Legal Case Summary

Good afternoon, Your Honors. I am Georgi Lina, Aranada from Raleigh, North Carolina. And I have before you a case concerning the sentencing of a gentleman by Mr. Roger Camp. And basically, in our appeal, we have three sentencing issues. We have an ineffective assistance of counsel claim and a judicial participation claim. On the ineffective assistance of counsel claim, I do not need to be heard and just wish to rest on the arguments made on the briefs. I would like to start, however, with the sentencing issues. Basically, we have two issues that deal with the amount of loss. And then we have another issue that deals with the application of a two level enhancement concerning the use of sophisticated means. And it's my position and my client's position that the district court aired when it applied an 18 level enhancement for the amount of loss. And the gist of our argument on this is basically, according to the guidelines, the government had to present the fair market value of the collateralized property, which was real estate, which in the end was a shopping center located in Mebb and North Carolina. And they had to present the fair market value at the date of the plea of Mr. Camp, which was in April of 2012. And this was not done. Which property are you talking about again? Okay. The keystone or the- Yes, the keystone- Actually, key source bank and the key source bank. And which- Where in the sentencing guidelines do you find that they had to present the fair market value of that? That had to do with the application notes, application note three. Right. It is subsection E, where it says credits against loss. Subsection E2 says that where the collateral is pledged or otherwise provided, the loss amount is reduced by the amount the victim has recovered at the time of sentencing from the disposition of the collateral or if the collateral has not been disposed of the fair market value. The collateral had been disposed of at the time of sentencing, hadn't it? Well, basically our position is that it has actually- Well, had the collateral been disposed of at the time of sentencing? It had been disposed of, but it was purchased by the bank. Well, there's no exception in this application note. There's an exception. Is there an exception transaction or something? Well, I'm claiming that its application note subsection three that actually applies because key source provided a mortgage. That's what they did. And it says notwithstanding clause two, in the case of fraud involving a mortgage loan, if the- well, they go on to say that, if it has not been disposed of at the time of sentencing, you have to use the fair market value. Right. That's the same note I'm looking at

. If it has not been disposed of at the time of sentencing, and this had been disposed of at the time of sentencing. Right. You are correct. However, it's our position when it's the same entity that bought it back at a bankruptcy proceeding, that they still were required to present some evidence of the fair market value. And- What's the basis for that argument? Well, it was the same- I mean, there is no legal basis. It is asking for a case. Is that the- Isn't that evidence of fair market value anyway? Was somebody built on a pay for it? Well, if it's the same thing that- Same bank or not. Is there anything in this record that indicate anybody else wanted to pay anything for that property? Well, as I understand the bank- I understand that there isn't- Is there any indication in the record that anybody else wanted to pay anything for that property? I am not aware, Your Honor. Not in the record. Sorry? They had a foreclosure sale, didn't they? Yes, they did, Your Honor. And you bank paid a million and a half dollar. Correct. And that's what you say is insufficient. I mean, a million and a half are insufficient, she's like- But to one day, by their bid and two million or anything- Well, the thing is- If it had been worth five million or whatever it is, you think it's worth somebody would have showed up and offered two or three problems. Well, part of the problem this happened during our great recession during the financial crisis- They were market value then. The time. Yeah, everything- The bottom went out of it. Do you have any other argument to make on loss? Yeah. The next argument that I have a concerns capital bank. Capital bank, basically this was a loan of two million dollars that was secured by UCC one filing. And again, also in this particular case, they were required to determine the fair market value, which was not done. At the time of the Guilty plea in April of 2012. Why do you say that? Well, because- There just wasn't any evidence from the government. They just went on the amount of the loan. And one of the problems that I had with the valuations of what was- The property was sold for- Is that they were looking at values of a bankruptcy proceeding that started in 2011. And the plea was put in in April of 2012. And going back through the record, we don't- There's not a date that the government relied upon- Do you think there's any argument to made here? I don't think you made it, but maybe I'm wrong. Between actual loss and intended loss in this case

. Well, yes. And that's another issue. Well, make that distinction for me and how- What differences does that make to your argument as for the- Enhancement? Well, I would say- I mean, I mean, enhancement is the number of points. The client from the very beginning has been claiming that there was no intended loss. Because he was, for example, for the Capitol Bank loan. There were three guarantors. Camp was a guarantor along with- Are you making a distinction between somebody who goes to the bank with fraudulent documents- With the sole purpose- Or with the purpose of trying to get money and walking away with the money- Or with the sole purpose of trying to get money and walking away with the money. But he's not intending to walk away with that money. He's intending to pay it back, but still make a big old profit of putting his pocket. Well, I'm not sure what kind of profit they were expecting- Well, I said that he making the difference between those people. Yes. That is correct. And so you want to claim that the loss is- That he, just when he went and borrowed the money to try to do right- The economy collapsed. And he can't help that, but he never intended for a loss. in those scenarios. And that is correct because just as evidence of this, the key source bank, what they did is they paid off the previous case. What do you do with actual loss though in this case? What do you do with actual loss in this case? Can't you get over 2.5 million on this record on actual loss? In 2.5 the cutoff point. It is the cutoff point, but the argument that I was making is that it's sentencing the government did not present. And again, we're saying- They presented some actual loss. Didn't the bank lose 2.3 million? That is what they relied on. But we're saying there was, yes, you are correct. You lost that argument perhaps. But you have for the purpose of my question to you on the loss. The bank paid 1.5 million

