it please the court my name shawn or butter edina represent the opponent john kevin moore one of the issues raised in our peel was the failure to give a specific unanimity instruction the right to a unanimous verdict is fundamental constitutional right that's very specific unanimity his decision so the court always has to give a general unanimity instruction and then i think the issue before this court is was a specific unanimity instruction require and a specific unanimity instruction is required when there is a chance of a jury confusion based on a complexity of the evidence that fewer than twelve jurors might convict based on different theories of liability you see that potential in cases where the government advances instruction in the courts final instruction and so they didn't give the model instruction it was tailored more along the line of the one offered by mr moore although not precisely but i thought important this would appreciate your comment is that in the final instructions tracking what mr moore proposed he said you know that the whole jury all of you agreeing as to the scheme or plan to defraud and the identity of the person who's the victim so that was a fairly specific request and then the nd part of the anonymity instruction talked about the particular false statement so i was unclear after doing my comparison as to what the infirmity of the final instruction is all right well i would like to basically assume we've this case presents a situation where specific unanimity instruction is required and then the question is is the court's instruction number six which is the court's specific unanimity instruction adequate to cover the situation presented  that's how i interpret your question and i'm not making a decision whether it's required or not but whether it's required or not i'm trying to figure out how the final instruction might be viewed as deficient as a specific un ty instruction particularly when compared to your proposed instruction it is a slightly compressed variation on the theme so what is it in the final instruction that is deficient i would say the final instruction is lacking in the follower following respects it doesn't it doesn't use it uses the word well i think as you pointed out with all of you agreeing as to the scheme never says the scheme it never says one scheme it's not specific enough to tell the jurors look all twelve of you have to agree on one scheme or you could agree on more than one scheme so as long as you all agree on the same couple of schemes so in other words you think the words all of you agreeing as to the scheme or plan is too vague and it should have said the here are these you have to agree as to the scheme or plan so i am not quite sure how that's him big you is suggesting that i can agree to one scheme and you can agree to one and he can agree to another one what is it that's ambiguous about the instruction given well if we had twelve floors lawyers on the jury it might just be ok but there were no lawyers on the jury and i think the instruction needs to be clear that they have to agree on the same scheme or a single s or the same assortment of schemes because the themes to the government offer i counted four there was the big sky mineral resources scheme there was the glacier gala art scheme there was the universal wide band business technologies scheme and that was count ten and there was the smelter in arizona that was going to boil the dirt down and extract the precious precious metals probably gold that was a forth scheme and that was count eleven so that the jurors could have said you know i think i think was the art i think he was the whole scheme was the art if you if there were some photographs of his home that had all these art pieces that were on sale for consignment they could have thought it was the art they could have thought it was the big sky no reason resources  had absolutely nothing to do with count ten and eleven but because of the complexity of the evidence did the government in the indictment was there only one indictment or were there two and there were when he was tried on one but they're only there were two there was an original indictment and then a year later thirteen months later there was a superseding indictment and that's what the trial would be tough teams broken out in the indictment by can't know they were set forth in a manner and mean section of the superseding indictment paragraph five through thirteen and then you get to the wire fraud counts in paragraph fourteen and that set the record set forth but there was no particular identification that this scheme belongs to that count this scheme this other scheme belongs to a separate count you figure it out mr moore and you figure it out ladies and gentlemen of the jury and  instruction number six that the court gave wasn't adequate to express the need for the jurors to focus on well to unanimously agree on the scheme or schemes that they were going to based how about in oral argument did t government attorneys point to you know you need here's the scheme and all of you need to agree or that was the argument you mean the closing argument is that i don't remember the argument being that specific  think it was i would say no that didn't occur but i haven't read but you could make the defense could make that argument right i mean there's nothing in the confines of this instruction that would prevent defense and saying when it says you have to all of you agree to the scheme  it means what it says you all have to agree on the same scheme so i thing in here would prevent that argument that's correct your honor except it's not the same when i say it as when the gentleman up on the bench in the black robe  because the law comes from him not for me right but there are that could be a male judge yes in this case it was a male judge and that's why i started i was trying to be you know non gender specific thing but i guess i'm just having some trouble understanding why this is would be reversible given the wording so what's really missing here is the word same or single yeah from the modified instruction i would say yes but i would also say the district court could have found any means to express the need for that same or single would've expressed whatever whatever words it's going to provide clarity and the clarity is lacking and the problem is unanimity instruction is required it's plain error for the district court not to give an adequate instruction so if minds no good the district court was compelled by the constitution to dream up a better one which he failed to do there was  another issue raised on appeal the failure to transfer venue the denial of the motion to transfer venue i wanted to state quickly what that claim is not it's not a claim that the th amendment was violated it's not a claim that article three section two of the constitution was violated and it's not a clean that federal rule of criminal procedure eighteen was violated it's a claim that local rule eighteen dollars was violated and local rule eighteen point one is the substantially the same and identical in many respects to the pre  version of federal rule of criminal