but i guess i'll just point out we are in the afternoon will appreciate everybody and hearing to you the time limits that are set yellow light tells you you have two minutes the red light comes on we ask you to conclude your argument we have read the briefs and the record excerpts when it may not have read the whole record before hearing oral arguments so we will appreciate your citing the record when that's appropriate this st case i basic knowledge of her husband's business and because she perform certain clerical racks on behalf of her husband's business and because that's a spouse she was part owner of the business she necessarily must have known that her husband was failing to saying is simply that she was present while discussions were had about entering the real estate business there is no testimony by mr o'keefe about that wish on the ones who was there when they talked only of the substantive details of these transaction she was not there when mr king could pay or the balls filled out of applications she was a part of the crazy creation is that i mean in many criminal cases you have to show things through circumstantial evidence and so here there's a great deal of evidence of her having the information providing information to people having all of the documents and so why isn't that a nothing at least to present to the jury i mean they could have found for her agree were found not guilty but why isn't that enough to  circumstantial evidence case against what you are your correct that both circumstantial evidence can be used to prove this case as well as rational inferences from that evidence but all of the circumstantial evidence and the rational inferences only say that was shawn to rousseau knew about her husband's business generally there's no circumstantial evidence or inference is that can be drawn that she knew of the illegality and she knew that there was a failure to disclose information between her husband her husband's attorney and the lenders because no witness testified that she was involved in that process and four witnesses testified at this trial he knew that he wasn't getting these fees for renovations because he wanted to the rows that renovations you're not going to i don't think that's correct there's no evidence that she knew the dispersement of the money in the closing statements and here's why the government focus extensively a trial on the source of the down payments and they came from a trust fund account set up by levy attorney in the name of andre long and the trust fund account there's no evidence that was shown to russo had access to the account or even knew it existed on the hud one settlement statements the disbursements are listed so ma saying she didn't know that her husband had promised these people that they were going to get into the real estate business without putting any money down that they were going to be able to borrow money from considerable sums from the bank without putting down a dollar because the honor would take care of the financing then dion would upgrade the properties and make them valuable income producing rent houses she didn't know and she didn't know that you have to tell a had already i thought they went big with this idea of theirs after they had done some a couple around properties on their own your honor that's correct they did hold their own rental properties but in addition to that when they know it's it doesn't matter i was just sort of inquiring because she she she barely gets any time in prison she gets fifty two week and so has crept around we did not raise a syncing issue right as we're well aware aware of all the removed her judgment of acquittal during the trial for that made this exact case and presented all the evidence that we later presented again in the court denied it and on that there was sufficient evidence but of course when the record came out that proved that there wasn't testimony on the r so we began with four counts we're down to two of the problems not over your r s let's take the count one conspiracy the two primary basis of the count one conspiracy were counts two and three count three already been reversed so you've already got a problem with count one be a runaway trial this could be a trial by ambush if we're looking at the indictment we know only a couple of things we know that the government thinks that assignment of contracts are legal which we know they are so that doesn't make any sense to us we know that the government maybe the most the primary one they give funds are not allowed on investment properties and that's on the record at nine hundred and sixty three or that assignments are improper even if they're even if they're legal in the state of the louisiana which they are if they are illegal if the lender doesn't like them and you did disclose it and that's at nine hundred and forty eight hundred and forty nine dollars or the fact that the wonder is that that the definitive put together a dummy bank account the sole purpose of which was to was to for banks and then they drafted fake money orders which by the way the record doesn't support at all yet the government continues to rely on that theory in this case that's at record one hundred and fifty five the failure to disclose any interest in the property which is not mentioned in the matter i mean let me ask you a question he doesn't the government rely on the griffin case in response other words if if the jury has one theory that has is supported by legally sufficient evidence and others that are not and they proceed to convict that we uphold in the group of course goes to great lengths to say that in the common all there is a presumption that juries are capable of finding the correct facts based on the evidence and in the absence of any evidence to the contrary when the presume that the jury got it right that is nothing like this found something that it could not have found based on the other and that's one reason that's one that already throws the just jury into question but when we know that if they could have found it with respect to count three and they were permitted to and they were in fact invited to invite same error into count one we have to presume that the jury followed his instructions