. Didn't that leave a net loss of 2.3 million? Correct. I would say you don't concede that point, but if it does, then we have actual losses in the record. In addition, what added that 2.3 million and get us to 2.5? Well, it's our position though that value was not correct because- 2.3 is not correct. Right. But it should say, if that's correct, you only need $200,000 more. And then you're up there to where the government needed to be at- Right. And at 18 levels. Right. And so it's our position, for example, that capital bank, that loss should not be counted again because- Or if you take out the capital bank, they count the trust Atlantic bank. Well, actually- That's $500,000. That puts you up there to the 2.5 million. But money was not given out by trust Atlantic bank and North State bank was repaid all its money. And the Presentance Report in appendix 758 states that both banks sustained no losses when it was trying to come up with the restitution amounts. What about the Timothy Buckley? Right. Timothy Buckley. What was it- I don't know if it was a few years. I'm just talking about the rest of the losses he incurred. What about the end-years losses? Well, I would submit that he- 50,000, that puts you up there above it. Right. But I would sustain that his actual loss was 125,000 because there were two separate loans. There was a loan for 250,000. And that was given without any fraudulent or deceitful actions. And then there was the second one where the 125,000- So you- You claim that the 250 is not even related? I'm not saying that it- That it's not related, but- You mean that- Well, what are you saying then? Is those counted out against or got it? He did

. And that's- We're saying that should not have been included. Why? Why? Because this was supposed to be for fraud and deceit. There was no fraud or deceit in getting that loan. But what about the entire scheme though? Was that money taken and used at all? And every- Was that money wasn't held separate in a part of a vacation almost something was it? No, it was not. It was put in this business. Correct. Right. And again, the whole goal of all these investments was to keep the shopping center alive and to create a viable investment and a bowling alley. And- We modeled that bowling alley for a change in the track. Correct. And that's where the expenses actually came through because from key source, they used about $1.5 million to upfit. And then the capital source bank was also used for upfitting. And in the end, there was evidence in the record that the property once the property of these improvements had been made was worth $5.1 million. And so my client, his position is that basically the government, sorry, the government did not prove its position for the amount of loss with key source bank because it was the same bank who bought it. And so the losses were on paper. So that key source. Key sources, the key, the order of position here, is that right? Well, I would say yes. But also with capital bank, the fact that it was secured and that camp also invested about- If you'd not go too out, you got it down there, don't you? If you'd not go too out. Well- Well- Well- That's four million dollars that you want to knock out of there. I understand. But I would like to minimize the losses from capital bank and try to keep it out of the level 18. Right. We understand that. You got some other points here that you need to- Yes, that is correct. If you got successful on that 18, you got the sophisticated means. Right

. And- You say that Judge Boyle's strong arm to plea? Correct. We- You got some things like that too. Right. So basically we have claimed that two level enhancement was not correct because the- So basically the actions consisted of forging signatures and altering documents. And there's no evidence that any of the documents presented to the banks from my client involved more than Whiting out dates, recopping, scanning or other information of existing documents that were altered. He claims this was not a sophisticated scheme. His actions were done to protect the investments that were related to the other entities. And once again it goes back to his intent. And his intent was not to have any actual loss for anyone. He was trying to hide the real facts from the bank so- I understand that. And that was done. He pled guilty, didn't he? He did and that goes- It was a good guilty day. It's a darned item. Right. He did your honor. And- Did somebody forge his name on or stand in for him at the plea- at the plea collar? Actually it was a straight up plea, your honor. Straight up. Straight up. And that's where the final argument concerning judicial participation comes in. It's my client's position that the district court judge was involved in plea in his plea negotiations and the questioning of the witnesses- The judge wasn't involved in any negotiations. What your argument is he made a statement from the bench about how strong the case was after the government presented his case in the chief. Judge said this is one of the strongest cases I've ever seen. And then the Vince Council went out and conferred with his client and they came back in and pled guilty. How's that participating in plea negotiations? Well- There weren't any negotiations since he pledged straight up. Well, the point is that after the judge gave his opinion as to the strength of the government evidence, he also mentioned about perjury and obstruction of justice. He did. And so- What's wrong with that? You can't tell a witness. Can't you tell a witness? You're about to take the stand

