this case presents that issue whether the jury instructions fail to explain the government's burden of proof on an element of securities fraud just by way of a very brief over conviction his role his ownership interests infusion farm and other business entities controlled by serious i'd like to address the nd issue in mr schoen p r s opening registration exemption under rule one hundred and forty four there was no instruction given by the district court on the general rules and regulations applicable to federal securit laws even the government had requested these two of these instructions as well the instructions that the government in this appeal included with it relief from the gordon case were extensive on securities laws and regulations multiple instructions explaining those laws that is required dimon just use the packet and circuit was involved in making a material misrepresentation of material fact and that misrepresentation had to do with securities laws and regulations regarding exemptions from registration this cap that's one way it could have been that there could have been a material misrepresentation right is that that he made a false statement in saying that it was out the other ways that you are suggesting i'm assuming and i'm looking at the indictment was employing devices schemes and artifices to the fraud is that what you're referring to the other way making a misrepresentation of material fact all of these in different ways using different language but they still they still come down to  point that he had to defraud or or misrepresent in some way but it didn't have to necessarily have to do with whether he was exempt under rule one hundred and forty four did it i mean how about not telling people about the criminal the felony convictions of the people involved with the company that's an immaterial omission isn't it it's information that a reasonable investor might find important  making his or her decision correct your honor it's just there's no way of knowing which of those prongs the jury convicted him under and you know it does seem all over the  evidence that was used particularly in the context of these three saying also there were three particular sales one in two thousand and twelve in two thousand and thirteen a fusion farms stock better and forty four to say that the securities are exempt from registration so well even even if we focus just on that as a misrepresentation the jury was clearly instructed that the government had to prove beyond a reasonable doubt that the statement of material fact was untrue so they were told they have to find that he debt  because they're not exempt and and so the issue here is did the jury understand that they were false because they weren't exams and again i it's a entities all the people involved it was a complicated scheme there's a fair amount of securities law that is not easy for even lawyers to grasp life found myself having to study up on my corporations quite a bit i took notes and it just seems that it's beyond the pale for of lay jury to really keep track of what was the misrepresentation of material fact and why did that violate federal securities laws appealed that issue and i understand the big government has argued harmless error and that this was intrinsic to the crime it predated the crime significantly it was seriously prejudicial evidence because it involved a family member who testified in what was an otherwise very dry difficult trial for jurors to follow this then injected a very few men element into the trial that was closely watched by the jurors and it was highly prejudicial because you've got uncle taking advantage of a newly admitted attorney and this isn't a harmless because that was already injected into me that if you're doing the forum for b analysis and even if you could put you know you could meet that it was for an improper purpose you have a hard time on the was twelve letters with her signature i mean yes she did testify to that testimony that have been sufficient but they and there were twelve additional letters from two thousand and nine this is again a year before this conspiracy even was alleged to have begun they had nothing to do with this crime and it's it's like any picture in urdu stood trial it's got its weight is heavier then and then oral testimony because the jury takes those exhibits to intrude into the jury room for deliberations and it's very powerful evidence to see twelve letters with their signature but without the other testimony the jury would have no way of knowing that there was any problem with those twelve letters all the testimony that came in all the evidence that a man had already provided the jury with the information that the niece's signature had been forged that's correct your honor it's just our position that the power of the visual power of those exhibits was extremely prejudicial have bolsters some oral testimony and it was found that they were so much more powerful than the oral testimony that they were you should have been  much more that it's not this case i'll restate this these are written documents but the power of a photograph has certainly been argued and you know the prejudicial nature for example of gruesome photographs of the crime scene right but that has not has to be pretty substantial because there are certainly cases where there's been say officer testimony of a bloody grinds the where there's been a murder cross didn't quite follow that even though the pictures of the bloody body as bolstering the officers testimony i mean those those could be even even more prejudicial when heart wrenching to a jury than than a stack of letters yes yes and i'm not i'm excusing and trying to suggest that it's an analogous situation but you had raised the question do i have a case i don't know how to deal with these facts and you just you just made me think about it i mean that would be something of a different crime similar situation and we've certainly let both of those  yeah well i guess i'm sorry i brought that to your if there are no further questions i would reserve my remaining time instructions and what they're saying is our objection is we want our instruction not the instruction that you're given i mean i i i'm not persuaded by your waiver argument and maybe it's because i'm remembering many instances where we had a jury instruction conference off the record and then we came in with the court reporter sitting there we quickly went through and noted for the record which instructions we well they certainly did say that the one they proposed had multiple issues raised and there was never a specific objection to the court saying your honor we understand what you just said but we still think it's legally insufficient for not including an additional element regarding the registration or exemption of securities if we go the route of saying this is adequate i think we almost read rule thirty out because the defense  think reading these two together is problematic let me turn to the merits of this court doesn't review jury instructions in isolation but rather seeks to determine whether the jury considering the instructions as a whole was misled to read the instructions  statement about or admitting a material fact but if the court explained that instruction would have left the jury to wonder why the other possible means were not explained as well and to put a fine point on the defense instruction would lock the government into the a position to make that determination without more information about the requirements of one hundred and forty four what's your response to that well my response is a force that all statements are material admissions are to a is no additional element that no one knew about regarding two of the four means and i think i think that's the key thing here though i do want to throw the question about whether there was a general security flaw instruction because both the government and the defen and that's why one page nine hundred and ten it was not a big sprawling thing talking about here's the statute here's the rule now here is that you know  than last whatever but there wasn't one hundred and forty four instruction it wasn't quite as extensive as the one in the gordon but i would if we're just looking at the later gordon's about a page and a half and double spaced the one that the court gave here is about page single spaced so of course the one hundred and forty four dollars instruction as i understand it is not at issue here there is not a claim on appeal but the real defendant was arrested ninety nine and across the court said the prosecution uses testimony to show a longstanding pattern of drug activity from the late seventies until the rest of my nine hundred and ninety due to this life this statements to find that the evidence is intrinsic it's making that evidence that those statements for this the side of the forum for be waiting in turns and what it's probably devalue it is i case we from the th circuit we cited that we had evidence over nine hundred and ninety one securities fraud conviction ninety three dollars securities fraud civil injunction to civil fraud judgments from twenty yeah the defense did not contemporaneously request a limited instruction but in its final instructions the court told jurors they could only consider similar acts evidence as a bears on the defense intent preparation plan or knowledge and for briefly because i only have a little over a minute there wasn't a contemporaneous limiting instruction because the current said this is intrinsic to the crime letters the twelve letters and so it's not for a for b and so there won't be a limiting instruction on the waiver issue i don't want to spend a lot of time but volume four papers two thousand four hundred and fifty seven the court specifically again asked defense counsel you are not waiving your objection correct and he sentenced correct i am preserving this issue and finally on the harmless error on the jury instruction that the government sites you know three pages of evidence and you know excerpts from the trial transcripts showing you know why this was the st element of securities fraud was proven beyond a reasonable doubt but but the trial was not conducted in that sort of logical order where that information was sent out so  y for the jury this was a twelve day trial it was complicated it's nice that the government has set that out in chronological order for the court but that is not how the jury heard this evidence we would ask that the the counts one in twenty one to twenty three thank you