The judge is not right. The false application statements continue to be material because Calk cannot just approve a loan and put on the paperwork, I am approving this for personal reasons. There has to be a paper application that on its face justifies the loan. The application and all the statements in it are still false. The judge is putting his thumb on the scale. And he is not right.
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This guy is desperate to undermine this trial
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This is a rather technical matter. The judge is talking and thinking common law tort fraud where it is necessary to show that the victim was actually deceived, in which case the issue would be whether the CEOâs knowledge gets imputed to the bank. Ordinarily, the answer is ânoâ because the presidentâs misconduct is ultra vires (beyond his legal authority as an officer). His status as a major shareholder, however, muddles that issue. If he owns it 100%, the answer is yes, his knowledge is imputed and thereâs no fraud. If he owns a controlling interest but has other shareholders, itâs a somewhat harder question. If he doesnât have control, the answer is no.
So thatâs whatâs in the judgeâs head but it has nothing to do, the prosecution says, with the criminal charge because the materiality element is objectiveâwas it capable of deceiving a reasonable person?âregardless of whether it actually deceived the banker.
And Iâm not going to be hard on the judge for not knowing this. I recently had to brief and argue motions on extremely mundane and common procedural matters and discovered I didnât actually know anything about the relevant law and, by only by great good luck, had been, in my ignorance, right all along. There were all kinds of pitfalls I had never heard of in that particular branch of the law, even at my advancing age.
We canât know everything. Judges and lawyers alike depend on a general gestalt of How The Law Works to make sense of the stuff we donât actually know yet and judges depend on the lawyers to educate them with briefs like this about what they donât know, particularly when the law (and itâs usually a statute) is inconsistent with the judgeâs lawyerly That Donât Sound Right filter.
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Itâs as if Ellis believes white collar crime is a victim less crime.
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I read the trial brief. It is 9 very well reasoned pages. My only complaint is it is 9 pages. That is a very long trial brief for a very simple point. I was always told to make my point quickly to be sure the judge actually read the brief.
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YES ⌠and even it it becomes a messy mistrial because of these bizarre judicial irregularities - he will turn it up to 1,000 decibels and screech that he has been TOTALLY ABSOLUTELY vindicated - and in a wild distortion of reality accuse Mueller of acts of Fraud and impermissible over-reach - and fire him and demand charges be brought against him.
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I read the SCOâs memorandum, and itâs a very sound argument.
Basically, Calk volunteered the bankâs funds to Manafort in exchange for a potential job and ignored the fraudulent loan application related documents. The fraud happened upon the bank, not to Calk. The two are separate legal persons and the Judge should understand that. Calk is arguably a co-conspirator in this fraud. I sense that Judge Ellis wants the SCO to actually charge Calk for his role in the conspiracy and is putting the burden on the SCO to show how what Manafort did could be a conspiracy to commit bank fraud even if he hasnât charged one of the key players in that conspiracy. But I think thatâs flawed for the reasons the SCO has stated. Manafort and Gates were responsible for filing the false statements about the Yankee tickets and other items of debt, and the bank had to approve the loan based on the information they provided, not based on what Calkâs motivations were. This is an objective analysis on a reasonable person/lender basis.
Even if there had been no fraud on the part of Manafort/Gates, Calk would still be under scrutiny for violating his fiduciary duties because of self-dealing and ignoring the opportunity cost of committing so much money to Manafort instead of the other potential, more profitable loans that could have been made.
As an aside, I donât know if the SCO was intentionally trolling Trump and the Trump campaign officials on this, but I suspect Junior is not going to like this statement,
âŚit is well settled that the government is not required to prove that the parties to or members of an alleged agreement or conspiracy were successful in achieving any or all of the objects of the agreement or conspiracy. See United States v. Tucker, 376 F.3d 236, 238 (4th Cir. 2004) (âProof of a conspiracy does not require proof that the object of the conspiracy was achieved or could have been achieved, only that the parties agreed to achieve it.â).
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Oh man, that is just rude.
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Say a bank manager informed the court he had foreknowledge an armed robber was going to enter the bank and empty the tellers drawers. Would Ellis question the propriety of charging the bandit with armed robbery, all because the bank manager knew he was coming?
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If the bank teller is in on the robbery, it doesnât make the robber innocentâŚnow does it?
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Maybe Manafort did not want the loan and was hoping that the CEO would turn him down.
Yeah! Thatâs it. He really didnât want the loan. So, no fraud here. Letâs move on to Mueller subpoenaing ânarange jefeâ.
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@ncsteve has a great explanation, but from my IANAL perspective, the judge raised the question if the defense had a valid argument. This forced the prosecution to write down the (frankly, easily understandable) reasons why the defense argument is crappy. It just adds to the documentationâas did the previous requests for the judge to issue correctionsâand makes the case against Manafort clearer and more coherent and thus harder to appealâŚ
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So Calk is a co-conspirator to committing fraud. And yes I used that âcâ word.
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Will you please stop being so reasonable. It is interfering with my incoherent rage.
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âJust because a bank CEO was aware that Paul Manafort was committing bank fraud doesnât make Manafortâs conduct any less fraudulent, Muellerâs prosecutors argued in a court filingâŚâ
The judge knows this. He has been openly trying to influence the jury toward Manafort since day one. I believe this constitutes another reversible error by Ellis.
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LOL, that is certainly how the Orange Oaf and Rudes are handling Obstruction.
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A couple of big problems with your argument. If the Judge wrongly influences the jury to acquit double jeopardy kicks in and except in very well defined and very rare cases the Mueller team doesnât get a retrial. Second this discussion happened at the bench. It wasnât overheard by the jury. This very good trial brief is probably sufficient to educate the judge and his clerk on this matter. If not the prosecution will have another pass at it when the instructions are discussed in chambers prior to being delivered to the jury.
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good read here:
And donât believe the hype: This trial thus far is going far worse for Manafort than it is for Mueller.
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