erroneous lee held that the civil rico conspiracy claim was based on proper evidence that we're going to argue it's incorrect first to the survivability argument and common law the death of a party to a lawsuit abated the lawsuit and it would never revive that common law rule has been supplanted in almost every jurisdiction in the united states actually every jurisdiction with the exception of the federal jurisdiction and that's been done by statute and those statutes started as early as the nation's founding and have been modified ever since there is however no several statute generally governing survivability upon the death of a party to a lawsuit in in the absence of such a statute the supreme court in the courts have developed a body of cas law that governs this situation and in the late one nine hundred sixty the supreme court issued two opinions huntington and triboro which were which are essentially to this day still quoted as the  touchstone cases for determining whether or not a statute or a statutory cause of action survives the death of a party the general rule is if it's remedial statute does  not it does survive the death of the party if it's a punitive statute of penal statute it does not so how does civil rico play into this as we discussed in our brief there is a there is a split among the courts on whether or not civil rico survives the death of the party and we believe we urge this court to side with those courts that say that it does not and which courts have said it does not survive since the supreme court whether or not the statutory action survives should be should depend on three factors and those are whether the perfect purpose of the statute is to redress individual wrongs or more general wrongs whether the recovery under the statute runs to the harmed individual or to the public and whether recovery authorized by the statute is wholly disproportionate to the harm suffered now two of those factors weigh heavily in favor of holding that there that civil rico claims do not survive whereas one of them admittedly goes against that and that's the two that are in favor of non survival are the first and the third  when congress passed rico it did so with a statement of purpose and as you look through that statement of purpose as as the those northern district of illinois and other course of have looked at those statements are very focused on the public wrongs that are being addressed by by the then acting of that statute talks about a long history of gang violence of organized crime in the country and this particular statute being enacted in order to fight back against so it is definitely a public wrong now there is no question that there is a remedial aspects to civil rico i mean that goes to the second factor which does go against survival of the remedial aspect is provides that an individual may recover under the statute may recover damages compensatory  damages and in addition to that treble damages which the supreme court has said are primarily remedial in the but then the third factor swings the pendulum the other way whether the recovery authorized by statute is whol disproportionate and this court and the supreme court have repeatedly held that treble damages are wholly disproportionate because obviously that they triple the compensatory damages so based on those there are couple of other cases that i'd like to bring to the court's attention and these are kind of similar statutes that this court and others have weighed in on you are using a lot of your time and you can use it however you wish on this issue but you really have some other important issues as well so statute on which civil rico was based that is the sherman act is both partially remedial and partially punitive and in rogers versus douglas tobacco and this court held that sure the remedial aspect of the statute do do survive the death of the plaintiff or the death of the party but the unit aspect the treble damages do not and the same would go  compensatory damages you can't win compensatory without also without also being awarded punitive damages now moving on to the second issue the continuity here about how the defendant conducted business creating this separate entity that was supposedly an independent greater than fact wasn't independent the over a first i don't believe you can infer from from the facts i don't believe this court is authorized to make that inference from from the evidence that's in the record more importantly that the evidence that was  excuse me admitted at trial that evidence fails to establish that there was any transaction besides the ones with miss parade because of that i believe the answer to question is you can't make that inference because there is no evidence on which to base that inference other than the transactions with mr brady and mail fraud requires this to be proven a ski and then individual mailings that affect individual  that scheme did not last long enough for for any for the courts and then hold that this was a pattern of racketeering activity sufficient to support a civil rico claim and there's cases in our brief that talked about how long patterns have occurred similar to this case with multiple transactions over periods of eight months nine months ten months all the way up to a year or so and the courts held in those cases that there was no pattern of records because the continuity requirement under the supreme court cases was not now nor is there sufficient evidence of an open ended wasn't voluntary on the part of both mr rader and the appellant's so essentially we have a four months closed period wasn't ended by any lawsuit wasn't ended by the death of miss parade or it was ended voluntarily by both parties and because of that of course is how the only side these cases of course of how that there is no open ended activity once the activity actually ends can't project into the future when there is and finally under the conspiracy case we have something about the conspiracy why does it matter as i read the district court's decision and i may be wrong so please correct me she found mail fraud rico mail waterfront rico against p c s and paul those two defendants and you found the conspiracy against the same two defendants if i'm right that the finding was made against both defendants and the remedies are all the same whether correct that it may potentially moot or maybe a moot issue if the court rules in our favor on the second issue on the actual mail fraud of i'd certainly be the case but even if we ruled against you on that issue what what is the conspiracy finding out if the same remedy is just on the mail why it seems to me it's the whole thing's unnecessary i believe you're right ana and to to the extent that there is any any difference we can discuss why the trial court erred in entering that conspiracy finding but i think i think you are correct that if the court rules either in our favor or against us whichever way the underlying civil rico claim defendants that were not named in the pleadings that were not named in any of the pretrial