. I want to tell you this much. You certainly may take the stand. But if you take the stand and tell a lie, and I find it to be a lie in this perjury, I'm going to enhance you for that at sentencing. Isn't that entirely proper? Well, my client felt that that was not proper. Well, the under the law of this circuit is that proper? Well, I would say it is- It was solid legal advice as the judge said from the bench during the course of the proceedings after hearing the evidence. Well, the judge- And seeing the evidence, a lot of this was these documents that have been falsified. But I understand, but my client- But that's a comment on the evidence which is proper. But are you suggesting that a judge can't say to somebody if you don't tell the truth? You can be charged with obstruction of justice or perjury? The judge can't say the truth in the courtroom? But he didn't word it like that. And so my client felt intimidated. She says you know what happens in court, but perjury is a spectrum of obstruction of justice or whatever. The import of that is you've been out lying of justice, isn't that what it is? Well, that's not how my client interprets your client. What did your client say? Well, basically he took it as that the judge was in his words. He felt that the district court judge was impartial. In partial throughout the trial, he felt that he was abusive, prejudicial, coercive, and determined to participate. That's your argument. Well, that doesn't show up from the record as to what he felt because he didn't testify. But this is how my client interpreted the judge's actions. That's what he's saying now. But you weren't the counsel, right? Correct. That's why you say the counsel was the longer than was. In effective constitutionally, right there on the spot, which you haven't argued much today, but for letting him plead guilty. Well, it was more with the sentencing about- Of way dealt with the sentencing he was in effective. Then you said come and jump right off the page. What other, you got any other issues you haven't raised? Well, my time is up, but just very quickly- Right, you got to have red light on. Yes. And you've got some other time, too. You've saved another few more minutes. Okay, and basically, separate and apart from the plea negotiations, he felt the judge engaged in judicial participation in the question- Why isn't all that way, but- That's wrapped up by the plea

. You're not going- Well, you play guilty. That's just the trial to the extent it went on, is wiped away. I mean, you're plea guilty. He came in and he pledged straight up to the entire indictment. And there was no plea agreement. Right. My client in the end would like a new trial. Right. Like a new trial. He wants to get out of here. But you don't even ask a set aside to plea. You're arguing that they'd be a do. Well, but- I am just because of the judicial participation. And then basically, also, if that will not be granted a resettancing, to allow him to introduce or have the government introduce the fair market value. Okay. Let us see what the government has to say about this, and you have a few minutes left. Ms. Fritz? Yes, thank you, Your Honor. You the prosecutor? I was not the prosecutor. May I please- We don't have anybody here that was in the court proceeding today. No, you do not. That being said, this case is about a sophisticated businessman who induced financial institutions to loan him money by overstating his own assets and by exploiting the success and reputation of his good friend, Mr. Buckley. The defendant may have deceived these banks, but the district court was not so easily fooled. The court correctly calculated the loss, enhanced for sophisticated means, calculated restitution. Where's the loss? Where's the actual loss? Can you point to actual loss of 2.5 million? Yes. All right, where's that? First of all, you have the $2

.3 million loss from- With the only source. Now, the capital bank loan was for $200 million. It was secured by business shadows. Two million dollars. Yes. You said $200 million. Oh, I'm sorry. Two million dollars. It was secured by the business shadow, the bowling pins, the restaurant equipment. Now, importantly, the bank did not perceive this loan as being fully collateralized by those items of business shadow. That's precisely why the defendant needed to fabricate Buckley's guarantee. Although at sentencing, there was not specific evidence provided about the value of the business shadows during the trial, one of the witnesses, Hostetler, on pages 177 through 178 of the record, he says, The collateral was mostly negligible. That's not to say it wasn't available and wasn't a real asset. But the secondary market, if the bank were to take bowling pins and bowling balls in chairs and tables and food inventory and try to resell it on the secondary market, it would bring virtually no value to the bank. So I would submit to you that there is no conceivable way that that loan would have resulted in less than $200,000 worth of loss. Because you're doing that by taking the amount of the loss and subtracting zero from it? I am saying that the collateral is a real asset, but it's negligible. I'm sorry. It's negligible in comparison to the... I thought you said that it would be zero. Did he say that? Or what did he say? He said that the value of the collateral was negligible. So your point is, you assigned zero or something to that? You'd give him $200,000 today. You'd give him more than you would give him a sentencing. I think that based upon the information available at sentencing, the bankruptcy trustee estimated that there was about 1.9 million outstanding on that loan. But is that.

