as we get into the statute of limitations discussion i think it's important we keep track of the time line which with these events occurred the st event occurred on november th two thousand and ten when the alleged victims of wrenching group in the defendants entered an who deposit the money had to be made aware of and consent to the distribution of that money for the purposes outlined in the memorandum of understanding that money was deposited on december th was not a signatory because they were your honor it was it was a joint account and they both were on the count and had access to the bank statements and it was a joint account in that sense and there was and understanding that went into how that joint account was going to be governed and how the money could be dispersed from that account on just the st withdrawal of the account takes place on december th two thousand and ten defendants tried transferred sixty two thousand five hundred dollars out of the account without indictment in the trial went out of its way to say that mr goshen mr jurgens and prevented laurentian from getting copies of those bank statements in order to prevent them from covering and discovering the fact that the money was being taken out agreed to it they haven't consented to it and they ask him where it is and then he then after the cat is out of the bag covers up where the money is he then tells them lies about what has happened to it and what is what is done to it march t to if we pursue criminal charges the judgment that some of us had is that it would make it very very difficult to continue to finance the project that we still needed to raise money that if there was a taint of fraud on this this would kill the project for good so we waited as long as we felt it was reasonable until the end of august of two thousand and fourteen so march th two thousand and eleven will wrench and knew that they had been the victim of fraud knew that they could have called the f b i and decided not to  still hoped they would be able to pull off financing the project in any event and because they were told additional lies about where the money was and what the state of it was that's that's correct now there's no dispute that mr jorgensen lied about what he had done with the money that he was not supposed to take in mr goshes well there's no doubt about that the question becomes though do those discovery lies those post apprehension lies extend the life of the current conspiracy conspiracies not simply to take the money and run right in other words if somebody gets my credit card and goes to town as soon as i'm aware of the fact that they're going to town on my credit card that's the end of it but this was a scheme to take the  money disclosure of that fact and pro along the use of that money so they can eventually repay it that was the goal right i don't think that's the goal your honor that all of the conspiracy that was charged was the purpose of it was to steal the money and conceal the fact that's what the alleged conspiracy is that the purpose of the conspiracy the concealment ended when they looked at the bank statements and realize all the money was gone like they are nowhere that they're told the money was someplace safe right that is correct but  would be the getting it back that is correct in grunewald says that doesn't matter grunewald says that any any statements made after the main objective of the conspiracy have been accomplished and that's the point where the main objective of the conspiracy is to take the money and run one of the main object of the conspiracy is to take the money and delay a disclosure so that you can achieve some other objective i'm a see my my time is almost up the purpose of the conspiracy is the theft occurred  they took the money out of the account what they did afterwards to explain away what they did with it to ever not charged with theft they were charged with fraud conspiracy to commit for other not charged with active for other actually they were not charge of the single count of active fraud not a single one they were charged with the conspiracy to be doing this thing and once it was moved without permission to another account you know that's actually not what i'm saying in the conspiracy ended when they discovered that it then moved the conspiracy ended once the victim becomes aware that they have been the victim of a fraud and they actively decide not to contact the f b i knowing they are the victim of fraud but they think it's one fraud and not the actual fraud right they think they realize that they have been the victim of moving the money without authorization according to what they had agreed to do it but that doesn't necessarily mean that they have been defrauded as opposed to having the money put as they were told in a safe been the victim of fraud and george was ingle who is the c f o of laurentian testified if we pursued criminal charges the judgment that some of us had is that it would make it very very difficult to finance the project and so we waited as long as we felt was reasonable and they have the hope they have the hope that they're still getting that they have the hope that this is not a fraud and that they're going to be getting along which of the i want to clear out they did they know that the victim of fraud they just going to get the money back there's no dispute that they know they have been the victim of the fraud what they are trying to figure out a way is if we hold on long enough maybe they can put the money back to be induced to not go to the  the hope to feel get the money back based on representations false ones made by your client right they were not induced at all because this decision was one that they made on their own but they made it on their own based in part on statements that the money was safe if i break into somebody's house and steal of the walker watch and they know that i've stolen it and i say don't worry i'll give it back later don't go to the police it's not a theft case and you keep making that point but case it's if you will use you to commit fraud which involves false statements that are designed to defraud somebody of something of value there's no doubt about that your honor but that but the conspiracy is what they're charged with they're not w the the the victim of the crime views or whether he knows or doesn't know who the person might never know but still the crime was completed when somebody went into the home and stole the object i agree in this case sure of the different from this case it's actually not in my humble opinion because in this case the fraud was completed when all the money was taken and when real wrench and discovered that the money was gone