district court court's orders granting defendant david levy's motion for judgment of acquittal under rule twenty nine dollars and both levy and defendant mark nor the motions for new trials under oath thirty three dollars should be vacated and the underlying convictions reinstated because here the district court overstepped the limits on its discretion to vacate a jury verdict i thought the shooting its own subjective view of the evidence for that adopted by the jury i'm st going to address the court's role twenty nine order as to levy and then i'll turn to the role of thirty three orders that i was never an assistant u s attorney it's hard to believe i made it this far without i mean this long without being one but how to if you can see you really don't have to answer this but but how do you decide in a case like this where this is new york we see see also has a case related to these facts but i think you know i can't speak for obviously the justice department as a whole but i think that here we have individuals who lied to the investing public who issued a consensus attention relating to these fines that misrepresented their holdings that claimed that this transaction would be conducted in accordance of the law knowing that that wasn't what was going to happen and so in our in my view at least the stark wrongfulness of the conduct the degree to which it was essentially predatory upon unsuspecting unaffiliated investors is what gives rise to it being worthy of criminal prosecution and when we how how you want to characterize wost there's one hundred and fifty dollars bonds outstanding some number of bond holders decided to tender about eleven million and response the consensus a titian by tendering they gave up their rights to obtain a few additional months of interest payments for that group you could you could say that they were kind of misled into giving up those additional months of interest payments that they were otherwise entitled to but then we also have this group of  affiliated investors who did not tender if we chose to vote essentially no to the to the consensus of haitian and those people made their choice based on false information about how they understood this vote was going to be conducted in the and the legitimacy of the vote and so for those individuals they lost the entire value of their investment i would have to do some arithmetic to get you that number but it would be the the one hundred and fifty million total mind as that number controlled question what is the evidence what is the evidence respect to mr levy that he not only understood the platinum in beachwood were affiliates but also in our view and in that capacity she receives the same e mail from lawyers that the other individuals receive that advises them includes the provision about the affiliate rule and what bonds need to be disclosed in the definition of affiliate and so he's put on notice through that of how the backup was obligated to disclose the number of bonds held by affiliated parties in terms of his knowledge of the fact that beechwood mblaq were in fact  there he had primary responsibility for the funds investment in black uk which was the fund single largest investment he leaves in early two thousand and fourteen and its place is the chief investment officer at beechwood so he's the most senior investment decision maker at beechwood during this time but while he's in that capacity he's still simultaneously working upon him each would is being induced to invest in a whole host of companies in which pot and was invested and it's not as though ok they're affiliated but the question to me is does he know that failing to disclose the affiliation is part of a scheme and in that it should have been disclosed i would say that that he does by virtue of the fact that this bond indenture amendment never would have passed without fraud right what the consensus a titian was asking the bondholders to do was to subordinate their interests and their rights to  parties the holders of the preferred equity in exchange for nothing and we presented to e that irrational i don't have an explanation for you other than to say that we have a total number of one hundred and fifty million bonds and we have only six hundred thousand and one affiliated bondholders who voted yes so we're talking about a indenture that's going to allow blackout to pay the preferred equity and there's just no way that that would have passed without fraud because if the beechwood bonds in putnam's other holdings have been disclosed in the consensus situation and thereby excluded from the you so you have this you have this this transaction that you know isn't going to go through absent absent from because there would have been no way to get enough votes for it to pass and then you have the evidence of the correspondence leading up to the consen situation where you have levy small and nor elected this small group of people tracking the bonds which bonds are held by the various platinum entities and the various beechwood entities and in one instance actually doing the calculation right we see the  have more than half so that shows that they know that they are all these bonds are going to vote yes because they control them and that those bonds if they're able to be counted because they only disclose eighteen dollars that's how they get to pass and they themselves are essentially  transaction in the correspondence leading up to the deal you have and copied on all these e mails tracking the placement of the bonds and then we have him copied and blind copied on the e mails from beechwood employees actually voting the bond th more credit suisse actually voting the bonds held by beechwood that's a different category of correspondents so i can sneak i see i'm already out of time i have one more just a quick point earlier case law into a more succinct standard ruling that a new trial order can issue in limited circumstances on grounds of evidentiary deficiency where the evidence preponderance heavily against the verdict to such an extent that it would be a manifest injustice to what the verdict stands and the court there emphasized the district courts are not authorized to reweigh the evidence and set aside the verdict simply because they feel some other result would be more reasonable and specifically the court emphasized the importance of district courts differing to juries all archer doesn't articulate a brand new rule it's kind of a reader to kill ation and clarification of preexisting case law some of which was cited by the district court in this case and really the ultimate test is whether there was a manifest injustice at the trial manifest means obvious if there was some obvious injustice that took place at the trial judge kogan would