assist you in narrowly d the focus of your arguments for the time if you have available this morning pieces the court room deputy and she will serve as the time he she will let you know and your time to argue has slyer and she will also provide you a two minute warning before your time or here so it looks like we are ready to proceed with the st case it is the united states of trying to keep the government focused on that fraud and that's why she allowed a specific theory of defense instruction on it but before i get to that issue i want to say that st in regard to topping the government's admitted insufficient evidence for multiple counts owners of the company who had this vast nationwide operation going for a longer time no no findings as to the time mr toppings knowledge of finding as to what he acts they participated in the government again conceding that comes a new theory that at best should be considered salesman he was not an owner he did not get anything for those commissions very telling the government claims in arguing about a loss that they say he never got more than ten percent commission but that's not true or so you did get sometimes get more than that and that's why there are alternative theory and probably also is wrong but the very fact that they're saying he's a ten percent commission guy who never is able to move his commission up shows that he cannot possibly be he didn't supervise and when he wasn't anybody's boss he wasn't it was just money over and over and over again they say well he was he was a was in the boy in the room for a while so people would turn to him and say well you're the senior person but that's not a leadership position he didn't tell anybody what to do there was never any senior law they don't have a different roles because they're senior law they've been there longer somebody asked them a question tampa is the case and i think it's most close on point in saying that that does not does not qualify for like a month and we're talking about a couple of hours we're talking about a guy who's who's left you know an employee who's the owner leaves the store to go to lunch and the employees the police senior employees at the store when the guy comes comes back from lunch  yes it doesn't matter because we relied upon the instruction that was being given at the time as to phrase and prepare our defense and also is to prepare our closing arguments often parties may not agree with what a judge does  doesn't give the party a right to trash the judge's instruction and tell the jury got it does not count and that it's is not the law which is what the government did in this case and that would go as to all three evidence to support that mist skaro was involved at all d in those sales because council went and she didn't personally participate in count two in the number eleven transaction where actually the owner of the she may have lied to sell stock however she didn't know there was a fraud going on and that the owners of the company were the people who are actually stealing the money and not putting it back into the business the jury to very easily have determined that the no evidence that she knew that this was a fraud be conducted by the owners of the company in miami where she was in california so in effect there was evidence that she was deceitful there was not evidence that she ever had the intent defraud and that was the whole focus of the defense theory here in this case and that was the theory throughout the trial throughout the closings throughout the opening and everything that we did in this case so to believe it was out of the bottle we had no initial shot so i'd like to start with my cross appeal and you've already approached it the issue is here whether or not the government's comments were harmless error in my client's case it's pretty hard to say that there were harmless error when judge cook acquitted my client so you can't just say that well it's harmless error because you have a dense of of your clients because the mission in this is overwhelming it was not overwhelming the judge reserved ruling on  time ready but this is a situation where the government just said you know what we don't like your instruction so we're going to nora and we're going to tell the jury to ignore it and if i must say i've been a lawyer now will probably close to forty five years if i would ever  not do something you told me judge wilson or judge brasher you told me you'd be pretty angry at me and this is what the prosecutor did he trashed the instruction because he didn't like it rather than accepting it and responding to instruction and i read the closing argument and i read the instruction i also read the debate about whether this instruction should be given and it seems like to me just at st blush it seems like the improper instruction because the district court is couching all this legal terminology in an instruction that says defendants contend so it says defendants conten there is a difference between deceiving and fraud and then it goes on to define various legal terms and that's not the instruction that the defense initially wanted the defense wanted an instruction that when you have modified the pattern jury instructions on the elements and that included this in the elements but what the defense got was this weird sort of contention instruction that mashed contentions with with legal elements and so on when i read the prosecutor argument i see not a prosecutor who is trashing instruction but a prosecutor who is trying to explain this instruction that that in my view at st blush doesn't make much sense but what do terms that seems improper well i mean it's still the theory of defense instruction but she gave the instruction how do you deal with the fact that this jury heard the instruction this isn't a question of the failure to give an instruction this jury heard it so obviously what they did with this case was factored factored in what this prosecutor told them to do so you can't just back away from the fact that this actually happened in this case this isn't a failure to give an instruction this was instruction it just jury heard and how do you deal with that i mean we didn't have any real bite at the apple afterwards that was rebuttal close it's it's actually kind of sad that the prosecutor waited to this part of a two and a half month trial to to do what he did you know defense lawyers when we get we're told to do something by a judge we do it we might not always like it but we do it and judge cook said we did it but he didn't he was angry about that instruction and so he told the jury that it wasn't the law and they could disregard it and it was an instruction that was given to the jury  instruction the district court again and was defendants contend that they are innocent of all charges and not guilty could the prosecutor stand up and say look this you know look at this instruction it's about what they contend but it's not the law because he had a right i'm sorry to meet interrupt he had to he had a right to stand