alert me to the fact that this was a problem that this is what he wanted to accomplish as we don't know why the lawyer did that which is why we reserve ineffective assistance to a subsequent proceed well with them you can see you can say there could not possibly be any conceivable strategical reason why the lawyer did that you can make that claim but the attorney himself said that he wanted to call the witnesses we know that for a fact and he said the only reason why i didn't call them was because i was counting  believe that the witness list were filed by both parties and they are in the first world let's make let's be clear that there are two different things one is the inability to testify to what someone said because of hearsay brick the other is not being able to put that up to put that person on the stand that's true and holes yes and then there's also the question of whether it was hearsay which is right it would be hearsay if offered for the proof of  the matter asserted but not to show the effect on the defendant and when you have this admissible for one purpose it's purpose but not admissible for another purpose it's admissible with a limiting also make that argument bars and we submit that once the court rules defense counsel is done all the that is required of the one of the i think one of the court's response is that what he did after doesn't matter it's what he did initially that matters yes but it did some of the a lot of these hearsay statements were contemporaneous during the course of events where we're talking about two thousand to two thousand and six so a lot of the information was  the what the what you're talking about the judge white is that the defendant wanted to put in information or testimony regarding attempts to contact the u s attorney's office before the indictment and i  think there were two extensions of the limitations per you sit down with the investigators and the u s attorneys and give a presentation of why the defendant is not guilty one other question it's it your client's intent when he took the money that's important right that's true ok and you're talking about evidence that he wanted to pay it back now did the prosecutor use evidence of his subsequent conduct as evidence of guilt not per se but you know the defendant's conduct throughout the entire continuum reflects his state of mind what he does subsequent if he's trying hard to  back his lenders that tends to show that these he thought that these were legitimate loans that he intended to rip paid them at the time that the loans were made at that i think in one of the supreme court cases they call this the the power of the narrative the ability to tell the whole story and when you have what justice souter called a nerd of gap it hurts the party because the jury needs to hear the whole story thank god thank you for your up all right you've taken about twice as much time as the time allotted so we'll give you a little bit extra time if you need it and then if you need more time because we want longer then just let me know morning may it please the court my name is emily copeland i represent a pellet michel martin this morning hours or three minutes rebuttal judge mckee my client has a more fundamental problem he just didn't enter into an agreement to do any illegal activity i'm to focus mostly on counts one and count six and counts one and six in combination this morning but of course can answer questions about any other camp that you might have got one is pretty interesting at page twenty nine of the government's brief it says although marcus was the primary face of the conspiracy for many victims there were many specific instances where martha personally solicited the investment money but as did the borrow the government side certainly three victims there were about twenty five victims called as witnesses  bankruptcy shortly after that to deal with his medical bills this is one of the instances this is entirely consistent with mr o'mara his belief as expressed by mr barch as mr parks told him all the money that he was receiving through  mr barker says family and friends of mr bryant certainly considered himself a close personal friend of mr barcus the second victim who identified mr lamar that was a man named victor ross garnaut and this came up with the  believe who found it very helpful wrote a check that said investment and mentally was scratched out and placed loan on it and interestingly despite the fact that somebody  ownership documents within our i sued l l c at pages one twenty seven and one twenty nine of his second by ms deposition he says that mr o'mara didn't ask him to do anything that was illegal or unethical that this was just an investment in a bad business his discussions while he did have some contact with mr lamar believe my recollection is most of his discussions were with mr barker what happened with the company with our soon i mean he got the money he put it into their  that yes your honor ok and then both of the defendants had bills paid from the personal bills etc did did that money go to pursue this new venture it certainly did you are m that's a in answer to a different question as it may very well be judged any well have been out trying to promote a product but whatever happened in connection with producing a product was the money put into manufacturing facilities or buying the ingredients or having them prepared by somebody else you know there was testimony that was that there were pallets of our that were placed out at a warehouse distribution facility and there was also testimony that the in sued mr harry bird believe that had been priced too high and that explain why it didn't sell so there were actual products that were placed out and again mr martin did fly out and actively promote the products if this if this was intended not to be a real corporation  client i mean he he went places he did stuff you marketed