necessary to get into any of those details but if any council feels it's necessary to do that or things we're getting close we can stop the video or keep  ward and we respectfully request that this court reversed remand as conventional conviction because one indictment was insufficient to a constructive amendment or variance occurred at the trial court level three of the government's evidence was specific information that was not present in the indictment but that doesn't preserve your claim doesn't well the in the cases that say the bill of particulars is not sufficient no i don't your honor but when written when it comes to challenging the terms of the indictment it can be brought up on appeal it's just a question of what standard it's reviewed under so if it's not brought up at the trial court level to the no or it's a plain air standard if it is brought up at the trial court level that you know standard so you'd agree that it's a pla i would agree with those lines of cases i would offer to this court that based on the circumstances the motion for a build up to it was coupled with the rule twenty nine motion where the attorneys are still expressing confusion as to what exactly was put into the indictment that would allow us to go on the novo there's a case you ward of the united states where the defense counsel brought up expressed worry that his client could be convicted front charged conduct it was a constructive amendment situation but that attorney never argued that is fifth amendment client's fifth amendment rights have been violated the court felt that under the sort of expression on the attorney his concern that there could be charges or a convicted for and charge conduct was sufficient to preserve the any element was left out of well i would i would disagree on or that there were elements that in fact were left out in the indictments when home and the definitions of trade secret that it has to be secret or the definition of  element of in this particular case it is because this whole statute of so is that's who of all crimes of that you have to have definition of the term as part of their indictment when we're dealing with trade secrets i believe we do because trade this whole statute is about what a trade secret is if it's not a trace secret you don't violate the statute and the statute sets forth the elements of what is a trace your want to get the sort of this broad information category but it has to be alleges bank robbery do you have to specify what kind of currency was taking you know it was taking one hundred dollar bills and twenty dollar bills and bunch of koreans you know it's but it's e fiction well again the bill of particulars cannot solve or otherwise crack an otherwise insufficient indictment our position is that the because the indictment did not a demo find this the tracing with a particular volatile go through the elements necessary to establish that the item was in fact a trade secret the bill of the subsequent bill of particulars which become sort of the second guessing of what a grand jury indicted mr ward for is insufficient it's very critical that the indictment doesn't even really give the idea what the trade secret is it says only information really to main is an operation of an unmanned vehicle that's the only thing that set forth in the indictment and so even if this court finds that the indictment itself was valid or otherwise sufficient there is this constructive amendment or variance that occurred at the trial court level the indictment provides very little guidance but it does say information related to maintenance and operation of the that is what the government charged mr ward with converting however the trial court level the court imported the bill of particulars which listed fifteen components of the u v that are otherwise not in the indictment and import of those into the jury instructions the special verdict form basically asking injection to either those that your instructions or the verdict form on this issue there was an objection to it by the defense counsel but a constructive amendment can occur after the government's evidence comes in and then in the rule twenty nine motion the defense counsel did object saying that there was a constructive amendment but a constructive amendment comes into play not only with revealing what the court does but also with what the prosecutors evidence provide and this case the court in port of the bill of particulars into the jury instructions then the government interviews evidence that these various components of the u a b were not traces because they related to made its operation but rather because of their design or otherwise performance to take for example the turret which there was no testimony that the turret on this u v was any way novel and related to the maintenance operation of that particular  found four other items to be trade secrets would it make any difference to your client if if we thought one of the trade secrets was insufficient to play well if they only difference variance occurs to one tracy given the mass number of witnesses thirty five total witnesses two weeks a trial in very complex areas such as aerodynamics that when you get in this evidence of design if one has some some evidence basically spills over and what i would say paints the remaining evidence even if it is like you are any of these trade secrets outside the manual itself are they all contained in the manual they're all they all contained in the mail you know on but all because the manual says made notes to the u f c the government's evidence that these components even though they were listed in the manual the components themselves were what they argued were trade secrets if you look at the government's response to the first motion for bill of particulars a government actually had two theories one the maintenance or the manual itself in its entirety was a trade secret and then that certain sub parts were tracy kurtz in themselves the indictment clearly speaks to the manual being the tracy crits in its entirety but when the district court order basically stated that if  manual is what the government says is a trade secret if any part of that manuals not a trace secret then their whole case fails what the government did was inserted selecting some parts from the manual components of the u v and then  components as a trade secret even if they didn't have anything to do with information are with information related to maintenance and operation of a u a b so going t briefly there is one section that he's under insufficient evidence i'd like to address with this court which would be how we interpret the term the public there's not necessarily a circuit split but it's sort of two courts in dicta indicating that the public can either mean the general public which is what the second court or second circuit position is and then but the seventh circuit has said the public could be interpreted as economically raval relevant public so this is another  and if that's if that changes the analysis and if the jury could have convicted mr ward under now unconstitutional or changed analysis then it could be remitted back for trial and i believe that's the united states v skilling is how they went about doing that basically invalidated a theory under the statute and then kicked it back and in this case the public was not defined but at the same time there's plenty of testimony provided by the ex various experts indicating that some of these components had been in fact disclosed web sites publications and so forth the prosecutor in their closing argument said you know did they keep the information away from the general public and so if this court deems that it's the well you know the facts are why couldn't the jury rely on that alone as proof that this was not something that people could i mean no no nobody would ask for over se three hundred thousand dollars for a ton of something that you could download from the internet well your honor the evidence presented by the defendants was that mr ward was negotiating a wrongful death and whistleblowing claim at the time that this offer in exchange for