procedure eighteen back then and right now in montana there is a requirement of divisional venue and divisional venue has its roots in the constitution article in the article three section two in the but and as a local rule it has to be followed it was implemented pursuant to twenty eight u s c two thousand and seventy one and the court didn't follow it there may be a question i think before this court well where did the crime occur i think the easiest way to look at it is to look at the trial evidence only thing that happened in great falls was lunch with the alleged victim in count three condren is wenger he had lunch in great falls there was no the essence of wire fraud is the use or misuse of the wires there is no use or misuse of the wires in great falls all occurs in the counties that make up the debate if it's based on a local rule and not the constitution or the federal what then is the grounds for the reverse you would you would want to retrial in the other day yes ma'am and the basis for that is the local rule yes man the basis is the local rule it's the law the court didn't follow it through any prejudice that's my question well i think the prejudice is in the sense as i mentioned there's venue and then there's vincennes venue is the place of trial and has its roots in the declaration of independence the crown used to drag colonists over to england and try them in england mr moore had a right to be tried in the muscle a division somewhere later he had a constitutional right to be tried in the district where the prime occurred which was a district of mind can but now you're saying he has a rule based right to be right in the other divisions so i'm trying to figure out how that's the basis for reversed i think if it's not a constitution because you keep going back to the declaration of independence in the constitution which makes it sound like it is a constitutional right i guess it has its roots in the constitution but it doesn't the words aren't found in a constitution but the prior nine hundred and sixty six violations of federal criminal rule eighteen required reversal and that's what we have here is a  because we actually are living in post one thousand nine hundred eighty six dollars now so i mean that makes sense to cite those cases well not really because the rule we have in montana and the district of montana is is the federal criminal rule eighteen as it district where the rule has a out for the court and was the court order to change if it does but in this case the court did not order a change of venue and i think what it would have done is transferred the one count count three which by the way we don't concede occurred in great falls is just you had lunch with the victim in great falls he could have transferred that one count with the clients waiver or consent to the muzzle admission alternatively under multi count indictments you separate we and twenty count case in missoula division and eleven count case in the great falls division or i think in this case the court could for judicial convenience economy etc transfer it which it never did never made a decision to transfer so the rule eighteen was while eighteen point one excuse me was violated the court you then sent it back in the court has the discretion to do with the court has the discretion to do which is to transfer venue but that's not what happened here it's not what happened below i understand good morning your honour's ryan weldon appearing on behalf of the united states may have please the court happy friday and i figured i would start with the unanimity instruction given that that was the court's attention unless there were any other questions i wanted to start with the instruction that judge morris issued and you can see there in the st element it actually provides the unanimity component of that and it says with all of you a green as to the scheme or plan to defraud devised by the defendant and the identity of the person who was the victim of the scheme or plan to defraud so essentially what judge morris stood is he took the instruction that mr moore proposed and then incorporated that into the instructions but i think this is actually the easiest part for the court  looking at the analysis for this case the exhibits all tracked the counts so if you look at the supplemental excerpts of records exhibit one is count one exhibit two is count two exhibit three is count three and so on and so forth so when we were arguing the case to the jury both in closing and throughout the case the jury knew that every single exhibit corresponded to the wasn't any jury confusion in terms of them just understanding the nature of the case but it also guaranteed that it would be unanimous because they're looking at the exhibits they know that those are the actual exhibits for that count so i don't even think that there was specific unanimity instruction that was required just on the way that the evidence came in and was presented to the jury but then judge morris actually took a different step and made sure that it was crystal clear to the jury by then adding  component for the elements so i don't think that there was any concern about confusion of the jury and then just to explain that more and why i think it matters i don't think there was any confusing for the defense either because if you look at mr moore's testimony they actually walked through each count based on each wire and that's because those were the exhibits that the government marked and provided to the jury so i think that that's important for the court to consider is that st of jury that wasn't unanimous unless there were any other questions i did want to least address the eighteen point one issue for the rule and so with this one if you look at the actual language in the rule it provides that there is discretion with the judge and so unless the judge orders otherwise when i'm listening to the remarks from mr morris counsel essentially it seems like there would be one case one scheme multiple man means and it sounds like we would try those cases repeatedly throughout the district of montana in different divisions within the district and i don't think that anybody meant that and i think the district court made sure that there wasn't any prejudice to mr moore mr moore was transferred specifically to missoula so that he could work with counsel who was in the soula and keep in mind that this case had been pending for about a year and it was in great falls there was great falls coun the abuse of trust in hanssen was based on mr moore's position in big sky mineral resources and he was the managing member so there were multiple managing members and then there were other just members within the l l c i think the the component here that matters for the abuse of trust and handsome is discretion so we have the position in that position is as a managing member but then we have how does that facilitate the crime because if it doesn't facilitate the crime then we don't impose the abuse of trust and hanson mr moore however he was the only one who had access to the financial records doug dr dale the lawyer for big sky mineral resources he even the examples that