and it did that there's a great six circuit case it says exactly this thing distinguishing griffin on the same grounds but henning cases cited in our brief and it says this is this is a presumption and w know the jury got it wrong and we were vers a conspiracy conviction the trial court it was plain error for the trial court not to consider the effect of the conspiracy incorporating that reversed finding i know you're not going to like this question because you don't want to get to sentencing because you want the conviction to be reversed but if we get to sentencing is it your argument that the or is it the defendant's arguments that there was no intended loss in other words that everybody thought this was going to work this process of helping these people get these rental properties that they would make money and that there never would be a loss that the loan would be paid as it were your articles of that period tack on the sentencing of the defendants  wonder so therefore you can commit bank fraud against wells fargo we know you can't do that with what we know that it has certain underwriting guidelines that prohibit the things like the assignment and having an interest that's not disclosed and having good funds use that investment property transactions although by the way you can have investment can have gifted bonds in any other trains are just one of the nuances of the underwriting guidelines and as we pointed out these are the things that are very specific to wells fargo even the governments  also the more supported by the law if you look at this court's decision in ben's and vernacular this court very explicitly says if it is a loss calculation in a bank fraud case or no wire fraud case in the case of bands you if the defendant challenges that the conduct included in the  calculation is illegal or doesn't meet the requirements of the statute the government has to provide some evidence of that and in this case i asserted that in our jackson's you know so we argued at length about this at the trial court and they did the same thing they've done in their brief on appeal which is the record is f records full of evidence of wire fraud or these issues but i don't think that's good enough it's not good enough under this court's precedent and by the way it's contrary to some of the evidence at trial for instance you have harrison finance company who's included in the last calculation who the government's own witness testified those flurry of different theories or allegations about what may have been done wrong if there's any doubt about that i urge you to just please look at the government's closing what we said prior to trial and preserve this error is there is so much risk of confusion here that the jury has to be told that it most agree on the specific misrepresentation in counts two dollars and three dollars and we cited some case offer that in the court said no however that's completely contrary to this court's precedent if you look at the morrow decision this court found that that was a correct statement of l that in a bank fraud case the jury that the jury should have to agree on the particular misrepresentation underlying the bank fraud the government has said well this is more similar to wire fraud or mail fraud if you look at it and citing that nanda case well that's not true this is a case so it's more similar to the bank fraud case of morrow and that court that gore did not held that it was reversible error to not give the instruction but it held the instruction problem however under this court's analysis and the latest case and the supreme court's decision richardson to mail or wire fraud so if they have to agree on that then the only question we ask after that is was the general unanimity instruction sufficient in this case to ensure unanimity it was absolutely not here are as we as we talked about there was no less than ten griffin thank you i will say this is not seemed to be a very carefully set up prosecution made the government having ten different theories of fraud in this case and he cited to this particular example in the government's closing saying that this was the government saying that a sign that contract assignments or bad in are illegal in and contract with the seller of the house was for forty five thousand dollars when they close it was for sixty seven thousand dollars and the only thing that changed in between is that the defendants raise the price of that they could borrow money more money and split the money between so today we got that warner's from the supreme court that doesn't i don't know how many but at least some cases based on the three hey that are not gun possession cases so the rehab case that the knowingly counsel just just father twenty one j and requested a supplemental briefing on so although i was just brought up this was a case it's a few months old the fact that the supreme court is a lot of cases on this does that suggest that this case is something we should take into account in this case and i have let me freely concede i didn't get notified about this until about eight hundred and thirty last night and i was in a hotel and didn't have really any time to do any of my own research but just right off the bat i would say that the supreme court was interpretate a very specific statute and very specific language in that statute and they were attempting to determine which elements which words in the statute were modified by the word knowingly as i appreciate the defendant's argument in their twenty eight day letter in their motion the primary thing that they are talking about that should be modified by knowingly is materiality but if you read the bank fraud statute there is no materiality that word is not in the bank fraud statute so there's no way that you can interpret one thousand three hundred and forty four excuse me it's always been interpreted to requirement tiriel misstatement heavily in my brief that that's the reason you know some of the evidence was put it was to establish the materiality but that's the best are not to come up with having no opportunity or ability to do any research what what sort of bothers me is the idea that you can that you have a conspiracy count and you introduce