please the court here this morning representing mr on michael t who i have the pleasure of having in the courtroom with me this morning i've resettle issues in my brief and i'd really like to focus on one that being the sufficiency of the evidence on the mail fraud count if i have time i would like to turn to the forfeiture issue but those are the two issues like like to address to the court's attention today as to the mail fraud count mr t is not guilty of that offense because he never knowingly motion filed on behalf of mr t what standard do we use to review your unfortunately where we're left with a manifest in justice standard so that means that in order for order for joining of the scheme to defraud would county because that is the only scheme that we're talking about here is that would county is out five thousand five hundred sixty nine dollars as a result of mr humors scheme t program that was in what county that actually reimbursed the b h group fifty percent of funds that were expended on salary for training and that that's what we're talking about here this morning so the only the only question for this court is is there evidence in the record to support that my client knowingly joined the plan to defraud what county and we would suggest that there's  would county so that he could receive the benefits and is that sufficient to consider joining and i think this is why i said that the evidence needs to be parsed out in why the jury lost its way because that is correct mr t actually testified at this trial in testified that he provided false information on the form and he actually it was it was a form that was mailed but he actually went to would county and at their offices put for all false information on that form so if a jury listening to that evidence might might therefore make the leap of logic to say he then joined the scheme to defraud would county but that's not what the evidence shows what the evidence shows is that yes he put down false information on that form but in the false information was essential that he was unemployed at the time that he filled out the information he was not on point his testimony at trial was that he was leaving that i think the forms filled out on july thirtieth two thousand and ten and he was leaving from there to go back to new jersey where he expected to lose his job and so the mr teach testimony is pretty clear about this which was he expected to lose  job so he was going to be unemployed he therefore was going to start working with the b h group get trained actually benefit from the training and he thought there everything was was going to be on the up and up there he gets to new jersey and they don't terminate him from his employment now so then the questions become well why didn't you fix the information that was on the form or or things like that the problem here is that at that point it's almost like a condition preceding in a contract case in other words if i lose my job then i will start working for ph group and i will start getting a salary from b age group they i never lost my job therefore as far as i know mr t this is over  with and in fact he never he didn't receive a salary from b h group this wasn't like he then went and got funds from ph group and then in then a salary and then and then did the training and the information was false when he put it down absolutely while his explanation may be a good one the jury's entitle to disbelieve that as the explanation for what he did when in fact it was all they can disbelieve his explanation but there still needs to be some other evidence in the record presented by the government that he joined the scheme to defraud and that's and that's where it breaks down here because the that there's an absence of evidence that shows that he actually joined the scheme to defraud and he was sent there by you right absolutely again that's the circumstantial evidence of the not not he just went down willy nilly that he was lace they had a scheme to defraud but then it would have turned out to be ok exactly and so that's in so that's the problem with this case in terms of this count of conviction and i cited to the frost case in my brief was is the kind of main case i'm going on because it's in the frost cases this court will recall it's a very intricate analysis of all these moving parts of of of mail fraud case of well we have these you know we're getting these dissertations that are that are paid  for and used and then we're also getting these government contracts and the problem that the court set in frost is that we can't connect the fraud we know there's fraud because we know there's false information and there's these false dissertations that are going on we know that we know there's fraud but we can't tie it into the scheme that ultimately occurred in this case and that's the problem with this case is that connection between the fraud which is admitted and the actual scheme to defraud would county which mr t had no part of i have forty five seconds left and if there are any questions let me just say for very very briefly with regards to the forfeiture issue the on the forfeiture issue that's a part of the in criminal indictment in this case that was never dismissed by the government the grand jury  found probable cause that mr t owned this money this fifteen thousand dollars and that and he testified to that effect but before he was ever indicted before he thought he was under investigation and then afterwards at the in the desk the fifteen thousand that were in his desk that everyone says that was his own desk not part of b h group and was locked at the time that the investigation at the search warrant was was  d thank you thank you nine was not issued in rather than argue the manifest injustice i think i would spend my time on an interesting issue which is in fact the restitution issue because it's unique and i don't think there is to establish precedent on this issue in this case the judge determined the restitution by going through the number of people who had bought the dinars then he determined basically the fair market value he had he had found two different commercial pricing for in average did in all fairness to low average did in determine the ratio and came out with the amount on net the problem with this is this the uniqueness of this case is many of the victims really didn't feel they were victims we have at least fourteen who testified and it's unclear they were identified excuse me the victims were identified by sending out questionnaires to people who had bought dinar from m victim and say i've been the product in the court and include those in the last calculation what i know i'm this is restitution there can't hurt me ride in the restitution yes yes and let me explain