case united states of america versus the door and first we'll hear from this cover judges more than we do for police directly told that there was a grand jury investigation going on so there is no difference there the agents who interviewed jaguar said there will be a grand jury hearing evidence on this or there is a grand jury and it will hear evidence on this  so that is not a distinction the question in aguilar in the question here is whether mr benoit had knowledge that his statements were going to be presented to the grand jury and there was very clear testimony from the agents that interviewed him that they did not tell him that they were going to go to the grand jury and in fact they did not know at the time whether they were going to go to the grand jury and that is exactly what the court and i will are was concerned with that making statements to federal investigative agents who are not necessarily part and parcel of a grand jury investigation is not enough to bring a defend it within the scope of section fifteen zero three which is was as you say a federal district court judge has obviously something though he arity with grand jury investigations and he suggested we do leave that his statements would be passed on to the grand jury and yet the supreme court said under fifteen that is simply not sufficient evidence to convict him if it was not a natural improbable consequence that judge aguilar statements would go to the grand jury when he believed that they would relationship and time calls haitian the launching of the grand jury yes and the supreme court held that there wasn't such an nexus for judge aguilar and since the factual circumstances of the cases are so similar the court is required i believe to hold that this that the nexus does not exist here either i think that what is sort of important about  his statements were going to the grand jury at least not the same quality of the evidence i mean there was evidence apparently in united states versus aguilar in the trial court that judge aguilar who took the stand said he subjectively believed that the asians were going you're mostly right about that but the fact is that not everything that f b i agents do gets to the grand jury they may present a summary of the case they may not present everything that they certainly are not going to present everything that they have uncovered in their investigation and what i was better tell him i am going to the grand jury with what you tell me i am going to the grand jury with what you tell me so that there is no question that he knows that's what's going to happen and that's the import of that will are because they the court said there that lying to an f b i agent who may or may not go to the grand jury is not sufficient for a conviction on the fifteen zero three so if you're going to use to fifteen zero three which i think is not a very smart move in the first place but if you're going to use it the f agent had better be prepared to tell the person that and most f b i agents are not prepared to tell the person that they don't know at that point just as these agents testified they did not know whether they were going to go to the grand jury so if that's the burden that's not the knew nor had notice and was acquitted for that reason then the same thing holds here it's just not possible to square the ultimate holding in aguilar and its facts but the conviction for mr benoit is it's not intellectually honest to do it and i i recognize that it seems like an anomaly but i think that what it boils down to is the is the wrong choice of statute that fifteen zero three is simply not a good fit for this behavior well i'm not saying that he didn't think it would be likely to have an effect what i am arguing and i think the court can appreciate this is that if judge aguilar on those facts was acquitted then there's something more than just he has to have this you know they are a little bit better than vague sense that it might go to the grand jury and his lies might be presented to the grand jury if that's the only way to swear i will are  tell mr bit away falsely because they testified that they wouldn't have known this they would have had to tell him that they were going to the grand jury with his statements they would have had to tell him that that's the only way that i can read a group i think that that that if that had been said i wouldn't have the arguments that i have here with respect to al gore but because it was not stated and because of all the things that happened with judge aguilar and his interview these agents and the other things that he was and there was testimony there was there was conclusory testimony that there was there was other testimony that indicated that maybe there wasn't yet a grand jury but the government was not pinned down about that and so i think that the conclusory testimony that there was a grand jury proceeding pending is sufficient under fifteen zero three and i'm not attacking that if i may i just have a couple minutes i want to talk about count three a little bit and that is the count of the government's cross appealing on there is no evidence in this case that mr boudoir ever told c c to as charged in the indictment to get rid of her phone he the agent agreed at page thirteen fifty three of the record that he did not tell her to get rid of her phone and he agreed that what he told her to do is change her number that's how the district court read it that's how the district court understood it she said in finding the acquittal on count three the district found that he was never speaking of getting rid of the phone but only of changing the number and the vargas ocampo case which talks about the standard of review which i fully embrace here  there are benefits of the dramatic insides gain from watching the trial the district court had that the district court concluded having heard all these tapes in person during the course of the trial that mr but i was never talking about getting rid of the phone what was going to go it was this determination made on on some constructive amendment of the indictment theory the court did say that there was a constructive amendment of the indictment but implicit in that i mean at part and parcel of that is her finding that there was no evidence of that that he said get rid of the phone so you agree with me that this constructive amendment of the indictment finding i say likely not appropriate and it's not necessary to go there to decide this i think if there is no evidence of what the government undertook to prove as the means of violating that statute then there has to be an acquittal and the judge was right to acquit mr byrd away on that ground but actually what we're had is you had the indictment which the jury hey and then you had the jury charge which tracks the language of the indictment in that right so they had the indictment they heard the evidence and then they had a jury show yes so your only argument then is that the evidence was insufficient to support the jury's finding that he was guilty oh yes that is correct and i will add if i may just have thirty seconds or less the prosecutor argued in the case at closing having said in opening that the testimony was going to be change or number and disappear argued in closing that he told her to get a different phone to change