up and say this is why this instruction does not apply to the facts of this case but he didn't have a right to stand up and say this isn't the law you can disregard it forget about what judge cook told you you can disregard it that is completely improper under any circumstances you would let us do this and you'd be pretty angry if somebody did it over your instructions so this is something that actually happened is something that we actually had to deal with a trial if if if it was an issue of a failure to give an instruction then i certainly think that you might pose the questions that you're posing but this was given and we we address as well as mr solomon that the my role is the apple and and this jury in this closing argument issue i think that the problem here is that the government was taking the position throughout any misrepresentation at all by any of the salespeople was went to the nature of the bargain and was there for evidence of the defendant's guilt and in terms of joining this conspiracy to defraud the instruction that was given that there was a such thing as an intent to deceive that was not did not go to the nature of the bargain and was something that that that the court had the jury had to find was  would not necessarily be that that's not a scheme to defraud that is a true statement of the wall now we contended that the admins fit that description and as mr solomon said the government had every right to say no the evidence does not fit that description but they did not have the right to say that's not the law because it is the law and even the cases that they that they presented the and tell the jury that the judge thought i guess this is important for you to have it but it's not the law i mean how is that even appropriate i mean actually i cases in front of judge cook and i'm pretty sure she would not have been happy with me if i had set every state the question your honor this is a very unusual case the fact pattern of this case is not likely to recur again the reason is that the court gave a very unusual instruction as judge rasher pointed out that is always reined in terms of what the defendant contend and moreover the judge described by mr a once i mean that's the whole point is you have a back and forth between the government and the defense counsel and sometimes you win sometimes you're joe but once the judge has decided what the jury instructions are going to be you don't have the right to say look they presented this jury instruction but let me tell you why the evidence isn't met and it doesn't this jury instruction they can't show that string section is valid that's how you do it i don't understand how you can get up and stay at this there's a joke i understand your honor and that's why that this  an unusual case so let me point use of the parts of the transcript that demonstrates why the government framed it that way the government framed it that way in large part because that's how judge cook described it to the parties during the charge conference and i believe judge brasher alluded t is the defendant theory and just pages later three hundred and ninety five dollars she reiterated quote remember counsel what i keep saying is this is a theory not a legal instruction and and the next day while the charge conference continued over a docket entry a ten page three she said that she had taken out certain sections of the defendant's oath will quote because i thought they went beyond theory of defense and went into the law and this is important because in analyzing a misconduct playing you have to determine whether the government acted deliberately five or emitted lee we said we spoke imperfectly i don't dispute that we should not have included we could have said it better and more precisely but in context we were not attempting to justify that or we had heard repeatedly from the court in the charge conference that it would be you would this is sort of a defendant fearing what they're contending that we would be allowed to trade it several times it's not just out the st time the government made this argument the defendants objected and the district court overruled the objection until the government could basically continue making the argument right or act and then within a very short bennett bear in mind this is on the lack of prejudice which judge will then alluded to with the defendant to prevail back to show a reasonable probability of a different outcome from these remarks from the government however we should reserve who i just i just asked the question that it seems to me that important thing to remember is that the district court gave a curative instruction and documentary eight hundred and eleven page one hundred and twenty nine this came after the government's rebuttal argument so the last thing that the jury heard before they started deliberating was that they had to follow the law wish that it been stronger and didn't feel like it was strong enough i acknowledge that i will point out in that hearing when she made that remark she that i maybe should have given a stronger instruction to use that word maybe she frame court does not need to defer to judge cooksey on the matter just good gave the curative instruction and it was laser targeted at the issue that the defendants are raising which is the fear that the jury would have felt free to pick and choose between different segments of the law or the instructions and to disregard the civic page of the instruction i e the theory of the judge cook specifically told them you can not single out for disregard any instruction and the defendant never asked for a more specific cur have some concerns about the sufficiency of the evidence so you know really in the talk last case it seems like some of the lies at issue here are not fraudulent lies so for example false names things like that when suspect of these defendants what lies were told as part of this conspiracy that are fraudulent lies under talk a lot as opposed to just laws that you tell t lie because it's a law about the nature of the transaction that the victim is entering into and it's a misrepresentation in this case because although the people said no commissions no fees were never asked about it in fact when he presented the victim's money went straight into their pocket other material lives include the fact that the stock was soon to be listed or pending listing on nasdaq where i am at two major stock exchanges lies about the leadership of the company their membership of the board of directors or their major investors the multiple defendant and particularly popping told investors that john sculley former apple c e o was involved in the company at one point he misrepresentations about an endorsement from days arm along a television personality along with clinical trials that she claimed to work during at yale medical school and the miami children ok so you've appealed for the judgment of  law and as a set up the best point i want to stress that we have to ask the right question to get the right answer i think the