most favorable to the other side if you still show you he also knew more about office financial situations than almost any not aware that in the pleadings or certainly as an issue in this appeal that the f c c has identified any particular piece of evidence relied upon by the trial court as just mental state that encompasses both knowing conduct and also reckless conduct it constitutes a dramatic departure from standard or acceptable in the opinion one way or another the standard that was applied it would be are certain that the standard here would be a higher standard than a clear and convincing evidence that ought to be applied although i hasten to add whether the based on what's in the record whether judge painter was clearly wrong in in ruling that yes he had failed to establish the requisite mental state and the record area of responsibility in terms of his function and daily involvement that was initially a gentleman named mr to me you know who stepped out in a really nice ninety nine and was replaced by well my answer to that would be first of all it's not clear the extent to which money coming in the product or it was being paid out back to work it's perhaps not it is evident in the research that should be alphas derived additional income phones in terms of what he knew and this is one of the two areas that judge panel dealt with the financial condition of the company what did he know and then secondly the program provision sufficient to pay the monthly payments to the investors that were that were going out the s t c in our view miss characterizes the record on that in one important respect on page alpha's financial condition rather he was talking about industry wide decline in revenues coming from pay telephones in general and how that had affected alsa accounts or for the f rivera knew that alpha telecom in fact was not profitable or was not able to generate sufficient funds to pay investors from phone revenues there's no silver bullet on any of these points it's all deeply embedded in facts that are in a very unwieldy record but fact is judge cantor selling aside what rivera knew we know that this is what number of any number of inference or source and summations could be drawn from his characterization of the draft of that conversation the conversation occurred in the early part of june after  and you know intending to defraud other people in the spring of two thousand and one else in the letter to invest it's word they've been borrowing a million the castro brothers so they wrote a letter to their investors and it said the majority of maybe must have been made in the remainder will be sent shortly now that wasn't true and he knew it wasn't true they hadn't been made and then he also said that they were trying to improve the fixed rate of return aspect of the contracts with the leases made the program and invest with contracts or not the other question however and i'm reading from the pre whether the investor starting over is an investment not an investment contract if the promoter promises the fixed rather than a variable return or if the investor is contractually entitle to particular  the practice in this case contracts in which investors were assured of a minimum fifty eight dollars thirty four cents a month you know the common case with the circuit result