.. Is that actual loss in the terms of the guidelines or is that... Do you see a distinction between the scenario, as I said, what an actual loss and an intent of the decision? Let's look at intended. And we have a scheme on which a person just tries to build a bank. They just go into the forged documents. They say it's a check from you and they take $2 million. Versus going in and trying to set up with fraudulent documents to get financing that they believe will turn into a profit. They can pay back the loan. There's no intended loss in the second scenario, isn't there? There may be actual loss, but is there any intended loss? He doesn't intend for the bank to lose the money. He intends for the bank to be repaid with his ongoing business, doesn't he? The defendant may have intended. Well, then it wouldn't be an intended... But how did he get it with an intended... The burdens on the government on the amount of loss, right? Yes. Do you see a distinction between those two kinds of losses? Two, an intended loss where the person is trying to rob money from the bank or steal it from the bank? And one way he just is not a good businessman and he ends up... Or the economy goes bad. But he never intended for it to be a loss. He intended for it to be an ongoing business to repay the loan and to make money himself. That's not part of his criminal activity as far as he's..

. A loss is counted against him, is it? I think it would be because that would be reasonably foreseeable pecunary harm. It wouldn't be not if he thought under the conditions... I'm just going to say we'll move on. He goes in in a good economy. He does forge a document because he's trying to build his empire and he gets a $2 million loan. And from all of his projections, from his accounting to that point, he can make $8 million on the project. Then the economy goes south and he loses everything including that $2 million loan to him. That's not an intended loss. That's not a foreseeable pecunary loss. That's just the economy caught up with him. Why would that be an intended loss under his scheme? Well, I think that some of the factual premises in your question... That was my hypothetical to point the difference to that. Okay. In this case, however, the economy was going down when he was making the decision. So, okay, so take my hypothetical. He thought he was smart enough to beat the economy and he had something that would sell. That may be bad judgment. It could be stupid. But why is that a fraud loss? Because he didn't... On the guideline, it says actual laws are intended laws. What was that? It says intended laws. It means the pecunary harm that was intended to result from the offense. Is there any evidence that he intended to take that money and put it in his pocket and not try to sell which his company? That's not any evidence. So that is there. Not with respect to Capitol Bank. It is... What else is there? I think that, for example, if you look at trusted Atlantic, he was in the process of negotiating $500,000 of a loan there. And he fraudulently presented, roughly, as a guarantor. Did he get the money? He did not get the money, but he intended to... Do what? Hopefully save this sinking ship. He did intend for that to be a law, steady. Under the circumstances where he knows that his cash flow is in bad shape. He knows that he's not meeting all the issues. You're just digging him for bad judgment. No, I'm... Let me ask you this much. Let me ask you this much. Can you find it in actual losses? What about Timothy? What do we do with Timothy Buckley? Look at that personal loan for $250,000. What do you do about that? The loans to Timothy Buckley are also actual losses. So, I mean, if you look at... Did he get back some collateral or some interest in an ongoing operation or something at that time for that note? It is not clear with respect to the $250,000, whether there was an exchange of any collateral. With the $125,000 loan that was later issued, I believe that in that case, Buckley, requested that there be an assignment of the defendant's or a pledge of collateral of the defendant's interest in PCI

. Is there any evidence that he intended to take that money and put it in his pocket and not try to sell which his company? That's not any evidence. So that is there. Not with respect to Capitol Bank. It is... What else is there? I think that, for example, if you look at trusted Atlantic, he was in the process of negotiating $500,000 of a loan there. And he fraudulently presented, roughly, as a guarantor. Did he get the money? He did not get the money, but he intended to... Do what? Hopefully save this sinking ship. He did intend for that to be a law, steady. Under the circumstances where he knows that his cash flow is in bad shape. He knows that he's not meeting all the issues. You're just digging him for bad judgment. No, I'm... Let me ask you this much. Let me ask you this much. Can you find it in actual losses? What about Timothy? What do we do with Timothy Buckley? Look at that personal loan for $250,000. What do you do about that? The loans to Timothy Buckley are also actual losses. So, I mean, if you look at... Did he get back some collateral or some interest in an ongoing operation or something at that time for that note? It is not clear with respect to the $250,000, whether there was an exchange of any collateral. With the $125,000 loan that was later issued, I believe that in that case, Buckley, requested that there be an assignment of the defendant's or a pledge of collateral of the defendant's interest in PCI. I am not aware of the record supporting there being any collateral for the $250,000. You'll be that loan from Buckley. I don't want to say... How did you get to the $250,000 actual loss number? I just can't find it. I've read it, but I can't find it in the precendatory court right now. I thought that that was collateralized at some point, but the value... Am I wrong about that? I... Actually, I don't... I take that back. You are correct, Your Honor, on page 444 of the J.A. The $250,000 was to be secured by collateral in PCI. Right, and how much is that collateral worth now? I am uncertain. I didn't ask that. How can he be dinged with $250,000 if the government doesn't know the value of the collateral? Because it isn't actual loss, the amount put in, less the amount retained, and isn't that burden on the government? Yes, it is. And where do you meet that burden on that $250,000 here? At that time, the collateral was in bankruptcy proceedings, and the exact value of what the defendant's percentage interest in PCI is not clear. But the bottom line for purposes of the loss calculation is that the court is only required to make a reasonable estimation of loss. And the reasonable estimation of loss from this scheme is over the $2.5 million. Well, no, I've got

