that the government now concedes there was no evidence it's hardly surprising that the jury convicted on account where there was no evidence because the jury was not instructed that it needs to find that use of wires in order to convict in fact the jury was not constructed that it had to find any of the specific uses of the wires or the mails in order to convict on any of the fraud that he has his question with respect to your second constructive and then the claim you argue the jury was allowed to convict based on executions not charged in the indictment if there was strong evidence  a reasonable probability and in fact there's a gross reasonable certainty in this case that the jury convicted on counts not charge that affects the fairness of judicial proceedings in fact i couldn't identify a single case in which the court said why don't we guess what the jury would have done had it had it been instructed it had a plan b these are the execution now because the only case the government likes and cottons totally in out when you look at whether whether an error affects the so seriously affects the fairness integrity and public reputation of digital proceedings you really need to look at what purposes the right sort so in this case a constructive amendment it's about what the grand jury charge and so the purpose is that the grand jury indictment server three people one you have the right to present you know the grand jury's scrutiny fact charge the defendant with the missing element in that case the missing element being over fifty grams of crack cocaine in cotton the defendant absolutely had notice as to what it was he was defending against because that's a case in which jeopardy and cotton because it was the same count it was the same count the grand jury and that the petit jury found on and that the judge sentenced on we have a case like this where you have a right to be charged but be tried only on what the grand jury indicted and we have absolutely no idea whether the jury would have made those when if you go through each of the mail fraud counts and actually went to the jury there's no doubt that there was evidence in each one of those executions for the particular counts correct similarly in deep into you know and well i mean but it's pretty clear here yes there's no knockout twenty and the special verdict form well you know  apply the individuals it may not have it didn't go on to say the specific date of the execution of the alleged execution of the of the of the scheme cracked and the defense at trial was that this was not a this was not a fraudulent scheme that's correct and count defense counsel never never posited any difficulties with you know with the way in which the special verdict was framed for the verdict was framed plaintiff i mean when the government got up there to argue the you know a microsecond because if you look at what the next chart is after that it goes to the fox and yes there are errors so if we believe that the jury was taking any attention whatsoever to those charts so i think what i want to go back with judge nelson's original question was which was were in play in your review correct on this and this argument there was no objection by mr braun at the time right there are no requests for specific jury instruction along those lines that were playing there and so you have to get you know even assuming there was there we have to get let's just take as an example i mean and then this is just a random example i have new reason for picking this one but let's count twelve was victim the execution had to deal with a twenty thousand dollars check  i mean i have that chart one use fusion the one thing government used at the time they argued the case and your concern is that he may have been convicted on the basis of some other piece of evidence what would the other the film shoot subscription agreement the jury wasn't instructed which i don't is it need to find there was no defense that you know oh he's guilty of these two but not the other one so there wasn't anything like that that went on but this court held that it was not harmless error the jury to mails in fact that is what the government argued in its closing they said we know that we still have verdict forms that identified each victim for each count yes and so for each count every twenty had its own difficulties just standing alone because for me five months later is very difficult to say that that's reasonably near the event charged in the indictment i agree with you in our case we have a case i talked about you know what we know is that the jury was not required in this case to find that the fraud was a fraud from the beginning and in fact the evidence was quite strong that the fraud was not a fraud from the beginning we had you know very financially successful  started from february of two thousand which is you know when the executions of the government charges started the last would have been under a million dollars and there would have been less than fifty victims so the sentence would already be reduced by thirty months just based on that kind of math alone what i'm saying is that it's no accident that the government started charging executions in february of two thousand and twelve because their key witness said it was sort of towards the end of two thousand and eleven i started feeling uncomfortable about what's going on so if we took only the losses and we took every single one that was inferred after february after the loss of this case would have fallen below one million dollars and the victims would have fallen below fifty so even if the court doesn't think that that kind of constructive amendment requires reversal of convictions it absolutely requires a reversal of the sentence here just about a pick up with your time good morning your honors may please the court stephen because there's for plaintiff appellee united states of america first address the constructive amendment claim regarding the executions the mailings and wirings that defendant challenges has conceded the evidence prove each of the executions but for count twenty the government has conceded the sufficiency issue with respect to count twenty the issue with count twenty was to be frank typographical error it said march of two thousand and twelve should have said march of and thirteen we didn't notice it in trial it happened and we concede that that's distinct from what we're talking with respect to each of the other charge mailings and wirings the evidence