just trying to get a good recording ok go right ahead whenever you're ready may please the court elizabeth richardson royer on behalf of appellant derek saying and i will watch the clock but i plan to reserve two minutes mr singh was charged with transmitting or possessing with the intent to transmit five individual schematics for isolated components within his former employer's flight display products at trial the government's evidence concerned the complete sets of schematics which wor but not charged for those products and so one of two errors necessarily occurred either the government proved its case with respect to value by a constructive amendment of the indictment or it failed to prove its case at all and so this morning i plan to focus on the sufficiency argument of i'm happy to answer whatever questions you have about the other two claims under the economic espionage act in order to be a trade secret something has to derive independent economic value from being secret and even viewing it in the light most favorable to the evidence to the government the evidence failed to prove that with respect to the schematics that were charged in this case there are transmitted all of them but they didn't charge all of them so right so the so of the ones they charge you can't put that together and create a usable device that's correct your honor ok but what about that your client's testimony that the what he transmitted had value and he it you know the passage i'm talking about where he was just talking about the one diagram seven a yes it's at g r five eighty seven eighty eight yes honor there there are several places in the testimony where mr singh and the defense expert martinez testified that an individual schematic had a value and i think the distinction to be made is between something having value in a general sense  and many things have value and value in the sense that it's defined under the statute and that is economic value by virtue of being secret so the fact that an employee works on something means that that provides value to the company and i think that was the point that mr singh made and he actually clarified he said this has value but it's value to the company he did say that in his testimony it's a little hard to parse out his testimony but he does ultimately say that but he also said in the read me document that was transmitted to the competitors quote the manufacturer copies the hardware design across every single product while only changing the software only the software changes order their products and reverse engineer the design you should have enough information to figure how they do it so it sounds to me like your defenses that is certainly a technical one as though that but but for his best efforts he didn't commit espionage that me did transmit all of the documents you're just talking about a and i meant trying to give you a hard time but i want to make sure i understand this argument i think the government could have charged a different case here all right so so fair enough so i think the answer my question is yes he transmitted all of them and you're not contesting that with all of them an individual on the receiving end could have reverse engineered the whole package that's for a usable device that would have value i'm not contesting that so that but but they charge some some part of that and your contention is that what of those components did not have value standing alone that's correct so each count allege transmission of a trade secret and that trade secret has to be as trade secret as defined under the statute if the government had alleged in each count the transmission of all the schematics for a particular product that would have been a different situation but what the government charged and what the grand jury signed off on in the indictment was that this one schematic one out of eighteen for one product one out of thirteen for another product this one individual schematic was a trade secret which confidentiality agreements the competitors immediately recognized this was a problem and and contacted his employer right what about the argument that even components pieces of the entire i'll say device because it's easier  would given a competitor a serious head start competing to make the same product and or would allow a competitor to participate to compete for the market to repair but the product i think the are kind of two parts to your question and the first that i'll make is that the fact that the competitor recognized oh this is a big deal i mean they got all the schematics so that is a different situation than what was charged and i think with respect to your honor's second question about whether a single schematic could help a competitor there was no evidence about that and that's the problem in this case is that the evidence about competitive harm to mr singh's former company was evidence about somebody entering the repair market which they couldn't do if they had one schematic about them producing a product i couldn't they do that if they only have some of the schematics and there's no question they got more than one but well then more than one was charged i don't know whether they could or not but the evidence there is no evidence that they could and it was the government's jury to decide why couldn't the jury decide since you say there was no contest that the entire the whole enchilada was conveyed and that was that it had value why couldn't the jury use common sense and recognize the competitors this would give a competitor serious head start if they want to reverse engineer the entire product well the the evidence the testimony was that reverse engineering is difficult even if you have everything  four out of the five of these products have been discontinued were for helicopters that have been discontinued so i think it's a stretch to think that anybody would have tried to reverse engineer this even if they had everything but there was no evidence presented at trial that anybody would be tempted or inclined or able to reverse engineer a product if it had one of these things and right and so you know that it was about time that would be saved right and so my question is and again i'm not trying to give you a hard time i'm wondering this is a this is really a question why was the jury would the jury ha been prevented from using their common sense to reach that conclusion is efficiency the evidence argument we view everything the light most favorable to the government right i think because of the testimony about what it takes to do a repair for example what it takes to reverse engineer ok so where should i look in the record to see that so i think it was  because you need to understand the inputs to the cars the outputs to the cards knowing martina's testified that you have to understand how things are connected in order to do repairs i said jury right it was  the two people who clearly primarily and i think it was ours who said it for forty two that you need the schematics to do repairs because in this is a quote you have to trace the fault through the unit so you have to be able to see you know if something is wrong with the unit and you don't know what it you just have the the schematics for one of the circuit boards in there you're not going to be able to troubleshoot you're not going to trace it through the unit and you're going to have you know no basis to enter the repair market particularly for  other plame about a constructive amendment i am here to assist the court with any questions you may have but your strongest evidence of value so we'll move to sufficiency the strongest evidence of value i would point the court  government sponsored brief fifty one to fifty seven because i would submit that the government's evidence was quite legion in this case a value in came from a number of witnesses throughout the record but i can point the court to do a variety of