. I am not aware of the record supporting there being any collateral for the $250,000. You'll be that loan from Buckley. I don't want to say... How did you get to the $250,000 actual loss number? I just can't find it. I've read it, but I can't find it in the precendatory court right now. I thought that that was collateralized at some point, but the value... Am I wrong about that? I... Actually, I don't... I take that back. You are correct, Your Honor, on page 444 of the J.A. The $250,000 was to be secured by collateral in PCI. Right, and how much is that collateral worth now? I am uncertain. I didn't ask that. How can he be dinged with $250,000 if the government doesn't know the value of the collateral? Because it isn't actual loss, the amount put in, less the amount retained, and isn't that burden on the government? Yes, it is. And where do you meet that burden on that $250,000 here? At that time, the collateral was in bankruptcy proceedings, and the exact value of what the defendant's percentage interest in PCI is not clear. But the bottom line for purposes of the loss calculation is that the court is only required to make a reasonable estimation of loss. And the reasonable estimation of loss from this scheme is over the $2.5 million. Well, no, I've got... Listen, I'm going to ask you more. I see the $2.3. I don't make sense to me. I'm trying to find... You see that $150,000, no estate loan, and the $125 loan, that won't get you there. I'm looking at that $255,000, because that'll get you all worn actual loss. So I'm trying to figure out how do we value that $250,000? It appears to me that the state of the record is he loaned $250,000 that was collateralized. And the collateralized...the collateral was worth something, but we don't know how much. How's that not just speculation? Because you have to get $200,000 loss out of that, don't you? Again, I would suggest that the district court is charged with making a reasonable estimation of the loss, and that property is in the bankruptcy estate. And at that time... It's not worth something. At that time, Mr. Buckley had not received a dime of his money back to the extent... He said, to burn zone U, to value that. You just can't go in there and say, uh, eggs on oils and bankruptcy, so you stock toward zero. It may be a restructuring

... Listen, I'm going to ask you more. I see the $2.3. I don't make sense to me. I'm trying to find... You see that $150,000, no estate loan, and the $125 loan, that won't get you there. I'm looking at that $255,000, because that'll get you all worn actual loss. So I'm trying to figure out how do we value that $250,000? It appears to me that the state of the record is he loaned $250,000 that was collateralized. And the collateralized...the collateral was worth something, but we don't know how much. How's that not just speculation? Because you have to get $200,000 loss out of that, don't you? Again, I would suggest that the district court is charged with making a reasonable estimation of the loss, and that property is in the bankruptcy estate. And at that time... It's not worth something. At that time, Mr. Buckley had not received a dime of his money back to the extent... He said, to burn zone U, to value that. You just can't go in there and say, uh, eggs on oils and bankruptcy, so you stock toward zero. It may be a restructuring. You may have assets that come... People may get paid out of bankruptcy. I just don't see how you put the lack of the government... Maybe you showed it somewhere, but you haven't told me, and I couldn't find it. How do you put the lack of the government coming forward and meeting their burden? How does that fall on a defendant? I think that, again, if you look at the scheme, it was clearly over 2.5 million. In this case, the government presented ample evidence to support a finding of loss exceeding that, and I would note that with respect to Mr. Buckley, who is primarily raised in the restitution component of the defendant's argument, the defendant did not argue or did not object to that restitution amount. He objected to the calculations for the losses, though. He did not object to the restitution. He did not object to the restitution. He does raise that on appeal. So that's plain error reviews? Yes, and he cannot meet that. It's not plain error review. If his objections to the findings on losses, that fairly takes into account the restitution award, doesn't it? Because the restitution award is based on the law's calculations, isn't it? No, I would just say the loss calculations, the way the guidelines are written. How do you get to restitution if you don't figure out how much you've lost? Well, I think that because of how the loss... That's not possible, is it? You don't know how much you have to give in restitution unless you first calculate how much that person has lost. Isn't that correct? Yes, but the guideline talks in terms of actual loss or intended loss. And it instructs the court to take into account the greater of the two. So there may very well be a case where the loss is counted such as entrusted landing where there is a $500,000 loss. Now, entrusted landing never loaned that money out. So while there is a loss for the guidelines for the loss calculation, trust Atlantic is certainly not owned restitution

