and you're splitting your time equally is that right quote for losses because as i pointed out in my briefs there was no evidence that every transaction that occurred is the sole of a sudden really loud we can hear you ok all of  the transactions that occurred during mr de roberto's employment with the company were fraudulent in fact i've never seen a case like this but the government actually brought in eleven former employees to talk about their behavior with within the company and many of them said they were not engaged in fraudulent behavior so there is no basis for assuming that every single transaction within the company was fraudulent the government provided no means for determining which transactions were fraudulent which transactions were not fraudulent nor did it provide any basis for determining how or why mr de roberto would have known that for other transactions were fraudulent within the company while he was present for meetings where this game was discussed correct he was at meetings where the employees were unclear he was like he was in a form of marketing director he handled the websites i mean he had a broader knowledge of what was going on than arguably a lot of other employees would have correct i disagree that he had a broader knowledge he certainly i believe spent some time with andrea ramirez talking about what was going on within the company i think if you read any of his testimony and the testimony of some of the employees there's not an indication that he spent any time talking with any individual who would have put him on notice that things were fraudulent and in fact that a number of employees first of all said that defendant george told them not to lie after ramirez told them to lie so there was no indication which one of the owners the employees were following instructions for and second of all again there were there were quite a few i believe rogue employees in that despite the fact that ramirez told them to lie about certain things they were refusing to lie and again there were quite a few employees who were choosing to try to obtain modifications for the customers regardless of what some of the owners or managers within the company were saying but the court and holding him responsible for the entirety of the conduct focused on his work on the marketing materials correct yes he talked about his role in developing scripts that the employees used when they were responding to complaints from customers who were not being processed he talked a lot about that kind of conduct which suggested a bro overall understanding of what was going on and trying to combat the complaints being made to the company why isn't that a sufficient finding by the district judge there even if he had a broader understanding than many of the callers or the lower level employees within the company it still doesn't show that he knew and had reason to know that every transaction that occurred during his employment was a fraudulent transaction and again i think you have to go back to this very unusual tack that the government took bringing in employees former employees who were not charged or given immunity they brought people in to say i was working in that company i believe one of them identified believe as ms fa f a h i e who used to work in the mortgage industry and worked there and never testified that she believed that twenty first century was permeated with fraud such that every single transaction was fraudulent so even if mr even if his possession every single transaction but certainly the vast majority of transactions were fraudulent i disagree that the record demonstrates that they don't know how many files of the twenty six hundred or so file showed modifications the numbers are in my brief i do not i believe there were less than four hundred some but i think less than five hundred right yes so from those numbers i think it's fair to say that the vast majority of files close without any assistance at all will fraudulent again i disagree because first of all you don't know if that was assume there's we'll start with the number of two thousand what was the number you started with twenty six hundred twenty six hundred thank you so if we start with twenty six hundred files first of all you don't there's nothing in the record that shows how many of those people or how many what percentage of the those people were induced to part with their money through fraudulent statements the mere fact that they did not obtain modifications does not mean they're what they were is a fraudulent transaction and there they could have been contacted by employees who said this is what we're trying to get from you for you we're going to do our best and no one ever made a single lie to them and they sent their money and the government chose to put on a very sort of slice of what was going on in this company they put on somewhere in the realm of maybe ten victims out of however many suppose the thousands there were and there's no evidence that every single one of those twenty six hundred people was induced to part from with their money through fraudulent or false statements so i don't think the court can say will simply because only four hundred files showed modifications that means all the other ones must have been fraudulent transactions trying to get to third issue yes again as far as the third issue regarding the second notice of appeal one of the things i did not point out in my brief and i know my excerpts include the mended judgment it does not include the original judgment but if you go look at the original judgment which is that docket number ten forty three it includes an order of restitution it just doesn't say what the amount is so the original notice of appeal from the original judgment included an appeal from the order of restitution it just didn't designate the actual amount of the restitution second of all the court never notified the parties at the end of the restitution that to preserve their rights they needed to file a notice of appeal which would have been normally proper under rule thirty two there was no mention of filing an additional notice of appeal at the end of the restitution hearing third i think the court needs to think about what the practical in addition should be just the unfairness which i pointed out in my reply brief the practical realities of needing to file a second notice of appeal every single time there's a modification to the judgment you know i had a case up here a couple years ago where the it was a bank robbery case and the trial judge had overturned a couple of the convictions on a twenty nine motion and i on appeal had to file a motion to modify the judgment because it incorrectly set my client was convicted of counts he wasn't convicted of so the district court modified the judgment and i didn't have to file a second notice of appeal say ok we're not you know we're we're appealing something different now it was an amended judgment it's still all part of the same case the government has not and cannot point to any reason why a second notice of appeal needs to be filed in regard to a restitution order they they were part of all of the proceedings we provided all of the documents to this court there's no surprises to anybody and again would not even ruth regard to the amount of restitution that's ordered and the intend loss calculation yes there were  systematic misrepresentations but at any point during the trial or in the course of