how many transactions thirty transactions right but when it gets down many many i believe you're closer to forty ok and then when it gets down to charging the specific counts of conviction count for doesn't even have enough evidence to sustain it count three you didn't you the government didn't even prove up that this was a federally chartered financial institution so the jury before has before it count one and count two to sustain the bank fraud right so in terms of the gryphon case isn't there a very high likelihood that the jury was taking can count three and importing it into their analysis on count  one i don't think so your honor because i think the evidence did establish that there was a conspiracy involving as you said thirty plus pieces of property the government painstakingly went over that there were even tables or charts that showed  each piece of property and the falsity about it and what's different about a little on about count three as i just changed to say this is really more of a technical argument had this been evidence i mean the jury was perfectly it was probably appropriate given the evidence that the jury saw for them to make a finding that it was a violation of the bank fraud statute the government had a certificate from the f t c saying i don't really care about that because the fact is it's legally on the testimony related to count to you and all of the of the conspiracy count not only incorporated the nd counts it also incorporated all of the other properties involved in the scheme cancer it was just one of many many properties that the jury heard evidence on  kind of wondering i mean it kind of gets back to my question about the sentencing with which counsel opposite didn't think was very helpful but you know when we think about mrs jury said how is this obvious to her that this is  scheme i mean they're helping people who maybe wouldn't have the money to buy these round properties maybe that's not the best in hindsight because when you have a problem and you know the everything tanks and the real estate market goes down instead then you have all these issues but i mean we had all of that happen that was the cause of the two thousand and eight financial crisis was banks were lending based on thinking everything was going to be great and that it wasn't so just thinking that the world is going to be a good place doesn't strike me as fraudulent it may be naive but it's not fraudulent so how is it fraudulent for her to think it's ok to try to help these people make money off of rental properties when she and her husband had already done that and had that happened had they made the money they thought they were going to make the banks would have been paid and we probably wouldn't be sitting here well your honor she was responsible the evidence show that she was responsible for the accounting are billionaire properties for in the repairs and maintenance or a seller's proceeds in reality they would walk out with a check for say twenty thousand dollars i mean she knew that they were that money was being passed moved around and that they were not  something wrong with the way they move the money in this just doesn't strike me as your typical well of course that's obvious to anybody that that's a lie this doesn't strike me quite the same way because of the nature of sort of gifting this money and trying to help people at your church do rental properties and we have all this house flipping a phenomenon that everybody's excited about that kind of fits in here and there's no indication that she's some incredible legal scholar that might question it i'm not saying i would do this i'm not saying it's a good thing to do but that's a separate from whether it's a crime i mean it's strikes me as she's just being sucked into she's the wife who did it and that's not appropriate we are there was no money to gift they did not have any money to gift the gift as the defendants like to call it was just by inflating the sales this that they're getting good deals from who they're originally buying who are so that when they sell it on the back and that money really is a valid like if i'm able you're just to hurry so you're home i'm able to get a good deal from you then i sell it for a lot more the next month that's not fraud that's just a good deal yes ma'am but what is the fraud in this is the monies that were being pulled out to go to the jury's hands for repairs and maintenance which they had not performed because it was on the cellar so i'm sure if this all should have been done and for that matter if they had done the repairs and maintenance maybe the rental properties would have succeeded yes ma'am and there was quite a bit of evidence that because the properties were in such poor condition that they could not remain in the section eight program for example and tenants were lost because of that and the  well again the direct evidence is hard to come up with because i mean literally there's lincoln in the same bed and could be talking about it at night and we would never know that there is no way to know that would mean every spouse of one correct correct so you have to look at the circumstantial evidence and that's why i presume that the a u s a who tried this case called the c p a to talk about the fact that mr compiled all the information that they had about expenses and income and she sat in on some of the closings and therefore she would have known that the number she was given to the c p a about expenditures that billionaire properties had done did not match up with the monies that will come that were purportedly paid to billionaire properties or to them directly on the hood ones so it is a circumstantial case clearly and it would be clear because i haven't done very many real estate transactions myself but i know like when i buy or sell a house that money that's supposed to be you some of it ends up being paid to for the title insurance for this for that so the ten thousand dollars that came to me actually is a seven thousand dollars check that's not a fraud that's a one thousand dollars going the title insurance a one thousand dollars to the whatever whatever these expenses that they charge you so the check you actually get isn't the number