established each of those counts in addition the verdict as the court noted reference each of the charge victims each of the victims related to the specific mailings and wirings so let me just again follow up on my question i asked so let's count twelve of the victim canonic there was there were other mailings to him as well besides a twenty thousand dollars check is that right absolutely so how do you know they rely on the other mail and all sides it jack we know that this was submitted but we also know the distinction between the charge here and what defendant reli most upon is the ward case what you have charged here is a three year scheme to defraud specifically alleged in long pleadings and in the indictment including seventy a proxy seventy victims one point seven million dollars in loss and the government charge approximate things about two dozen executions in total now at trial we narrowed we didn't even call those victims we tried to shorten the trial so we didn't submit all of those executions to the jury to consider  that is very distinct from what you had more and more you had two distinct ten twenty eight counts relating to two specific victims at trial the government introduced these other victims whose identities were stolen to try to establish the defendant's knowledge but there is no argument and no claim can be made that the offenses against those other victims related to the exact charges the ten twenty eight counts those aren't scheme counts those aren't conspiracy counts those are discrete theft of the identities of those two any can claim no notice that he was unaware that he had to defend against all of the evidence relating to his defrauding of mr can name who invested i think was four to five times over the year that he was being called the idea that defendant and defend also doesn't raise some sort of timing alibi or defense he wasn't around when some of these these other transmissions may have happened so it is theoretically possible but the jury could have had their mind some of mailings and wirings that weren't the subject of the specific executions the government does submit that there was a plain error there let's say it was the lack of specificity in the verdict form was enough to raise the air was definitive prejudiced by that government's admits there's no way defend it can establish a presence in this case because he concedes all the evidence prove each of those executions the government in its argument asked the jury to convict based on those specific executions definit references how fleeting it was it's a criminal trial everything we say is somewhat fleeting gets repeated by someone else did that the district judge but you get a pretty short leash we rely upon people's memories and they're taking in all of the evidence and arguments  government made that argument the the evidence relating to each of those convicted of those executions was introduced and that's unlike what happened in war they're just distinct there's no doubt that ward the trial introduced victims who was named were in the indict here each of the victims the subject of the charge of executions was referenced in the indictment defend it was put on notice so that the defendant cannot establish prejudice and even even if this court were to go so far to say yes he's established prejudiced should should you exercise discretion here and the government's admits no defendant attempts to to argue that cotton the defendant asked the district court to add language relating to the safe harbor from broker dealer registration into the one thousand and one instruction the government summit's that first of all that safe harbor whether or not it could qualify to not have to register with that with the commission as a broker dealer is irrelevant to the one thousand and one for several reasons the most important of which is the fact is the false statement that defendant made about the payment of commission as opposed to this our early salary contingent on a sale is that the false statement took place in the context of an investigation while the commission are gathering facts while they're making determinations who to subpoena what documents to obtain what questions to ask is does that false statement in some way cable is a cable influencing their decision making in that investigative process and the answer is of course defendant argument is that well because ultimately a commission and this salary contingent on a sale you know maybe maybe they both would have made route ineligible for the broker dealer safe harbor maybe so that's an ultimate decision that maybe theoretically could be made at the end of an investigation this is in the core of an investigation and mr blauser told the trial court there are three areas that the commission question an answer related to that was important to them that was the regulation of broker dealers the regulation of private securities offerings as well as the investigation into representations to investors that's the core of this case and this investigation that last that last possibility defendant raise no issue didn't ask for a special verdict on the one thousand and one to require the trial jury to break down which theory i guess of materiality it relied upon none of the good sense counsel submit a specific instruction that he wanted the judge to give he did not he had raised the arguments regarding the broker dealer safe harbor in trying to get the count dismissed the court rejected it he raised the issue again and asked that that language be included but he can actually submit an instruction in writing that had the actual language so know that it gets to instruct materiality absolutely the judge's instruction was proper the defendant simply argues that his theory i guess of the case wasn't included but that the government submit that that theory was irrelevant whether or not rau it qualify for a safe harbor exemption is irrelevant to the materiality of the false statement in the investigatory stage that is really important is it because it payment of a commission and the payment of a salary contingent on sale i'm not sure that's right the payment of a commission is a factor that the f c c takes into account in determining whether you may qualify for the safe harbor but the fact of the matter is by making a false statement about the form of the payment you are inducing the f c c to possibly ask questions follow paths make decisions in the investigation that it may not otherwise have done but for that