feels very strongly about the first indictment and what was submitted to the grand jury and whether or not the statute of limitations was told we started to and quite frankly we didn't spend a lot of time looking at the first indictment through the course of the trial the disclosure of jenks which curd in advance of trial but not certainly not in advance of the pretrial motion hearing and with the testimony at trial there wasn't at least a theory developed that the possibility of exactly what was represented to the grand jury regarding the functioning of do i understand that it is important in our judicial system in the process in which we try cases that things be done in a timely matter as prescribed by the rules but it's also important in the criminal justice system that we recognize exceptions and the rules have built into it and the courts have recognized that there are exceptions somebodies liberty is on the line in the criminal justice system and in this case judge wright's decision to simply deny opportunity to explore this issue about the statute of limitations and sold their product had not passed f c c testing and so the the inference then is of course is that pure choice is selling to its investors a product that can't be sold this in fact was not true theory is that had that false allegedly false purportedly false information not been presented to the grand jury there would be no indictment that would be the potential theory that you take away then on a fraud case and idea that there is a fraud if you're actually selling a legitimate product instead of telling a grand jury this company is only selling a product that they can actually sell and that's what the investors are investing in and of course that makes that is a fraud that's a deceit if on the other hand the grand jury is told they do have a legitimate product and people invested but the company the product never took up in the company  failed then a grand jury could instead determine that this is just a failed business instead of a fraud and the argument or the question that we wish to raise was whether or not that in fact was what was represented to the grand jury and what gives us some support is that in the superseding indictment the allegations about the product not working goes away know because we don't know what was told to the first grand jury so there it that's not from the first grand jury or the witness who would have presented that testimony we've certainly evidence at trial was developed that there were other over acts that would have occurred within the statute of limitations but there's a thorny issue created where you're looking in and trying to contemplate what's inside of this black box that we don't get to see into and i can understand mr wright was frustrated with that process and the frustration with a district court judge saying allow the grand jury transcripts to be inspected perhaps it would have cleared everything up and there would be nothing here let me just ask what you're asking here on appeal is just the outright dismissal you're not merits would be before the court however i don't believe the record is fully enough developed for the court to address the merits and i think that the arc of the where i see it where i can argue about th is that there should be a real man and so that this issue is addressed to ensure that somebody hasn't been convicted for a violation of the sachin limitations to determine whether or not there was  misrepresentations made before the grand jury so that a proper record can be developed and that issue can be determined i'm not i certainly not arguing mr reichl xp pro se briefing on this pushing forward farther in asking the court to look at the merits and attempting to supplement the record which i didn't feel like i could do that under the rules so i'm asking for an opportunity to actually have mr right those arguments would be but it would be like a pretrial motion hearing on a motion to dismiss where it may just be based upon briefing of transcripts that from the grand jury testimony or there may be a need to call a witness to testify or to determine whether or not there was some sort of potential misconduct before the grand jury that created a tolling situation it would also of course create issues of does  a potential misconduct misrepresentation in the indictment in the original indictment how much of that does a toll and create problems for the entirety of the superseding indictment of portions of it which w magistrate's ruling is there's been some confusion about under age a in determining that there is a similar and a connection between the bankruptcy and the wire fraud counts is any trial severance of looked like for you one through eight one trial and then the remaining bankruptcy one i would have said one through seven should have been the way it would have gone in and the remaining bankruptcy but a very least it would be one through a judge with the remaining bay comp's accounts tried in a separate matter and especially in this when you factor in the rule fourteen prejudice on the remaining bankruptcy counts where you're starting to get into commitment that's the government's theory but it there it's a complete disconnect between those counts i mean they truly are just driven upon representing whether or not i had you know a full set of dishes or no dishes  and it has nothing to do with the specifics of the wire product even closing in on the investment money would like to reserve the last couple of  same scheme and in fact the superseding indictment refers to the scheme discharging one through seven as part of the counts one count eight the first bankruptcy fraud count as judge telling noted i think of severance issue anything would be counts one through fraudulent actions he took in connection with the bankruptcy because the bankruptcy filing itself was part of the scheme to keep these funds that it's all related that's correct and that's the that's the evidence and in all the counts which was defrauding investors and from investors in the company to misrepresentations about how he can use the proceeds he wasn't repaying the loans unless he was forced to and he's forced to buy