the honorable united states court of appeals for the st circuit is now in session all persons having any business before this honorable court may give their attendance and they shall be heard god say if the united states of america and this honorable court filed joint briefs in in this matter and the the issues that have raised that we have raised have for the most part are symmetrical with each other the i'd like to start with the sufficiency the evidence argument the rule twenty nine issue because i think that really is where the rubber hits the road here in terms of a securities fraud case that the classic indication inference who as to an insider trading case is usually a happy coincidence that someone makes a well timed purchase of stock followed by the increase in the value of the stock and sells it after a very short period of time for a nice happy profit none of that is really what happened here this is a mishmash of transactions i just think this is where plausible inferences may have a limited significance there is very little here in terms of actual evidence of insider trading you would have not the government specifically i don't believe they've met the access element to the same degree as larrabee obviously they met the relationship or read the tip or did not have access to the information here he had access to and n p i there's no question about it but for merrimack the government never identified what that and n p i was he had a code that allowed him to get some data we don't know what data was available at a particular time we don't know what that data was and the government had the burden here of a proof of proving it and we have this broadening time frame that the government adopted here of over eight months where we don't know we had no way of verifying what information was available to mr wong at any given time and and the  the success of the trials in drug trials and that's exactly what they're asked only that was the testimony but we think that's where the testimony fails your honor because data is not enough you know it starts with i think it starts with  the nd superseding indictment which basically says describes the data as data including but not limited to data that's by paraphrase governments closing argument they mention clinical data  were you have all the ones well if i can respond directly to judge thompson's question i i think that's sort of where we got sidetracked yes mr wong supervisor did testify that he had access and yes he testified that he could have determined made some determinations based on some of the data but we still don't know what that data was and when it was coming in and because remember the big issue here testimony just had its data but i don't know how material the data was the testimony was the data was directly revealing the thing you would need to know to trade on it and if you wanted to show that that testimony should have been believed you can put forward evidence the jury can then reject that testimony but as it is the testimony itself would have been your to cover exactly what it needed to cover well in for a week we did drill down on that your honor at trial and i think you'll find in our reply brief the citations the citations to this it wasn't so much that there was information available to mr wong that he could have predicted the lifespan of people from it was that at that he had access to what cohort the individual patients were in and that doesn't tell you day the death and all of the merrimac witnesses testified and we asked them this question all of the  page seven of the closing arguments that they really the results were not significant until the final data lock happened which wasn't until april and moving target that started back in august of two thousand and thirteen and made its way to make st the the problem with the government's case on its data analysis we don't even know that wang had dates of death we don't know that that was the raw data that was that was coming in on any particular point in time and without the date that they started on whatever cohort they were in and the data death you couldn't make the critical calculation as to whether or not the drug was working for any particular cohort compare that with what's out there in the public and this is what mr chen testified to and  was that this was a study that was supposed to finish in the last quarter of two thousand and thirteen they extended it and then they extended it again for two quarter so for half a year the public and someone with mr chan knowledge could certainly draw the inference that people were living longer this was a survivability so you had not is the argument that you had nonpublic information but it was not material but the argument is that the only all the government proved is that he had access to that he knew he may have known particular patients and what cohort they were in that was certainly material nonpublic information but that that was certainly nonpublic information but not a tear or not that it was not material is that what your argument exactly exactly thank you that's exactly my point is what what cohort a particular patient is is and is not material and would not have influenced mr chen into purchasing  that particular argument in your rule twenty nine motion exactly we challenge materiality right right from the right from the start in our rule twenty one motion and we filed several motions so i am sorry i can't tell you which one it's in right now it may be in all of them but  in or sponsor just two ways question is is the materiality of the nonpublic information the only larry be the only aspect in which the government when this stuff tails into variance we're asking the court to consider what evidence would not have come in had this case been properly indicted by the government and and tried without m m one hundred and twenty one that's but it's not a minute and it's maybe just casual contact between two friends the timing of the trades israeli minister straining the timing of the trades is really interesting because we're talking about limit orders the evidence in this case was that both mr chen and mr wang engaged in limit orders limit orders are not indicative of a criminal conspiracy