have been able to identify that have that be the basis for his rule thirty three dollars decision rather than what we see in the order itself which is essentially judge kogan opting for to draw a less incriminating inference from the evidence and that that was drawn by the jury in this case and i would note that the archer decision itself did not remain on that case back to judge abrams because it found that the application of the honor good morning to the panel may please the court would so i'd like to just start with a just quick background i think it's important to understand the context in which judge kogan made his decision on scheme the the probably other eight weeks was spent sent on to spend on the other alleged scheme that the defendants were acquitted on so to cite the reason i mention that is because i think it's important to understand the context in which judge kogan seeings entire case and seeing the outcome of this case the other thing i'd mention is that judge kogan this is only the nd time that we found in his entire very illustrious career fifteen years almost on the bench that he has granted rule thirty three and the reply mentioned as again is because i think that what the government is doing in its brief and attempting to overturn the decision is to actually take the very very careful analysis that he goes through in his opinion and turn on its head and make it actually a detriment they're criticizing him for being so careful of the evidence and clearly from our perspective he makes a distinction between rule twenty nine rule thirty three which has to be exist because rule twenty nine rule thirty three serve different purposes and of course if they have the exact same standard which is effective with the government's arguing then you have a double jeopardy problem a rule thirty three because you can order a new trial if it had the same standards will twenty not so clearly there are different standards and the question is how do you apply now as as the panel noted and moreover from our perspective it's clear although he doesn't use the exact language opera pondered tabloid because that wasn't what was in ferguson another cases at the time it's clear to us that that is affected by what he found and  from our perspective the rule twenty nine dollars is incorrect we don't agree with his analysis we can't appeal it of course this point because there's no final judgment but we think it's rarely very relevant understanding how he came out on rule thirty three dollars so rule twenty nine his view which again we disagree with the of the application but clearly he drew all inferences in favor of the government and from a from what that means and it's clear from the case laws have been happening for decades it means to take all the evidence that points the guilt decide whether or not there's a reasonable jury could find that there's an inference of go and if there is the government operatives the verdict stands that's the way he looked at it and what he and it's very important that if you look at his rule twenty nine dollars analysis he goes to many pages of explaining why he believes that there was a rational basis or a reasonable inference could be drawn for guilt but he does not touch discuss the key critical testimony of two witnesses the government's own witnesses who said that mark normally did not control beach what he does not reference that for a good reason because he's trying only the inferences for all twenty nine that are rational jury could come up could come again but there was there  what what judge kogan death for the rule twenty nine purposes and again i think he resolved that exactly that way said on rule twenty nine can we just agree but that rule twenty nine that it will result in favor of the government but what he was doing on the rule reason we disagree with that is because there was and then why why would bondholders have approved the amendment to the indenture when it was of no benefit to them and to put them be what what why would any rational bondholder do that where i think that there are lots of reasons why we we don't know there's nothing in there a couple name i'll give you are going to call a couple could be that if bond holder has an interest in another entity that will be benefited by the asset sale that they're actually their economic interest would be furthered more by tech by by agreeing to the to the to the consen then we need to assume that's what the facts show well your honor i think the quote the question i think judge hogan addresses this issue is that whether or not this was the there was some kind of effort to ensure fact that that that that alone was the purpose and that you know some bondholders might like to do it some might not it's not really relevant to the ultimate question of whether or not there was an actual proof that martin or let vi of platinum control beechwood and the point that judge kogan makes very forcefully is that there is no evidence and he's the words he uses your honor he says no evidence that there was actual control or even potential control of beech spirit he he was one of the founders he had some people who were overlap no question the question though under the specific language of the trust indenture act as well as the indenture issue here was whether or not that constitutes control of management and policy and what judge kogan found was that there was no evidence that that alone that the fact that that he had these had some influence over investment decisions that he  asked or directed people to buy black elk bonds value alone gave show that he had control and the reason for that is because as the case law we cited a brief shows that if you control really means control means that you can actually direct and nobody can stop you you can't you you can't be vetoed you can tell somebody to do something they have to do and there was no evidence in this record to suggest at all in fact the evidence was all to the contrary to government when decisions are said that irrelevant so in so far as he helped to and i'm not saying that this was necessarily the evidence that he has a theory insofar as the theory was that he helped to facilitate whether or not there was actual control is in one sense about it he thought he was helping that was the objective and that's the end of the story and maybe that explains some of the reasons that the jury acquitted and i record is contrary to that and that's what exactly what judge kogan was saying rule thirty three which is that there isn't there is no evidence that martin or like believed that each word was affiliate based on the kind of the concept that he people there are bondholders or entities that you have some relationship with once you succeed for whatever