a lawsuit or judgment on loans that he personally guaranteed he would soli t money from new investors and use it to repay the old investors at some point the company started to fail entirely and he was on the verge of being fired from the company by the remaining board member and at that point he couldn't he couldn't  new money from new investors to repay the old debts and that's when he filed for bankruptcy in furtherance of that and that's what the superseding indictment alleges and that's what the evidence proved at trial so that was really i think the evidence proved it just a court found the magistrate judge found that that bankruptcy was part and parcel of his investment fraud scheme a scheme that was to defraud his investors and keep the money they invested for himself and so that for that reason there's the overlap prejudice prong there's a strong presumption that we keep properly joint accounts tried together and i think that applies here there's no reason to think that if it was going to be acquitted on any of the accounts here or that there is some sort of prejudice that cost him an opportunity to quit all the  verdict on the investment fraud was well supported and similarly as to the bankruptcy fraud the evidence was quite overwhelming against the defendant in the lies he made some of the lies were egregious some were just downright silly but it was all for the same purpose and the allegations in the super thing into him and the evidence at trial about the sequence that led him to file for the bankers the petition and how that played out shows the connection and how the bankruptcy bankruptcy fraud was just a connection of his earlier scheme  trial the superseding indictment was filed more than a year before trial and the issue that counsel raised with respect to the allegation in the original indictment that doesn't appear in the superseding indictment was apparent on the face of those indictments as a district respect to the f c c testing there was testimony about that at trial it is true one of the some of the early versions of this air quality monitor had passed f c c testing the newer more improved model that was in place or being promoted that's not in the record but i do know the answer to that if you'd like me to provide it i just i thought the same witnesses would be testifying at trial that were testifying in the grand jury and that there would be in this case it's not be original case is more nuanced than appears in this in the original indictment was available to the defense pretrial as the district court noted there was any reports produced to the defense pretrial that explain this issue in fact they cited those in limitations as you know i think it's important to keep in mind the posture of the defendant was convicted on a superseding indictment he did not raise he did not bring a motion dismissed the superseding indictment on  allegations of grand jury improprieties are also way verbal to the extent that his suggestion there's no evidence in the record at all that there was an impropriety in the grand jury but if that's the extent that's his allegation even assuming that was true and it's that would be waived that too must be raised pretrial and there's no cause here again when the alleged impropriety or the alleged difference in the original indictment and the superseding indictment was available on the face with the indictment was available as the court found in any reports turned over the defense before trial and was available again as a district court found from the defendant himself who is the c e o of the company there's just no cause to explain any delay in  alleged with respect to the grand jury process in the superseding indictment even if there were of course he was convicted at trial by a jury on the superseding indictment which under this court's law und supreme court law would render any errors in the grand jury process harmless that's the mechanic case blooper morris by the circuit among others it's clear that when a defendant is committed at trial beyond a reasonable doubt any previous errors in the grand jury process are rendered harmless course there was no errors such errors here it's also bear were are worth noting that counts eight through twelve of the superseding indictment do not relate back to the original indictment they were without question filed within the five year stash limitations so his motion to dismiss has nothing to do with counts a through twelve the superseding indictment of which he was convicted of its counts a nine ten and twelve there's just no issue there but at the end of the day your hon you or so i think again the rule isn't completely rigid there's an exception and the reason why there's an exception is that it's easy to say well you should have known you should have  information and it belies the fact that remember we don't get grand jury testimony unless that witness testifies so we don't know what's said to the grand jury and remember we don't get act material that being the witness reports of witness testimony or potential statements until prior to trial it's typically a couple of weeks it can be three days it can be after a witness testifie contemplates opportunities for defendants to be able to raise issues and we did attempt to show cause affidavit was submitted to the court of why we as his attorneys missed th point we're looking at other issues we're looking at in a diet meant that we've received in the superseding indictment we're preparing for trial you've got a five week trial that you're pointed we were pointed in step your body you're before september a couple weeks after a month after the superseding indictment roughly so you know we're coming in and preparing for a five week trial with thousands of exhibits that were superseding indictment was filed for new motions or does that something that the parties have to ask after superseding you in this case it was said we did have a motion hearing we did file motions related  counts or a new trial on the wire fraud count quite honestly i don't know how to deal with the bankruptcy side of this because i do agree with the government that certainly the bankruptcy allegations are well with