that's when the crime is complete any statements after that are a separate conspiracy to conceal the fact that they have stolen the money they government could have charged a separate conspiracy which is what grunewald says you should do there was no statement made after before the discover before the money was gone that  of the statue of limitations the government the judge said it's premature let's wait and see how it comes out at trial they didn't renew the motion so they did argue to the jury and that as mr was in testified that this was a considered business decision by the  go to the f b i that they looked talk to their advisers talk to their financial people and realize that if they had gone to the f b i like they knew they could have it was going to get in the way of their deal so they were not lulled into not going to the f b i the f b i because they didn't realize that they had been a victim of a crime they knew they had been a victim of a crime they decided not to go because they thought it was in their best interests not to and they ultimately decided well my interest is now up august two thousand and fourteen they go into your point your hon they'd still it wasn't like in august of two thousand and fourteen they suddenly discovered where the money was oh my goodness i'm never getting it back and i knew that the money had been used to pay expenses for your client they never they didn't as far if i take money and you don't know where it is does that mean i haven't stolen it i think it means i've still stolen and you just don't know where it is but i'm not allowed to have it it's not my money i took it without your authorization the fact that you don't know what i did with it doesn't mean i didn't commit a crime so if my bank tells me to move one thousand dollars from my checking account into a different account they're sorry about it we'll move it back we don't worry it's safe and they've actually spent the money i know when i learned they've moved it out of my checking account and that's the end that your honor is it is an example i really want to kind of dwell on because the lonely much time to i'm sorry but i'm not trying to answer i'm trying to question because the lowing doctrine is to keep you from apprehending that you have been the victim at all and again they knew they had been the victim of the money moving out of the account and they reach a contract that's a rich country but they described it as saying we knew we could go to the f b i we knew we had a criminal charge on our hands we also know that a criminal investigation would get in the way of our long term goal of financing this project so it wasn't as if they were unaware that they were the victim of a crime they knew they were the victim of the crime they testified to it at trial they just the monks themselves that if we do this this is going to get in the way of our larger goal of trying to finance this project and once they decided that you know what this project's never going to get financed this project is dead they went to the f b i in august of two thousand question for the jury understand ok so it was before the jury but it should never have gone to the jury because the evidence i mean it's uncontroverted that the statement that mr jurgensen made about don't worry your money safe or it's with the  whatever it is she specifically said came after laurentian had discovered the money was gone it wasn't in further into the fraud the front had already taken place they concealment dealt with let's make sure laurentian doesn't find out the money is gone which is why the government i'm sorry your hon understanding of abuse of trust this requires a position so in ordinary parlance perhaps he had some that he took upon himself and was considered mention to him trust him safe keeping in the money right that's fine but that victims perspective not from the defendants understanding the trial and his attempts to whatever he's trying to do at that point from the victim's perspective verdant had no discretion whatsoever none that they couldn't then anybody ever signed a card for that account from the much that i thought no you saw in the record that no one from the mentioned that was in the remit had actually signed the card maybe that's lunches problem but edwards both talked about how they believe that robin wants to go signed in november th or whatever but it was through other record evidence it was established that juergen was not present at that meeting and it's not clear whether the whether robin wants to go signed the form and it just wasn't submitted or if it was submitted for a different account or if the bank makes it up it's not entirely think why the joint account was not established pursues a memorandum of understanding that the wrench in would be a dual but again the question about whether the mention was a signatory it is not really doesn't get very far in the analysis i mean it's not as though surgery unseen or anybody at verdant was holding themselves up guideline to have a situation where a initially relationship that is not a fiduciary relationship or not a position of length transaction between two relatively sophisticated parties we could quibble about that and then was transformed over time because of the lack of the signature and so want to because of their total control of some level o good morning your honors may please the court my name is michael barnett i'm an assistant united states attorney from the northern district of new york and i also conducted the government's trial before judge stannis your honor the issue statute of limitations was argued extensively to the jury from beginning to end culminated not only in a guilty verdict but the jury's answer of yes to a special interactive torrie question on the verdict form as to whether the government had proved  conspiracy that extended into the limitations parried the defendant's burden is a heavy one day after show that no rational jury would have found this jury found they are making a sufficiency argument and in making their sufficiency argument your honour's they understate minimizing really ignore the breadth and depth of the evidence that was presented at trial and i just want to give one example of that the jury heard extensive testimony from husband and wife barbara grieve byrd and jerry holmes they were partners in the verdant company with the defendants and they testified about how they too were attorney spending between fifty dollars and one hundred thousand dollars and threatened to sue their own company before they received financial information including what happened to laurentians money and that did not happen until september two thousand and twelve of course well