granted thank you your honor in this case the government allege that my client participated in a massive mortgage fraud it charged her with joining with sixteen other people in a single conspiracy but when all the evidence came in it turned out there was no such conspiracy and if the jury could properly find miss world fells guilty of anything at all it was a much smaller offense and that smaller offense the evidence of it such as it was was easily overshadowed by evidence of what turned out to be other conspiracies that had been a rony a slave lumped together in the indictment so this is of course what's called a variance between the charge in the indictments and the evidence at trial and when we have such a variance the danger is that the jury will fail to separate offensives and offenders and it's too easy for the jury to transfer guilt from one no alleged cosima to another and your client were the ones who went to trial graphics right so the evidence that was presented was evidence involving you know inquiries both brain and may shown well i think actually the evidence that was presented when you step back and look at it it was as if it wasn't these co defendants on trial but really the four men in what was called the think tank now these were all people who pled guilty but it took twenty five witnesses over ten days of trial and the prosecutor should sitters argument begins with that think tank i'd refer the court to page two forty five of the appendix virtually the first words of the assistant united states attorney i'm sorry multilevel multi defended years where you know the prosecutor as well as him say the prosecutor has no control i mean some some control over who pleads out  but at the end of the day going to comes to is there a trial you have to prove the entire series of conspiracies whatever there are extent whoever is involved and he  majority of the evidence may in fact not be with regard to the defendants that are before the jury it might be other ones who've played i mean that's true of any trial it conspiracy any other federal court so what is what is so meek about this charge conspiracy that we should deem that it's a very it's well i think what's unique is that there simply was no evidence at all from which you could infer that single conspiracy charge in the indictment but the case were tried it was tried as if it was enough to show that a think tank there might be some background about how barrel henry got here but it wasn't that he wasn't presented in terms of what nancy will fowles could have seen in terms of what activity she was joining right so if the case named tim rix to her who she barreling arrow and down henry having a lackey named gerry smith who she never met in person and so it would have been a different case we would have been looking at what commitment  any joint legal activity and they could only have been to join a much smaller conspiracy let me ask you this question which follows up on judge does your squadron if you had a multi level conspiracy that you charged for people at the top three people and two people at the bottom and the only people on trial are the two people on the bottom you're going to put in evidence and there's nothing that federal law says that's counter this you can put in evidence on the top out your variance argument no using that sort of as a base or foundation i don't know if i could inger agree that it would be ninety five percent of a group but the critical problem ok that might all be well and good if the government proved up a connection between the spokes that's what's essential to show with a single conspiracy in the indictment so maybe you would focus on the activity of the so called hob the person or persons who are in the center of it all the activity of the night meant but if you're going to make that the center of your case as it were you've got to prove up that each of the defendants were aware of the similarly situated considering that we have to look at that stage that this litigation is in that that the jury has come back with a verdict in the reconsider the facts we have to consider the facts in the light supporting the government's wilson may have known and they have interacted with we've got to look at that not you trying to persuade the jury that she didn't know these people at all but both sides of evidence and who was buying for properties at same time and there was certainly testimony that she knew that she could submit barker he said at the beginning he wanted at the time to get for loans but that's exactly what he talked with natural fells about how many bones could she get that's a page seven seven three of the appendix and then as it turns out she can only get the rate she does to herself and her employer if there's a third he said as far as that fourth wall and she had nothing to do with it he found out about the broker who did that won't from siegel so she does not have a connection with the brokers who are actually in a conspiracy she doesn't even know those people and there's interesting testimony in that regard from timothy rex right he actually says not of nancy rolf ellis but he says course is the original case which talks about how the spoken spirits the receipts and variances says apart from the much larger number of agreements they are involved no two with those agreements were tied together as stages in the formation of a large all inclusive company should all directed to achieving a single i'm waffle and your result on the contrary each agreement had its own distinct legal illegal and each wrong with an end in itself separate from all others that is exactly what we have here each wrong that was obtained by these various members of these various involved in she had no reason to know and there was no evidence at trial you're aware that show that she was ever told anything about any other prints actions or knew they were going on or were totally separate transactions they were individual room didn't require the cooperation knowledge or assistance of persons that were attaining yet different moments that was totally risk totally separate and different there was no overlap all four of the evidence and since twenty thirteen has reversed at least four cases on the grounds that the prosecution and the trial judge have not purpose the evidence introduced has to be relevant to that purpose and the probity value of the evidence has to outweigh the potential for unfair prejudice the judge in this case i knew wanted the government that she was just a poor little innocent dupe