emanuel was made so in that particular case the evidence well that's a story by the jury could have believed that he was actually  wouldn't that be proof enough that this was a problem well first you know i can't speculate as to what the jury believed but i don't think anyone can at this point if the national we do that and good chunk of our law and if you choose not to that's your choice i want to hear me you might have some speculation that would be helpful to your crime but if you don't i will stick with my speculation that question well your honor they could have also convicted him under the belief that the fact that in switch you provided these documents and websites are other means of disclosing to the economically relevant public that because it wasn't disclosed to the general public or that the general public didn't have access to these documents they could have convicted him notwithstanding anything they believed about what he did with regard to negotiating his claim for for the united states in terms of the indictment it was not challenged it was challenged that ruled that the rule twenty nine stage after the government's case in chief clearly  that is regardless of whether a defendant puts on a case that's the end of the trial and could be the end of the trial or looking at this the noble wouldn't we have a big problem with the way that the prosecutor didn't even satisfy rule seven it also satisfies the case law concerning what needs to be an indictment and inform the defendant of the charges against him i mean in practical terms the defendant was arrested after turning over the manual and then was indicted shortly thereafter in not practical terms the very wording the face of the indictment does contain not only the statute reference to the statute the element specifically state the manual but what it does state in terms of fact states first the date range of which he was employed it states the fact that the information which is a type of trade secret based on the definition is maintenance and operation information related to these unmanned aircraft groaned for all practical purposes as well as the owner of that information which was that it sits to company that he was working for working on the manual for so the indictment is again sufficient  it's also a sufficient united states believes under the case law that adds to rule seven in terms of the question of whether the prosecutor knew or didn't know the case i that think that  in many ways that's irrelevant because that is braced soley as an argument based on the prosecutor's sending of an email to the case agent and two counsel for boeing which was also involved indicating which this ific i would would qualify under the court's direction to give a bill of particulars in terms of that it's no different then saying this whole case is no different than charging somebody with theft of property that has a value of one hundred more than one hundred dollars when the theft has been the theft of a suitcase and in the suitcase is a pair of socks a diamond ring and some other items with a pair of socks qualify as in value of over one hundred dollars no but the diamond ring probably would the defendant is still stolen all of those items within one single container the manual itself obviously contains things that are not trade secrets that cover pages not a trade secret the words that are used to connect and say which section comes next is not a trade secret but within that manual are specific items therefore in an ad in saying that the prosecutor didn't know what he was even doing or what he was even prosecuting is is basically only based upon the fact that that's argument supplied in the in the appellant's brief the bottom line is that the bill of particulars narrowed the evidence down to what are we going to present the united states could certainly have presented that the manual was admitted as exhibit one it could have been presented page by page and argued and then whatever trade secrets are in there the jury could certainly find as a whole you know but it's your job to identify what the trade secrets are and i gather you suggested fifteen in the jury found percent correct that is correct one i suppose we are not persuaded about the muffler than what happens as that question was raised the bottom line is that because of the way that the jury verdict was was issued to where unanimously had to be found on and i think the words must find one that if one single one of those items remains after this court's review then the defendant still converted a trade secret so it's much like a felon in the next meeting for excuse me based on the remaining four or if the core on review finds that it was insufficient for four of them if one remains the same the statute is still been violated in the same way that a person would be charged with multiple possessions of firearms if one somehow the jury doesn't believe that as long as there is one there then that satisfies the statute  and i think the only other real issue that took some time was this question of whether the statute should apply the definition of trade secrets should carry this  phrase that's not in the statute not in the definition of terms is the economically relevant public and i would submit you notice that the question first if that's reading something into the statute and in fairness some of the courts that have addressed it have raised this in dicta but no court has ever said that that is required to prove the statute it's not in the language of the statute but really the question remains is let's say that this is information that an engineer this trade secret or any trade secret in any case is something that somebody that's in that business can figure out if they can figure it out one could argue well if one or two engineers can figure out this fuel system then therefore it can't be a trade secret i would submit that the issue the  question is how is that trade secret being conveyed is it because an engineer has studied and learned and has figured it out because he or she is a smart engineer or is it because the company or whoever owns that trade secrets has put it out in a way that has total public access and that's where the engineer or scientist or whoever was able to get that information the key is in the access and in this case as would be in trade secrets case part of the definition is that that you have to be reasonable means to keep it secret and in this case there clearly were there was a  with mr ward and i would presume other employees to not provide it that company once they found out that he had e mailed it it wasn't a matter of him leaving and checking in another item in our day and age if you email it to corsair or and said to or even the parent company boeing had put out on the internet i know that there was a number of other issues those are that really the issues that came up in argument there's a court have questions on just briefly on when i ran out of time with my initial argument i would ask the court to review the email that was set to from the prosecutor to the agent determining or reviewing or asking what is a trade secret the  exhibit that we included in the experts record show that cants who is an employee of in situ basically then tells the prosecutor what fifteen components in the manual are trade secrets so the for and to have a private corporation come in after the fact and tell the prosecutor these are the fifteen trade secret this is always provide details of the crime at the time of trial that before the grand jury or very often do they provide details of the crime but the crime itself is outlined in the indictment for example murder controlled substance  and it turns out that subsequently there are broken bones that violence was altered and further damage that doesn't come to life until the close of trial i mean there was violence but you know that's the crux of the statute the crux of the government's case they have to know that the items that they are that are being presented to him are in fact trade secrets if they're not trade secrets mr ward did not violate eighteen u s c eight hundred thirty two