her number but what he must have wanted thank you thank you reply he suggests that his conduct in this case was not quote real public corruption that his kind of did not put anyone at risk and that the government has throughout the prosecution relied on an overblown characterization of the badness of his acts i would just contrast those statements with what the district court had to say about that at sentencing which was that she had never in her career seen a case like this that she found his conduct shocking and shameful and that if people cannot trust the police to follow the law then we run the risk of the very fabric of our society deteriorating so the district court did not believe that the government had had used any overblown statements of the badness of mr joyce out speaking out agreement with this report we are of course largely in agreement with the district court's actions in this case that we do disagree on with the district court decision to set aside the jury's verdict on count three i have a couple points i'd like to make about that the first is what your honour's had discussed with opposing counsel just moments ago that the argument here really has been a moving target i mean the argument district court was constructed a minute the indictment the government proved a different theory than it charged now it's like well that's really extremely as we don't need that but it's but it's a pure sufficiency issue  the evidence was sufficient to support the jury's finding that the toys instruction that c c should change get a different phone to change your phone to get a new found and we know from two to ins your question about the jury charge that the jury didn't make that step that the language of the jury charge was specifically did the corrupt purpose of tiling ceasing to get rid of her phone so that so that and this is also part of the charge there would be no further evidence of the connection between  run away from what they do his words were in those tapes his words were change your phone get rid of your phone and what the government argued to the jury in closing argument was that implicit in that he had to have meant get rid of your phone because he's trying to do in this conversation in the context of this conversation he's trying to conceal everything about their relationship and the government also made the point to the jury which we make in our brief that the jury was aware and there's evidence in the record know and yes i guess it would be a little easier if the jury charges basically said he attempted to destroy or conceal material object by telling c c to put change or film that would be easier but there's no requirement here that that in order to find evidence of fish and that that he must have used some magic words i mean the question here is could the jury have inferred that his words meant get rid of your phone i mean it's a question of and this court has been very clear that the jury is free to choose among competing views of the evidence even where the facts were presented to the jury that would lead the jury to interpret that statement in the way the government thinks it should be interpreted i mean you did not say get rid of it but you're saying well that's what he meant based upon other evidence what other evidence was there presented that would lead a jury to believe that that's what he meant yes on their two categories of evidence that support the jur one is as i mentioned judge great the evidence about his awareness and her awareness of the fact that these did the devices do carry a footprint they carry a footprint of communications even when the number has been changed and there was actually new number those text messages could not be could not be reached by the f b i because she had lost that physical device so that's clearly in her mind it's in his mind the jury's also allowed to just use their common sense and think that as a veteran of her cell phone in order to and this language is also in the charge and i think that in the indictment and the charge and i think that's important but told her to get rid of her cell phone in order to destroy the strong evidence of the connection between more than what is required by the elements of the charge on sufficiency review what the court looks at is did the government prove the elements of the crime and so under misaki on i absolutely agree it's possible the government did not even have the elements the in the indictment i'm looking at the indictment right now i'm assuming this is correct and i don't want to read it all but you say a witness in the investigation is the last line of witness in the investigation to get rid of her cellular telephone so that there is no connection between person a telling her to get a new number whether by telling her to erase it it's certainly possible for the court to conclude that that's all that's required under massage your did leave open the question to your point judge grains of what happens if the government undertakes an additional element in the were the four bare minimum elements of due process meant that he have fair notice of what the charge was against him i mean could he not defend the charge against him if if if you know if what was in the indictment was saying something to the long lines getting rid of the phone but actually maybe only told her to get a different phone i mean did he not know what he was defending against there that's really what the supreme court is concerned about a massage and i would suggest that that is the main concern of massaging you that the correct is that we would only look at the elements even if the rid of her cellular phone then as a defendant you should know reasonably expected this with the government against the proof and this whole issue has to do with whether or not he actually struggling to get rid of the phone which is that's the language  what inferential step they needed to make the jury made that inference and the question is was that a reasonable inference from me putting aside the question of whether we had to prove what was in the indictment what insight you mean the court may not even reach that difficult legal question record and the government asks you know plays this tape where he's saying change of phone different phone and says you know what did you understand this to me and she said i understood he was telling me good to give him i found to get to to get rid of it that's what she understood and said because our position here that this court should adopt what is the majority view in the circuit split which is that it can be correct persuasion to encourage a witness not to testify to encourage a witness to encourage that this is a permissible cause of action that the eleventh circuit the second circuit the ninth circuit that really what's crucial is the context in which that statement is being made that is how we evaluate whether or not the instruction not to talk to the police right just moments before that they had been talking about one of the tips he gave her he told her you know hey we're about to where i'm looking into this studio serene massage studio and i didn't know you work there and they had this whole conversation is back and forth and she said well yes you did you told me we're going to investigate it because i work there and he said well no one knows