good morning honors this is kendall turner and i'm appearing on behalf of mitchell fine i'll be touching on three points which all this briefly now and then discuss in a little more detail st mr stein's conviction and sentence must be vacated because the government knowingly use false evidence to secure a conviction and substantial sentencing enhancements nd the district court erred in inflating the amount of loss caused by the alleged fraud by incorporating victims and each of these points in turn but especially since i can't see you just please feel free to let me know what you'd like to focus on if speaking only for myself your st issue which i think is pretty well  say something about the due process claim and then i'll move on to the last time the case was here this court rejected that claim for two reasons it held that the burden of proof is on the defendant and the testimony might not have been false the new evidence introduced  not no your honor because the government actually had listed mr tribe you as a witness and then elected not to call him and mr stein wanted to calling hand but the district court did not want to time through but having said that you're free to respond in any way you wish and spend as much time on this as you want to just i don't think it's your strongest issue i think you've got some stronger issues but again that's one rd of the court so proceed to understand your honor just briefly so the the evidence is new in that it makes clear for the st time that there is a connection between it tried to do and the purchase order the last time this court was the case was here this court said that the evidence presented by the government wasn't necessarily false because there wasn't an obvious connection between the purchase order and the check from try to view this this new evidence which was not materially available to sign the last i met with the cases here because the government had not produced it in response to science specific requests for it satisfies this court's prior test the the suppression requirement th referring to but again our position is that that test is flawed because as the chief judge recognized and i was out today the harmless error standard not the brady standard applied to the false evidence claims the turning to the district court's finding of loss amount the same problems this court saw before persist the government can prove the last amount with direct evidence or with indirect evidence of loss and there is not any direct evidence here because none of the allegedly injure investors testified and said that they relied on the project information and many who submitted statements expressly just claimed reliance on the alleged fraud and while the government tried to prove t amount with circumstantial evidence that evidence is insufficient as judge pryor explained last time this case was before the court last can be proven circumstantially if the market in which the security trade is st shown to be efficient laid out one theory in which this can be proven he was also quite clear that's not the only theory and mentioned that there may be other mechanisms by circumstantial evidence direct or testimony that this can be done and here's i understand that the government presented expert testimony of an event analysis and that event analysis for lack of a better word seems to be somewhat of a differential diagnosis which is let me go through all the things that it could be and explain why they are not and show that why for that reason it has to be this why is that not a valid methodology in which to show that there was a cause effect relationship between the alleged illegal carvey illegal conduct and the drop in the price or the or the inflation so the only thing the event study showed was that in connection with one of the purchase orders there was a statistically significant change in the stock price and there's no reason to think that that there was a causal relationship because a there was a symmetry of information which will mean we only show that that this is the only information the company was putting out and anyone knew about the company and b she went through all the different other things that could be including those things it so st the last time this case is here this court already held that sort of general testimony that the only place to get information about signalize stock was from press releases and public filings is not sufficient to support a finding reliance and in terms of the efforts to segregate out the short selling and the financial crisis the district court actually did not make any findings about whether dr becker the last two investors i want to clarify that i believe dr vector's event study properly accounted for reliance by investors and also properly accounted for intervening events that may have been contributed to the investor losses why is that not a sufficient finding sufficient finding because the court doesn't explain why it reached that conclusion and even if that were adequate in other contexts here because the th circuit specifically said that just record was obligated to make findings regarding the effects of the intervening events and the district court did not did not do that but even if you disagree with me at most dr becker's event study shows a particularly significant change in the stock price in connection with dollar of the purchase orders only a loss connected to that one purchase order not the others should be incorporated into the finding of lost amount why would that matter if it's only one or all of them there they were separate counts related to  larger conspiracy why would it matter if it's only related to one or more than one because the last calculation includes the entire period of the loss so that and so you know the st press release there honor's point that it can in many in some cases be very difficult to prove but on the other hand you know the defendant is entitled to have the government make its case and it's not fair to allow  and at least as i looked at the prior order in this court we never required a showing of market mission to establish the point circumstantial market efficiency in other cases that is because they were large cap stocks they were you know they are more analysts analyzing them there are more people trading them there is greater informational efficiency this is a signal life is a penny stock and a penny stock market several courts have united states just a roadmap for the court is that i'm of course happy to answer any questions that any of your honor's have any time but i'm planning to focus st on the last calculation which is the only issue that the government believes is preserved and presented for studies produced by dr bakker it showed a statistically significant correlation between signal life share price and the announcement of the fraudulent purchase orders specifically there was a statistically significant abnormal return of eighteen percent and september t with the company's own representations about its performance on the basis of that evidence dr packard concluded that the statistically significant inflation in signal life share price was attributable to the purchase order fraud and the district court accepted her reading number one short selling of signal livestock and number two the across the board market decline that happened in two thousand and eight so i resigned saying the government had its experts analyze those factors in order to isolate the or causal relationship with the earlier press release the one from september th isn't there any from different than days and from some difference in investors that would be captured by this and if so is that significant enough to change the loss amount  information that was attributable to that purchase order eighteen percent abnormal return attributable to back purchase order and treated that is the amount of inflation in signalize share price starting on september change than the number of affected investors or in the last amount i would also point out that the district court went to great lengths to to make sure that the last met was as conservative as possible  small handful of investors who fell into that september twenty s to september th period who had a smaller abnormal overturn that was docked against them again i would have to go back or do you or do you not agree that the one million twenty nine thousand five hundred and seventy dollars amount and six thousand six hundred and sixteen dollars investor amount includes people from starting september th or does not include people starting september t order but again i mean we're we are talking about a very very narrow subsection of this and i understand that the court wants to get it right and wants to understand exactly you know what the numbers are and all that kind of stuff but this is not going to nine thousand dollars so if the cutoff for the next two level down is a one million or less is less than a one million but only twenty nine thousand dollars which isn't all that much money more talking about a number of investors might affect that amount and that's my concern know five hundred and twenty five thousand dollars of that is directly attributable and the other one million or one million and change is a reasonably foreseeable consequence of that fraud i think you did in the event that large changes in the stock price and that she did not analyze and you cannot assume that the large changes in the stock price are because of information and less you have shown that the market informationally efficient fine and then turning to forfeiture so my friend mentioned that the this challenge is for close because mr stein did not raise this work so you're saying anything you raise the st time i'm sorry anything that you preserve the st time but didn't raise on appeal even though we have a limited rima and because they reinstate the and the district court does and then it reinstates the judgment having complied with our limited great man are limited instructions and under your position that reopens everything why would why would any system issue concerned about finality wont to say because of the happen stance that there was a reversal on other grounds it reopens everything to the nd appeal well that's exactly what happened in the supreme court's remand to the district court with instructions to calculate a new the amount of law for purposes of us sentencing guideline to be one point one to be won and restitution under the m r a that was the beginning and the end of the remit and by the district court basically you're asking us to go far beyond that and i'm not sure i know holding one to cut aside how we can do that