it it was a direct mail sort of situation people testified that it worked in fact the third investor that the government identified that phyllis presley testify there was a very effective product that's why she personally recommended it didn't consider herself a victim just felt like she and maybe had made a bad business decision in this day you know she believed in the product and she believed in the company and it simply did not peter out for her in terms of what hundred seventy thousand dollars for timber top l l c the mining and timber operation in northern california came from his mother at pages fifty thirty eight thirty nine fifty percent of the airplane that went into smooth flyer l c or thirty thousand dollars also came from his mother so that's two hundred thousand dollars into the kitty if you will that came from marcus his family marcus had the trappings of wealth he drove a jaguar he had a house on beacon hill and was a neighbor  mr barch is call the shots with mr health got tolo your are your theory was that mr limburger was just a lucky guy to have a very generous friend you know they had known each other for a very long period of mr barker's had a rich family rich friends and given it to mr martin and when mr embargo told the attorney to distribute funds in certain ways that was what just account here and there is a site that the government makes i think it's to the page id number seventy seven t i'd have read that repeatedly and it just says that there was a distribution directed to mr and bart it does not say that directed the ad and i'm sure the trial attorney here will be happy to clarify that if i'm wrong but i read that page repeatedly because i've been curious to exactly who health got got marching orders from but everything that i saw was that he was used tak believe they finally said that well in two thousand and five he found out there was some sort of tax issue and that he never knew whether mr lim borrow had a tax issue he simply assumes that because the two member partners that  appears as if they're essentially laundering money through this account in ways that as far as i know attorneys just don't do so is it lumbers position he just thought this use of th much more sophisticated man than he mr marcus i believe has a degree from as you have a ninth grade education you can take in a million dollars in a nutshell tax returns and not pay taxes well though where it goes to getting back into your tax question here is that there's a string of cases including room from the supreme court the talks about it in a conspiracy to evade taxes you have to acknowledge that that's the goal of the conspiracy and here if mr helfgott doesn't have that knowledge he just thinks he testified that he is doing this because mr barch is needed to shield money from creditors or because he needed to ranges his expenses while he was outram and there's no discussion about whether this is a scheme to defraud the i trial attorney did multiplicity as i did or did close city as mr barch as his attorney did the overt acts of count six which is the tax evasion conspiracy specifically incorporated bar reference the over acts and count one just to give  to present an investment offering concerning your purported construction development in indonesia based upon the incorporation by reference and count six which is a tax evasion conspiracy that over to act alone could have been the overt act that the jury found mr lombardo guilty of conspiracy to commit tax evasion is a bad way to draft in the jury have the indictment in they did you know the judge read it actually read the indictment right but did the jury also have it in the jury room yeah i think so but i'm not certain about politics for that but i do know that the judge read it word for word during the jury instructions if you any more questions i'd be happy to answer them at this juncture all right thank you counsel thank you good morning may please the court my name is robert patton are going to be half of the united states of america may please the court the jury's verdict and the judge's ruling should be affirmed in this case i know that in response to some of the questions asked by the panel this morning i would like to focus in on some of the hot button issues that the court has raised i know that when mr belly spoke there was a lot of questions regarding mr health cotten his knowledge of the conspiracy and when he acquired knowledge i would respectfully cite the court to the record three twenty nine page eighty seven four four two seven four four four in those pages the court will see that mr health got testified i redirect examination that he was aware of the tax issues with both defendants since at least two thousand and five and it was stated before two thousand and six that is inaccurate he was aware of it in two thousand and five further judge seiler mentioned that all you need is one over act after that time to pull mr helfgott into the conspiracy i would respectfully cite the court to the to the testimony of joan account she sent a check to mr hoff caught in the northern district of ohio in may of two thousand and six so with respect to the issue of venue it's the government's position that that would satisfy the concerns that were raised during the questioning with respect to the sufficiency of evidence to sustain the can the convictions there was discussion regarding defendant's park it's most and for a judgment of acquittal as this court is aware under u s b fischer such an agreement between co defendants does not need to be formal a tacit understanding or mutual understanding of the parties is sufficient the record is replete with mr hoffa testimony that separate and apart from his plea agreement which i'll discuss in a few moments he received specific wiring instructions from mr park as he was aware that p c f was a corporate account for me define corporation that was