why because we have a situation where a number of witnesses would say for instance you know i looked into this independently i saw jim cramer see something i had gone onto the internet and i saw their sites all over the place and i was aware for instance that utah said this was the biggest fraud that was going on current but i still decided you know i'm not i'm not doing the family nest egg and i would like to do this when approached by the government you know that they said you know what i'm going to hang on to this this isn't that much and i their loss but they haven't cashed in their dinar understand your argument and i just want to narrow for this novel issue that indicated that look this may be different if the if the victims hadn't claimed the loss of they don't hang on to the property it i guess i'd like to stress that argument what if we had a situation where there's a house  roberson volved the housing in fraud with housing you buy a building you were defrauded you're told by the prosecutor look you were defrauded it's not worth at all what you think the pipings bad the roof is bad and you were lied to and report that person says you know i kind of was aware of that but i'm going to hold on to this anyway because this neighborhood's coming back in i think that the it's going to grow down in the value is going to go up so i don't want to sell and i want to keep it i want to hold onto it we have a situation where if you pay the restitution does that money go to the owner who still possesses it so he's paid because i assume that's where restitution money goes so he accepts the money and yet then the building goes on and it is for something that's worth far more than he paid for does he  is that today and the rest of it is that his risk because to take your example i buy a house for five hundred thousand turns out whatever reason it's bad and it's only worth three hundred thousand i've got a market appraisal that it's three hundred thousand and in effect the government says you know you want to sell it for three hundred thousand or do you want to keep it but we know it's three hundred thousand a year but we think kentucky you're betting on the car you hope it will go up but you were still defrauded there weren't you have to put it to put it at the worse the true market price is three hundred thousand and my cousin buys it and i buy it right back from him three hundred thousand but we're talking then clearly you have the two hundred thousand loss would mean i understand i guess here or not can you be defrauded absolutely so we're not talking whether there's guilt to the offense so he's defrauded but when but when the the the victim if you will decides you know he has a choice i can sew in take my loss or i can hang on it's the individual if the victim says you know what i really don't think i'm out anything you know i can in this case that's different it's not saying i'm not out anything it says that given because if i do sell it i'm only going to get today's market price so it's simply the same thing as being willing to buy it at today's market price as well as that suppose i sell it to my cousin i take my last legitimately but it's a hit because i'd like it back and he sells it right back to me and maybe maybe that's where we have to draw the line because we have we have a situation here where these people weren't some were in because there were there's a civil suit so i'm not saying everyone is just not identifying the record but we have a situation here where the where the person is saying you know look i was aware of the problems with the dinar you know they didn't go into this blindly you know i researched this i determined that i could afford this is a high risk situation in so i decided i want to take this fully aware of what was going on plus in this case in fact in many cases mr hume there in the in the b h group did say look there's no guarantee you know they weren't saying this is a guaranteed return and it may be hide risk absolutely they sold it with rudy's false i'm not arguing that point but but this was not a case where the person's weren't you know in other words in a housing situation you can get a valuation this is what's this worth in this situation every investor was in fact aware that this was not a guaranteed thing and most of them testified some said on the record like arguments that there's no fraud not that there's no loss now you make a bad investment knowing that it may be a bad here but if i'm aware of it and i make a determination after i'm given the opportunity to sell and i decide no i want to keep this in the end you tell them look you're not going to get your restitution back if you don't that's fine because some of the people and so i'm going to buy more the person comes in and says mr smith bought sold you this thing you want to get your money back from mr smith and you go no i think my question is no i will write it all home my taxes if i get it back and i can't write it off on my taxes and that's going to cause me a whole world agree so people are sophisticated investors they don't like to take  well you know finite leads and it's done it's not going to work with the dinar you don't know that and that's been there in place different thank you very much juice it was very successful at it at the start i think in two thousand and ten he made over three hundred thousand and his revenues dropped eighty six thousand being in an enthusiastic person he met mr you've been or heard about the dean r and thought that from what he had heard this is a great opportunity for him and his friends what's interesting about this case is currency is express league zen's from the securities laws so when they were selling dean r s they didn't break any law all they had to do was register with the treasury and make reports of the iris about their sales and they complied with that and as a matter of fact all of the dean r s they sold were delivered in received by the people that got them and the people who received them at about the proximate market rates and there is a great spread between the sale price the bid and the ask just like if i buy a he spoke positively about it never got any money from selling dinars never got money from the sale of these seeds and in fact he put in about twenty thousand dollars of his own money which he lost and so the principle question is let me pose this hypothetical to you what if mr  necker was a news reporter and instead of talking on the website he interviewed mr you've nourie kroner and wrote an article well let's see interviewed burning made off and everything went south he had a first amendment right to say all these things there's no question there would be no prosecution for any of this the defense is really stretching