now the holding in fields is that in the an alleged omission or a non disclosure can support a fraud charge or only when there is an independent duty to make the disclosure and it further holds that it's error to give an instruction that allows conviction on a mission without also giving an instruction telling the jury when that independent duty arises whether the aspect of that ruling is new law because the case relies on a long long  that's the direction it was headed that's the reason that we preserve those arguments under lori n c and some of those earlier cases but i think that's probably a fair statement now the government's main argument or its first argument as to why this was an error under shields was that somehow the law of the case precluded the district court from giving what i think is now acknowledged to be a correct instruction it's simply not the case because if we assume that she'll just controlling precedent then there's no question that an intervening binding published opinion trumps or supersedes an unpublished memorandum so the model jury instruction which is my panel approved didn't include this omissions instruction that's correct it allowed conviction on omissions but it didn't do the second part that's necessary of discussing to be for the sherry duty or an under another independent duty  and i think today that model instruction is now different the court and in general has recognised that the model instruction that used to be given out was incorrect in this particular matter it's my understanding that the first verdict here was hung there were six acquittals and then the rest were hung that's correct and they gave the instruction that's absolutely right gave the instruction that we want yes and when we came down to this particular situation they add basically the same except that they had bellows testimony correct there was a person many belo who the government secured his testimony we argued as a result of a speedy trial violation we did argue that that was a form of prejudice in a speedy trial clock i can understand your argument in the speedy trial but now i'm trying to take it back to the omissions instruction situation so we really can't say that this is like thompson can we because like him thompson they had the second grand jury and there was no new evidence but they didn't give the omissions instruction and so we found that to be err so in this particular case we add the second well we had new testimony right so is really thompson precedent for the idea the structure should have been given in a harmless error context yes the government if the argument is that many belo establishe beyond a reasonable doubt well his testimony is so if you will decisive that one can swing the jury here even though the instruction was not given i mean that's the question it i think that is a fair question and if his testimony was that overwhelming and that damning i suppose that could be a vehicle towards harmless error but his testimony simply wasn't that he was an interesting cooperator in the sense that he never acknowledged that he did anything wrong he never claimed that mr spanier did anything wrong it was a very interesting cross where he question after question said no there was there was no conspiracy there was no fraud you know he said that everything that he did was was done correctly as well as mr spanier i think they used him at most to circumstantially suggests that somebody knew or should have known that stock was being sold to five loans although mr mr bello deny that entirely in terms of the harmlessness if i can drill down on that this is a case because it's a mis instruction on the elements of the offense that the government bears the burden of showing harmlessness beyond a reasonable doubt we in the government doesn't quarrel with that in their papers i think that they agree are nervously ender we cited the grito case and a twenty eight j which is similar to the extent that in that case there was a conviction this was after the skilling litigation where where like here it became clear that one theory of liability is legally impermissible and that in a different theory of liability is still permissible and that applies here or that's analogous to here where you have  omissions path that's plainly not the law anymore and you have a direct misrepresentations or i suppose arguably a half truth theory that that is still viable the problem confronted in that we also confront here is that in the absence of a special verdict form or some under some other indeed which path the jury took the government simply can't meet the burden of showing harmlessness and certainly can't meet it beyond a reasonable doubt did your  attorney asked for a specific verdict form we asked for all of the specific instructions i believe we did ask for specific jury form john as to statue limitations i don't know that answer to the issue of which theory they were under i don't believe we did ok i don't believe we did and i guess the next question i have the government argues they didn't use a pure omissions theory right now the government can say no i mean to be fair they're arguing a half truth theory that are they say they're arguing or have truth or and they're given a second chance other than they have another witness and the second half truth ferri would not necessarily ask for the omissions instruction right well i think there's a legal and a factual response so that the legal is the harmless error that we just discussed hikari can we can the government demonstrate beyond a reasonable doubt that the jury didn't go to emissions i think the problem with their half truth theory is that they're stuck with the record and what i mean by that is this is a jury instructions issue so if you look at the jury instructions that were given it does say plain as day  omissions of material fact that that's in the instructions that the government asked for that we have checked into in the court gave the the government didn't ask for an instruction is said afterwards the same is true in the indictment the indictment says omissions of material fact it doesn't say half truths and i think perhaps one of the most telling indications as to this what we would say is a post hoc theory of half truth