used by both defendants he was directed that as mr helfgott was directed to disperse money from the animal to account specifically to put paid to fenton purposes personal expenses to pay one per those personal expenses and to move money to the p c f account from the aisle to account this copeland can't find any testimony were lombardo directed to make disbursements is there any your honor i know in the government's brief there is a cite to the page id's seventy seventeen the government will rely on that i will tell the court that his trial counsel there are numerous instances where money is sent to defendant lombardo either directly or through the p c f account a further state is noted in the government's brief and i apologize i don't have the cite for the court but there was also a transfer of money to the cal fed account which i recall was a count that's mentioned in the government's brief but you don't have any you can't the question wasn't whether he received the money and he's trying to help sell these various investments or or products when you say that he received monies for his for his personal use was there a tie in the case between getting reimbursed for his travel to sell these different things versus other simply payments that weren't tied to services yes your honor there was is a substantial amount of money approximately fifty percent of the money that came in from investors and many of the witnesses that the government put on believe themselves to be investors not lenders there is roughly a fifty fifty split in the dispersement of those monies that are suffering apart from any business expenses your honor if that's what's above two million efforts into this for which he's being reimbursed correct and the jury would also have to discount the testimony of victor ross garnaut who provided approximately one hundred thousand dollars as judge seiler pointed out got twenty thousand dollars back and mr told he had been told your honor that the aura suit business was a sure thing and that statement was made to him by defendant are ok but we don't put we don't send people to jail for stickley selling an investment product we only do it when and we don't do it when the person's puffing the we you need to show that there never was an intent to pursue this business venture well that would be there would be correct your honor there was a minimal amount of money that was used to make a first batch of bottles i know that you were asking ms copeland what efforts were taken with respect or is it the record will reflect that there was a minimal effort to have an initial production of this point that was used for psoriasis but what the government does have to show which runners pointing out is that the vast majority of that money was not used for a business purpose mr rocker and believe that he was plenty money his money was going toward a business purpose where and that all the money was going to be used for that purpose and you tell us even in general terms how much money was raised in connection with that business and how much money does the government claim was actually used how much of the investment was actually used to to make the product i would say it was a small percentage  can't i don't want to speculate and give you a number what i can tell the court is that there was an initial production of these bottles that the bottles were placed in a fulfillment center but very shortly after the bottles were placed there to be sold apparently their claim is that happened just because it was a bad business didn't things didn't go well your claim is they never had any intention of doing so acts what so what cooperate your claim it would be the money getting back to judge white's question she's exactly correct puffing is not a crime a bad business decisions are not a crime but when you tell an investor that the money is going to go toward the marketing of the of the product and the money the lion's share of the money goes directly to the defendants to pay their personal expenses that is a crime that is fraud we also have with respect to mr ross garnaut the sale of an unregistered security as part of count five i know it's raised that there was honor the government also argued and the jury apparently agreed that some of the promissary notes that were signed were were served as securities as well now the other issue i would like to address would be the plea agreement there was a lot of discussion earlier during defendant marcus's presentation regarding the plea agreement the record will reflect that early on during my direct examination of mr hall caught the plea agreement was discussed  i would also like to correct that that mr health was initially discovered as a target in an unrelated case however a review of his bank accounts revealed the activity that gave rise to this investigation mr h pled guilty to a supplemental information that was filed in that case that that supplemental information was detailed and it did serve as the basis of the charges that eventually issued defendant health got received additional two level enhanced meant for entering a guilty plea to the supplemental information now it's been stated in the briefing that the plea agreement was used as a bludgeon and the government took painstaking time going through all these transactions talking about how how mr barch is directed health caught throughout this entire conspiracy and i would cite this court to  the case u s versus christian were there substantive testimony of the underlying cause of the underlying offense that's over and above what's in the plea agreement i know judge wait you talked about that the government could have just simply put out the plea agreement and set down that's not what happened the record does not show that what the record shows is an initial discussion of the plea agreement and a detailed discussion about this entire conspiracy furthermore with