please the court like as st got to give her there's a criminal case a fraud case thanks rod in the opening paragraph of the government's argument in its brief it coached two cases of this court which state intent to defraud requires a willful act by the defended with teens the specific intent to deceive or cheat the un contradicted evidence in this case is that the banks knew exactly what these loans were about and the fact that mr ginsburg was receiving from the bank proceeds if you look at our appendix sick or c you'll see that the one says thirty five thousand nine hundred and the other say similarly the banks all had they all tried to pay him i think for a body year and a half before the deal collapsed did any of them go through with that make all the payments norio i believe three or four units were sold by the buyers the government's brief says it i paid sixteen this is the government's read the witnesses discussed those bankers i just mention discuss the underwriting process for the mortgage loans occluding the information and documents considered by the banks as part of the underwrite the process and the considerations that when into funding the loan including the banks review and approval of the settlement statements which all contain mr ginsburg getting these money was prepared by the cuttle company prior to funding the loan that's the government free page sixteen page ninety at the time of the closing the banks all require that the title company provide it with a draft of the settlement statement before approving the funding of the loan that's the government sprit page twenty seven likewise each settlement statement prepared at the time of closing and subsequently committed submitted to the banks prior to approval of a funding hosted said which is very important considering what happened that what the banks were doing was they were making the loans bundling them and then selling them so contrary to what would have happened fifty years ago when you walked into tom and savings to get a loan and tallman maybe knew who you were they were looking to that lender to get repaid they were going to bundle it and sell it so their considerations of what they were doing or do much different that we might normally consider they were and it risk whoever bought that long would be at risk so there underwrite he process was lax and all the bankers acknowledged that i believe it was mr homestead who said we wouldn't be looked at that that didn't matter to us but mr nash is there any evidence that the bank that said i'm getting and sent a fee government took issue with whether it was a consulting fee or or an incentive feed i submit that shakespeare said it right a rose by any other name still says sweet are they going to say they approve the loan because they thought it was a consulting feat not at it send a feat that's ridiculous on its face no loan officer no underwriter no banker testified we were deceived they couldn't be there was no banker to prosecute them and about the monies that they knew mr ginsburg was getting it was a would have could or should we might not have made this loan if we'd been observing good banking practices we should have made this loan how many banks were involved well in this seventy eight or nine they offered or witnesses from four banks on to these banks didn't talk to each other well there were all there they all had the same agent for republic and the evidence in this case is that republic was the banks by douche or how do they get from under that the point is it's not that they didn't notice what was happening it's whether ginsburg had the intent to to see and cheat the bank he didn't conceal anything he was had all the closings every settlement  stated he was getting the money they knew that the loan proceeds weren't going to the seller of the property they were going to mr ginsburg so if that was a big important issue for them why didn't they do something they did and they knew it the republic closer testified the government's st witness in the case testified we send those settlement statements to the banks so they could review them prior to closing and make any got somewhere around three hundred and fifty thousand dollars was it but it was even more than that he much of it went back when they tried to make the payments and keep up the ginsburg had his eyes wide open and he knew where he was going and he knew where the money was going to end up consoling fears owed the banks yeah you know he didn't a did intend to conceal who deceive anybody he told him right up front what was happening well wait a minute that's the bank's job he's not supposed to make that judgment the bank will make that judgment and these banks were making that guinea mack made five loans on the same day that the same lender borrower chase the same knew exactly what was going on so they couldn't be defrauded and so they can't be defrauded and the funny thing is it's not funny really these loans were made in two thousand and seven  thousand and fourteen the banks decide oh we've been cheated seven years later he testified not beat in the courtroom double hearsay that we closed it because it was multiple lenders in that colloquy between the witness who was most well born she testified well diane was on the phone with him for the truth of the matter started right sure that's that's and that's explaining why the bankers took the action they did but they're get to show that the banks this to witness who's not this but you can consider that a new here it i don't think anything could be more classic example of hearsay the banker got to testify even though he wasn't there that loans to multiple buyers of multiple properties is wrong and that's what the jury heard and the judge the district court judge knew exactly what that meant to her that  may please the court good morning rick young appearing on behalf of the united states defendant cannot meet his burden to show that the jury's verdict was on reasonable or that the record is devoid of evidence to support th verdict to the contrary the evidence well established that the defendant participated in this scheme knowingly and did so with the intent to defraud in order to obtain over d four million eight hundred thousand dollars in mortgage loans for the buyers he recruited to purchase those condominiums and in order to allow him to walk away with approximately three hundred and eighty five thousand dollars from these transactions from the proceeds of those loans this scheme was centered upon that