for submissions is that the district court as is common in large complex cases them as the court knows rather than reading the whole invite into the jury it says to the parties draft you theory the case and give you know give me two paragraphs of your indictment rather than the whole twelve pages now this is a page eighteen zero one that the district court instructed the government to do that the government went back to its office it returned with the two paragraphs and this is a page eight hundred twelve of the e r and those paragraphs say mr spanier defraud evidence that would allow the jury to this i don't know mentions there it they certainly did in again after the fact we can quarrel with you know is that really more characterize a bull as a that's a word that better characterized as a half truth versus omission but the way the evidence came out and i tried to do this exhaustively perhaps to a fault in the briefs but with witness after witness and question after question and i was a trial attorney and i struggled to convey  missions objection and how the government really wanted this to be a half truth versus in omissions case they had the opportunity to do that not just when i made that objection at sixteen forty of the yar but we sort of took it a step further and as we were wrangling about the jury instructions we proposed a specific instruction along these lines that said to the jury or would have said to the jury the jury your instructed that an omission by itself cannot be the basis of a fraud conviction however a half truth can be and it's in a paraphrasing a little bit but it's it's for you the jury to to decide is this a half truth or is this an omission it just strikes us as as unfair to put it mildly for the government to ask for an emissions instruction to get in admissions obstruction to successfully persuade the court to deny us the very distinction that they're now making if there really was a half truth versus an omissions case and the government wanted that distinction to be made that's a factual distinction that should have been made by the jury and the government should not have objected to our attempts to to draw that distinction factually now as i understand their brief now they they feel that our half truth versus omissions instruction wasn't perfect or they didn't like the language we said right in the district or we're not married to language but we want this distinction drawn so let's you know that let's discuss how we how we hash this out and then in the district court nor the government were having any of it so in terms of the harm i think that the first trial if we can go back to that it is very strong evidence it's not enough to simply say well there was a new witness because that new witness's testimony was not overwhelming evidence by any stretch of the imagination he did not directly incriminate or finger mr spanier he didn't suggest that there was fraud afoot the first the first instruction speaks for itself that that is exactly what the jury zeroed in on during deliberations they asked questions about fiduciary duty they asked questions about omission in some ways and in taking the point where you say the questions was not in first case the second case in the first trial the house not relevant in the second case because it shows it shows harm it was almost almost think of it like a scientific experiment where we controlled for the variables in the first trial we got the omissions instruction and they wrestled with it when i say omissions i mean  you have different evidence in the second trial and you've got different juries and you've got different presentation of heaven it's argued a little differently so how is that relevant to the second trial i mean i know what you're trying to get to but i just i'm having trouble understanding your analogy right the the really the only difference is this person manny bellow beyond that everything was pretty presented essential identically it really was argued the same way though the witnesses were virtually identical that one witness was the only difference in our position isn't that strong a difference but at the end of the day you know it's it's not that we have to show that that first trial conclusively demonstrates harm rather as i think we agree before the government has to show beyond a reasonable doubt that there was no way that that the missing struction affected the jury here and i if nothing else that first trial puts a pretty solid stone on the other side of the scale it at least robots to some extent the government's argument that that there was no harm so you use down to minute fourteen is there any other issue you want to specific i've taken you're really into this you please the core peter because the united states are asking this court to affirm mr spanners conviction and i will focus on the trust duty instruction in connection with feel missions our position is that the district court correctly declined to give the instruction for two reasons first it was the law of the case and second in any event it was a correct ruling it was a correct ruling because this was argued as a half truth case well just a minute how can you say that for kate when in fact when we go back and read  wrote when you were as to what the judge should give as to your what you're supposed to prove that then the image in the summary of charges the omissions is right in the middle of it right every half truths case involves an omission that's unavoidable the problem is that but but the problem comes in that there are two ways to have this duty of disclosure even in civil trials one is a half truth and one is that you have an omission and you have a duty of side of the of the situation such that you should know mit and when you're talking about these omissions i mean i look here i found omissions testimony in one two three four five six seven eight nine ten eleven witnesses certainly there was also mentions and then so with that testimony i'm trying to say to myself how does the district court get away without giving in omissions instruction with as much stuff as that was in front of the in front of yuri those omissions were in the context of half truths every single witness was asked what we told about mr spankers