made your seat good morning your honor is it may please the court my name is brandon white i represent appellant patrick maraca this is a bail pending appeal motion the appellant's brief has already been filed in this case mr mo rocca is in europe prisons custody i believe right now he is at the m d c in brooklyn for reasons that were explained in my motion i won't go into further detail about it  i do not believe there is a dispute here that mr mo rocca presents no risk of flight here he was out on bail throughout the pendency of his case and was permitted to self the possibility or probability of relief he's going to be serving more time absolutely your honor it relates to the district court's refusal to respond to the jury's question a central issue in the case on what is the definition of capitalization and can it include intellectual property for what it's worth there were fifty transcript pages of col on that jury note before the judge ultimately declined to grant it and instead told the jury to rely on the testimony of the lady witness who i believe even the government  capitalisation used in it did come up importantly with respect to the two business is at issue here one of them there had been a  capitalization notice sent out to prospective investors there was testimony about it all ultimately there was significant evidence of the intellectual property that was possess question i don't know it's somewhere only an important for us to know because if you're asking it to be a part or component of a jury instruction then it would be a legal term no direct it did you make that argument to the judge  i don't know the precise tax code definition for what it's worth the judge abrams did ask the parties to try to come up with a definition of capitalization that was acceptable to everybody and for what it's worth in she herself recognize that this was not a similar situation to rousseau on which the government relied and on which judge abrams ultimately based he central role of a trial judge we're talking about a term unlike say stock parking which was the term in russo essentially a slang term you know like check kiting or pump and dump scheme to describe a kind of fraud you were talking about quare term that has both a business meaning and a legal system legal significance it's important the investors many of the investors stood by and continue to stand by mr maraca they maintain that this is a viable business with intellectual property that has value and that they they have always had faith in him this day at least as of the time of the filing of my brief approximately a month and a half ago and i have not heard problem is there were two businesses these witnesses testified specifically respect to one and less so with respect to the other was also convicted of lying to the governor's neck and that is correct and he will see if you can kind of motion challenging neck and that's correct although i say that it's quite conceivable that he would have received a much lower sentence and one of the considerations on bail pending appeal is that he might have served  with her with respect to the surrender date she certainly seemed to show a sense of fairness that i think very easily could have been reflected in the sentence had had he only been had he been acquitted thank you thank you from the government that morning may please the court my name is david abramowitz i mean assistant u s attorney for the southern district of new york i represent the united states on this appeal and i also represented the united states below your honors to the motion should be denied  factual term there was no legal significance to the term capitalization this was this was not a tax case parties could not agree on what to tell the curate the parties that's correct your honor the defendants and the defense wanted perhaps your honor but that was not presented in the record and just just to put this into context this was not a major point at this trial that the context in which capitalization rose was that of the many lies the defendant told his investors there was one pro sure he gave an investor that said that a certain company had quote capitalization to date of one million five hundred thousand dollars and the investor testified for the government that his understanding based on that representation and his discussions with the defendant were that this was a company that had raised money previously from investors there were other statements in the brochure that said they had already mary question on examination to that investor about what that investor understood the term countless zation mean there was on direct examination your honor and the witness testified to his understanding and i'm paraphrasing a bit was that that's how much money had been raised in what the defendant had said were prior fund raising rounds the government proved that those prior rounds had never occurred there was no money in the bank account and there was no evidence of any capitalization along the lines all sorts of questions minor and major but the fact that no definition was provided was completely appropriate given that there was not a definition in the record beyond the testimony had been and the defense had an opportunity to call its own witness if e opposed to that request because they felt that it would focus on what they considered an incorrect definition or understanding of the term so the jury was left to do quandary so the jury was informed that it would be outside the province of the court instruct them about facts that were not in the record which is entirely appropriate it's a it's a fundamental principle in our system that the jurors are the fact finders in the court instructs on the law my how long after  abrams provided that response to the jury returned i'm not sure exactly how long i believe it was that it was the same day or honored they had been deliberating for quite some time but to be clear there were many many many other miss tatements that were in evidence and that the jury could rely on this was this was a drop in the bucket in the government's evidence and the drop that the jury and that's correct your honor and i think the next question would be even if it's a substantial question whether the court should have provided an instruction on this factual issue what would be the result of not providing that instruction and the logical result is that the jury would remain puzzled and would perhaps move on to the other evidence and see if that evidence is sufficient to prove beyond a reasonable doubt that the defendant is guilty there's there's no reason to conclude that the court's refusal to provide extra information somehow hurt the defendant it would have been it would have been prejudicial to the defendant had the court provided a definition or some sort of instruction that went against the defendant or somehow favored the their decision and to try and get a decision how quickly