incentive payments the incentive payments that the seller of those condominium secretly agreed to pay to the defendants a buyer in the scheme was centered on the nature of these incentives i think he's misconstruing the documents the documents certainly show that if he was paid as part of these closings to mr ginsburg but now that they don't disclose what it was that it was payment and perhaps they should cite that's the words of defendant's counsel at closing when he said that in this case there was the nd amendment now you've heard from the bank people well the content of the nd amendment is not something that they would have approved i don't disagree with that defend its counsel at closing argument the evidence was on contradicted that the lenders would not have approved the payment of incentive be had seller is not permitted to provide funds back to a buyer as part of a closing or real estate transaction with a limited exception for closing costs you know small fees as part of the closing they cannot provide cash back they cannot provide money for a down payment and they cannot provide any type of inducement or enticement fee to the buyer they explain the reason for that is it calls into question what the sales price actually is of the property you know if the buyer is getting money back from the out of out of the transaction he's not really paying the sales price that is listed on the contract the settlement statement in all the other documentation and the sales price is a very significant factor in underwriting the loan because a lender will not fund a loan if the sales price if the loan amount exceeds the sales price they're not going to give you in other words they're not going to give a buyer more than he's paying for the property and if you look at each of the transactions here if you take into consideration the fact that that consulting fee as it's labeled on  documentation falsely if you subtract that from the sales price that's exactly what was happening the lenders were providing loans for more d than the true sales price of the property it was reasonable for the jury be conclude that the defendant knowingly with attempted fraud participated in this scheme because the documentation falsely labeled that amount being paid as a consulting fees not what it really was which was an incentive payment as it is explicitly described in the nd amendment signed by the defendant the sellers and the buyers of that nd amendment was never provided to the lenders in this case it was kept in the files of the attorney representing the seller but in any event the paperwork provided to the lender misrepresented what that c really was it made it appear as if the defendant was a rd party independent rd party providing some type of consulting service to the seller almost as if he was a vendor or or a contractor you know it is common for example for d sellers out of a closing to pay off rd parties who have provided services in connection with the property such as a mechanical renovation that's exactly what this made it appear to be some type of payment for services provided by mr ginsburg when in fact it was an incentive payment and it also misrepresented where the money was really going and how it was being used that was a payment intended for defendants buyers even though it was being paid to defend it but that was concealed on the paperwork and it was being used to cover the down payment was being used to cover money giving back to the buyers supposedly to use towards at least in part the mortgage payments did the sellers get the money money in connection with each of money well they had mortgages on the property so to the seller's proceeds were basically distributed among a variety of sources the primary one being the lender who held the mortgages on the seller's property so when they sold the property obviously they  pay off their mortgages and then there were various miscellaneous fees there was a real estate broker involved in the transaction they got to use as well but most of what would otherwise have been under a profit was essentially taken up by the consulting fee that was being paid to the defendant i would submit that in order to move the condos at this complex that weren't otherwise moving they were willing to basically give up their profit in the transaction give it back to the buyer used to get rid of that just to get rid of it now the legitimate way they could have done bad is to simply lower the sales price but that wouldn't have worked and it wouldn't have worked for the defendant because he needed that incentive payment he needed that incentive payment to his buyers because the people he was bringing to purchase these properties were not wealthy individuals who could afford to purchase twenty dollars to twenty five dollars properties each these  individuals that he was essentially finding on the street or otherwise as happened to know and he was bringing them into these transactions with promises promises that they would not have to put any of their own money towards a transaction they wouldn't have to pay a downpayment they wouldn't have to worry about the mortgage payments they can use and part of the money was kicking back to them after the transactions to cover those sales counsel in his brief is correct that defendant was not the person mr ginsburg was not the person responsible for preparing the settlement statements that was the title company nevertheless he attended each and every closing and it each and every closing the testimony establish that he reviewed the paperwork he's blaming that on the banks he said the banks knew what was going on whatever that is the banks knew that there was a fee being paid to ginsburg and associates but they didn't know what that sellers were desperate to move these properties so they were willing to basically you don't take nothing out of the deal in order to do so but in terms of the banks as well it's important to realize that this is a bank fraud case the intent that matters is the intent of the defendant you know mr nash just the banks were perhaps reckless or negligent and in some instances i certainly disagree with that but even if that is  correct it that doesn't matter you can't blame the victim of the fraud for not being more alert or wore a tune what matters is the intent of the defendant and clearly he intended to defraud those institutions he and the others involved in these transactions because otherwise they wouldn't have label it a consulting fee they otherwise wouldn't have