something was there any evidence presented that anyone paid based on ominous representations no unfortunately none of the defense lawyers tracked down any of the people who applied for modifications that's true so this defense didn't bring anybody in to say yes i got my modification or i applied for a modification and they were completely truthful with me fifty three modifications and or forbearance was obtained another eleven hundred thirty four files the customers had canceled the process and that there were one hundred seventy six applications that were  night but that to be out and to be quite frank about it does not suggest that that was only twenty six hundred files that twenty first century opened there were i believe quite a few quite a few more maybe even thousands more ms buck was responded to an ad in a penny saver type throwaway about a great opportunity to become a telemarketer a twenty first century was very much like many other individuals who were employed by ms ramirez and mr george the testimony of the evidence proffered in the trial is that many of the individuals who are working on the low end of things that are the openers and closers were individuals who had absolutely no experience in telemarketing or sales or the real estate business or the loan modification business or the mortgage finance business these were people who were completely ignorant of how that business worked how the the nuances of it a cetera ms buck one schooled on how to handle herself on the phone admittedly based on what we hear from it from  the number of the witnesses who were called by the government who miss buckhead contact with she did become pretty good at sales pitch but that was her sales pitch for herself in other words i'm a credible person believe me a cetera but the information that she was providing was completely off the scripts dealing with the house bill under president bush and then obama loan modification what wasn't everything off of the scripts i mean certainly when is the statement that you can get full refunds from twenty first century was that something that was on yesterday that was on the scrap join her boy that the interest rates would be absolute one hundred percent confidence but the other individuals who testified and i put the number of those individuals in my opening brief those individuals were parroting exactly what ms block was saying that this was information that they were told to say on the phone how about the fact that she'd gotten a lot of modification for her parents which wasn't true that's not something that was on a script correct well and now that they're all state that's not well it wasn't false in november two thousand and eight because when charged with twelve counts including conspiracy but her parents never got a reduced right didn't get the look that that was never that that was not the term until much later in they didn't have a reduced rate at the time she told people that they victim contacted twenty first century because her father that's ms smith's father had had contact with twenty first century passed on the information to ms smith ms smith context twenty first century ms buck is the telemarketer closer who has contact with ms smith and that is that she sells the idea of a loan modification to ms smith miss smith and has contact with other individuals who are processors who are who prepared the contracts who  received the monies who then actually processed the loan and ms smith's contact with twenty first century continued until april two thousand and nine when the testimony of ms smith is that she actually facilitated a refinance of her mortgage on her own and that it was no longer necessary for twenty first century to continue with the replication process the point i'd like to make regarding ms buck is that she was a very an educated individual in the realm of marketing excuse me in the realm of refinance of loans of mortgage loans but aren't these all statements in arguments made to a jury no jury didn't credit t mean you have a very high standard to meet it's an extremely high standard and although i said it maybe with a little bit more passion and i suppose certainly spoke for more than seven or eight minutes as i'm doing this morning ms buck was charged with twelve counts the jury acquitted her of nine of those counts and including the conspiracy counts and yes it's a very high standard making the exact same argument i made to the jury to the district court judge in the rule twenty nine and now again to this court and it is exactly the same because that is that is ms buck's position in this case that she was not aware and was not in a position to deliberately defraud in to see ms smith or anybody that she was an educated and unsophisticated in this particular business and she was used our position is she was used by ramirez just like so many others were including the dozen or so witnesses who came to court and told the exact same story of what they were doing a twenty first century u good morning your honour's may it please the court aaron cultural for the united states in the midst of the great recession twenty first century operated a fraudulent telemarketing scheme in which it promised homeowners in financial distress that twenty first century for a few thousand dollars would be able to secure dramatically lower mortgage interest rates within ninety days and with the money back guarantee these promises and many similar promises told by twenty first century employees were lies the government charged eleven senior employees and owners of the company and three proceeded to trial defendant to roberto was the marketing director for twenty first century as well as a sales person and defendant buck was the most successful sales person at twenty first century both defendants do roberto and bob told a series of lies to consumers on behalf of twenty first century for example you know counsel points out that you call witnesses at trial that you hadn't given immunity to work there in the same position and presumably told some of the same made some of the same statements to people so how do you square that with  liability or their positions were distinguishable as your honor pointed out in a in a prior question with respect to defendant v roberto defendant the roberto was the marketing director for the company he helped train employees he wrote memos to employees educating them on how to respond to complaints about twenty first century he also just also testified on direct that he made a point to educate himself about the industry prior to accepting a position at twenty first century and when he got to twenty first century he immediately began line he told in as early as november of two thousand and eight he told a customer that he was an attorney and that twenty first century had a large team of attorneys  different from some of your witnesses ms the ms buck was the was the most successful sales person as i suggested ms buck according to her own testimony she claimed that she urged ninety thousand dollars in commissions over the period that she was at twenty first century ms buck is also distinguished in a variety of other wage she started early at the company in august two thousand and eight and remained at the company even after the company told ms buck that she was in line that the promises that she was making to consumers were lies she continued making those same lies and she stayed working at the company