here with you on this occasion your honor today i'd like to address two of the issues that we have raised in a recess with respect to the remaining issues i'd like to rest on the papers with of course from mission i'd like three minutes every bottle that's going  we'll be able to do this rather to simply essentially what we see today is based only on the explicit holdings and the explicit analysis of the supreme court in of this court the first issue that i'd like to raise is the validity of as you see rule twenty five he too is out the one that the definition in the regulation is out yes your honor why should we do that your honor the misappropriation theory of insider trading cannot be viewed as distinct from nondisclosure liability under section ten be in other words it is not sui generis it is a subset of non disclosure liability under ten b and the supreme court over and again has addressed what is prerequisite to any require such a fiduciary relationship we recognize insure l a with a part radically from the established doctrine that duty arises from a specific relationship between two parties and would amount to recognizing a general duty between participants in market transactions  is different when individual commits an affirmative fraud breaks in in that case into the computer system that is actionable and so if there is an affirmative act again this is not non disclosure if there is an affirmative act then that  does duties of trust and confidence is a fruit is frequently associated with fishery duties that's comes up in the definitions regularly it doesn't go any further than that though and what it certainly doesn't do is invite the yes you see the promulgated rule that expands its rule that an intention on the precise question at issue that intention is the law and must be given effect in other words that once the supreme court has ruled on an issue then there is no room at all for any agency discretion chevron deference does not apply and instead maysan industries and home concrete applies your honor the second issue that i would like to address is whether the trial evidence was sufficient is to sustain the perjury conviction mr mcgee was convicted of violating witness rule the testimony of the second witness or of the documentary evidence as presented must corroborate the first witness's testimony evidence that merely coincides but does not cooperate is not sufficient this court specifically held that  rose and specifically held that in that it rose is said to sustain a conviction for perjury the burden is on the government to establish by substantial evidence excluding every other hypothesis then feel the essential elements of the crime charged in here your honour's the government before there was evidence presented at trial that he did so after the research of his assistant and it was only based on that research and the spike in volume that the system observed that they decided to go ahead with the purchase of the  commission did not exceed its authority in promulgating rule to be five point two because neither the statute nor the supreme court precedents cited by the defense precluded agency will making in this area we need to start with the language of the statute because section ten b of the securities and exchange act as a very broad statute a catchall statute that is described that prohibits the use of a manipulative or deceptive device in connection with the sale of a security and it's specifically recognizes in contravention of such rules and regulations as the commission so right off the bat the set the statute is recognizing that the commission isn't forced with the filling the directi is the only case that's addressed by the supreme court the misappropriation theory dirk sanford all the other cases addressed the classical theory of viability but she rel is not nearly as narrow as the defense suggests and i think we need to start with the language and she arose to relegation sitter whether the defendant in that case was libel under the classical theory of insider trading liability which means that he would have had a duty owed to the shareholders of the company stock he traded on using nonpublic material information the defendant was a printer at a company that created takeover bids the court analyzed the insider  trading at that point wolf that were adopted by the commission and it stressed that the liability in such a case is premised upon a duty to disclose arising from a relationship of trust and confidence transaction those were the words that he used to describe the requisite duty the court repeatedly stressed that there could not be fraud absent a duty to speak and that that duty arose from a specific relationship between the two parties then went on in discussing the facts before the hate that led to find that the defendant there did not was not like oh because he owed absolutely no duty to the to the takeover company who security she had purchased saying he's not or agent he's not there for you sharing and he was not a person who you know who the sellers are place trust and confidence and it was only through impersonal market transactions i don't believe so your honor beyond well the because of the way that the trading liability has developed remember the statute is silent as to insider trading and so the supreme court has repeatedly emphasized that there must be a duty what they haven't done the classical theory you're most likely going to have a fiduciary relationship because your duty is owed to the shareholders of the company that you work for so it's just going to happen that way and o'hagan simply happens to involve a person  a lawyer who had a fiduciary obligation to his client in his law firm and that was who he defrauded by trading on information he obtained during the course of mergers questions so naturally the court focused on the relationship of the parties before but o'hagan really did not limit it a did not set limits and