. You may have assets that come... People may get paid out of bankruptcy. I just don't see how you put the lack of the government... Maybe you showed it somewhere, but you haven't told me, and I couldn't find it. How do you put the lack of the government coming forward and meeting their burden? How does that fall on a defendant? I think that, again, if you look at the scheme, it was clearly over 2.5 million. In this case, the government presented ample evidence to support a finding of loss exceeding that, and I would note that with respect to Mr. Buckley, who is primarily raised in the restitution component of the defendant's argument, the defendant did not argue or did not object to that restitution amount. He objected to the calculations for the losses, though. He did not object to the restitution. He did not object to the restitution. He does raise that on appeal. So that's plain error reviews? Yes, and he cannot meet that. It's not plain error review. If his objections to the findings on losses, that fairly takes into account the restitution award, doesn't it? Because the restitution award is based on the law's calculations, isn't it? No, I would just say the loss calculations, the way the guidelines are written. How do you get to restitution if you don't figure out how much you've lost? Well, I think that because of how the loss... That's not possible, is it? You don't know how much you have to give in restitution unless you first calculate how much that person has lost. Isn't that correct? Yes, but the guideline talks in terms of actual loss or intended loss. And it instructs the court to take into account the greater of the two. So there may very well be a case where the loss is counted such as entrusted landing where there is a $500,000 loss. Now, entrusted landing never loaned that money out. So while there is a loss for the guidelines for the loss calculation, trust Atlantic is certainly not owned restitution. Where do we know that the court took into account the very question I asked you about intended loss. What does intended loss in the guideline mean? Was that even discussed? Intended loss to make the distinction that I'm asking you? I don't believe that there was such a discussion. I think the court had, sat through the trial, was familiar with the evidence and was comfortable with saying that under these circumstances... Well, he has it in the property calculation zone losses. Yes. Under the guidelines I have to say. And the court did make a reasonable calculation here. And was Mr. Buckley, did he want to complain on this fall attorney, man? Actually, my understanding of the record is that trust Atlantic notified the Raleigh Police Department. That's how they caught him? Yes. Well... But Buckley's deemed a victim here and he gets restitution. Yes. When some of this evidence looked like Buckley was right in the middle of it, didn't he? He's false-fined documents and... Absolutely not. Buckley... He was transferring interest that he didn't know and taken interest that he didn't buy and things like that. If you're talking about the 24% interest that was transferred, that was the defendant's idea. Was he's idea, but did you sell a sign to papers? Well, the defendant.

. Where do we know that the court took into account the very question I asked you about intended loss. What does intended loss in the guideline mean? Was that even discussed? Intended loss to make the distinction that I'm asking you? I don't believe that there was such a discussion. I think the court had, sat through the trial, was familiar with the evidence and was comfortable with saying that under these circumstances... Well, he has it in the property calculation zone losses. Yes. Under the guidelines I have to say. And the court did make a reasonable calculation here. And was Mr. Buckley, did he want to complain on this fall attorney, man? Actually, my understanding of the record is that trust Atlantic notified the Raleigh Police Department. That's how they caught him? Yes. Well... But Buckley's deemed a victim here and he gets restitution. Yes. When some of this evidence looked like Buckley was right in the middle of it, didn't he? He's false-fined documents and... Absolutely not. Buckley... He was transferring interest that he didn't know and taken interest that he didn't buy and things like that. If you're talking about the 24% interest that was transferred, that was the defendant's idea. Was he's idea, but did you sell a sign to papers? Well, the defendant... Signed them back after they made the loan. No, the defendant transferred the 24% to him and the defendant's purported rationale was that the defendant did not want to be both the lessy and the less sore. So by transferring the 24% over to Buckley, he could sign on behalf of FEC. Buckley had made very clear that he was not interested in investing in FEC. And once that had transpired, Buckley did sign the back to him and Buckley absolutely signed the lease on behalf of FCC. Buckley did not sign a guarantee... A guarantee on behalf of FEC to guarantee the rental. That was forged and altered. There were times that was forged his name, right? Oh, many times. He forged his names. He falsified financial records that purported to be Buckley's. And what was interesting about the financial records is the defendant drew on his knowledge of being Buckley's friend for over a decade and mixed truth with fiction. He knew where Buckley had certain properties. He would falsify the value of those properties, say that they were paid off. He knew where Buckley had a number of his assets and again he would overstate those. The evidence at trial showed that Buckley was not aware of this fraud or his reputation, his good name being used until February 2011 when that letter arrived at his house. And then he promptly followed up and that was from Capitol Bank. And what's interesting is he also had some qualms about key source bank. And when he first called the PCI attorney about that, he asked, am I in any way a guarantor on this key bank thing? And the PCI attorney looked at the closing documents and said, no, you're not. And that, again, that goes to the sophisticated means. The defendant had structured the transaction. It was his idea how to structure the transaction where Buckley was a guarantor of rents to FEC. And then that was reassigned over to the lender. So the lender had all of Buckley's information that had been provided. What do you make of the court asking too many questions or oppression to defend it to plead guilty? I think that that is a

