the next matter on our calendar is united states vs jonathan one count indictment involving an allegation by the united states of money laundering and as the court knows more two of the things that the government has to prove in order to sustain a conviction on money laundering are that the defendant had received a representation that the proceeds of the money he would the money he was using or facilitating were the proceeds of a crime and that he believed that they were the proceeds of a crime now here it's our position that there was insufficient evidence introduced  to do that and i think the most telling point in that regard is when mister farm was engaged in this so called role playing thing with the undercover he specifically asked if the securities were fraudulent and did not receive an answer and when why would they put it in gauging in the role playing unless there was an issue with the securities of some significance well it could have well been that they i mean if it had been a legitimate obviously it was a stin so there was no there was no underlying legitimate transaction with respect at least to the ad for tax stock but the roleplay could could very easily have  been what would you do if a customer called to complain about you know any kinds of any kind of various different things and none of it i mean some of it was  a suggestion that what would happen if the customer called and said this is phony but that could happen if it wasn't funny that could happen that is the kind of thing that could happen in any kind of customer service or customer complaint kind of business but why would you need to practice carefully what words would be used and how that we split response would be given to a complaining customer about a bogus stock certificate well you honor i don't think they practice carefully what words were to be used i think the government's side of it was loaded with these words that obviously government was being recorded they knew that they were going to introduce the recording into evidence a trial and so they were loading up on words like bo s and things like that but it was a fraudulent intent or the necessary intent to convict here well if your honor is asking is the very fact of a role play something that the jury could infer fraud from my disappearing about the  and the person gauging the government side of the conversation a refused to answer b said stay and roll stay and roll and then came back at trial and said well you know criminals don't have a conversation which they say were about to engage in criminal activity well they might not have if they know they're being tape recorded but if they're sitting there talking about what's going on here there would be some if if mr f asked that question and it was clear that he knew the answer that he not tell the f b i and was in this part of the trial record that he understood that  were selling forgery bogus securities he understood that they were selling securities under the name of adfa tac which were bogus but he was only involved in  the stock called ault mark which everyone concedes was legitimate and he got a higher fee that he would have gotten if it was a legitimate transaction well he got he got a fee that the government summation said was higher and it's the government kept saying all they did was write a check all he did was do this and he got this kind of money you know if it isn't first of all it isn't that much money and second of fee if everything is above board well it under certain circumstances i know this court has ruled that you know if if you're given ten thousand dollars to deliver a package two miles away you know there's something in that package that that's not kosher i understand that but this isn't that kind of situation it's not it's not such a large free it's not such an one reasonable request it's something that between mr form and mr spite the jury despite the instruction that the judge gave was able to think but oh well if he and spike did this once before you think it was just too prejudicial  discretion standard obviously there is discretion both into that and yes a four zero three b analysis requires discretion a case by case and i really making you know making it an argument about making an argument about worth well i don't know that you can necessarily separate the two i'm asking you what your well and i'm saying that that part of a four zero four connection with challenging this evidence you focus you're asking us to focus on the fourth well i think the four zero three is the most obvious flaw but as we argued in our brief for all four  was also flawed in that the it was an entirely clear what the nature of the of the transaction between mr spike and mr farm was it was never charged there were never any there was never a conviction based on it and so and i realize of course the four of four because it required that but under the circumstances i think it's a mixed mixed for for for three morning good morning honors may please the court with keith edelman from the u s attorney's office for the eastern district of new york and i was trial counsel below beginning with this efficiency challenge and starting what is the with what is the thrust of the defense's argument as to the quote are they exchange carney noted the jury was entitle to rely on this as evidence of mr flom is fraudulent intent even just focusing on that one  and of course insufficiency review it is the talent of the evidence that must be considered the are they exchange after mr flom says well are they there's a quick laugh the undercover tells mr fleischer i'm the customer in other words stay and roll and mr flamm then says that and this is a government exhibit one thousand two thousand and one that my answer is the same if there really is an issue i won't say anything i'll go i don't so even just that one exchange mr flamm is saying that if he's presented with this complaining customer then he will say i don't know the situation i'll just put them off and i'll circle back to the undercover and to speight but as i mentioned this is not the only piece of evidence of course with respect to the defendant's fraudulent intent as judge lowe a mentioned when mr flamm was approached by the f b i he admitted that he knew mr speight and mr larsen the undercover were engaged in the illegal sale of fraudulent securities but that he believed his securities related to up mark which everyone agreed was a real company but what the evidence also a trial showed was that with respect to all marc the defendant number one that was a lie the defendant actually engaged in transactions with special agent larson the undercover