sources in your miss phillips williams morning your honor bonnie williams on behalf of mr schumacher a little out of order but i'm taking up the only issue i raised in my brief which was the expert opinion who the expert who a pint on both the fact that it was this was a ponzi scheme and then went further and explained what a ponzi scheme was and that it was a fraud all right my argument is that clearly violates rule seven zero four b of the federal rules of evidence stated an opinion and went the step further of calling it a fraud this court knows the elements of mail fraud and wire fraud in mail for in mail fr or five elements each one of them uses the word fraud of fraudulent intent and wire fraud in four elements three out of four of them use the word fraud or fraudulent intent so not only did she use the word ponzi scheme which in the general vernacular we all know was a fraud she the government took or steps forward and asked her what to what was this and she said it was an investment fraud i don't those terms the seven circus of those terms have a colloquial usage i referred to myself have jokingly this morning as a fraud and so i mean it's you know we use those terms kind of throw them around it's it's not necessarily a statement about mental state is that it is a legal conclusion your honor that it was a fraud and that was what our clients were charged with they were charged with specifically an investment fraud and i do agree that ponzi and the word fraud is used in a colloquial sense but that is exactly what these people were charged with does that mean maybe the answer is yes but does that mean in a in a murder case nobody could get on the stand and say there was a murderer because that would like that would entail spam malicious intent or whatever i can say that i would think they could say someone was killed but i think that using again the word murder takes it a step further like she could have said in this case or she did that there was money that was taken from new investors and put in then that money was used  pay or maybe have a vice versa the old investors that she could have said but she took it one step further and made both the legal conclusion and the factual conclusion that it was a fraud which in this case because throughout this twenty nine day trial this was the only time that the district court gave instructions like this that basically she said he said repeatedly and god knows we love judge hurley that he couldn't she couldn't opine on the men the defendant's mental state that she couldn't say that what they did was a fraud but that's exactly what she said they did and so in my opinion your honor in our all of our opinions violated rule seven zero four and the judge erred by not declaring a mistrial in this case thank you for noticing that correctly your honor may i please may please the court my name is neil gary rosenzweig court appointed counsel for joseph senor i use four minutes of my time and reserve one for rebuttal and i'd like to discuss the denial of mr senors myriad motions for severance and mistrial counsel for both mr senor and his abundantly clear to the district court pretrial that their defenses would be both mutually and tag mystic and irreconcilable shoemark intended to do everything possible to convicts in new convictions for fraud that he used the social security number of someone else for purposes of obtaining credit and then he filed twice for bankruptcy and while he wasn't permitted to do this is co counsel inform the jury that cigna or blame schumacher for senors ponzi scheme through lies deceptions and misrepresentations examples of how he went about questioning witnesses the very first witness was melissa cooper who went to work for j c s seors company after seeing the machines these virtual concierge machines action at the baseball stadium  and she tried to get money back that she had invested for friends from senor so she mark went to her on cross oh also one of the jurors had remarked that this was the star witness for the government  on cross to mark gas because what you were trying to do was convince the person who was head of j c s who you knew was committing a fraud to return your friend's money there was an objection it was a stain there was no cure of instruction given cooper later admitted that she had never spoken to your about his business later on andrew sacca who was a credit salesman involved with senor trying to obtain credit for his business was asked now when you forgive this information which is contained in the government's exhibit i believe when you conveyed that information and you forwarded it were you knowingly and intentionally conspiring with mr senor to perpetrate a fraud against anybody objection argumentative sustained larson's why i'm having a hard time following what issue it is that you're specifically arguing right now you know you had said we have since made clear that the supreme court is essentially abrogated in this affair case and is that which is that the issue you're talking about well i'm certainly faced with the panel's decision and hearty versus commissioner which rejected the second prosecutor theory i mean the second prosecutor if there is the basis for my argument this morning it was the main one in my brief and the problem that i have is that in two thousand and twelve or thirteen a panel of this court rejected the second prosecutor's theory based on the fear of the problem with that was that the panel said that there's a fear or didn't discuss the second prosecutor theory and therefore it's not available to this defendant when in fact there's a fear a court specifically stated that district courts might find the requisite degree of prejudice in other situations not discussed here so to say that it wasn't discussed is a fear is that we're not going to recognize it when there's a fear a court specifically said if you're there could be other situations  just doesn't seem to hold much water please the court my name is richard rosenbaum on behalf of lorch randy's ignore i am prepared in test with arguing the jury misconduct issue but i too have raised a severance question in my case the judge prior if you do have a question in that regard i'm happy to do that mike my problem had been that the parties seem to be focused on president our president here garcia that had been that we have at least a couple of time seem to however the sole basis for the court's denial of the motion for severance was based on garcia so the case the court had based upon the the case that is now in question but for from laura  grandees perspective she felt that she couldn't get a fair trial going to trial with mr hsu mack and with her soon to be former husband with regards to the germans conduct issue many times you go through cases and you won't have one single juror misconduct issues sometimes you have one sometimes do this case the juror misconduct infected the entire trial and judge hurley respectfully committed error by failing to  to investigate and to review the extent of the infection first of all juror number twelve comes out and she admits that she's done two google searches about the case she's looked upon zs she's looked up sign s her mother and her fiance are aware of it and she and her coworkers even discussed it also meant lee once the government sides with mr signori or the court decides to excuse or from the case over laura grandees objection now once that juror is excused and we argued that the way the court dealt with number twelve was error then there's even more problems first of all the star i'm trying to point out the differences with regards to the argument so we have the coughing incident then we have jurors three who submits a note to the judge and she says