release before the district court in the court is going to take that under advisement we are going to proceed with the arguments today in we will take your motion under advisement unless of course your desire is to modify the motion and dismiss the appeal a wise we will we'll continue this into all the briefings in there are arguments prepared i think it would be efficient to go ahead and proceed at this point with with the appeal unique situation where the president of a company was convicted for concealing a series of transactions allegedly from the c e o of the company where those transactions were reported in every auditing financial report as op a certain compensation in the tax forms were fully disclosed within the finance department of the tax department disclosed on forms that were prepared specifically for bill boston and were disclosed to the tax partner at my glad report whose sole job it was was to be below austin's personal tax partner so they were going to fight abuse relationship and so it's a unique situation that includes disclosure of the transactions to the the austin that he that formed the basis of a conviction and in order to obtain a bat the government engaged in repeated and massive misconduct related to keep their theory every misstatement that they elicit it and every false impression that they created was directed specifically at a piece of evidence that showed that the austin was well aware of these transactions that they were not concealed that what's at issue here is do we have a situation where the united states government can obtain a conviction so long as it has only a little perjury in it is it the case that the government can engage in only a little b nation your order with with with respect there's a couple of different standards of review if it's an interpretation of fact it's obviously approved and abuse of discretion standard or if it's an issue of nelson in consistency well which particular inconsistency so the issue is whether us are presented false testimony our direct examination is a listed by the governor government and the trial court made a ruling and depending on which you're speaking of that either it was not known to the government there was also there was insufficient evidence of clarified thank you your honor so however when both witnesses who presented testimony that doesn't absolve the government from having to decide and having to correct false testimony if we go all the way back to knapp who in that case that precise argument was raised by the government and rejected by the supreme court they said well walk across examination you've got countervailing negatives and so it was sort of all before the jury and they were free to decide hey this is the note in there and so the idea that the government can introduce and not correct false testimony so long as there's some countervailing evidence in the record i an inconsistent testimony crane's it creates a jury issue unless the government affirmatively knows what's the truth exactly well some of the inconsistent testimony here is that inconsistency between bill austin can we just stick to what i'm so concerned about here you know you said the government has an affirmative duty to correct when lost in the end else and present inconsistent testimony to the government  think it's very important yes there are well there's a few there's a few differences here one is the court found an app a violation and instructed the government to undertake a search through all of its files and identify and correct everything else i'm sorry but which specific statements or do you allege were actual perjury statements that the government was aware of is it possible one testimony that austin claimed he immediately shredded the descending gross reports upon receiving a that was deeply critical testimony secondly on the issue of the formation of an incentive contract which austin was essentially trying to get out of by obtaining this conviction he gave testimony about the timing of that which special agents testified could not possibly epp them true based on evidence the government had in its possession all the time that being communications and drafting records from with her mental state and others that agents now a part review agreed that testimony could not possibly be true but the rd example is the testimony of the agent corporal about selling point in her testimony most blatantly false the government had filed a memo at the beginning of the case taking a position that was the opposite of the testimony so they knew it was false and then it was testimony of the government on its own admission it made it to show visit as an example of research going to rich in themselves so in that case the court found correctly the fact to the trial by making the determination that that false testimony went so only to the tax code which mr residual was convicted but that testimony was about the acquisition of a dealership through the  structure it was expressed by the government on their own notes in order to show an example of or is it unjustly enriching himself consistent with their d theory of prosecution they never corrected it and so when i read the br trial the u s government described the very deal as consistent with what i said it was absolutely inconsistent with the testimony arranged when i objected specifically with the problem with the testimony the u s attorney at the bench assured judge to have she had a basis for it that she did not have and the testimony itself was blatantly false the trial court ruled that nobody could have believed it was true including t she described it as a deal by soul of the accounts payable there's just no way to make that mistake but the other is the listening the testimony and the waiters who prepared the testimony certainly you know these are three white collar prosecutors in the biggest case of their career after eighteen months and thousands of hours of preparation that they told the court to do you know it was something else before they changed