documents and were not argued for the trial court held that those were those were conspiracy defendants as well and we believe that was an error because there rico persons would have overlapped with findings that the defendants were civil rico enterprise's and because of that there would be no way for us to know whether to object or when to object to the admission of that type of evidence and so for provisions and if a legislative language established and shown insures and in the case that is primary or remedial for the individual so the first fact or false to the individual second factor  in your brief part of what you rely on to show continuity or that this was a pervasive business practice yes it is the defendant's motion to transfer venue to new york early on in the case in which they said look we sell all over the country let's do this  based here in new york or nationwide enterprise do you think you can rely on that pretrial motion in a review of a trial record when the court reviews the records to determine whether i there is one deficiency in the record that is i felt to supplement the record with exhibits twenty seven twenty eight twenty nine but they are on the record exhibit two to me found page nine seventy nine exhibit two is the invoice that's part of the greate course of business that the defendant used in his business practices in that there are two terms that they put forward to every every person first term is term number three and that says that all the grading is either done by p c a third party graders so there's grading not only under the p c i hat but they say have also the number for term says all the grading by our in house our in house grading is not some interpretation of the pic but people were not going to accept that someone wrote a course of business they were grading their corns either under a p c i had for over a year or the p c had for nine to ten years it didn't matter because  major case so compelling is that the misrepresentation that there was an independent company on affiliated that was doing grading when in fact it was all there was just different names the same people the court no doubt stressed that particular misrepresentation but ther and northwestern bell northwestern bell says if you're going to have a closed in if you have a short period of time a few weeks or months you must also have a continued threat of criminal activity p continued to do the p c i independent grading concept well beyond that period of time but they didn't stop there tony testified that he doesn't think there's anything wrong thing wrong with great even though his grading was systematically overdone we had six other graders who reviewed those coins all of them found and they were all consistent all of them found that tony was grading him by twenty points over them in the shop as one of the pieces puppies to see discounts fifty to seventy percent he did in this case to bring it down to fifty five hundred dollars the truth is the coin would have not even graded to invest sixty the corner was worth less than a thousand dollars freshman writers writers that used to procedures that i don't use or fact tony has never been to a grading course never been certified has never once seen a proper great technique doesn't use consensus grading the news peer grading and sees nothing wrong with that tony said i know what those are people do not think they're punks no it doesn't because unfortunately now with the record it is the fact that that evidence is always in the the purview of the defense knowledge and was hard to come by since hurricane sandy there were four hundred transactions starting problem with body now we find that and that's exhibits twenty seven point twenty nine they're not before the court the court can either ask for and brought up but they are in the record because if you look at my fourth  record that's before the collapse when the court's opinion doesn't make a finding you can see if it's otherwise supported by the record being the trial record imply i don't think you know that you can rely on your complaints as trial proven th allegations that one of the trial egypt have actually evidence to support allegations but in the evidence in the situation is the number of and i would ask the court under its power for for interest of justice to ask for book and so we believe that the findings of the are within the record and the court found that now the closing continuity can be found easily because it extends beyond th individually conspiring anybody else and that would include these other individuals within themselves to find a conspiracy and that conspiracy would be so the contested issue that court of the parties to collect collectively case the court including the conspiracy count but even beyond that going to the pleadings in the fourth minute complaint paragraph thirty three outlines quite clearly the conspiracy a complaint by p c a p c a procedural question at the outset just assume hypothetically we rule in your favor that the rico conviction shouldn't stand for whatever reason the district court found common law fraud and rico liability then there was an election of remedies i think the plaintiff wanted all in and the district judge said want you don't you can't get a nod because the double recovery rule so i'm just going to enter judgment on the rico which is the greater recovery so as i see a judgment was not entered on the fraud common law fraud so if we were to vacate on rico what how would we then we may end and she she could enter judgment in the fraud and tell me how you see that playing out if hypothetically you were to prevail looked and you don't challenge the fraud common law fraud fine we would love to if the court were to reverse and remand for entry of a new judgment based on the findings in the new appeal then there'd have to be a new appeal because we of course can only judgment that was now just a few points in response to the argument that the the evidence in the trial record is devoid of evidence of any transactions other than the transactions with ms and much of the argument that you just heard anonymous was speculation as to what might have occurred for example speculation that the the fraudulent scheme continued with other individuals other potential customers beyond mate may twenty fourth the representation that two million dollars in that process net profits must necessarily have arisen from  fraudulent transactions none of that is in the record and judge excuse me just judge you're absolutely correct those those items of evidence could have been in the record but they weren't because they want this court can't rely on arguments from counsel or inferences that the trial trial record just doesn't support what about the exhibit he points to that he says a standard invoice containing misrepresentations that was sent to all there was a request that in the interest of judgment justice that the court allowed to amend the trial record we believe it's too late for that today as a submission date i'm going to request the court deny that