improperly designated i don't as it were made part of the record and reserved by the motion panel for this court before the court i'd like to move on from the those questions of what sanctions are appropriate and what is the impact of the improperly concluded materials or include the substantive issues that we have to decide and in particular i would appreciate your commenting on the conviction of involvement by just the two hour no participation no knowledge no intense and most important no instruction or theory to support those convictions  liability theories in this case there is no evidence in the justification for those towns no reported cases in this country has ever sustained a conviction in a similar argued by the prosecution below it was never raised to the jury the prosecution did argue the vicarious liability in theory that you never asked the court to instruct on seemingly claiming that his argument is a substitute for the court's instructions and as the court well know aiding and abetting is not some simple concept it requires continued knowledge participation knew nothing understand that if there are separate counts let's say i don't remember how many there are right for me but if there's not enough evidence on three of them that the reason half evidence on the other which is what i would like you to assume what is the other think it's important for the court to focus on the fact that mr truly was a salesman he was not a manager he was not a supervisor he didn't think up the scheme that was involved those  mine first first of all we have to have some common sense in dealing with a commercial transaction things are being sold in any public offering you put up money to buy some stock and someone gets a commission someone gets money it isn't it isn't as if all of the funds for an i p o somehow go to the company who is issuing the i p o he's being paid there's no evidence  that he noticed the per year number different trust there's no evidence he noticed that there's no evidence he knew there was anything inappropriate i think what is extraordinarily important in this case is the evidence that  in the founder of business i tempted to keep the salespeople and the people from the business and the sales department insulated so they would not what would know what was going on but it didn't he al and the prosecution says that's a false statement the burden is on the prosecution of the court well knows to prove that it's process that that's one of the things that i wanted to get to about the problem with the misrepresentations and the question you're on of the first party as some witnesses did say that he said he was calling from washington d c the second part of that is one there was no evidence he didn't call from washington d c but i believe  if i can get to the puffing instruction the fact if you're calling from washington you're calling from seattle you're calling from los angeles is your relevant under appropriate instructions well it seems to me that what or what your effort  allow either of you not to allow the big picture to emerge each little think by itself use a little baby and shouldn't be allowed to demonstrate partial intent but in tampa it is something that the jury normally looks at from all the evidence doesn't are well your own your yesterday is your honor and if i if i could address how these things fit together and the kinds of representations went to the jury and why it's inappropriate i think the picture of what happened will emerge but let me when your honor try to get before you get to that y be it's a post office box it's a lawyers office in los angeles that you can rent even though you're not there thank you but my most important point about the ideas i think something like that is puffing as a matter of law i think the jury decides whether that is puffing but that's not a material misrepresentation intended to harm anybody that is a misrepresentation that falls directly within the popping instruction that was not given because it's not a question true false it's a question of does it make any difference in the same way a certain representations have been found to be a thing as a matter of law the the next issue and the jury prosecution is left with are minor representation misrepresentations if that or no proof of the misrepresentations and the difficult problem becomes that the judge wanted to give a special verdict form the defense agreed to a special verdict form either having the misrepresentations in the indictment or blanks for the jury to court to feel that the prosecution objected and therefore it wasn't given  and therefore we are here trying to sort out what the misrepresentations were but these kinds of misrepresentations supposedly went to the group he had done a five himself instead of saying this was a salesman he said he was vice president he was vice president of marketing a title he had a title he was given it's kind of like in the banks instead of giving you a raise they give you a title and that's supposed to be a misrepresentation he his name he dropped two letters from his first name the dean of the old from algal and he dropped the old from her elbow and that threw out the case was supposedly a serious fraudulent misrepresentation with know and it's not a false name is a knee where someone has anglicized their name as americans have done for ever in this country there's not a word that had anything to do with fraud or if the theory  people don't want to buy things from people i thought there was evidence about social security number that had been improperly tainted i have your honor that's why that's why i wanted to pass on the first issue nothing and it was never explained by mr throughout and never had the opportunity that's what's wrong when extra record materials are used in the brief this is a complicated case john and i for you know i am have the opportunity to try to explain some of these things even in the in the short time i have but the things that are coming up now are exactly the difficulties that the jury who well have had with this case and i don't  think in any event with a name and he failed to volunteer his salary arrangement he failed to tell the people on the phone that he was on commission that's also supposed to be a material misrepresentation now let's get to bleed off the opposition for a to stand under some other theory now there may have been evidence for some other theory but if that other theory was never instructive i don't see how that helps your honor i think it was instructed through the skin instruction i and you see what i'm saying is you know the words co scheme or liability exists when they are co schemers and it appears to me that the jury was instructed that he had to be a co schemer but was never instructed that they had to find beyond a reasonable doubt that those other people find beyond a reasonable doubt that this other members other individuals were part of