even after the f b i executed a search warrant at the company related to this investigation ms buck told consumers that the company was part of a federal government program clearly a lie she told she told consumers that she knew that they would be able to get a mortgage modification which as your honor pointed out she knew very well wasn't the case because her own father had been unsuccessful at that point of getting a modification and never got a modification where there are other statements that she made that were not on the scripts because it's her contention that she was just given these scripts and read from the scripts are there other statements she made that were not part of the scripts that the government introduced and yes your honor she she went far beyond the scripts in describing the role that the federal government had in this organization what the scripts with the scripts suggested is that the twenty first century was affiliated with a federal government program ms buck went on to say to customers that twenty first century was a federal government program and we show when she was later recorded talking to a confidential informant and the informant was asking her whether the she would be able to obtain a refund if them what modification was unsuccessful buck said something to the effect and i quote here the federal government is not going to keep your money that is a clear indication by ms buckley a claim that she knows is false regarding the federal government's involvement and the reason she made that representation was to garner the respect and credibility of the federal government beyond her for beyond her claims ms but also appealed in a very emotional way to clients that we didn't see from other salespeople and that's on the record as well when customers talk to ms buck and expressed some skepticism to her about the promises she was making ms buck told customers who were christians or african americans to trust her that she wouldn't mislead them because she herself was a christian and african american that emotional appeal when all inferences are taken in the government's favor demonstrate that ms bach is going beyond what is necessary because she needs to close the deal she needs to get paid and the way she does that is by making outrageous promises to customers who are on the brink of disclosure and desperate there were a number of individuals or applicants who did  what the what the record shows and i believe this is it you are fifteen sixty eight i may just i want to make sure i get the number for the correct yes fifteen sixty eight this was a chart that was produced by the government what it shows is that there were twenty six hundred files seized from twenty first century offices in september two thousand and nine now the government based on financial records believed that there were close to five thousand victims but there was testimony that twenty first century employees were destroying files along the way so we only uncovered approximately twenty six hundred the critical number to even look at here is not the six hundred or or four hundred it's the it's the number of ninety one there are other twenty six hundred files there were ninety one files that showed that there was a modification within one percent of what twenty first century had promised but what the government proved at trial was that even that number was suspect he testified that processors the people responsible for processing for controlling those files filled out those files fraudulent lea and claimed that they had closed the file because they wanted the commission and they wanted the bonus for closing the file and that they did so without actually closing the file it's telling your honour's that after a three year investigation into twenty first century and three years of litigation six years total neither the government nor any of the defense counsel identified a single document that evidence that a consumer successfully obtained the modification at the terms promised to them by twenty first century even the ninety one were not directly of the terms promised by the twenty first century and again taking all inferences in favor of the government at this point it's the government's contention that those ninety one themselves were false so there really there is no evidence in the record to suggest that anyone successfully obtain modification from twenty first century notwithstanding the fact that they would have done so under fraudulent pretenses and under fraudulent promises made by the company i'm happy to address the questions argued by my colleagues regarding paying to the extent that cain is now a liar obviously the government has not been provided with any case law to suggest that cain is an outlier and is unable to have not even been provided with the case prior to arguments so that we could attempt to distinguish the case for your honour's what i would note is a couple of things one the idea of invited error is a concept that predated pres the court this baldwin one of the things that's notable about the facts and perec is is that what the court seemed to be concerned about was a change in law that happened shortly before trial and because of the change in law shortly before trial it wasn't clear that counsel had an opportunity to consider that change in law in making the jury instructions that is distinguishable from the facts here there is no change in law here and we believe that cain is controlling law for this court and as we noted in our twenty letter has been more recently cited in applied in mendoza which is an unpublished opinion but there is no indication that cain is not controlling applicable law for the court even if the court were to find that the instructions had not been waived it would be under a pla error review for this court and the court would need to find that the district court providing model jury instructions that have been provided countless times in cases like this would have been a clear and obvious error and there is simply no indication to suggest transactions were government were fraudulent and that mr di roberto in his position as marc the director had a much broader view of much greater foreseeability of the scope of the fraud and  a couple of points your honour's excuse me counsel asserted that mr de roberto helped train employees they did make that assertion in their brief i was remiss in not pointing out that it is not supported by their record citation at pages thirteen seventy six and thirteen seventy seven of the excerpt the initial set of excerpts it does not say that he was training employees any claim that there were no successful modifications is simply based on speculation furthermore the record as it stands does not support an assertion that neither the government nor the defense was able to locate anybody who participated in the successful modification there is an absence of evidence one way or the other about any successful modifications except for that particular chart that the government provided and of course as the court will recall the burden is on the government to prove that the modifications or the transactions of people involved with twenty first century were fraudulent is not the defense's burden to prove that there were any successful on fraudulent transactions as far as the rule twenty eight letters yes i did not provide them with additional authorities of course i didn't get my letter to friday so i would