into the objectives of the conspiracy well this court's president as well as greenwald ask essentially st what is the conspiracy what is the government what is the government proved and then scenarios your honor in which acts are taken that might even benefit a conspiracy that are nonetheless not part of that conspiracy and would not extend the limitations an example might be a group of people get together decide to rob a bank they go their separate ways put up the money six months later one of the bank robbers burns the clothes that he wore during the robbery out in his backyard that may benefit the conspiracy but if the conspiracy ended six months ago to the f b i so your honor i think we have to take to take that into two time periods between march of two thousand and eleven and really the through the end of two thousand and twelve or engine was completely in the dark that it's money was stolen transferred to another part of the bank and and the why here is really important and interests and the money had been transferred they said it had been transferred in furtherance of our desire to help you fund this great project in plattsburgh new york that's the reason we transferred the money in say we transfer the money so you would never see it again they said we transfer the money in furtherance of the project exactly and in november two thousand when we were in homes we are now  knowledgeable about what happened because they hired a lawyer and got the documents pursuant to delaware law they find out what happened they resign and as they resign they write a letter to the ranch and saying by the way we think your money has been stolen so at that point it's fair to say our engine has knowledge that their money's been stolen we're well into the limitations period and yes between that point and march of two thousand and fifteen they made a business decision not to immediately go to the authorities and that's in the record not contested their st report to the f b i actually wasn't in august of two thousand and fourteen it was march of two thousand and fifteen so but the but the key is what they knew in eleven and twelve because case is entirely on all fours with this court's decision in rogers from one thousand nine hundred and three involving tell ex's that were sent following the fraudulent exhaustion of a line of credit as well as this court's decision in two thousand and fifteen in include post theft communications designed to prevent the victims from finding out what happened and again i think it case by case analysis is very important because in this case as judge sullivan said it's not take the money and run it's take the money stick around hope to replace it and also hope to finance the project and that is in fact what they did with a nother victim who situation was presented at trial they're called  group and in fact that's exactly what they did to areas group they solicited initial equity investment a few one hundred thousand dollars immediately stole it in spent it like a ponzi scheme exactly exactly what do we make of the fact that the purpose of the  alleged and what we proved at trial we also said your honor paragraph nine that they misrepresented and i'm here paraphrasing misrepresented conceal disguise and failed to disclose material information about the location safekeeping and use of the money that a twenty three  indictment paragraph nine so the indictment lays out what the government intends to prove a trial gives gives very fair notice of what we intend to prove and of course in keeping with this court's precedent in in a case called koski we can go beyond the indictment in terms of proof a trial song as we're consistent with the indictment and there's no argument here that there's any kind of variance or departure from from what's in the indictment the purpose of the conspiracy was to steal the money and conceal the fest and we showed a trial that the motive for concealing the theft was to eventually replace the money and actually they wanted to fund the project and they actually say in their sensing argument to this court that they always wanted to return the money they always wanted to return the money and then how is there not a conspiracy to do that following the theft and the jury could conclude as as we showed a trial that this was a single conspiracy to steal and conceal at the outset your honor i did not hear anything on the what we call the rd issue on our in our brief which is the expert testimony issue i did want to know briefly that that was a situation where jurgensen wanted to present the testimony of a law professor who he was a lot of testify as to some general aspects of things but he wanted the law professor people such as jurgensen and the court drew the correct line in this case under seven hundred and four b of the rules of evidence you correctly concluded that that was really an attempt to get an expert to opine as to the defendant's state of mind which seven o four be expressed and precludes we also made a for a three argument really also for a one argument pointing out that this would be hopelessly confusing to the jury because the expert professor would be brought into a pine on a fraudulent scheme that was not even charged in the conspiracy and opine on fraudulent intent in some other scheme that as we contend it had no bearing on the scheme actually charged and our position i just want to be clear is not that a law professor can never come in and testify certainly there's there's lots of good uses to it while professors could be public or private trust and then the application note number number one refers to definition of public or private trust and it says public or private trust refers to a position of public or private trust characterized by professional or managerial discretion i eat a substantial discretionary judgment that is ordinarily given considerable deference so it seems to me that the intention of this and this definition in the application note is to distinguish between someone who is given a substantial difference with respect to like it like a trustee or somebody like that not not limited to a trustee and for example an extreme example on the other side someone who is given a a clearly defined task without a lot of discretion for example if you say to someone take this suitcase full of money and or envelope full of money and take it and deposit it in the bank  person in the latter situation is given the opportunity to do something inconsistent cards but is not given discretion is simply told to take this envelope full of money and deposit it in the bank or do whatever the instructions say so the defendants are arguing and how valid the argument is is another