reason but again are not controlling you are not controlled by you you can ask them hey we'd like you know to to do this because it will help us out or help but i don't know if this is another evidence but let's just take this hypothetical let's say that it was not just mr levy but a significant number of high level executives who platinum move just at the right time to  made by beechwood with that not be on the circumstantial evidence of some level of control by platinum to beechwood that a jury could then latch onto in that order at least to determine that there was sufficient control under the indenture you know we don't believe so and we think and we think so we don't believe so because again in it to us and the case law supports this control is very specific and means do you actually control the decisions imagine the policies of that entity if all the things you say happened which did not happen in this case and in the end the hypothetical that you you've offered even if at the end of the day those things happen but the policies and the management of beechwood are independent and can make their own decision and say no to all the things that have happened that doesn't transfer into control and that was the point the judge kogan is making and that's the distinction he's making and the rule thirty three is that if the end of the day all of this which is what the rule th analysis is saying from his perspective all of this looks like there's some kind of something going on that's fishy and we're shifting things the friendlies and things like that and that's what he's saying they will try not but on the rule thirty three saying but ultimately that doesn't matter because there's a big gap in the government's case and the gap in the government's case is that the only two people to talk about control as it as it's meant and the trust indenture on are in terms of gap in the government's case which is why we believe judge hogan sees this as a rule thirty three dollars not rule twenty nine dollars ultimately is that the government could theoretically we don't believe they could but they could theoretically secure that they could theoretically they didn't call fewer or taylor as witnesses in the trial they could try to bring other evidence we believe the evidence will actually show that they're you know where is it soon there is a nd trial we believe you have to actually be even greater that there is no control from that perspective or perspective but that's the distinction that judge kogan said please the court in morning my name is michael summer i was trial counsel to mr levy the rule twenty nine appeal focuses on whether the government troops under reasonable doubt my client knew that beechwood was a legal affiliate  and that he understood the control element of the legal standard and judge code was correct when he concluded that the government had failed to meet its burden for he properly found there was no evidence presented by the government that mr le be never alone by the investing public as it is said there is zero evidence of that in the record none of the decision of the district court should be affirmed let me give you a very quick roadmap of the three things i want to try to get to in this argument st i want to explain to this panel how the government has actually misrepresented the record when it comes to the two main witnesses on this point nd i want to address the emails that the government likes to hold up trying to sa had no criminal intent just as judged and recognized and for the government to suggest that evidence does not exist is stunning and false and that's not the only instance the government's misrepresentation of the record is just as alarming when it comes to attorney sheer from bigger hofstetter if you look at pages thirty four to thirty five of the government's opening brief to this court it writes the following i'm going to read it quote sheer explained that in preparing the consen government's argument is a complete fabrication they cite two pages in support of this blockbuster testimony from attorney sheer that he relied on david levy government appendix for four want and government appendix four  when you look at those pages you will see that what the government is arguing could not be from their from the truth and judge kogan do that and the government lawyers here today know that not a word was uttered by sheer about any role in the consensus was asian in fact attorney scherer acknowledged that he was unaware of any wrongdoing of any kind by mr levy in connection with the consent solicitation why does the government feel compelled to his reason so what about what about the evidence of the e mails this is summer and i feel a little old because i know all three of the lawyers who fought the case but what about the evidence that rule yes that happened it happened many months before the consent solicitation and the irony of that argument from the government is an attorney's year then for god himself about the affiliate rule as he acknowledged before the jury messed up you forgot the affiliate rule and yet the government the government wants to argue that david levy should be held to a higher standard than the attorney running the deal what was there was there any evidence that mr levy forgo there was no evidence that mr levy was involved in the consensus listen to it all as judge let me start let me answer the nd i want to answer your question judge let me just take the e mails as a group ok every e mail the government points to was written by someone david levy he did not write a single one and not once did he respond to any of these e mails or take any action with any of these e mails indeed there's no evidence he ever read these e mails or even opened these e mails the government could have put your that evidence that forensic evidence is easy but not nothing nothing this court has not hesitated to affirm the granta rule twenty nine or e mails with the chart showing the calculations i mean it should be passable that he never opened the not open them up but a recent jury could certainly conclude that he did open them up and he did meet them and that he did knew what was going on judge because one is an unreasonable inference we need the district court to be able to step in let me just say one thing about mr levy never did anything with respect to these e mails other than supposedly  your decision in united states vs all which addresses the distinction between a reasonable inference and speculation the latter being an inference that is in the realm of possibility but is not sufficiently supported to permit conclusion that the government is satisfied its burden beyond reasonable doubt that distinction is critical here because every one of the inference