.. Signed them back after they made the loan. No, the defendant transferred the 24% to him and the defendant's purported rationale was that the defendant did not want to be both the lessy and the less sore. So by transferring the 24% over to Buckley, he could sign on behalf of FEC. Buckley had made very clear that he was not interested in investing in FEC. And once that had transpired, Buckley did sign the back to him and Buckley absolutely signed the lease on behalf of FCC. Buckley did not sign a guarantee... A guarantee on behalf of FEC to guarantee the rental. That was forged and altered. There were times that was forged his name, right? Oh, many times. He forged his names. He falsified financial records that purported to be Buckley's. And what was interesting about the financial records is the defendant drew on his knowledge of being Buckley's friend for over a decade and mixed truth with fiction. He knew where Buckley had certain properties. He would falsify the value of those properties, say that they were paid off. He knew where Buckley had a number of his assets and again he would overstate those. The evidence at trial showed that Buckley was not aware of this fraud or his reputation, his good name being used until February 2011 when that letter arrived at his house. And then he promptly followed up and that was from Capitol Bank. And what's interesting is he also had some qualms about key source bank. And when he first called the PCI attorney about that, he asked, am I in any way a guarantor on this key bank thing? And the PCI attorney looked at the closing documents and said, no, you're not. And that, again, that goes to the sophisticated means. The defendant had structured the transaction. It was his idea how to structure the transaction where Buckley was a guarantor of rents to FEC. And then that was reassigned over to the lender. So the lender had all of Buckley's information that had been provided. What do you make of the court asking too many questions or oppression to defend it to plead guilty? I think that that is a... Let's take one attempt. What do you think about the judge asking too many questions? What do you think about that? Your response is what? The judge asked clarification questions. Is that waived? Is that argument waived by the guilty plea? Yes. I would suggest that it is. It is waived by the guilty plea. And a court does have the prerogative to oversee the method and mode of how information comes in. What do you make with those comments at the conclusion of the government's case, the comments by the judge at the conclusion of the government's case? First of all, there was no plea negotiation. This was at the close of the government's case. Outside of the presence of the jury, the court asked the defendant, do you want to go forward with this trial? The court is entirely within its discretion to give the defendant some time to think over having seen the government's case. What the government wanted to do? The argument is not that the court said that you want to plead guilty. Do you want to think about it? That's not what the argument is. You never know what happens in court. Repertory is a specter and obstruction of justice and whatever. I've tried a few cases and I can only remember one other one. I won't go into it. I'm just going to say that the defendant was something like the evidence that just came out came out. That's not just saying, think about it, is it? What about those comments? Those comments, the reference to the prior case and perjury, I think it's essentially the court suggesting that the defendant proceed with caution. The defendant is listed as a witness on his own witness list. The defendant's opening statement suggested that he was going to take the stand and tell his side of the story. The court was aware that the defendant had already provided testimony in the bankruptcy case. I know the context, but I'm asking you about what do we do with the legal significance if any of those comments by the judge. There is nothing wrong with those comments by the judge. It was as Judge King stated. It was sound legal advice. Take a moment to think about this. The defendant came back and he decided to plead guilty

... Let's take one attempt. What do you think about the judge asking too many questions? What do you think about that? Your response is what? The judge asked clarification questions. Is that waived? Is that argument waived by the guilty plea? Yes. I would suggest that it is. It is waived by the guilty plea. And a court does have the prerogative to oversee the method and mode of how information comes in. What do you make with those comments at the conclusion of the government's case, the comments by the judge at the conclusion of the government's case? First of all, there was no plea negotiation. This was at the close of the government's case. Outside of the presence of the jury, the court asked the defendant, do you want to go forward with this trial? The court is entirely within its discretion to give the defendant some time to think over having seen the government's case. What the government wanted to do? The argument is not that the court said that you want to plead guilty. Do you want to think about it? That's not what the argument is. You never know what happens in court. Repertory is a specter and obstruction of justice and whatever. I've tried a few cases and I can only remember one other one. I won't go into it. I'm just going to say that the defendant was something like the evidence that just came out came out. That's not just saying, think about it, is it? What about those comments? Those comments, the reference to the prior case and perjury, I think it's essentially the court suggesting that the defendant proceed with caution. The defendant is listed as a witness on his own witness list. The defendant's opening statement suggested that he was going to take the stand and tell his side of the story. The court was aware that the defendant had already provided testimony in the bankruptcy case. I know the context, but I'm asking you about what do we do with the legal significance if any of those comments by the judge. There is nothing wrong with those comments by the judge. It was as Judge King stated. It was sound legal advice. Take a moment to think about this. The defendant came back and he decided to plead guilty. The defendant was asked during the Rule 11 play, are you sure? Are you under any pressure? The defendant's response at one point is, I'm cooked in this trial. The defendant acknowledged, he saw the evidence against him and he made the informed decision to plead guilty. In fact, although the PSR had initially not awarded him acceptance of responsibility, he strongly argued in his objections that because he had come forward and pleaded guilty, he should receive the benefit of that. There is nothing that suggests that this is an involuntary or coerced guilty play. Now, with respect to the sophisticated means, I would like to point out one or two other ways in which it was sophisticated beyond just the forging of the document. And I mentioned before the transfer with a 24% interest. If we think the loss number is not in the record, what would you propose we do? Just the justification for the 18 points because of the amount of the loss on the record, what do you suggest we do? Remand it for further consideration on the record as it existed to make those arguments or what do we do? Do you get another bite of the apple? If the court were to find that the loss was not supported, which... Then yes, you don't agree with. No, we don't agree with that. Then it would, I guess the remedy would be to remand unless, of course, the court is confident after having reviewed the transcript that the district court would have imposed the same sentence. The court did not make reference to having imposed an alternative sentence, but the court did, throughout the sentencing hearing, make a number of comments which suggest that this was the sentence. Do you think there's any argument be made by the government that the government was in the process of charting out all the losses and the district court basically cut you off and just sort of said what he agreed the number was? Did that happen? I think that you could make that argument because the court, we were in the process of setting forth the evidence and the court says, look, I'm satisfied. We only need to get to 2.5, right? And then, so to the extent that there would be a remand, we should be permitted to... You say you in the process of charting it out, the government just from, excuse me, the court from its own involvement, knew the numbers and said I somehow, if you established it. Yes. Okay. Okay. If I have a moment to make a closing statement. You read Light's on. Okay. You've covered about everything. Thank you very much. I asked that you affirm the judgment of the district court