it to try to make an easy and cheap example of research could committing a follow up they said that he sold that he made starkey pay him eight hundred thousand dollars for five hundred thousand dollars worth of stuff and it was utterly false and then they tried to protect it on cross examination and almost buried the indictment according to the district court to p instructed and it was under restrictive admission your honor and then the district court determined without argument from either side that it then admitted solely for tax purposes but if you read the testimony there is no case at all so it wasn't made it to make research go look like a fraudster for the purposes of d character evidence that would go to the entire indictment i don't think there is any basis to believe it was restricted  it's based on how it came in and how it was experienced when the testimony was delivered the other examples where you list your honor are so the other example d that we had listed is austin saying i never said x y z that church and state comment to corp well and this is why i'm hoping this court will jump in on this in that report that was in quotations from the wit the attorneys from the u s attorney's office responded by saying well geez we don't know what that means that could have been if you or could have been a direct quote of testimony but whatever who wrote that motion was physically present in that interview which means that that argument encouraged the tribe you know the take one or two mutually exclusive interpretations of evidence known to that way or one of which must be false i mean this is kind of what's happening when the u s attorney's office in this case is saying we don't really know what's going on we just throw the testimony up on the stand and if some of it happens to be false well i hope that the a few citizen has really good lawyers that is not the standard of due process and it's not the standard of  due process the court ordered the government to find all other issues a false testimony and correct them that was part of the remedy that and so that became obvious case your honor if you're asking me the simple inconsistency  to issue of course not but in this case the only thing that happened in response to that which the court's order was the government made a self serving assertion that and last that it had looked everywhere and found nothing they didn't correct corpora and they didn't correct a lot of other things and so we're now faced with you know an incomplete record on that based on we have no idea what the government d so i think in this case there was an obligation because the court told them there w testifying witness scott nelson his testimony is the sole testimony upon which the district court sustaining the conviction just so the court understands we follow parade emotions early in the case in the u s attorney's office other than james we are pursuing open files discovery we are not concealing anything they repeated that assurance to the trial court we then reached a stipulation with them to get all of the jencks which is reflected on trial dollars and then almost immediately they started sloan planning jencks material for scott nelson at district court docket three a team the court brushed them back for the late disclosure of scott nelson material and had them change their witness order in sanction to it but a trial transcript three hundred and sixty halfway through the trial i asked and then the courting choir directly of the u s attorney do we have all the materials about scott nelson and the u s attorney said there are some additional disclosures but we'll get them out today that entire time they had a complete meeting with mr nelson designed to induce cooperation where they showed him extremely embarrassing evidence they would present against him a trial in an effort to induce his cooperation and they did all of that i find all the motion post verdict a year after the trial and they confirmed everything in my affidavit excess up scott nelson felt threat is what i claimed their response to that was we don't think it was a threat but we then knew that they had just completely concealed this meeting once again they assured the district court trust us we know obligations we've examined files and there's nothing even arguably pretty in it that's what they told the trial or on the th occasion i felt for the st time in my career a motion to reconsider in federal court then and only then did they say that it had been obviously wrong and there's no dispute that it was obviously going to go although it was also jenks material and so the district court's mistake i think in ruling on this was the district court ruled that we knew about the affair which was the threat in testimony and that's true we knew about that what we did not know and what the government concealed from us oh we didn't know this meeting even happened and we did not know that him a meeting to induce cooperation the government showed this witness logs of highly embarrassing testimony they were introduced against him at trial and that was still obtaining during the trial during a haranguing redirect by the u good morning your honor may please the court david ganar assistant u s attorney in the district in minnesota on behalf of the government mr curtis wright it was not involved in the proceedings below and frankly i think that's an advantage in this case  think it just passionate care for you go the record reveals that along the lines of much of the court's questioning that there was no repeated and massive misconduct by the government the district court did not make a finding  was repeated a massive misconduct by the government and it's not true that the evidence that issue all went to austin state of mind either but what i'd really like to begin by focusing on is the question smith and judge logan with respect to standard review and then to put issue the defense brought these issues number of times before the district court both at at trial and after trial