we find in the guidelines would suggest that that's the case you know lawyer client accountant client stockbroker client but i think that him operating i think he has really two roles and i think that's how he portrayed it to the victims he's working for big sky mineral resources so he's the managing member he has the duty to the corporation the l l c but then he's not presenting it purely as in big guy so i just don't see the link between the trust and words going his actions here i think of the accident not the examples that are in the guidelines seem to suggest that there is a breach of trust in this case where it's you have to feel for the entity that's being used to perpetrate fraud but is not the victim of the fraud but i think if i would just refer the court to the guidelines for the abuse of trust that has the examples which i always categorize in my mind the teller versus the bank executive for example and so who's the victim in that yes that would be the woman of the bank but it's also the person who's providing the money as well i think you can have a dual dual out so i don't think that the guidelines separate it out that much that what they're focused on is that you have the teller who's taking the money from the person the bank is certainly a victim but then also the person who is losing their money who doesn't have the benefit of the banking agree with i think your honor the only thing that i would respond to that is i don't think the charge matters so much so for example if we charge a false statement to a bank under one thousand and fourteen dollars then i don't think that that somehow yes but i think if you look at the guidelines it does not say in there that it's specific as to the crime it's their position and whether it facilitates  not in this case there is no crime against big right correct yes i think i think that's accurate or and  unless there are any other questions from the court about those or about the abuse of trust and handsome and i think that the court understands our position that we're focused more so on the role of the defendant as a managing member and if for anything above six hundred thousand dollars was his money to keep and then that is really what it was false and it was a material is recitation is a record reflect that he said that that i'm entitled to receive anything above six hundred thousand dollars because did not say that more stated he purchased the leases in question for an agreed price of ten dollars per acre sixty thousand acres or six hundred thousand he then sold his interest in the leases to big sky mineral resources for one hundred dollars per acre or six million dollars so essentially took it from his left hand put it in his right hand and all of a sudden we have a nine hundred percent increase so in the record on page three hundred and forty four dollars mr morris says it was my money because i sold my interest and that was on cross examination so in other words mr moore says that anything above six hundred thousand was his to keep because that was his money was referring to was interpretation to direct that's exactly right i think what the judge did is he's going right to the point let's get right to the heart of what mr moore was testifying about and i think that matters for the court because really the financial records prove the crime because you have the money coming in and then now mr moore has to explain why are all of these personal expenditures occurring and so now he has to come up with this idea that this actually was my money that it increased overnight and so therefore people were actually paying for my interest over that and i'd be more than happy to discuss some of the representations that were made to some of the victims but i think what happened ultimately with mr moore judge morris was able to see mr moore testify i mean they were sitting offensively six or so feet apart from each other and in there you can see that there are problems with mr morris claim right away because he wants to say that he bought it and then he sold it to big sky mineral resources but we cited in our brief and what i think is important is at nine hundred and fifty four there is the letter of intent and that letter of intent was not between kevin moore and the summit west oil that was between big sky mineral resources and some at west oil and then i think what happens is that ultimately mr moore goes too far and you can see this on s c r eight hundred and forty cents where mr morris says every monday but he knows that i was selling my interest at one hundred dollars an acre and no other representations whatsoever and if you go through each victim mr moore would make many representations to them including that the lease is worth three million dollars then it was six million dollars at trial when he was originally purchased seeing them he needed six hundred thousand dollars from bill coffey so you can see those representations for the victims throughout if there are no other questions from the court i will ask the court to affirm the district court thank you thank  you i thought i'd start with the questions you had about obstruction struction generally requires testimony that's irreconcilable with the jury's verdict was testimony by four witnesses five witnesses i'm sorry that was consistent with walters said we were investing money we were going to get an reimbursement for our payment and we were going to get an interest in the company which is consistent with what mr moore said in his testimony and any  what's your experience on the bench in your experience as lawyers there are frequently in business transactions agreements that are in writing and the parties can agree as to their respective rights and obligations and here there is no writing two million dollars  witness paid eight hundred thousand dollars and then guess what there's a dispute as to the right respective rights and obligations of the parties and what i would characterize that dispute as and what i would characterize mr morse testimony as his allegedly false obstructionis or is testimony as more and more properly explained by confusion mistake or faulty memory the type of confusion mistake or faulty memory that occurs in many business transactions a litigation related to same abuse of trust his it's just the misplaced trust that's inherent in the fraud fraud accusation there is no special amount of trust that was abuse no private trust recognizes a special is only special he had no special training no special education no special license or licensure no fiduciary like relationship nothing like that and most of these people were investing for the simple reason that they wanted to make money the price of oil was one hundred dollars a barrel at the time he was taking money thirty dollars a barrel at the time he was trying to get a space to financing thank you thank both of you for the argument in the briefing i will say it was kind of nice to see if you colored photos in the briefing as we flipping through the i pad reading and reading and reading not that we discredit any place where there is not colored photos so thank you very much we will adjourn for the morning