because it all it shows is that individual was willing to purchase a stock at a certain amount if it reached that amount and here when you have limited orders it affects the timing of the trades and particularly with respect to the april trade because that was the st one was rejected laramie and the government essentially concedes this in its brief i mean you have you have bank transactions that are suggestive of some type of nefarious activity by mr i understand it too to think one is could you just repeat for me exactly what your materiality argument is what was the gap in the evidence with respect to the materiality of the nonpublic information that the supervisor testified he had access to so in other words granting that he had access to it whether you dispute that or not you're contending to us that that information was not material in what respect was it not material or argument as the drawdown a preliminary data data including not limited to data can never be material because it's not specific enough to a dent i with any notice to a defendant it's constitutionally defective there's no notice to the defendant of what the information was and what was supposedly done by the tipi in order to to to gain information in order to pass it study that the right number yes that you didn't have notice of that starting as early as november two thousand and thirteen from the face of the indictment is that right that's correct ok and your view would that be the right date to infer from the face of the indictment well the indictment doesn't use the word shortly but the government's trial brief does and that's where i think we're entitled to infer that it wasn't eight months before it wasn't four months before it wasn't even two months before but it was when that particular information was received and remember mr wong didn't receive it and so april th just from the face of the imprint arise from the face of the indictment shortly before because i would prefer the court to my consecutive versus concurrent art argument these charges are set up these allegations are set up consecutive are inferentially related to each individual public announcement and the information that's exchanged is obviously before each public announcement and the government in its place was in this in this case was like an airline pilot there was a there was a course change and you have to let air traffic control know that there's a course change and they never did that here they have the burden it's not up to us to figure out what the government's doing in charge thank you for your response time well the timing is obviously relevant but he had already purchased a key be a stock two weeks earlier and it was a perfectly legal purchase so he clearly already made up his mind that this was a good stock once again it was a order so he didn't know it was whether it's going to be accepted or not and if if someone's going to be held liable for insider trading on their rd day of work based on an e mail that doesn't a den a fire itself as containing material nonpublic information and contains an article or a wall street article that was public information i think it's just not fair it is not fair for the government to lead the evidence like that against mr chan that you know to have to have his coworkers walk in and say they sent a material nonpublic information on the rd day of work in an e mail that didn't intend to fight is material nonpublic information it is just not fair create the computer program i mean your honor i i don't know the details of that but i would say that you know the testimony was that he developed physical programming for the purpose of added one fact in response to judge thompson i want to make sure that you know that evidence actually shows that if i understand it he us evidence that he designed as they were designing a study to be able to analyze the data and that he had access to the data but is there evidence that he relied on the data for the study information for the study he just keeps saying he used the dead i guess i'm just wondering is there anything in the ballenger testimony that says he used that as opposed to have access to it that to introduce the study he would have had to have used that  during this time period public information but would have been done material and if so what in the record shows that it would have been material if all that he did was just saw that that  see how well they were i mean you know you can five minutes from a so are you saying that are you saying that he could see which patients were given being provided with the medication and which patients were in the control is that what you're saying yes that is believed but that's the balance go ahead i'm sorry i just wanted to get some snow and so that and so therefore you're saying that because he knew who participated in the group that was actually getting the experimental drug he could he could take a food we're trying to get a link between ok so i now have access to be unblinded data and either that might help me produce the program from which i could generate predicted result and then trade on there were just the axis the unblinded that it itself might give me a limit or a read on the outcomes that i could trade on if we don't think there is evidence showing that they needed but what in the evidence shows that just getting the access that shows that they had access to the unblinded data but is the nature of that unblinded data such that you could make a predictive assessment of who was likely to succeed in the trial and it was like you  you know we're just trying to figure out its identity had access to nonpublic information or act and i just think we're just trying to figure out what is the theory of why the information access to that was nonpublic is material some of that knowing what materiality standard is as a legal matter and then what the evidence shows that would support that legal standard that's what i'm just trying to figure out ok and i'm sorry if i'm not helping i think but i mean you know turned my mute on and off so i just want to make sure you can hear me again you think you hear you ok i think they're entitled to equal consideration but i think if you're going to compare them to