i'm seeing the prosecutor is really stretching it to say well he wanted to get more money for resigning go clients will newspapers want to raise their sales in their subscription so if we transfer these facts over to a newspaper or a t show they would be guilty of trying to defraud the government so there really was no underlying basis for violating the law and during the entire trial the prosecutor continually referred to dean our sales as an investment not of course it's true people decided to throw the dice take a flyer because they wanted appreciation for the d n r but since it's express exempt from the security laws no law was broken no matter what they said as long as they got what they received and they can't be fraud in the sale of currencies if the representation  security i mean knowing why it's saying something is not a security because losses i mean to interrupt i'm sorry i'm just saying are you saying that commit wire fraud you have to be committing securities fraud no doubt it like what you otherwise why is that the owner of the government mischaracterized what happened this was not a regulated sale you people selling gold saying the world's going to end the currency was supposed to collapse last october when china became part of the you've got it as long as they got what they paid for there's no criminal fraud all these people got their dinars for what they paid for them nobody didn't and the were not counterfeit i only have ten seconds left i like to stand on my brief but on the rule twenty nine and rule twenty nine if you look at the  the waiver of the directed verdict motion comes if the defendant puts on extra evidence and cross examine the cross examines witnesses after the judge decides the judge her put on his defense then they didn't put on any more evidence and they didn't question any more witnesses therefore they didn't wave their ok thank you runners nine motion and mr martin's argument is flatly contradicted by rule twenty nine imagine if the district court in deciding the rule twenty nine motion had said well when the government rested it a pretty close case and i was leaning towards throwing it up but now that i've seen mr rahman ecker testify about the sin of the desert about one bad guy or two i don't believe a word he says and so i'm going to let this go to the jury we'd be here and the claim would be that's a clear violation of rule twenty nine because the rule says the district court can only consider the state of the record the evidence in the record at the time the motion is is reserved and the time the motion is reserved is the point at which the defense makes the motion at the close of the government's case and then we move on and we carry on with the trial mr gilmartin is suggesting that there is some sort of rolling point at which the district court has to keep considering more evidence and that's just not the law it's not the law under rule twenty nine and that this court has dozens of cases frankly that say if you move for judgment of acqu close of the government's case in chief and you then introduce evidence you must renew it at the close of the case and it's particularly the case here because mr martin is wrong the mr i mean i can even rested at the time the district decision came out the defense did not rest until a day later the district court does not know when mr m an anchor is or is not done with his case all three defendants continue to participate in the defense and then there was even a r case from the government after that and so this is simply not a case where the record was closed the district court had all the information it needed the district court's decision was at the close of government's case in chief was are sufficient evidence get to the jury twenty nine that's off limits and that is the court was prohibited from considering that and this court is as well i will admit i don't understand the argument about it's not a security  wire fraud is wire fraud mr m an actor was not charged with securities laws violations he was charged with participating in a scheme to defraud the jury found that there was sufficient evidence and as we laid out in our brief we think there is more than enough evidence to convict him of participating in that scheme in front particularly when after he admits he knows that conan is a liar about everything from start to finish human or new and two and a half weeks later he's on a conference call with conan saying welcome back my good friend how's the hedge fund doing and he knew everybody knew on the inside that that was all a lie there was no hedge fund there would be no hedge fund he wasn't a wall street mastermind he wasn't a gulf war veteran that's fraud start to finish that's fraud and that's what mr minister did here and so to the extent that's the issue that that's being raised today there's more than other evidence this conviction frankly under any standard but particularly under the manifest miscarriage of justice standard the first amendment argument has was not raised below and the government was not prosecuting mr i'm an anchor for the speech but there is no first amendment defense to propagating lie after lie after lie and that's what the evidence showed happened here and so this prosecution is entirely consistent with first amendment protections  it's not like a regular media story because there lie after lie after lie with respect to happen in the media i didn't say that your honor with respect to i claim to be defrauded before restitution camille warded if anything the district court could have just said it's all a fraud and so i'm going to i'm going to award for restitution instead the district court tried to create an offset for some value because these people do have these notes that's all the statute requires and i think there's no showing that the numbers are wrong in a fundamental way that would make this unfair that is to the yeah that's right you're on we're not saying that if the dean are drops further that the victims can come back the district court has to come up with an estimate at some point in time that's what happened here and then the parties move on and we think that's consistent with what the supreme court was saying about the value of the collateral in the rovers case with respect to mr t he testified at the preliminary exam in this case and he specifically was he was asked directly you went down there and you filled out those forms falsely the point of that was to get money to go from wood county to humors company and teeth said yes that's signing onto a scheme to defraud he's making false statements he went with kelly bland they both went down together they brought their idea they filled out the forms falsely and they knew that the point of filling out the