say that it could only apply in the situation it's this is sufficient and as  loyalty and confidentiality also twice and a fiduciary duty or other duty and that was that was said once in your in your research did you aside from i think it's us versus corbin did you find us versus reed which is i think a would note too that the supreme court in o'hagan was well aware of the chessman decision the second circuit decision which really was the leading decision on this appropriation theory prior to hagan and ingestion and they had required duty where the functional equivalent of a fiduciary duty and the supreme court did not adopt this language or this or the reasoning of chess and it notes chess in a footnote but it seems to me it leaves a much broader it creates a much broader role a person has a duty of trust or confidence for purposes of this procreation michaeli and in this case of course it's prong to that implicated which is where a person the party set a pattern practice in history or history of exchanging confidence such that the recipient of the information knows or reasonably should know that the person who provided the information expects that person to keep the information confidential it really does comport with repeatedly emphasized which was that you must it's the the wool the the statute is all about the section it's preventing deceptive practices the rule is doing that in a misappropriation theory the fraud is on the source rather than on the shareholders it's the person who's who lays information that they know is confidential and nonpublic and expects that that will not be that that will be kept confidential and that's the violation they're the violation of the duty so the will com ports with it doesn't it's not interpret in o'hagan it's filling a gap left by o'hagan and that's exactly what brings it under in under seven different it's a permissible interpretation of the statute authority but the same issue wasn't presented there about it being foreclosed by o'hagan i would say that your honor it's our opinion that one of the reasons that the reason that this particular challenge hasn't been raised before is because it really isn't a good challenge to the law there is no a thorny that really supports the position and at least two circuit courts have recognized that o'hagan didn't close the door on further agency action in this regard that it left  that because the rule has been challenged as invalid that this would require an opinion for publication by this court your honor i would i would believe that it would be very helpful if this court would issue a presidential decision on this issue because no other court has done so to date so we would think that that would be very helpful your honor ok thank you very much  with respect to the perjury argument i would like to start by dressin the standard of review because there is no dispute from the government that the the two witness rule is still good law and it still applies here in other words that the testimony of one witness must be corroborated must be corroborated by evidence that is independent of the testimony of a witness that is inconsistent with evidence and that substantiates that testimony there's no dispute about that but there is no authority that holds that at least in this circuit that independent evidence must conclusively and a long established kills and i could although the defendant cite several cases for this proposition they don't say that lesson bomb states you may convict upon the testimony of one witness if that testimony was supported by proof of corroborative circumstances it does not add that they must independently establish guil thing it says corroborative evidence must hand the show perjury independently and be inconsistent with it's not that it much and as with respect to the overall standard of review for this her for perjury  charge again we we apply the standard of that that's been used for years of jackson versus virginia which is that no rational jury could find beyond a reasonable doubt under the the facts and the evidence drawn in the light most favorable to the government that the defendant was guilty so under those governing standards it's clear in this case that the evidence was sufficient to support a rational jurors finding that  defendant was guilty of perjury certainly the records themselves were sufficiently corroborative of mcguire's testimony that he gave the defendant this information sometime prior to july fourteenth and i would note there with that the defense has said that you know they say we played only mischaracterizes issue because there's no evidence that that he no evidence in the record that he said that he could pinpoint at any point prior to july twenty third and that's simply not true if you go through the defendant's requires direct testimony it lays out in detail the timeline which is he says he starts drinking again he goes weekend is the following weekend or the follow the weekend after that so within two weekends he attends a golf tournament where he drinks for three days and he goes right back to and he said he saw his words where he saw mcgee right after he went back to the conversation occurred after that that first encounter after he had been drinking and the conversation at issue of course involved  insider trading liability in the absence of nondisclosure liability and there has never been a case in which the supreme court has required or permitted anything less than a creature fishier duty as a prerequisite to that liability it didn't do so in sheer re where there was no breach or sherry duty it did it you know hagan where there was a reason for the sherry duty with respect to the court asked where we had the authority for the standard your honor with that i'd like the rest all right thank you thank you counsel well we thank you for actually briefs and excellent argument and will take the case and revised we could the clerk adjourned court