ways that the two parts here in the first i want to clarify for the record that it is not the case that for every product we're talking about this for twenty seven do you and do you for thirty that every single schematic for every circuit board was transmitted tells me it would take it would take a competitor well how do you how do you get to value that whole lot of effort time money and effort would have to go into recreating them so that's part of it courts have looked at a variety of metrics for value one is what was the effort time and labor that went into development of it another is what it would be trade secret or alleged trade secret give somebody who received it a window into how the victim wage an hour's documents pertaining to an antenna on a space shuttle even if there is no market for it it would give a competitor a window in to how the victim designed their products well the read me document that the review document does that and certainly encourages the competitors to do precisely that and there is testimony of jeffrey overs as well as testimony of knowing martino is the defense's own witness that talks about if you receive a schematic you can learn a lot about a circuit board that you could not simply learn from looking at a circuit board itself given how circuit boards of design in the multiple layers that they have you can see part numbers you can see electric values you can see pathways and all of these well in and of themselves maybe not particularly special in the context of a board that has taken a year to develop millions of dollars to develop and that it has passed stringent testing requirements for extreme conditions as well as certifications that could give a competitor a window into what what is the special sauce that writers and creators has to give it a competitive edge in the marketplace and it did have one contrary to what defense counsel argued below and on a very profitable country company had a very robust business and it differentiated itself from its competitors in that it provided customisations its competitors like government provided sort of off the shelf box plug and play plug it in to the extent you can plug and play in an aircraft but plug and play off the shelf rogerson credos designed its products so that they could be replicated across their product line and they could be customized according to the the  or in colder environments depending on what type of helicopter they'll need it to go into iraq i have a question about the history of defendants testimony at two seventeen the question was so what does that tell about the value of the electronic information contained in the schematic a seventy two hour write his answer well there's always value in something like this all right but it's value to the company i think meaning to his employer to writers and criticize her writing and even the company that i used to work for they don't even know how to do this design this detailed specific design is a secret that nobody knows but me it's not found anywhere and you can't interpret it from looking at the schematics it's impossible then there is another question he said well they might be able to replicate it by looking at the schematic but they won't understand the detailed design process and that's where if there's anything that finite mine of information you can't get that from looking at the schematic that's what could be of value i don't understand get when you first read it right but then he says there's only value to the company and then he says sort of he's the he's the only one who could interpret it which is which seems to be quite contrary to the read me document i'll give you that but but the second part on page two eighteen is there other somewhere where i couldn't understand what he's talking about here so again it's too burdensome first i will sort of situate her honor in that my observations of the defendant at trial ok if his perception was always that you knows more than everybody else that he adds value in a way that nobody at the company could add value which is why he created the mugs and disseminated them and that everybody were imbeciles and part of the reason he got fired so the testimony that you just cited sure there's value in this but i'm the only one who knows it and the only one who can figure it out i just wanted to sort of put that in context that i think that is where that's coming from and i'm not sure the court your honor should or any view on it should give too much credence to that particular statement well that's what you brief tells me that he had that view of his coworkers was he cross examined with a read me document that says you should be able to reverse engineer who i'd have to go back and reread the times when i can't recall make my colleague did that cross examination i apologize for that i would want to point the court to the defendant's acknowledgements and there are cases that say i think it's i'm laying out of the seventh circuit that says well one of the factors we look at is the defendant's own acknowledgement of value but we can only hang our hat on what the defendant says we certainly are the government would never do that and certainly not in this case i think you know i pointed the court to other witnesses that point to the you know in our team the defendant's own expert testified that each charge schematics had value he testified  he said well he didn't say to whom he said they had value by virtue of the fact that when you work on a schematic you develop it and it's unique to a specific part and that enhances its value implicitly i would submit that means it has value to the company which is what the government has to prove that it derives you can independently economic value actual or potential counsel and i over don't i'm not going to say further because there in the proof i pointed your honour's to those record states i did want to open it up now we have not even addressed his other two arguments if the court wants need to address them i'm more than happy to unable to but if you do not i will  i just want to try to make two points since i have a minute and a half left the first has to do with this idea of general insight into design process sees as a basis for value being derived from these individual schematics and the problem with that is that the only testimony about that sort of general insight failed to specify any actual information or actual insight that could be gained from the schematics so martina martinez said you could look at the schematic and see if it matches some of the things that's what he said about this sort of general insi said you could look at how rogers and credos designs and gain ideas but in china for example which council pointed out the court found specific information about the number of antennas about the way that that company performed different tasks that could be gleaned from those documents and there is no such information that was ever identified at trial here and then the only other thing that i want to point out is that if you look at all of the cases cited in the briefing and there are many about trade secrets any case in which a court found that there was a trade secret the court identified an actual benefit to the competitor or potential benefit to the competitor and that's  added there regarding the republican pair manuals that would allow a repair shop to actually certify that it was doing the repairs properly in lang it was all the information required to upset teen certification all of these cases it would allow the competitor to compete the were there any products for which all the schematics were conveyed there was one product and i believe that it was the the product for the cause i and therefore the other products only part of the set of schematic was conveyed is that right correct i think for all of them it was boast of the schematics thank you thank you thank you both