lie that's what material has to be material in the way it can't be material in this context with respect to defendants argument i call the commencing argument constructive a moment relating to the beginning of the of the scheme to defraud which also relates to the last challenges i guess as well the government's theory of the case in this in this case from the beginning as charged in the indictment we specify in or about december twenty ten through the next three years in opening the government argued that the scheme began in or about december two thousand and ten and specified we represented that you're going to know that because you're going through the contracts that defendant enters into on january fifth and for the rest of january of two thousand and eleven committing more than half of investor money to himself and the coast gamers that's in the opening at pages one fourteen and one sixteen of the transcript in the trial the those same contracts were introduced showing that defendant began to commit money he hadn't even obtained yet to himself in this coast gamer's soon thereafter he prepares the prospectus which claims two thirds of the money is going to go to the project which what was not what he had already done he already executed the contracts committing the money to himself as the money was raised the contracts that something like in perry pursue is the way he referred to it in the contract that's how the government argued in trial that the trial court knew that the scheme began in or about december of two thousand and ten defendant essentially has latched on to the government's response to his good faith claim in defendant's view because he and hold'em and short cough in december of two thousand and ten really wanted to make a movie they really wanted to be successful and they hired a real director and producer then they didn't have the intent to defraud at that time that's that's his theory of the case and in some way maybe later on he developed some sort of intent to defraud based on the results but that's not what the government charges the government's response to that was simply those things may be true but if you lie to the investors to get their money it's still a fraud i mean there's no doubt about that in the beer kroft case in the bush case you could have good faith but if you lie to get the money to live your dreams you're still you're still guilty of the offense so that was the government's response to his defense but that was not the prosecution theory the ball here did not move trial to some way induce defend and into not making certain claims or defenses so there's no prejudice certainly with respect to the commencing argument then it raises the issue with respect to the vulnerable victim enhanced meant suggesting that  the experience and sophistication of the investors here was somehow unique different from the lloyd case i was one of the trial lawyers in the lloyd case that's clearly not what happened but you can look specifically to this case might be hard to say that the there's a district court judge that these just discretion in applying this particular enhancement at the government agrees and the fact matter is just like the you know i noticed i thought it was interesting though that the district judge didn't apply again wrong with the case and that was not for trying by the government the government did ask the court to apply it because we believe it did qualify under the facts for whatever reason the district court did not apply it ultimately the government made a four month recommendation in that case and the court sentenced to sixty three months so to the extent there is some argument that there's some sort of sentencing disparity here resulting from the failure to apply the enhancement there it really didn't happen because they're not similarly situated route was a salesman event was controlling the whole operation defendant control the purse where the money went and who got the money that there were not similarly situated there was no very even though the court should have applied it there but didn't apply it with respect to  charges to the jury i'm out accounting for approximately one point seven billion dollars the last number that sensing was reduced because some of the victims we couldn't specifically identify we knew the idea we knew they invested but we could name them so the ultimate loss figure was slightly lower especially considering counted for his analysis in the financial records approximately seventy victims so the court in the trial court heard that testimony and credit at sentencing it's not if the courts the stains the other fraud counts the the the dismissal of the count twenty would have no impact as a practical matter i don't believe the court really would need to but as a technical legal that and the judge made no findings with respect said it one two three four five times they told us that their theory of more out of materiality is that if you pair commission you better have a license so the courts failure to instruct that you know if you pay a salary based on sales you also need to have a license was absolutely relevant to the materiality of that statement i'm not saying that there weren't other bases on which the jury could have convicted what i'm saying is that if the jury convicted on the ground that the government argued then that would require a reversal  to the the definition of commission in that context so he didn't like have it in writing but defense counsel also said at certain point oh i'm really busy but this is what i want and so i wasn't defense counsel in this case you know the government has to really confuse the question of prejudice in this context the score is very clear that for the third prong review it's sort of like the the flip side mirror image of harmless error review and this court is very clear that when it's a constructive amendment the prejudiced question is is it reasonably probable that the jury convicted on offense is not charged and in this case especially given the government's concession as to count twenty that the jury didn't fa convict on an execution not charge the third prong as i think the much more difficult problem is the fourth one and again i think we need to look at what are the purposes of the grand jury indictment and where they served here if i could focus just on the double lawyer to plead protection from double jeopardy when we do not know which executions the jury has already convicted him on ok thank you