taken steps to hide the fact that those money were being used to pay the down payments in connection with these transactions you know each and every one of these transactions required a down payment paperwork now i acknowledge that there was a title company involved in these transactions and the title company is a fiduciary of the bank but the fact is the testimony established that the title company utterly failed in its responsibilities to those lenders but that failure does not excuse the defendant's conduct the fact that he and others took advantage of a incompetent or corrupt title company in order to deceive the lenders about these transactions and it's also noteworthy that even though we evidence relating to the incentive pain in the way it was mass from the lenders by calling a consulting fee the fact that defendant distributed that amount to pay the down payments for the buyers which once again banks expect the buyer to pay the downpayment that someone else even though that is in and of itself sufficient to support the jury's verdict there's also the fact that the schem misrepresenting the qualifications of the bidens through their income in their assets because these were people is dependent was certainly aware who could afford to buy twenty prop two thousand and twenty five properties each i t worker who made seventy thousand dollars a year or i'm sorry i think about ninety thousand a schoolteacher who made about seventy thousand dollars he referred to them until mortgage brokers and they were largely responsible for the loan applications that's true but he certainly knew was going out in facilitated it when necessary he told one of his ellis you know when there were issues with the application getting approved you need to bump up your income prompting her to create a fictitious tutoring business he added two of the buyers to his bank account martin swindler in judith allison added their names to his bank accounts in order to make it appear that they had money money to come to the table to close with the evidence was overwhelming that defendant participated in this scheme and that he had an intent to defraud with respect to the defendant nd argument regarding the the testimony of the closer on cross examination is part of the of the defendant's case the clothes are simply testified that she was instructed to end the transactions and explained the reason why she ended those transaction that was appropriate her understanding to put into context not only why the closings were abruptly ended but also defend response a day or two which was not what do you mean the closing shutting down because a wonder if you no wonder has it if you it wasn't trying to determine what's going on it was to push through with the closing come o told the lender about the fact that money from the consulting fee that was really incentive payment was being used to pay down payments but she didn't she was pushed into doing this from her lenders and she utterly from some total company then they're not a party to this nobody sued them the title company is not a party to the criminal action it's not part of the record there was some litigation underneath related to the title company want to note that i disagree with defendants contention that it was hearsay although the closer to one point in time during her testimony began to talk about what had been told her by another closer she later testified that the lenders told us this was a small closing multiple closers were present she talked about what she was told specifically at page six hundred and fifteen dollars she was asked to lender tell you not to close the loan yes eventually that's what the lender told us not to close the loan told us there was no objection to that specific question or answer to foundation or hearsay she was testifying as the record reflects about something that was apparently told to her then talked about her understanding of what occurred specifically at that same page do you know why the lender told you because that's when the lender found out there were multiple transactions under the same name again no objection as the i said used to some had more than ten or a gregory callahan purchased twenty properties over the period of about two months financed by nine different lenders judith ellis purchased ten properties over the period of approximately six weeks financed by four different lenders in martin swift lawyer purchased two properties on one day financed by one lender chase bank so with that i see plays that off and says well they listed it as a consulting fee and gave some examples of what it could be but there's nothing in the record about anything like that the fact is the banks knew was getting the money this welborn testified that everybody had to close he knew that he was getting the money that he was supplying the down payments the government concedes that the closer the consulting fee wait a minute these are the proceeds of our money the chip be going to the seller this is a low price it would be any different if they had said incentive feet the price according to the government's logic would still be less for the condominiums the banks knew what was going on their case is depended on it is effort to to seed and cheat the banks there's no evidence  that the evidence is on contradicted that he told them about the money that he was getting he sent them a fax that said it was an incentive he says that the banks were negligent i don't think given the standards that were  two thousand and seven that they were doing anything different than every other bank was doing at the time and to know that people couldn't afford it anybody that walked in chicago's little wondered in two hundred thousand six hundred and seventy eight who are buying all these luxury apartments for three hundred thousand dollars well we found out these there was no effort by him to conceal and that's the one contradicted evidence he says the bank witnesses wanted to lend the money up bundled it sell it and take that money back and do it again and again and again they were eager negligent probably so by today's standards and what should have been the standards then but the word to really describe what they were was greedy they wanted to make these loans and they didn't care that he was getting the money seven years later they decide differently or the specific intent of an act to deceive them are they going to say because the title company put down consulting fee instead of the cent defeat that makes it fraud nonsense