this is the case with george prescott right that's right here and now i'm now in there and it is also a case in which our burden on this motion for certificate of appeal abilities to stablish merely that there is a debatable question my name is christine chung i represent the petitioner raj rajaratnam your honor this is an appeal for a potential appeal in which the central holding of the newman holding of newman that has not been changed through subsequent development is at issue and that holding is whether in a remote tip or scenario where the defendant is a remote did not have dealings himself with insider the government a deuced proof that the defendant knew that the insider had disclosed confidential information in exchange for a personal benefit so for example the case martoma that was decided a few weeks ago was about the definition of personal  benefit the benefit that was in fact received by the insider this case is about certain counts and certain trades mr rajaratnam is not here to say that he is innocent of all counts he has served six years of an eleven year sentence but he is here to say that on the counts where he was a remote to be the government did not a deuced proof that he knew that the insider had received a personal benefit that the insider had acted from a motive of disclosing personal disclosing actual information to get personal benefit and what the district judge did in this case judge prescott was instead of finding evidence in the record of knowledge she relied on an inference that newman itself says is impermissible and because of that class your honors were here to ask for permission to fully brief and argue this issue for the purposes of this motion i'd like to focus on count two because i think it draws the straightest line in illustrating the defect in the government's proof count to encompass three trades polley com hilton and google and it's undisputed your honour's that there was one intermediary the same intermediary for those three trades a woman named r evidence there was and was not through questioning of me and the government so let me lay out what happened here in these three traits mr rajaratnam is undisputed did not have any dealings with the insiders he only dealt with ms khan the government did not call the insiders text said anything about the circumstances in which the insiders disclose the information to the intermediary misogynism she wasn't and so she had to get the information from somewhere well he had she had to get the information from somewhere so what does what does martoma dirks and newman say about that they say the reason why the government has to put on proof that they got that the defendant knew what benefit the insider received is because there are many circumstances in which the insider can and must disclose information that is benign that is not for personal benefit and those include disclosing purposely disclosing information to market analysts who do their jobs in keeping the markets up and running secondly inadvertently thirdly out of a mistaken belief that it's not inside information forth because as in the dirks case you're a whistleblower and you're trying to get information out to the market so mr rajaratnam and his undisputed did not know with respect to these counts which account for twenty three million dollars of the last figure attributed to him anything about who the insiders were where they worked or why they disclosed information to  is it that the government is saying that they say did put on proof that sufficient to overcome the hades challenge the government is saying they're very explicit about this mr rajaratnam was a specific a good businessman who knew from the fact that he gave money to intermediaries that he himself gave money to insiders on other occasions he knew that this kind of information was not be disclosed for free would not be disclosed out of altruism but that inference is exactly the inference that was rejected in the newman case and you're on i want to be very careful about this and read from the newman case and this is seven seventy three f thirty four fifty four the government now invites us to conclude that the jury could have found that the insiders disclose the information for some personal reason rather than for no reason at all but the supreme court affirmatively rejected the premise that a tipper who discloses confidential information necessarily does so to receive a personal benefit newman itself judge leslie was a case in which mr newman was accused in the proof the trial showed that he gave one hundred seventy five thousand dollars to the intermediary and this court said that even that fact did not me that you could impute to the insider the same non altruistic motive that's a step too far so here we have a situation the only other thing that judge prescott relied on and i want to be very clear about this your honor because it's very difficult to establish a negative in the record judge press found that there was proof that based on the government's representation that's made on pages nine and twenty four of their briefs below that miss co rajaratnam the name hussein of one who was one of the insiders and that hussein was going to get information inside information about google that is not true when you go to the government's brief and you look at the exhibits and the in which ms hussein got disclosed information so this is a circumstance where exactly as in newman there was no proof whether mr rajaratnam knew that the insider gave the information to get a personal benefit or perhaps misconduct the information truth she tricked the insider or perhaps she got the information because the insider she inadvertently disclosed what's the relief you want from us and what is the spender the words we're supposed to apply here the standard your honor is not whether we're likely to succeed on the merits even it's whether or not it's a debatable issue and i think i've reached my conclusion which is that because this is a case in which when you look at the paragraph in judge press because opinion she relies on two things one good morning your orders michael ferrara for the government i have represented the government below throughout the proceedings but i did not represent the government prior to the proceedings let me just start by saying my adversary is correct the way i wrote that in the brief i regret it was poorly worded and gave the impression that khan had told rajaratnam the name of the insider that was not the evidence and i would like to just correct the record on that but i want to step back before i address this actual innocence argument and i want to just make one thing clear there was no error here in light of recent we call developments there was no error what we are now arguing is rajaratnam knowledge of disclosed by an insider would directly or indirectly obtain some personal benefit from the disclosure and quote and assuming that george was correct what was the evidence the evidence of that the evidence on that charge what my adversary wants to do is capping the evidence as if to say in a trial a judge says to a jury ok this part of the witness's testimony goes to count one this part of the witnesses testimony goes to count two that's not how it works of course the court knows so what the jury had in front of it was evidence over weeks of one of the most sophisticated insider trading schemes ever charged and proven in this district rajaratnam paid directly paid insiders multiple times they heard about his payments to kumar which at rajaratnam means when it was roger items idea that those payments would go through someone in a different name through another country these were deliberately sophisticated transactions that were supposed to be hard to trace the jury heard that the jury heard that rajaratnam was trying to help cover up his crimes they heard adam smith he talking about covering up the crimes and she has his relationship with her insider and my point here your honour's is to say it's not it's not that the jury didn't i was it would have been inappropriate for the jury to put all that out of its mind relying simply on the number of intermediaries but what we're saying here is where there's one step and the step is a former employee of gallia who who understood how that place worked who was working with rajaratnam for years and now rajaratnam is giving her tips the jury was absolutely entitled to infer that he understood she would be giving the insider a benefit given the very low threshold that we are pretty which we are present abiding by by the legal standard here there's not even and ever much less actual innocence this is the case we would be wasting the time of another pound you would be wasting the time of another panel in a case in a case where there is simply no error there was no instructional ever position here is that russia rotten can carry his burden of establishing he was actually innocent and that which troubled her roles correct and i just i just want to emphasize that our position is that's that's quite a