relating to adfa tick a letter on behalf of mr speight and which during the recorded call mr speight said to put in that letter that mark was issuing coupons which is not true in other words telling directing mr flamm to sign a letter that contain statement with respect to that security the mr flamm admitted he was engaged in he knew was not true when he signed it is what you said exactly mr of on that recorded call mr spade says can you please put this this is not  actually true showing that the first letter contained a false statement that mr fly wrote but again that's just one piece of evidence if you looked at some of the other conversations between the undercover and and  repeated references again even just taking away from the old place which i believe the jury was entitled to rely on for instance in one recorded call that special agent larson told fly where he's going to quote to warm up the laser that had a more exculpatory flavor wondered about the rule of completeness here yes your honor and we've argued this actually should be on a plane a review because the way that issue came up was defense counsel below this was an appendix five eighty one and what he's doing he's reading from a document that's not in evidence that happens at trial fairly often and there was an objection and we come to side bar and judge mosque half says you're reading from something that's not evidence and there is a there that the defense counsel wants to get to another statement and we argue the government argued that this with that was hearsay that statement being offered the part of the statement was allowed i'm sorry on part of the statement was allowed  honor the statement that was allowed in was what judge lawyer referred to that mr flamm knew that mr speight and mr larsen were engaged in the sale of bogus securities but that he believed his statements related only to  the statement the defense wanted to get in was a statement made at a different portion of that same interview in which he said that he had no reason to believe the fed that the defendant had no reason to believe that he that his securities related to  defended himself against the trial that he never believed that that was that they were fraudulent that is certainly true your honor but it wasn't a prior consistent statement of the defense it still would qualify vendue would still qualify resubmit pure hearsay statement when offered by the defendant but but upright inconsistent statement is an exception to the hearsay rule is not yes your honor i was not allowed in a surprise consistent statement  that that specific statement before i'm sorry never make the specific statement before trial no that was never brought up in the record that at the trial record that he had made that statement before so this statement  so but again your honour's the import of it this statement was already before the jury because that if their offense at trial was that he believed the defendant believed his statements only related to mark and that was legitimate so he had no fraudulent intent defense counsel made use of that in summation that was already before the jury so even if this was a prior consistent statement that should have been admitted it would have been essentially the same the substance of the same statement that was already admitted that we argued as i just mentioned was actually false and helped her we were wrong here because that's the whole thrust of a prior consistent statement that it bolsters the later claim by the defense that he think about prior consistent statements the witness says want prior inconsistent statements to the f b i agent and it was what he was arguing at trial right so they were consistent and it was the pri consistent statement with his defense at trial am i correct in that i think that is factually correct but legally it does not matter as one of the requirements for a prior consistent statement is that it also be made in response to an allegation or an assertion that there was a recent motive for fabrication or a motive to lie that is nowhere present with respect to challenging mr flamm statements this ordinarily comes up on cross examination where there is a profit some there is an allegation that the witness has a bias or something to lie and then often on redirect or usually the government that will come forward and say no no no he there's certainly there's no testimony as to his motivation to to lie or to fabricate which is also a requirement under the ball and turning briefly just to the conscious avoidance issue astronomers have other questions on that i the defense's reply in this in this before this court illustrates the need wipe conscious avoidance was appropriate if in any case than this one my friend on the other side says that that mr that special agent larson didn't use the word scheme he didn't use the word bogus outside of the row place it will place in areas this is exactly the circumstance where a special agent in a sting operation will need to go up to the line  we don't mean to take away from the fact that we submit mr flamm had actual knowledge but the case law is clear that the government can argue both actual knowledge and conscious avoidance and as the last promise of the factual predicate of the conscious avoidance charge there is now first i i don't want to presume to say i agree with you because i'm not sure what you're thinking but i do believe that the rule of completeness should have  required the judge to include that prior consistent statement i believe that there wasn't any reason to preclude it what the judge ruled that it was hearsay it wasn't and and that in  itself because it was and was ever should have allowed or where the judge should have allowed that statement into evidence with respect to the conscious avoidance that my colleague raised  this is a tricky area this is an area where the person being charged has to have a reason to believe the person giving him the evidence or that giving him the facts about whether this is criminal activity and so when you get into the conscious avoidance  filani actually believed that what he was doing was laundering the proceeds of a criminal activity and for the government to argue that convict him on the basis that he should have realized and if you read should have realized into the statute which isn't there you you basically cut the legs out from under the part of the and combined with everything else combined with the four or four and four three minutes was such that the jury could have come away with a misunderstanding of what was required of them to convict thank you thank you thank you both will reserve decision