yes ok secondly what is some sites that sell well take take the information about her brother her brother being able to purchase his property she certainly the jury certainly still doesn't have i don't understand how that shows that she had knowledge of her that is hard ones that she was signing were being used by tim ricks who was the only person that testified against  trial and the only ringleader who she knew is it doesn't show how she would know that those hard ones were being used by him to defraud institutions financial institution real estate investor he testified at trial that he told her he was a legitimate real estate investor and so unless that initial follow forby transaction somehow  folks didn't know what was going on in the others and then third in their biggest problem quite frankly is prejudice there's there's just no still over prejudice here so for any one of those three reasons the government wins this brief because you have to make an individualized prejudice showing it you have to show how how this being was charged differently felt argument is that it should have been charged as by case relating to mortgage brokers i assume that  if they can't say what they pled guilty to and what they did and how they made a profit and how the whole scene work the argument i think needs to be if they're going to make prejudice that there was something about the evidence we grew up in that wouldn't have come in because it what they were doing is they were offering the checks they were cashing them they got strong buyers at the at the end just like the straw purchasers here and then they say they split the proceeds in various ways in that case  fraudulent so if it could be done without a false mortgage broker get participating then that can't be this low that made this but it obviously was which is part of the conspiracy it shows where the pure middle structure that says that you don't nobody is essential to this team the people at the top obviously are still the same people the people doing the false documents are still the same people and for some reason you could do this which which i think would be difficult without  was brought into the case so this is this is a theory that arose only on appeal but the inference and i think you're allowed as the draw for pointed out we have to take the evidence in the light most favorable the government at this stage and so we're allowed to draw inferences and inferences from the evidence out again henry said in order for this to succeed they had to coordinate loans henry said that they wanted to do for loans and they gave you know they approached yancy will fells first and she could only come up with two two people so then she had to go to coast mortgage for the third and apparently ritz and parsha got debbie hansen for the four but the information in the in the application they did henson did was the same information that had been done in the previous ones for example they used the same plane that verification that was somebody who was recruited into th probably came from well fells as well again there was testimony about this it wasn't the focus of what the government was trying to prove this was you know this was commissioned she did receive a commission on this alone but it want to think that we're getting to the point where we need to do harmless error but if we were to get to that point we certainly could then if this is certainly admissible evidence regardless i i feel a little bit embarrassed i didn't that in stress this morning my brief it is in our harmless e start of a conspiracy so arguably all three work the one that was two weeks before it was actually the original sale of a property that was then properly in the conspiracy  before the on about start of the conspiracy and sold it a month later during the conspiracy so it this really is part of the whole conspiracy but if we need to defer if we don't go that route i would just  wrong but every penny for argument i sort of look at the dates really for the first time and say this is all this is all part and parcel of the same scene south probably should have been highlighted a bit more invasive more but it's hard to find governor my colleague from ny state attorney's office stated that to show prejudice we'd need to show that something wouldn't have come in if the case had been properly charged and what i would submit is that indeed you would not have had this volume of evidence comment you know by the time you really get to the transcript of twenty five witnesses over ten days of evidence you're left with the distinct impression that it's the think tank that's on trial that what we heard is the case as it know i think what that calls to mind for me it's cited in our opening brief a case called swofford i believe of the six circuit case and it says when so much evidence is put in that alone makes the defendant seem more guilty and it's true it you can see but you know when you look at this transcript your first impression is look at all this evidence they must the prove the defendant's guilt he somehow but in truth you can't encourage a jury just to transfer guilt from one color scheme or to another by that client right and then maybe there would have been more grounds for a motion to sever but the point is the error is really the charging error rates because there's charge an error that we get the wrong case at trial so it's ok for the think tank on top through the middlemen who are getting the documentation and the money and then you prove the guys on the bottom who are the strong men and the drivers well this idea of the pyramid all conspiracy which comes from the green call it a pyramid because the cosima she's had to be aware of these other people's involvement but that distinguishes greenidge from this case the missing are the passage she brought to the court's attention from blumenthal is out in that regard and that when you have a mortgage fraud there's no reason for a broker even if she's in on that fraud to suspect there are any transactions beyond the ones that she's involved it those are the ones that are at issue from her perspective instruction that was given and for all four of the even if some of those acts are many of those that were within the scope of the conspiracy and as the time period of the conspiracy charge the fact is twenty twenty twenty one of the trial transcript says the government alleges these were fraudulent transactions and then it goes on to explain that he you know why they're being you know that are being emitted in a jury