and the past year on appeal is an appeal from the district courts to the rule thirty three motion for a new trial and as noted by governments brief the standard review is clear this court would have to find that the district court clearly abused its discretion in denying the motion for a new trial and that would require a finding of manifest injustice and then the coup context that requires a finding that there's a reasonable probability that the results of the proceeding would have been different a reasonable likelihood and in this case i think it important as the court has already done to focus on the nature of the testimony the nature of the district court's finding and the nature of the remedy and if as this court has has that what the district court found was that the testimony at issue here was the result of either mis recollection in possibility or falsity and the district court and no finding as to which of those things was true with respect to some of the testimony agent kenney and agents now the district court concluded that what bill austin testified to was false ordered the government to recall case agents which  did the case agents testified with respect to their recollection and their knowledge the district court then advice the jury that mr austin's testimony would be struck as false which is what is required und further instructed the jury that they could trot adverse inferences against the key government witness with respect to the rest of his testimony coupled with another instruction that told the jury that once a witness is found incredible as to one matter they can be found incredible  to others that remedy is is not only sufficient it's extraordinary but it certainly comports with both the district court's findings with respect to the nature of the violation  ensure that if there is that if there's a finding of false testimony in the record that that testimony is corrected now it's the government's view with respect to the testimony of agent kenyon agents now that frankly there isn't any showing of perjury whatsoever and certainly the district court although initially making it up who determination perjury it's clear from this record after a motion for reconsideration from the government argument on the record and then a final jury instruction friends that the district court ultimately concluded that the testimony was false that it would not instruct the jury it was knowingly false despite being pushed on that point but that the defense and would allow the government to argue that it to was consistent with the search warrant affidavit were a row that austin typically shredded dissenting gross reports austin states i've never shredded a document my life agent can is recall the stand and what he says it is in the interview from which a search warrant affidavit statement was derived austin told him that a starkey employee named miller would give him the dissenting gross who court and tell austin to either destroy it or austin said i didn't shred it he's testimony that when recall that the direction of the district court was not that austin had perjured himself but rather that austin had told him that miller indicated he should either shredded destroy the report and that he canny for purposes of the search warrant affidavit assumed that austin shredded it and you can find that testimony your honour's at  now with respect to the agents now and this is reflected then sure instructions as to what the district court struck agents now tested agent snell testified that the contract amendment could not have been prepared in one day and was not prepared or direct acted by resist austin testified it was his belief that the contract amendment had been prepared in one day and that was this guy had done it and if you look at the jury certainly true that austin that is not testimony in the most reflect that wasn't drafted in one day and it wasn't retracted so we better stick to the district court corrected that ordered the government to correct that testimony it was corrected and the district court so and if you'll note the defendant only cites from the appendix pages fifty four to sixty three well best the st and a quarter issued by the district court it doesn't consider the government's motion for reconsideration it doesn't consider the expense of the arguments of the parties on that motion it doesn't consider the district court's ruling on the record on the motion for can reconsideration it doesn't consider the district court nd appeal we order the poor and it doesn't consider the fact that at the close of trial the defense specifically pressed the district court for a jury instruction reflecting a finding of perjury and the district court refused to give it saying he could not determine whether the testimony  issue on a some point transaction there's no question that the district court was critical of agent propose testimony and had ask your honour's to consider that with respect to its approach to the issue of whether a new trial was required you have a district court that carefully reviewed the record made an assessment of the testimony was critical of it and nonetheless determined that no new trial was necessary because she should submit your earlier question there was no kind of conviction in this case that related austin she chose smith with respect to that good faith basis determination by the district court in this as outlined in the government's brief there is absolutely support for agent proposed testimony that the eight hundred and fifty thousand dollars sale price was is focused on the fact that the sales price is expressed in units but of course that says nothing as to how the units were valued and agent proposed clear in her testimony that she believed this was her opinion there's no there was a good faith base that i think it reflected in the record and documented as such and at the end of the day the district court notwithstanding its criticism of the testimony correctly concluded and again the standard here is a clear abuse of