question but they're saying that that if they were not given discretion they simply don't come within this within this guideline which which which is it is not just a not just a general discussion but he uses it opens with the word definition were given discretionary judgment as to exactly how the account should be opened meaning there were specific instructions on opening the account but they were entrusted with making sure so judge issue is i mean if the if the instructions were specific you're saying the fact that they violated the instructions means that they had discretion but it seems to me to mean the opposite if they if the instructions were specific it's not that they were left with with with a portfolio of discretion as to how you set it up they were told exactly how it should be set up and you say they violated the law like somebody was told take this money to to garcia instead of doing that the person takes the money elsewhere well it was a mix your honor there were certain instructions about how to open the s tell me what some of those are well for instance providing account statements they were supposed to provide account statements every month but right agreed but their reason that this is a close call or difficult issue is usually in the context of an agreement the fact that a an agreement is breached doesn't tell us that that's as a result of discretion it's just a breach of the agreement and you've described only things that reflect a breach of then and it is a checking account in a savings account they're not allowed to do whatever they want with it but apparently if they do there's no abuse of a position of trust well and this whole case judge belvin was about abuse of trust they for sure not trusted them to do certain things such as to open the account to make sure the correct signatories were on it and to provide monthly account statements so i agree your honor there are instructions in this case but in terms of that the bigger picture of what is a fiduciary and somebody to do what you tell them to do is a different thing from giving them does discretion to decide how to go about accomplishing some some ultimate ultimate go but i think they did have some discretion although there were there were some instructions and i guess that's what i keep asking is right well they're well russia that they have as opposed to the as opposed to the opportunity not to do what they were told to do which they had plenty of opportunity not to do with they were told to do what did they have the opportunity to what were they given the discretion to decide whether to do it this way whether to do with that way whether to do it some other way son had a lot more discretion in the sense that the account wasn't open as specified they knew that because they were transferring the money and that's why jurgensen testifies and this is important that he was if you do share by the way we establish through cross i believe the situation morphed into one in which they did have a lot of trust and they knew it and the laurentian after the theft was trusting the gentleman to tell them the truth about what whole project because they were essentially holding orange and hostage a said you know don't report this to the authorities don't jeopardize the project they said trust us it's with the lender please don't contact the lender we can't tell you who the wonder by my colleagues is the forfeiture of a joint and several forfeiture that's exactly what i want to address because in our brief we suggest it may not be been in fact we agree with the defendants that it is in our indictment we saw so it's certainly a little bit on the restitution certainly says joint several that's what judge sent us said but i don't see any way to treat this is anything other than joint and several and that's really the point which is proven at trial always had joint possession and control of the two point five million dollars so to make them jointly and severally why a bill in this context is entirely proper of the four had the two dollars exist exactly your honor is true even if concealment is explicitly charged in the indictment so the fact that the government charged concealment with the indictment that's grunewald it for a one even though it's explicitly charged in the indictment that does not change this charge from one of  after the fact after it's been apprehended to your question specifically so the concealment in the indictment is of no moment room walled speaks specifically to that as relates to the holmesian group or testimony that he relayed the government talked about those were and there are of no moment this is not about what they knew and when they knew it this is about when the victims became aware that they had been the victim of fraud their testimony was uncontrovertible them they had a board meeting the day after they received the bank statements decided they'd been the victim of fraud and decided not to call the f b i that happened the day afterwards as it relates to rogers incredible distinction must be made between this case and rogers in rogers the two point five or two million or line credit had been exhausted but the bank did not know that the leases the that the fed it was continuing to give to the bank to support that loan were false whereas in this case it's incontrovertible that the victims knew the money was gone so that's a huge distinction in rogers the money was already gone they continued to then for in falsified leases to keep the bank from finding out that the that the loan was false and  fraudulent that's not what happened here these victims had perfect knowledge the fact that the money was gone and again we're aware that they've been the victim of a crime so rogers actually stands precisely for what we're talking about which is that statements done to keep the victim from b apprehending that they've been the victim of a crime campbell the statutes but that's not what happened here what happened here is they knew they had been the victim of a crime the statements came afterwards mr jorgensen statements were done to conceal the fact and consider the purpose of covering up the crime and the government made a statement about the fact that well they really want to pay the money back that would be a separate conspiracy that is completely correct that is completely correct this is that is what the conspiracy should have been conspiracy was designed to get them to turn over two million five hundred thousand yes for your clients to be able to use that money for personal reasons and for business reasons to then pay it back so that they would never know they were hit and then to keep doing this with other clients your honor all due respect they