the scheme but i think it's again it attached as a matter of law through the instruction on scheme to defraud and that is exactly what the court referred the jury to  when that question came up so i don't think you have to have a vicarious liability instruction in fact i've tried many of these cases without one and i think that as long as you have a scheme to defraud that theory attaches as a matter of law you know what they were doing what they and that was presented to the jury what they were doing what techniques they were use the whole then you know what would present new information and there was quite a bit of give and take during those  senate would still be liable for this for the amount raised i don't think there's any question about that that the interest of the entire amount raised in the scheme was forseeable to the fact that so i don't think there would be any effect whatsoever if the court were to make that ruling  without the evidence for that is actually overwhelming in this case because you have this giant soap board that actually recorded the total sales by all the salesmen and it was up there all month long for every salesman to say seeing those pictures on the record is so that  your argument is that theoretically it would involve recess i think that the practical effect will be very limited if the practical effect will be with the mall you know they wouldn't have anything whatsoever and the evidence and counsel codefendant coined said is that he was doing the same things he was making these lies he knew he was lying about the trust accounts he knew he was lying about the trust being in washington d c he knew he was were lines i think i think there's a lot that i don't so that's why your honor the one thing i'd like to start with right off the bat before i run out of time is i don't think it's proper to say let's say defense is right that there is one thing that was by the defendant that is not material there's not sufficient evidence of materiality i don't think this court should presume that the jury based its verdict on that piece of evidence i think the gryphon case salespeople extensively expensive evidence first of all you have coins who admitted his own liability he admitted that he was lying coins is another one of the telemarketers you also had lots of evidence that was presented to the jury from the other telemarketers in the form of lies that they may directly to witnesses otherwise we put on witnesses investor victims that's did not speak to the front but only spoke to others as well and those statements  ordinary commission one gets right and that's that would be fine if it wasn't for the representation that the investors money was being how and trust and in fact they actually went so far as to say it's just like an escrow account and the jury was presented with that evidence as well that came in the form of the various scripts that the government introduced that were actually and pictures of them posted up around defendants ask one of the scripts that these trust accounts are like escrow accounts and the defendant the victims repeatedly testified that that was critical to them that was the most important thing the wall street research proved is very similar as well the defendant stressed the importance of that independence analysis and recommendation to buy the stock well we know that he knew that the wall street research report was not independent that was wholly created by paul then we know that because coins that as that call them tells everyone that we know that because defendant has also paid from the wall street research company repeated checks with that being the pay or information well so he would have to now receiving money from them that they are not independent of the entity he's serving that's correct he also had a phone list internal phone list with his phone number on it and wall street research company printed on the top so there's overwhelming evidence of that i'd like to read a couple points in my time remaining one of the one of your honor's asked the question was there any evidence that he didn't take the company's public well there was plenty of that then so that the rest of the f b i agent and the f c c receiver both testified that none of these companies were taken public there is absolutely no evidence whatsoever that any of something that i don't believe we put into our brief but i think it's important it's plenty of evidence that was submitted at trial from plains agent goldman testified that particular vaster would get fed it would use the same confirmation i think on the recklessness issue garners haven't asked any questions about that but i would also point out that that's it i think it's proper to analogize to eighteen u s c one thousand and one which also uses knowingly and willfully case which i think the circuit i definitely decided that issue and the cases they cited are wholly different because there the court was concerned about criminalizing potentially innocent behavior none of that is relevant here because this i knowledge information and the question the court was wrestling with there was is it fair to hold the defendant live the longer this unique and you know new novel approach and so there the court was concerned with with with that willfully instruction i don't think but then if you look at what they say about it their definition of willfully is really no different than knowingly which is what this court did in this case but again the point i'd like misappropriation of knowledge case and an insider trading theory that was novel at least at the time and that is the reason that the court i think that now the supreme court did not say that you must gi brought things public in the past had nothing to do with the with the question asked what you were told was none of the i p o in this case went public there's no evidence as to he did not bring something public in the past testimony about those transactions but by the salespeople and when i was asked the question before about him being paid by the trust the specific statement appears in the record or not but he's got to be paid for his work somebody has to pay him and that's something that's on our wall someplace and i wished i was and i had a moment to deal with it off the link off deposition goes to every count in this case if that testimony is invalid there was no limiting instruction regarding the use of the blink off testimony it was admi than any other kind of instruction it's de novo review because it was proposed finally and including the definition of intent to defraud and leading out  and intent to deceive is is deficient there would be a circuit split the first set second third sixth and eighth records have a rule that inten harm has to be part or some similar concept for the intent the cause was asked to be part of an intent to defraud instruction this is an open question in the ninth circuit the ninth circuit has not decided