defendants in this that they had didn't know about what they call the quote unquote the real fraud scheme which was what the owner than a medic and uncle for he was doing with the money that's not the fraud alleged in the indictment if we look at paragraph three of both of the conspiracy count counts one in eleven the conspiracy alleged to misappropriate investor money by misrepresenting the characteristics of these company and then reap the profits the ill gotten gains through conceal commission so what these people actually needed to know to be guilty of the fraud scheme alleged was that they were telling materialized  investors about the company and that they were getting commission wheeler and long knew that just as well as all of the other defendants wheeler we made the no commission no fees misrepresentation as to both an emetic and also a docket entry or thirty four dollars page two a five that was testimony from what rating witnesses who heard them make that misrepresentation to multiple investors what's significant about that is that the kind of misrepresentation that no one could reasonably believe are ignorant of it falsity they knew they were being paid in commission because they had to fill out their own commission sheet to claim their share of the profit so every time they sold an investor and that investors checked him and they filled out a piece  paper that listed the investors amount of investment and their share which was typically fifteen to twenty percent of the total amount furthermore as a two wheeler he made the misrepresentation free had millions in profits that's at docket entry eight o two page thirty nine dollars and long at the same page the witness also recall lawmaking that mr christie nation that's significant because the written materials that the sales people ha fungal three corporation specifically say that the company had garnered three one hundred thousand in rep so compare those figures three hundred thousand in revenue versus a claim of millions of dollars and profits allowing those written materials are governments exhibit four are specifically page for this court in the criminal case and assignment case pointed out that salespeople who make false representation that go beyond their written source material are proof you was entitled to ask whether they had any relationships that would influence or slant his testimony but the fact that they had a different potentially different criminal enterprise together leads to an obvious inference a bias because  who do you have a business relationship with mr solomon the answer is yes or no and why you don't have to have delved into relationship bestial what is the nature of the business relationship you want to delve into it because it was a criminal enterprise because i'm sure if it was you know an ownership after something that interesting is that for your honor has much more impact not improper impact impact because the nature of the or i believe it arguably would be proper with a limiting instruction so i agree it should not have been considered solely as to you know the fact that she committed other illegal conduct but if the court limited a proper question of cross examination let's there are rules for operate in four or yes it's limited because then the government can follow up with so is did she ever threaten you with that information to induce you to testify that's the inference that we would be seeking to draw is that the fact that they have preexisting illegal relationships encourage this witness to come in and testify on her behalf i appreciate that well you know thank you so much for your time and your hon s there are no further questions we urge this court to uphold the jury's verdict in all respects including restoring the conviction wheeler and l you didn't charge what the district court said but that that is important that the district judge was not out on some somewhere imagining with the cases about district court was right on point the government was all over the map and they were throwing in anything possible anything possible to get the conspiracy of the salesman when they ate there was no evidence that they had any knowledge of the misappropriation of the industrial money and that's what her instruction was about it was in part tackle of basic because it focuses on intent to defraud rather than you impeachment was a complete collateral matter and when he said no d that should have been the end of it but nevertheless the government talked about it over and over the clock about the closing argument and they've made it somewhat of beats or witness that the missed the moment there was no yes with regard to the the my portion of this is apple e i would like to start by reading very quickly what judge cook who presided over a two and a half month trial and who reserved ruling on a rule twenty nine motion for judgment of acquittal said about my client in her order of the smith's all she said there was no question  misrepresented to investors which is joe which is a question that was asked by the court these deceptions alone are not indicative of an attempt to engage in a scheme there is insufficient evidence that these deceptions indicated there is insufficient evidence that these deceptions indicated knowledge of the overarching scheme long used his own name shauna lynch doesn't mention long even being on the stand for days one present tega testified that he didn't know if wong used t stock restriction technique or what he even said to his clients there was no proof that a not unlike isis machado long knew the statements given him in the press releases or the employee meetings were wise and part of a scheme to defraud toller chandler and pearlstein a chandler's an th circuit case that that relies very heavily on pearlstein i do not have the time to to go through this but if you compare the perlstein facts to the facts of of the case as to mr long it's highly a propos and shows the same issues with regard to long that the recollection of asking or hearing from mr wheeler about whether he was going to next mission or whether he was a soured employee his comment was i know i didn't get the red flag i didn't have any concern to say about that he said there is instead she said there was insufficient evidence that defendants will run log knew about the scheme to defraud d or read to participate in this team's objective yes they were paid commission but there is no evidence of any other financial gain other than their own salaries or commission and then she goes into the tackle off of language ringback and also what mr solomon quoted the point the point being that that judge cote belief that people have to assume that you're going to get paid when you're doing a job and the fact that that mr wheeler is case the fact that he may have received a commission was not  taking this money and use left for themselves a sort of usenet to support the companies they were supposed to support oh mr wheeler was being defrauded as much as anybody else and he was a tool for their ski