. The defendant was asked during the Rule 11 play, are you sure? Are you under any pressure? The defendant's response at one point is, I'm cooked in this trial. The defendant acknowledged, he saw the evidence against him and he made the informed decision to plead guilty. In fact, although the PSR had initially not awarded him acceptance of responsibility, he strongly argued in his objections that because he had come forward and pleaded guilty, he should receive the benefit of that. There is nothing that suggests that this is an involuntary or coerced guilty play. Now, with respect to the sophisticated means, I would like to point out one or two other ways in which it was sophisticated beyond just the forging of the document. And I mentioned before the transfer with a 24% interest. If we think the loss number is not in the record, what would you propose we do? Just the justification for the 18 points because of the amount of the loss on the record, what do you suggest we do? Remand it for further consideration on the record as it existed to make those arguments or what do we do? Do you get another bite of the apple? If the court were to find that the loss was not supported, which... Then yes, you don't agree with. No, we don't agree with that. Then it would, I guess the remedy would be to remand unless, of course, the court is confident after having reviewed the transcript that the district court would have imposed the same sentence. The court did not make reference to having imposed an alternative sentence, but the court did, throughout the sentencing hearing, make a number of comments which suggest that this was the sentence. Do you think there's any argument be made by the government that the government was in the process of charting out all the losses and the district court basically cut you off and just sort of said what he agreed the number was? Did that happen? I think that you could make that argument because the court, we were in the process of setting forth the evidence and the court says, look, I'm satisfied. We only need to get to 2.5, right? And then, so to the extent that there would be a remand, we should be permitted to... You say you in the process of charting it out, the government just from, excuse me, the court from its own involvement, knew the numbers and said I somehow, if you established it. Yes. Okay. Okay. If I have a moment to make a closing statement. You read Light's on. Okay. You've covered about everything. Thank you very much. I asked that you affirm the judgment of the district court. Thank you. There you got a closing statement. You got one. Ms. Fritz, we appreciate it. Ms. Aeroneda. Thank you, Your Honours. I will be very brief. Going back to the total amount of loss, 2B1.1 in the section about credits against loss, I'm going to reiterate my position that I really do not believe that the way this is worded that when it's the same entity that is sustaining the loss and is rebying the loss. I believe it was not meant to, this wording about what was the amount of disposition of the collateral. I think we need to make a distinction in that the victim, for example, in subsection 2, they say the victim recovered at the time of sentencing from disposition of the collateral. Where the victim was key source bank. At the same time, key source bank was also the buyer of the collateral. Key source bank, we do not know if they were still the owner at the time of the sentencing. So, if it's still the same party, so I guess what I'm saying, if it's the victim and the victim is still the owner of the property, I think it's just too early to tell the amount of loss. Thank you. That's the very strongest point you have to make in rebuttal. That's what you think is your strongest point in rebuttal. Well, just to go back to the first point you argued in the case. I was just going to very briefly. The other point I was going to make had to do with capital loan bank and the bank official host settler, when he said why would a bet, he was talking about that the UCC filing had no value. Well, my question would be, well, why would a bank do a UCC filing if it has no value? They don't just go through these exercises and they execute a security agreement. So, basically what I ask is for a resettancing remand as to the amount of loss. Thank you. Thank you very much. And we appreciate your efforts with Aranada

. You're also a court appointed and we appreciate you taking it on and helping us out with this case. Thank you very much