that seemed to be the profit you were supposed to get but that's all well articulated on the high board the the right right but what i'm saying is so the fact that you walk out with a check that looks different than what you might have thought doesn't necessarily mean that you know there's a fraud i mean skin talking about mrs drew so knowing knowing that that there's fraud not just that maybe a smart person might not have asked a question or maybe this isn't the best way of doing business but knowing criminally knowing that this is a fraud well maybe just relying on your husband to do right and his lawyer thinking oh my that mrs druce i was involved in actually explaining to them how the program would work and that the drew says would be paying the closing cost and the down payment for the  they also according to dr long testimony frequently filled out all this paperwork literally in the derivatives living room which was set up like an office again she took all the receipts and everything to the a she was the contact person for the renters she was the contact person for the realtors she was just a she was just thoroughly in immersed in what was going on but yes her husband was the one signing the paperwork and doing the missing in your mind i'm not saying that the council advisor this is fraudulent and or it's not trial and i'm saying that when you're trying to get into somebodies intent and there's a lawyer involved there's the husband involved and she's just you know shuffling papers is that enough show knowingly i don't think so under the facts of this case because again she had so much knowledge about the finances and the fact that they were not making the amount of money or expanding the amount of that that's what should have put her on notice that we're not really doing these repairs that's a that's a criminal action to get repair money that you don't repair and that's what you should  know and you're going to help me figure out why is it that she knew specifically what does she know that's a crime well she again she met with the investors she explained to them or she and her husband together explained to them very counterintuitive to us from a restitution based on the down payment which was money that the banks received i may not have the lent the borrowers may not have completed paying off the loans but they got the money in the down payment so how can you say that measures restitution oh my mr reading something there it's not you nearly how well it has out of the factual and logical basis and i don't care how you would have done it the government did it this way and it makes little sense to me well the p s r of the probation officer explained to the p s r w the why this is the way they went they talked about the fact that they considered the total of the line plus the payments that have been made which intuitively seems like the way he would go to write whatever reason they rejected that and they also rejected the  payments only mr aris i objected to the use of the down payments he suggested that instead you should use the the money book for repairs and maintenance and but then he wanted a credit for his expenses and for the money that he used to pay off doctor loan doctor loans tax lien so what it so what's a bottom line it's good enough for government work you have to preserve and make your ms blue and i think you made an argument we don't have to accept the offset but i think you made the argument that just seem the cumulative amount of the down payments makes no sense at all and for has barely any sentence at all so she'll be out earning money pretty soon so this is a big problem for them yes your honor and i don't apologize i don't have it in my notes but i think it's a round  thought it was well no i mean we'd have to vacate in remand for recent sing it seems to me we're not up here to make fact findings well it's to restitution perhaps argument that you should not count cobia would affect his guideline range i believe it is your money and so what about that argument that that's not bank fraud and therefore can't be counted your mortgage corporation wasn't the victim of the fraud because it is a bank and wire fraud in there was plenty of testimony in the record about the fact that the money was wire transferred into accounts controlled by the various closing attorneys who then disburse the money so i do believe that that that was that they would still that they would still count as a victim and the restitution number would not change i'm sorry the bus number would not change for m my time is about to end if you have no further questions and can see that it's not thank you thank you three was something that was maybe less than compared to count two well if you look at this court's decision and howard which was it's a two thousand and eight decision that very methodically goes through a similar argument and considers what effect what effect is there when you have one conviction reversed and the question is can you save face but can you say beyond a reasonable doubt that the jury didn't base its conviction on the wrong or on the reversed finding and there's no way you can say that here well no i'm just looking at your brief where discusses howard and it says as in young age since it is impossible to determine whether the jury convicted blah blah so is set a yates case or in the case you're i think for our purposes have to show interstate wires involved with each of these and they refused my invitation to do it they said the same thing i'll trust me it's on the record and i don't think that's good enough and i don't think there should be additional fact finding when this one is remanded on that issue because i don't think they should get a chance to supplement this  and and determining whether or not there was a reasonable chance if in this case if we agree with you on these legal points how much of the case could be retried or how much of it is barred by double jeopardy to be dismissed and i think that the state should limitations and for that would have been the count from day reasserted as to some of the issues with the tainting but i really have to submit a supplemental brief on their side i would say that certainly some of these only