forms falsely was to get government funds to flow to humans company that's a scheme to defraud he doesn't have to say out loud i'm joining your scheme now he clearly signed on to participate in that scheme and it's even worse because warning after they submitted the falls forms the evidence shows there was an email from tsetse email account to the county demanding where's the money we haven't paid enough we want to be paid sooner we want to pay faster that's participating in  jurors intended to read it that way teeth denied sending it but the jury doesn't have to accept his testimony viewed in the light most favorable the government there is more than sufficient evidence to support teams mail fraud conviction unless the penalty for the questions were paired to teeth submitted some checks to say well these are the checks i was using to pay for the dinner and this kind of will this is a clearly erroneous standard of review is my understanding your honor it's a factual determination he says they're mine other evidence says they're not that it court looked him in the eye and said i don't find you believe it will and as a result i'm not going to give you this money essentially mr teach argument has an implicit threat that the government has to decide at the front end of a case whose money or whose property it may be and if we ever suggest that there's competing claims as there were here that that property is then for clothes from forfeiture i'm not aware of any case that supports that and i think that's wrong because it's a probable cause standard at the indictment stage is for partners of the evidence for the actual restitution determination and scored as any other questions  government chooses to indict criminally indict on a criminal forfeiture and name my client that they're forever for clothes from from arguing anything else with regards to mr cuban it's not the what we argued in our brief what we are getting our brief was that the grand jury identified mr teet as the owner of this of this fifteen thousand dollars worth of dinar they took that matter all the way through trial they did not dismiss the criminal forfeiture count at any time i couldn't find anywhere in the record words ever been dismissed but yet after trial filed a civil forfeiture action against humor alone to shift the burden of proof in this matter and that's our argument is that the g teeth that needs to prove that it was his money and not mr humors and we're not putting on any evidence where there were guards that were only going to say look at the trial your honor and allowed mr tito to testify at that hearing that's that's the major problem with this issue it's just like if there was a money laundering count that got hung up by the jury that we're now up on appeal and it's still hanging out there was never dismissed it was never retried it was just it's just nothing's happening or you having that one morphed into the other one or they were just the court just shifted from one to the other after after the trial while the criminal forfeiture still pending because they parties agreed that they would handle the criminal forfeiture after the trial the government filed a civil forfeiture against mr humor alone think your honor i would like to open my reply by saying which i offer an apology to mr dan hurley i didn't speak what happened with the rule to dismiss what happened was the defense did not rest they just my my person didn't put on any more evidence so they made a rule twenty nine at the close of the government's case and the judge decided not to rule on it he said all i think about it once mr you emon ecker nice put on all the evidence for mr m an actor they stopped some more witnesses were called by the other defendants they didn't cross examine those defendants and they did not introduce any more evidence after they stopped putting on their their defense as a procedural ma that you could i brushed on the case of calderon by the united states supreme court in the six circuit case of things where if i may address the first amendment allegations the first amendment doesn't protect fraud the two cases that the prosecutor cites in his report is brief page twenty three right at the top it starts on twenty four is us versus jeff first amendment does not disable the government for prosecuting crimes such as fraud even though the intrinsically constitutes speech well this is about some domestic relation case that blew up and the the composed a rock n roll song i'm a part of the rock n roll saw as i want to kill the judge and then the next case united states versus stevens he was arrested for particular particular depicting scenes of a animal cruelty which is against federal law i agree with that law but his conviction was reversed by no stretch of the magination what mr emmett necker said rises to  that occurred in these other cases once again i did say the mr judge who had mentioned about oil wells if you want someone to invest in an oil well you have to do perspective says comply with state law and we're offering so for security yes once again federal law says that dean arced currencies are not covered by the investment law even though the motive and the case which we rely upon out of the second circuit is regents office supply because this would criminalize things if i wanted to sell my car and i said you know this is all before me a little  lady bought it drove it took really good care of it and i sell it as long as i didn't roll back the odometer or say it was a spy for six cylinder car and it was a four cylinder car none of this is illegal because what emma necker did is he it's ok to lie to be able to resent an offer of sale to somebody we're becomes criminal is if i agree i will sell you will one hundred thousand dinars for one hundred dollars and you give me the hundred dollars and i give you counterfeit dinars or only get fifty thousand were right chinse on the deal that's the crime and it didn't happen here ok to lie in order to sell property let's say as long as you actually deliver that property is that the proposition what it's open to lie to be able to present to get someone to sit down so you can present the offer they sold the dean r s what happened is these were predictions constantly people crossed a lie right to to actual lying not just predicting that's what the jury found well the jury was mistaken in the prosecutor in the government was mistaken because i'm sorry trust i mean you had funds and we go on to say the hedge fund saying there were hedge funds in selling the seats no question that was illegal but mr emmett necker if you want to characterize as participation he did nothing illegal and with that i see my time is up you gentlemen have any ma'am you have any other questions thank you