that there callie one of the co defendants an old man a dirty old man talking about laura grandy and how she has no no emotion and in talking bad about her they're wondering where the defense is going with the examination of the star witnesses so clearly these jurors are questioning the case before it's time to deliberate judge hurley told them and told them time and time again don't do that now when the court starts trying to give the curative the curative again just highlight these errors that have occurred mr gandhi understand she's not entitle to a fully impartial welt she's entitled to an impartial trial but in this case because of the juror misconduct and because of the court's failure to fully investigate by failing to question juror five jurors sixteen a great length after there had been this no from juror three that directly implicated what they were saying we believe that there's been an abuse of discretion and error has occurred so help me here because i think do i have it right in my notes that the court dismissed juror sixteen then instructed the jury in mass on the presumption of innocence reiterated don't do this and then polled the jurors individually make sure they could keep an open mind and then further ask them in mass when they would could reaffirm the presumption of innocence everybody says yes and the judge says i think of them enough your file is that an of discretion your facts are correct but noticeably absent as any investigation into juror number five who had been investigated and again it's the can you follow my instructions and be fair yes we can is that enough to emphasize an aspect of the trial in this case that links all the issues that the defendants raised this morning and that's the extraordinary level of care in their own us with which the district court instructed the and guided the jury through the twenty nine days of this trial in that level of care and there on this was on full display during the direct examination of the government's forensic accountant miss davis by my count the district court instructed the jury four different times over the course of nine transcript pages on the proper scope of this davis testimony instructed the jury that she could testify opine as to the business activities of j c s and that she could not opine on the mental state of the defendants in this case and her testimony followed those restrictions to the letter she testif that based on her review of the business records and cash flows of the companies that they'd operated a ponzi scheme and she said nothing whatsoever about the mental state of the individual defendants she never testified that they involves misconduct between or among the jurors and that is precisely what happened with respect to jurors five and sixteen and bradley really is the best measuring stick for assessing the district court's handling of the misconduct in this case because in that case two jurors discussed or two jurors made comments that are even more egregiously improper they said that they wanted to make sure that the defendants went to jail you know comment that bears directly on the guilt unlike the comments here and in that case the district court did even less by way of investigating the misconduct in the district court did here in that case the district court never interviewed either of the jurors whereas in this case the district court did interview jurors sixteen  in the district where it went even further here than the one in that case because the district court made findings of fact that the jurors were telling the truth could carry out the responsibilities and it said that it pay particular attention to williams who saved a minute of her yes your honour's i want to go back to what actually happened the question what was asked by the government is did you form an opinion about what was going on with these companies which at that point misstate has concluded that they were engaged in a ponzi scheme operating a ponzi scheme then they went then the government went the next step and asked her to describe what a ponzi scheme is and at that point she described it's an investment fraud this court in the united states versus long although it's a fed it's not a published opinion stated that the court stated that at that point they the witness said that was an artificer scheme to defraud and then this court said that's problematic it comes closer to embodying embodying an impossible legal conclusion citing united states versus cop which is the case i cited throughout my brief and the experts conclusion drew exist directly from the language of the statute which is exactly what happened here i guess so so i don't want to carry you too far over your time but i'm now this is dangerous i'm now sort of intrigued by my own question earlier like i mean any time does that mean that anytime a witness names the crime like every crime has constituent elements in your argument here basically is because you called the crime fraud that sort of necessarily brings with it all of the elements one of which is mental state so now i'm wondering about rape i mean so no witness could get on the stand in a rape trial and say that a rape occurred because it's got an element presumably about intentional you know sort of sexual assault without consent or whatever again your honor i would go to the sexual assault without intent without using the word rape if i think that might be the better practice i just wonder i mean colloquially we speak of rape murder fraud well there's there's also a difference between a fact witness and an expert witness and that's the problem we have in this case it was an expert witness your honor and if very very briefly i know i'm over my time the judge brattle i'm also a jayhawk i grew up in bo when they played auburn i was a jayhawk but not a good it did me i'm from philadelphia so i i can't do anything about that i realize i'm up against a panel president of this court that doesn't mean however that an active member of the court could not ask for a revisiting of hardy and perhaps blankenship especially when you look at hardy in the reason given for rejecting the second prosecutor theory problem with this case in the main is senors defense was that he didn't possess fraudulent intent and all that the jury heard throughout the twenty nine days of the trial was that he was a fraud and the government couldn't do that or wasn't supposed to do that but it didn't prevent codefendants council from going after him at every turn did everything including call him a criminal and the problem the other problem is that this jury all they knew was on the schemes were bad ponzi schemes were fraudulent how could they go through the mental gymnastics to understand that in order to convict you had to find fraudulent intent when all that they were hearing throughout the trial was he committed a ponzi scheme he was that he was running a ponzi scheme ponzi schemes court the government cites to bradley we to believe that bradley is important it is is precedent setting in this case along with harris however in bradley the eleventh circuit said you must fully investigate these claims of  misconduct and judge hurley just ignored that responsibility with regards to juror number five and this was brought out in writing from juror number sixteen i realize it's a tough burden to hoe but with regards to the germ  conduct this is an important case it's an important issue that's permeated the case and we asked the court to reverse thank you mr rosen swag and miss resin vom i noticed that but the view were court appointed and and we appreciate you accepting the appointment and assisting the court this morning and and in the preparation of this appeal as well so thank you very much now moved