that you want to tell anyone that and then literally in the next breath they have this exchange in which he says you don't want to tell anyone anything she says don't trash talk to the f the importance of setting out the difference between wholly innocent conduct advising someone of their rights and conduct that is that is done for corrupt purpose and the standard in arthur andersen was on this gets said what else is he saying along with this advice a mother can tell her son you know don't test don't you know you should leave the fit you can you can encourage someone to invent the spousal privilege but if it's being done in a context for specific underlying crime or misconduct but i would also i mentioned at the beginning of my argument really take exception with the idea that what's going on here the underlying conduct here him exchanging  it and yet order to avoid that evidence being taken against him but it goes beyond saying don't don't talk to you don't talk to the place i mean he's telling her also he's coaching her in the same conversation and if you talk to somebody here's what you should say you know did you know me yes you say you knew me as i didn't get any information i mean he's he's were cursing for her what she should say to the authorities a question and really put it in a way that is is clearly lies so i just think it's difficult to to justify the conclusion that it could never you know that it could never be obstruction for him to tell her not to talk to police i mean that's a pretty extreme view it is the view that the third circuit has taken and this can never be obstruction of justice but that the majority view appears to be that in some instances it can when you have the right conduct the jury can make the inference that that was done with the the requisite correct motive from arthur andersen and i thank you i want to tick off a few responses here first of all if i heard ms falconer correctly she cited to pages nine sixty ninety nine seventy one of the record and i just looked at those and i don't see anything there about t c saying i have thought he was telling me to get rid of my phone i'm sorry your honor let me say it again i understand his falconer to refer to two two or three pages in the record on the question of whether c c understood m telling her to get rid of her phone and i looked at those pages if i heard her correctly and i did not see anything about that topic there off the top of my head i do not remember anybody ever using the words get rid of with respect to that phone in the course of this trial i'm not going to swear to it as a long trial but i don't think it's there also i don't think it's important what she understood him to mean the indictment as your honor has pointed out alleges that he told her to get rid of her phone it doesn't say he meant for her to get rid of her phone when he told her something else and that's what the prosecution argued with respect to me sakyo case as ms falconer said it's correct that the supreme court expressed no opinion about what happens when the government takes on a particular burden in the indictment and it's reflected in a jury charge but that leaves in place in this court's existing authority that says under those circumstances the government has to prove what it took on to prove it my research indicated that the cases the court decided cited in my brief djoko and taylor among them are that if the government charges it and it's echoed in the in the jury charge then that's the government's and that's what happened here also i want to point out that what the government charged in the case there are four alternative ways of violating that particular subsection you can alter or destroyed mutilate or conceal the object government only chose to charge destroy or conceal it not charge alter or mutilate changing your phone or changing your phone number would be altering the object but the government in charge of that and that's a specific  to overstate that may be prepared to conclude that they took on the burden of proving that he advised her to get rid of the phone when they died in that way and you just pointed out how damning the indictment is what alternative they could have employed but why isn't it a reasonable inference that they had taped conversations of it of him talking to cissy or c c i'm not sure which of him talking to her and giving her advice why couldn't the jury reasonably infer from what he said to her that what he meant was get rid of the phone why wasn't that a reasonable name for well because there is really a big difference between changing your phone number or getting a different phone and getting rid of the old phone one does not necessarily lead to the other and i also want to point out this it may be considered kind of minimal importance but it's not true that mr benoit gave his phone to his wife what he testified to was that she took it from him because she was mad as hell at him and she didn't want to have his phone anymore in the contacts that were in it so she's the one who took his phone and erased it or whatever to do to it  then we could just be arguing about what it means to get rid of the phone yeah what does it mean to get rid of a phone and i think it's i think if you're talking about the jury i'm applying it's common sense get rid of means it's not find a ball that's not around anymore get rid of it it doesn't mean change the number it doesn't mean put it over there and get a different phone and the district court found specifically that there was no evidence that he told her to get rid of the phone or not but he didn't have to use those exact words  look at it all the evidence in that case did use those words but that one charge that he told her to get rid of the phone right to get rid of the phone but he didn't say he had to use those exact words in telling her to get rid of when we're dealing with a police officer who is motivation here is protecting himself from criminal prosecution more than disclosure of his misconduct as a proceeding and so you have to make a you have to draw the inference that he's telling her these things in order to keep her from the grand jury and you have to the second part of her response is that it's really important to look at the context of their conversation and not only the part of the context that ms falconer referred to but the context that c c kept in nagging him what about the f b i can they come in and he says no they can't come in even they can't come in and you that's no good reason i read out of mass and nobody knows that we had side except the two of us keep your mouth shut i mean that's that's true he doesn't want to talk to the f b i i'm sure he doesn't want to target people with their play to fifteen twelve well let me talk about the ninth circuit case in that case there was the additional fact that that defendant was tampering with another witness aside from asking his wife not to talk and that would normally be a circumstance that a court would take into account as context that would say this man corruptly doesn't want people to talk because he and the one hand he's tampering with this witness and then he's also telling his wife please don't talk to them i think that kind of conte three convictions be reversed and the acquittal stand thank you thank you ms cover your court appointed