fees that you're receiving in this case and they said we we were told he was getting five percent up front that's it the omitted fact in every case and of course it was asked was were you told he was also receiving a back in commission and they all said no but in that context that omission is part of the half truth so that this if you pose in counsel points to a couple of other elements  investigation and it wasn't included in the press activists so they're they're pointing out or they are arguing that that was pure omission nothing to do with a half truth you disagree with that those facts did come admitted those facts the lawsuits the f b i investigation things like that for the purpose of establishing that mr spanier was on notice of the problems that were going on with arco because mr spankers defense at trial essentially was i was due to i had no idea this was going on and it just didn't line up because he had been deposed in those lawsuits about the very things that were going on here that the district court gave the jury instructions and that's the reason you were to consider those it did come up in the testimony as well however for example  victim richard sellers testified that at some point he learned about one of the lawsuits he did his own research and he came he had a discussion with mr spanier about it and said hey i discovered this lawsuit what's going on and mr spanier reassured him and said you know hey you're in business for a long time lawsuits happen that was resolved again it's now a half truth because what he didn't disclose was we had lawsuits two three four five and six as well and those were not resolved favorably to us so it again in that context that is a half truth is a misrepresentation and in that context the trust duty instruction does not have to be given this court has been very clear about that oh my worry about this is what is the difference in the first trial in the second trial if i take the evidence in the first trial and i match it against the evidence of the second trial if i take what was presented in the first row and i match it against what was presented in the second trial and i match what pretty things happened in both trials the only difference i find is that bello there is no other difference that you tell me what else there is it's a difference because the bottom line is in the first trial they got the instruction that people the defendant wants in this trial they did which if i look at thompson that's pretty good evidence that this is not a harmless and therefore i'm saying to myself did bellow switch this i looked at bellows testimony will have to be fair i agree with counsel i don't think bello had anything to say i mean i don't think his argument was decisive at all  swing this jury so i said to myself well then the only thing i can tell is that failure to give this instruction is what caused this so it can't be harmless error and that's exactly what we said in thompson i think that is i mean it seems like the government full well knowing that this was going to be a problem all of a sudden in the second case comes up with this idea i'm going t this on have trues rather than omissions and so they changed they try to change the way they talk about it but the evidence is the same i don't think we've changed our theory all along it's been half truth well i don't why did we not object to the omissions in the first case we did object to that instruction it was given over our objection in the middle of the and it came up as well i look at that again yeah but i mean honest truth is i got i'm having trouble with that i'm having trouble with the fact that the evidence can come in the same and we have one witness which makes no difference and now because of one instruction we don't have any acquittals and we don't have any hanging's all we have is guilty as charged and say that's not our say that that's not harmless well understanding we're presupposing that it was error and we're moving on to i understand that so i agree with the court that that is one barometer the court can look at however i think is your honor pointed out this was not the same trial this is tell me what was the different theories there were no different theories  different arguments and there was maybe different cross examine the only thing we got out of the new witness it was the it was a different jury it was this defendant tried by himself instead of as part of the group so now sole focus of the case it's a different way of arguing the case and in this case i think you still have to look at the evidence that was brought out at trial against him in analyzing whether or not it's harmless the misrepresentations in this case were clear it was our goal has plenty of cash our goal will not sell your stock that was a flagrant why are our mr spanier is only receiving five percent up front there was no disclosure of the back and feed to any of these borrowers those things when you look at that it's there's no doubt those were material misrepresentations and omissions of material fact up so if we determine that the law of the case does not apply here because of the intervention of shields would we have to in order to find this harmless we would have to say that there was so much evidence of misrepresentations and half truths that any error and i giving the omis direction was harmless in any reasonable doubt correct but we do not believe shields alters the balance in this case why is that because it was the first time that this rule is applied to to wire and changes in the model jury instruction the the rule was the first time it was applied to wire fraud but it had been clear this was the rule for omissions in general from the securities fraud case of the mail fraud cases and this court had said repeatedly and i think as far back as dowling that mail in wire fraud statutes interpreted exactly the same so that it wasn't in the molle instructions not that that clause about the trust duty instruction was added to model instructions after the so the instruction that was given which we approved in the panel decision lacked that trust duty as you're calling it the trust duty and action but that in the model instruction it's not  instruction that is given every time it's one of those