respect to using the the plea agreement on redirect examination it's the government's submission that obviously mr health costs testimony had been his credibility had been challenged and as a result of the plea agreement which uses a prior consistent statement to rehabilitate him on redirect his plea agreement was not submitted as substantive evidence it was submitted that the only time during the sequence of testimony that you want over the plea agreement factual assertions paragraph by paragraph that would be initially your honor during assist mr barcus to hide money from his creditors to hide money from vargas as creditors as the conspiracy continued mr helfgott testified that he became aware as a result of conversations with  unbearable had tax issues with the i r s he further testified as noted in the government's brief that using the i hold to account and using the p c f account what frustrates the i r s is ability to not only seek payment as part of the evasion of payment the one object in count six but also to evade assessment for the ongoing conspiracy going from two thousand and one to two thousand and six i'd like to ask you something else it does seem to me that there were many times when darkness was trying to introduce state of mind evidence yes and he kept getting cut off on it yes in so if you're trying to figure out whether when he took the money what his intent was it seems to be relevant what people were telling him what  to do cetera so why was this evidence not admissible why was the tax advice not admissible it was not admissible your honor because it did not comport with the provisions of eight zero three three for present sense impression that's what was argued in a palace brief with respect to the admissibility i objected based on the fact that it was hearsay but mr barcus was trying to say what other people told him  so it was the government's view that that constituted hearsay but it's not hearsay well it's the government's position that it is hearsay hearsay if somebody says to me this is perfectly legal it's not being offered for the truth that it's perfectly legal it's being offered for the fact that somebody in a position with knowledge presumably told me it was perfectly legal so you're looking to the truth of the person on the stand that somebody said to me not whether that statement was true the example your honor gave was a conclusion a little three three states that it's a statement of the declare it's then existing state of mind motive intent or plan says somebody said this to me that's the assertion that the jury has to believe whether it's true or not is not relevant understand so it's not hearsay it's not you're not you're looking for here's a exception it's not hearsay well what was the government's position as to whether what he was or wasn't told after these sales was was relevant to the element of the cross well it's not your honor what what is relevant to the owning of the crime is what he told the investors in the room or any of these things that he wanted to put in he there contemporaneous with what he told the investors or prior to what he told the investors so as to allow him to argue i talked to my lawyer he said it's legal so this is what i did well where they all after the fact but what defended barcus it was he was all over the place your honor it wasn't it wasn't quite that  so some might have been after the fact of some sales but prior to other cells crack because we have a long time period and mr barch has to take the stand and deny culpability he did have his opportunity to take the stand and say that none of us got repa did have he did state that that he had every intention of paying these people back your honor and that didn't happen we have witness after witness with the exception of mr ross carr that came in and talked about how they were told that they gave us money to park  for a business purpose and the evidence we put on with respect to the bank records show that that's not what happened and barkus is conclusion was that none of us got paid well he did get paid he put the money in his pocket and he lived on it he evaded the i evaded assessment with with respect to that money and with respect to some of the other issues that were raised with respect to the theory of duplicity by defendant barcus the government would submit that there should be review display in error and that's easily rejected because counts one and six had separate objects and separate elements were with respect to the multiplicity issued issue and the material variance raised by the defendant lavoro the government would then ask the court to rely on the testimony  which talked about how he evaded assessment he evaded payment based on the wire instructions and the other activity that we had talked about and why why was the negotiations i'm sorry ron i'm not sure maybe maybe i misunderstand what it was that he wanted to introduce but with there a period of where someone was negotiating with the i s for barca's yes based on the investigation i'm not sure that that's in the record but i have knowledge of that based on the advice is that when he was trying to get in well i think what he was trying to get in his is and i have the list in front of me around of the points that the senate barker's raises first is the present i have been negotiations with the government as noted in the government's brief that simply wasn't relevant under evidence rule four zero two and not only that but has denied  any wrongdoing in front of the jury so he had his opportunity the other issue where the third party statements regarding the legal and tax advice that we just discussed a moment ago the other issue your honor which i think you might be thinking of is the purported that or the theory reclassification of the monies coming in as loans to income i'm not sure that's what your honor speaking of the government would raise