discretion  and a man fest in justice with respect to a new trial and it and on that point in there clearly was not with respect to this it's approximately two pages and it relates to something that doesn't have any bearing on the else mccown's of conviction now with respect to clear abuse of discretion and neutrality and that issue in all of these and i think it goes to cumulative err i would just like to emphasize that the scope of what the district court had before this was a seven week trial there are thirty volumes of trial testimony there are dozens of witnesses you know austin was on a stand for four days scott nelson was on the stand for three days resent though was convicted of four separate fraud schemes there are something like one thousand four hundred docket entries in this case and as the court can tell it was passionately and deeply litigated the district court issued hundreds of pages of orders including a seventy some page order with respect to the new trial motion there is no question in the government's view that the district court gave careful consideration to all these claims rejected them not once not twice but really three times  the rd time being when received a move for release pending appeal and the district court determined there was no substantial issues here that would support a preacher released pending appeal so with respect to a neutrality human to bear your honors we are  preliminary attorney redemption of stock in which case i assume starkey would have been shown as the new majority owner or it could have been dividends or it could have been something else but nobody tells me what it was since sense that the recipients of the payoffs only had fifty one percent it would have been quick to quickly starkey would have been the majority holders that the shareholder records show all that your honor i confess offs yes are described in the brief as establishing the north limit for oil yes because it was stealing from starkey and i don't understand and you're not telling me you're not clarifying why that those payoffs kasten and stealing they stole from starkey because they used one to they use dishonest accounting to hide the transaction three they altered documents so that austin wouldn't find out about it because they knew he would not he wouldn't allow it for they used what they characterized it see why a loan documents cover your ass loan documents to paper over the fraud and five rizieq expressed his plan to defraud austin which was if you ever finds out about it i'll try to trade the money we're taking off of my employment agreement that is how they stole from start a valued the stock st at twelve million nine hundred thousand but when they discovered that that wasn't enough for what they wanted from the shares they arbitrarily increased it to fifteen million working backwards from what they wanted their payoff to be that's that when you lie about what the what the stock is worth then they booked it northwinds books rather than because they didn't want it on the descending gross report to conceal it from the company that's beth then they altered documents because when nelson was concerned that the transaction would nonetheless appear on the northland descending gro reports rizieq had told them to delete it from the reports before they provided it to ottawa met women council why why would a north london stock redemption have to be shown to start his books what what the testimony at trial what do you mean booked through starkey star he was a forty nine percent owner of north london northwind his redeeming something redeeming some of the majority shareholder stock it's being recorded on northlands books lot they lied and made material misrepresentations and at least five different respects ok well you can prosecute him for that well we respectfully that's what we did your honor well i mean i would ok i would i would conclude on that point by saying that the for the evidence of fraud that these defendants worked to defraud starkey that is to collect these payouts on a phony valuation and hide them was overwhelming at trial and the district court agreed repeatedly with respect respect to the strength of the evidence i only have a minute left your honor is there unless there's an issue that any of you have a concern about certainly does not believe the motion for these areas matter of substance on the issues on appeal in other words it's not that the effort to allow the district court to decide the compassionate release motion while this court takes one hundred by segment these issues and and decides them the government doesn't doesn't have enough opposition to that given that those issues don't bear on appeal but i think even with cheap just miss comments at the beginning the government does have an interest in having this appeal submitted and decided given the stage of the proceedings at the moment and how far not phony they never said it was phony it's government exhibit six hundred and fifty seven it was admitted by them on direct examination d through their cooperating witness who later went on to testify that the stock was redeemed early at a discount that was favorable to starkey the valuation was not done by any of the defendants but rather an outside agency called truck well that had been doing the valuations for twenty years all of which the government is aware and if you actually told them the opposite so the government's sort of promoting a narrative that is simply untrue the undisputed way to the evidence here is that the government's own evidence is that by redeeming the stock early they saved stock a ton of money and if you look at the stock documents even if these guys had been terminated for cause they would have been entitle to seventy percent of the interest of the stock based on the shareholder control agreement as the guy who drafted them agreed so there is no theft on that we argue that both you know brief and then if you look at the arguments in the restitution calculation section we more overtly drop