that's bracketed so that you have to apply it in the correct case and it's our position this is not the correct case to apply has there was no omissions evidence so the jury is simply could convict him on oh and omissions theory is that your that your position yes basically that this is not a case where he said nothing at all about something that's what distinguishes this case from shield shield is a little i'm bigots in terms of what the facts are but from what i read of it it appears to be a pure omissions case because the court said in cases of stand alone omissions this is the trusting instruction that has to be given we never margaret in this case was the stand alone and when you look at the prejudice and how the judge saved the day we're not going to worry about shields because of pure omissions theory on on the motion to reconsider the motion for new trial yes he did i mean he just said shields is pure omissions yet i don't find anything in shields that says it's just pure omission well that's why i was arguing that if you read shields i think it is a well but as to minute it says in order for omission to support the wire fraud the jury must be instructed must find it says it's not error not it was there not to instruct the jury of must find a relationship created the duty before it can prove the material disclosure supports the wire fraud there's nothing in here that says that shields is a pure omissions theory the right before that quote you read in shields there's a  alone omissions require the instruction and then if you look at the prejudice analysis and shield which is on page it leaves a twenty four of the opinion when they are citing what was the omission that was prejudicial in the case they said it's the government arguing that this person never disclosed a personal bankruptcy and that personal bankruptcy that failure to disclose by itself is an example of fraud and they said that was prejudicial because it never came it appears to say it never came up in the trial as it would never came up in the course of the fraud scheme where this person disclosed anything about having a personal bankruptcy of that nature and that's what we're arguing is a pure omission as you don't touch on the topic at all certainly haven't you know that you can't be held liable for that unless you have a duty to disclose it that's not this case he talked about his fees he talked about a constantly there in the term sheets i appreciate your argument boy can i find that shields mandates a mission instruction whether the omission is used by the government argument or evidence myself i don't know that that's only is the pure omissions it seems to me that sure mandating omissions instruction when omissions are used by the government whether it's a pure omissions theory or not i don't think that can be the interpretation of seals i don't think that can be the state of the law because if that's the case and every time there's an omission in the context of a half truth you have to give the trustee instruction you've just obliterated that whole half truth doctrine well so if the  defendant asked for that instruction it would seem and there was evidence presented at trial of omissions and was in the court would have to give the instruction because if it has a basis in on an act is giving instruction yes but in our case the court would have to find that the government is arguing in the evidence supports that these were pure omissions and that's not what the district court in this case found it said this is a half truth case the government is arguing is a half truths case they're saying you talked about your fees you didn't disclose all of your fees but that's the problem the thing that's where worrisome about that to me is when the government went through it on the first case the court really couldn't say that the government came through on the second case he said hey we had a little problem so we're going to talk over our words you're going to be different not that it's any different cases just our words are going to be different we're in dark about a half truth rather than  missions so much even though we find omissions in error a lot of times and so therefore we get out of this instruction and therefore it's ok respectfully i don't believe that's what occurred but we have never argued this isn't a pure omissions case at any point in these proceedings i think what had occurred was after the first trial everybody had a chance to see the full evidence and understand how the case was presented the district court realized i was wrong and then it went up on appeal and they made exactly the same arguments in front of a prior panel and that panel analyzed it and said you were correct you did not abuse your discretion by declining to give that instruction so that's where we are now and i think that's why the district court again correctly realize that hey if the evidence is going to be substantially the same as it was before this is not being argued as if your mission's case is being argued as a half truth case and that's what it was these were not topics that were never touched upon in the in the course of the fraud scheme these were topics that were very much touched upon he just did not disclose everything about it your honour's i think shields is a sturdier holding the gun what the government suggests it doesn't turn on the turns of a phrase or what the government says it's the areas it turns on the elements of the offense and it turns on the jury instructions in response to the argument that they're giving the shields instruction would obliterate half truth that that's not at all true if we were to look at e r page two fifteen which is the instruction that the court first gave in the first trial it gave a really a pretty accurate statement of shields and then attacked on a sentence this is it your tooth if team says even in the absence of a trust relationship one cannot affirmatively tell a misleading half truth about out about a material  fact that would have gotten it done that would have satisfied both parties it would have accurately told the jury that division between omissions and half truths and protected both interests the fact that i was taken away in the second trial limit their trial speaks