several points in response barcus did testify about the i r s lack notice he did testify to that on direct examination barcus knew of the assessment he knew of the money owed there was nothing more proffered i know judge siler mentioned that in some earlier questions there was nothing proffered by defense counsel on that issue and the government's position at trial and here today is that the virus was not aware of this money this money they came from investors either wanted into the hole to account for the p c f account so how would the i r s be in a position to reclassify when it was  aware of the money this money was was never directed into an account that was in the name of barcus and lombardo and barkus characterized this money as the record reflects as  personal loans for a business purpose will all those monies went into nominee accounts and that's the essence of this case that's the essence of the fraud and musters on the other issue the panel would like to raise with me and we went way over mr barker says a lot of time because the panel had a lot of questions of mr belly is there anything that that that you need more time to address or are you satisfied your honor there is there is there is one final point i'd like to make and i appreciate the opportunity i would ask the the court having re read it last night to look at four and i know that there was an argument earlier during our discussion about about thort being applied in this matter and as argued in defendant barcus brief there's nothing in that opinion that is limited to the proper or limited as to the way in which a plea agreement is used it's characterized on page twelve of mr parker says reply brief about considerable restraint that language is not in the under christian the plea agreement was properly used in this case thank you ron one quick question your theory was that all this money that they were getting was income yes yes that's right and the ira's could not assess because they know that there were no taxes paid and they want to thank you thank you mr bell by saying it correctly i'll be very very quick to judge mckee you ask about the time frame of these statements that were made to mr barcus by tax professionals accountants etc many of these statements began in the one nine hundred ninety s and continued into the time frame of the indictment i'm not aware of any statements that he was trying to get in after the two thousand and six alleged ending date of the conspiracy but trying to figure out what he wanted to put in i mean it seems to me it comes down to whether the auto dialers were leases were securities tax consequences of an s e c consent decree statements by an i r s revenue officer during in one nine hundred ninety three audit and legal advice about creating trust for the timber top interests is that fair summary yes i don't i'm having trouble understanding why any of that is relevant to the to the to at least the two conspiracy charges here the false statements in connection with the sale of investments and the the conspiracy to avoid paying income taxes but do any of those have to do with what we submit that is certainly it's relevant to the tax s will whenever they contacted him and retain professionals to address the situation so we do think that would be relevant to the question of intent is there any evidence that he had actually revealed all the facts necessary for these professionals to give a valid opinion well he wasn't permitted to develop a record in this regard so that's what that's the purpose of a proffer it seems to me to of come too late but assuming that it's timely in a motion for  new trial did he speak to that and that but the motion for a new trial does contain an extensive no that's when he put the affidavit did he answer the question that i'm asking in the affidavit there are statements from the professionals in question that are he quote did not know barcus was attempting to hide funds from the i r s unquote no qualifications whatsoever and then in trial faced with a contrary statement in the plea agreement he starts was asked about these negotiations to sell the or sued business and he says i didn't believe there was a viable transaction here and the defense counsel asked ok you didn't think these were just fake transactions snow everything points to mr helfgott think in that everything is legitimate that in unfair characterization that only a small amount of the money that was raised in connection with that product was actually invested in producing the product i recall it is the are selling the problem there were witnesses called by the government regarding the manufacture of the product the negotiations with the fulfillment center to send out the product but it was never quantified in terms of the exact dr but the testimony is there thank you we won so what do you claim the money was for that he got the million dollars what was that most of the money were was personal loans these  individuals were never told that other than like mr rock garner and i think it was another individual they were never told this money is specifically allocated toward this business personal loans to lombardo  that that was the case and some of the witnesses admitted that but then said well but they thought something differently and others you know claimed oh it would we thought it was for business purposes so the testimony is all over the place and there were witnesses who said we gave him money for business purposes right you know they assumed that it would be used for business purposes but mr barker's said that these were personal loans you're saying that nobody  testified that money was given to bark it's for business purposes they they assume some some individuals assumed was there any testimony about representations that led them to assume that there were there were numerous individuals i i mean because counsel what you're saying is that there's