were never allowed to use it for personal reasons but they weren't allowed to know we're not allowed to they that was never the rule if they did they absolutely did they absolutely did in laurentian inflating their contract with the conspiracy you know the conspiracy is in fact if this is not a breach of contract case otherwise right i agree it is a fraud case otherwise it's a fraud case and the fraud is i lied to you about why i'm going to take your money i take your money i do something else with it and  then and then you discover it and then you can prosecute me or not statements i make afterwards to make you feel better about the fact that i've stolen your money and i'll give it back to you and i used it for another purpose and i'm really trying to secure a loan are not part of the charge conspiracy even if concealment is charged in the indictment the concealment goes to you you on covering the nature of the crime in the st instance any concealment done after that is covering up the crime which is what they did i don't find that terribly persuasive because if the if the concealment is in the nature that it does that it gives you the hope of getting away with the with the with the conversion of the two and a half million dollars i mean stealing the two and a half one million dollars is of limited value if the minute you've taken the money out of the account the whistle is blown and the and the law enforcement comes down on you and so forth  a much better is to to arrange things so that the people who put up the two hundred and two dollars and a half one million dollars that you little by little take out of the account are duped into thinking that they've still got their do you going and they do you delay and delay and delay it and perhaps in the end you get away with it without ever having the whistle blown or getting court arriving to give the money back or or any bad consequences and that seems to me to be the the nature of of the continuation of this conspiracy that they were lolling the victims of the crime into the into the trying to trying to get them into the belief that nothing bad had happened and everything was going to come out all right and the longer they extend this the greater the chance of the ultimate we getting away with all of it right i grew with almost everything used you said that's statements and they didn't and they did it to keep him from finding out the money was gone and that they didn't find out the money was gone until march rd and they're like oh moley mr jurgensen our money's gone and then once they know about it they know they've been the victim of a crime the concealment is then over there's nothing else to hide what do they know the victim of the crime is the same destroyed well it's the charge that the crime that was charged with conspiracy to take the money and the concealment but the concealment your honor it's really important we understand a group called says the concealment deals with uncovering the conspiracy it doesn't deal with post concealment statements after the conspiracy has been uncovered and that's what happened in to say that they didn't know they were the victim of a crime is to ignore what george was ingle t to that we know we were the victim of crime we decided not to go to the f b i and we waited as long as we could to not go to the f b i to see if we could somehow still pull this off and nothing happened in august of two thousand and fifteen the classic concealment of the crime after it has already taken place if not immediately available and that it would be returned classic covering your tracks concealment after the conspiracies been uncovered furthering defend its objective of preventing  financial deal and demanding the return of the money the last thing i will leave your orders with is they did demand the return of the money they demanded the return of the money a month later and they demanded that let that go should jurgensen execute personal guarantees so they did conspired to commune wire fraud and conspiring to commit wire fraud with respect to the facts of this plea is broader than simply conspiracy to take two and a half one million dollars it's to conceal the fact that they took the two and half one million dollars that's the charge and how he took it and what they did with it no there's nothing in there about the government that's one element of wire fraud the government to prove what you did with the money some element of it they don't prove that it's a material fact that would have an impact on the victim right but the victim no no no the victim to the money went from one place to another the victim didn't know what the actual state of the money was that's true your honor but they can they know what the actual state of the money was was doesn't change the fact that they testified we knew we had been the victim of a crime and we could go to the f b i did the fact that they didn't know where it was doesn't change the fact that they knew they were the victim of a crime otherwise if you have to know what happened to logan focus again and again and again and focus again on the abuse of position of trust the government was it seems to me that was is not the basis for the application it's an objective test obviously but your client was an officer verdant right yes ok and so i was an officer of verdant was expected to conduct himself to by jolly in which the defender was a vice president of the company i believe was a contractor that had secured funds from the government and was required by law to disclose certain information to the government about the money and there was found that conduct i mean that's a bit of a to think are you saying that the loan officer reserve you the bank has abused some trust within the structure of the bank or are you talking about the that's the point right that a person who is an officer of a bank or an officer of  s who is getting access to this money only by virtue of that relationship abuses that position of trust when he takes it but not visa via the victim and the victim's neck and if that's your answer then in a bank officer would never be relationship is such that one of the counter parties exerts total domination control over an account and that that might be one of the transforms from  substantial discretion that's the point that he made the people not in this case you just put it in ask no is not is not discretionary but that's there again the lawyer has a position that society views is as as bearing be containing whatever some disc substantial discretion and the th victim the client always go to war you're thinking that the war is acting on his best interest by virtue of that position that's not the case of the guy