is that the government asks you to draw our speculation they're not grounded in evidence for example going mean judge i'm not arguing manifest injustice that's the rule thirty three provisional grant which i'm not even arguing now arguing rule twenty nine insufficient evidence let me give you one moment one more example the panel i can't remember wh platinum to vote its own bonds to effect the indenture change in her early two thousand and fourteen it had zero to do with beechwood nothing whatsoever and please don't forget what judge dredd we found that mr levy played it had a mode of its own financial motive to have platinum succeed and that and i can't speculate with the other six hundred one thousand dollars bond holders at the mine but certainly the beechwood perspective that was a perfectly repeatedly makes that clear that he was considering be evidence in its totality and he got it right a lot does not permit speculation as to an element of a criminal offense does not permit even reasonable guesses to satisfy the government i've heard and it is therefore not enough for the government to line up yes after desk and argue that some of those guesses somehow amounts to prove beyond a reasonable doubt i recognize that the standard of review here is misrepresentations it's made to this court in an effort to try to save a deeply flawed case are not reasonable and is judge correctly found are based on multiple layers of speculation it cannot be it cannot be that having e mails found in your inbox with no answer and no action can amount to criminal intent if that standard we are all in danger rule twenty nine exists is a state bar so the trial judge an you can look at that and says where it says it says nothing about the question of what the legal definition of an affiliate is and what mr levy understood or knew because there's no evidence of our not finally on the rule thirty three i'm not going to argue that i simply will point out you as we noted in our brief that the legal standard the government iraq's that if you reverse on rule twenty nine you must reverse on rule thirty three is not the correct legal standard there are different there is a different answer your honor's question about the number of bonds of voted no my co counsel diligently did some arithmetic during the defense argument and it's approximately thirty nine point nine seven so of the one hundred and fifty we had ninety eight million vote yes all but six  and not tender all but six hundred thousand of which were we argue controlled by platinum held by part number or beachwood entities you know the eleven million that tendered and the so to respond st to argument court they deliberated for a week and they came back with a mixed verdict so this this was not a case of a jury that was you know sleeping through the trial and writing the government a blank check it was a careful and conscientious jury and  d mr burke addressed the apparently conflicting analyses that the district court conducted under rule twenty nine in rule thirty three and tried to justify that by explaining that the rules serve different purposes which we agree again and and we think archer  clarifies rule thirty three is not rule twenty nine light it's not some relief that you get if the evidence was sufficient to pass rule twenty nine but maybe not quite up to snuff it's supposed to be reserved for manifest injustice and here the district court did not identify any credibility with witnesses did not of identify any evidence that was patently incredible or defied physical reality did not identify any legal defect in the instructions or that evidentiary rulings and therefore the disher court was bound by the inferences drawn and in his brief but if you look at judge kogan is ruling he finds in the rule twenty nine dollars section that there was sufficient evidence to establish that beechwood and the more affiliates and he doesn't at least expressly take that back in the role thirty three ruling instead his  whether or not mr gore but knew of the affiliate status so all of these arguments about the legal definition of control and whether or not we reach that really fall outside the purview of the order that we're appealing today and could be raised on direct appeal in the event that and so turning finally and i say i'm already running out of time to mr levy's argument i just wanted to to respond to the two accusations of the government misrepresenting the record and i would join mr sommer inviting the court to look at the underlying transcripts the testimony of mr mandela about these lawyers who purportedly consulted with mr foy or mr taylor at beechwood about that i'm still at status was very  times contradictory and he never once testified that david levy was told by lawyers or that he himself was told by a lawyers that these two parties were not affiliates instead what he testified to was that he was told that for until d or consulted with lawyers and that that's what he had heard and that there was a meeting that mr levy attended where the concept of affiliate status was discussed not even clear what the conclusion was at that meeting nd and mr sommer accused us of misrepresenting the record when it comes to mr scheer's testimony about upon whom  relied for accurate information mr scherer made clear that he relied on blackout and by platinum as the controlling stakeholder of blackout to provide an accurate information on the bonds held by affiliates mr levy employee at the time is still working at platinum and his primary to get this suspicion and his response to me was that at the time that he moved to beef with this is will be for the publics the station process and even once and before essentially plan and use views for it as its as its tool in a variety of respects they put a bunch of assets and we cover this a bit in our brief they took a bunch of assets off their own books put them on beach read the books to get them off of their books they kind of use it for a variety of mechanisms in support of their business which is one of the reasons that we will but in terms of the specific public consensus situation process that did not begin until summer months after mr levy went over to  we talked about before there was no way for this vote to succeed without the fact that that type of control these covert undisclosed bonds that were going to vote yes so in order for mr le to be so assured of the outcome he would had to have known you know all these votes that are going to vote yes they're not going to be excluded from the vote they're not going to be disclosed to the bondholders and we know they're going to vote yes because we control them and we dictate how you it does sort of corroborate together with all the other evidence again looking