insufficient evidence that people gave him money for loans he never told anybody it was for anything but a loan and he used to this lo that's our position in the government to cena circumstantially the evidence points otherwise and that's why this case is so difficult because it involves a state of mind but no mr mr barker testified he was clear that these were personal loans  some some money he would dump plowed back into business expenses others were from mr ok so his view was that these were all personal loans my intent was to use it as personal loans and also to use it at  my option for business so that i could eventually pay back the personal loans yes but you do acknowledge that there was some testimony at least that he led people to believe that there were that they were business loans some individuals testified that's what they assume one individual got an equity interest in the company that's true and that's this mr rock garden and that is an exception to those negotiations later on there was some discussions about our and again mr ross carnahan believed in the product had somebody who found it very effective there is some testimony from mr ross garnaut pages sixty six to sixty seven as the government notes that martha said this was a quote for sure thing but again mr roth daryn did get an ownership interest and i think it's very interesting in pages one twenty five to one twenty six of the second volume of mr r deposition testimony he testifies that he put no limits on these defendants how to spend money he knew that there would be administrative expenses he didn't say i'm giving you this money to make an additional ten thousand models of our a suit that he gave to turn around a business and again  testimony that said to you earlier at one twenty eight in one twenty nine that this was for an investment he made a business decision he simply wasn't happy with the results turning to the testimony of gregory kin at the fulfillment center that the government mention only earlier and that's in volume eight of the trial transcripts at page fifteen four of the transcripts but there was an order of about five pallets that was initially delivered to the fulfillment center and this was a couple thousand bottles of ours this occurred in march of two thousand and four interestingly like many of these other witnesses mr kant had nothing to do with mr lim barto at one point he says he inquired with mr barcus about an order that needed to ship but quote zero pretty much nothing close quote by way of any correspondence or any contact with mr will marto so mr can the fulfillment centers testimony is that he dealt with mr barcus who apparently didn't pay the bills during this time there's also testimony that mr barcus was in  discussions with a strategic development group and other entities trying to sell our suit because it was a good product there was some testimony even that there was hope for deal with the art of the art for fifteen million dollars to pay  back all the investors in cell are a suit but i'm not sure that that ever came to that didn't come to fruition harry byrd who testified at trial the video deposition and pages thirty five ninety seven to ninety nine in the trial transcript whether they were expenses they were paid sure helfgott talks about them in his testimony after i tried to find in my notes exactly where our holiday was for not being able to do i think the best example may be with temper top you can look at the testimony of quigley and the testimony immediately before mt shasta title examiners where they talk about submitting claims for expenses timber top what percentage of the money that your client received would would you say he was fairly characterized by the evidence as reimbursing him for things that he did to promote these various enterprises versus simply money that isn't tied to his efforts on behalf of these investments here and i wish i could answer that question i simply do not know from reading the trial transcript i will tell well for a jury to conclude that even though some of those reimbursements were for investment for for business efforts that he got a lot of other money that didn't seem to be tied to his efforts on behalf of these companies you know it was at a reasonable conclusion if that's what the jury reached absolutely no error and we talk about this you know two million dollar loss or whatever and we're back where we were because listen how to my theory in the p s i i and ultimately in the sentencing hearing about pages eighty seven eight ninety six the judge sets the last time around this was the total loss amount of nine hundred eight thousand dollars for the defendants ok this is the amount of loss if you look at and if you count two thousand to two thousand and six or seven years if you count each as a year rather than just subtracting bardot if you have nine hundred eight thousand dollars they don't know we're talking four hundred fifty four thousand dollars that's a lot of money ever seven years we're looking at somebody making roughly seventy thousand dollars a year all the testimony from the plane to the national psoriasis foundation conferences there over the country he's taken the product he's preaching the gospel of our us a and these are simply failed business stills so if you look at it rather than in terms of the two million dollar windfall to mr is a man who is working in these businesses making roughly seventy thousand dollars a year in the two thousand and then this is not a hand over fist live and he's not raking in fat stacks of cash if you have any more questions i'll be happy to answer them all right thank you thank you thank you counsel chord notes that both mr belly and ms copeland were appointed under the civil justice act you really done exemplary job on behalf of your clients the court thinks you own your clients we have an on our behalf  to try to sort out this case