good morning ladies and gentlemen we're ready to hear oral argument now in the case of united states against weller raised several several issues stemming from the actual sufficiency of deficiency of the evidence in this case and sentencing and also the forfeiture allegation what i'd like to do before your honor's is i can address questions as to any of the issues your honor has been given the limited amount of time i'm going to spend it out some specific issues that we have raised after i think there are some important facts that the court will look at  decide these issues number one is the relationship between the insider the main insider and the st hit the relationship between the st to be and the nd to the and the relationship between that  inside information and he shares that information for bret with bret best he was his friend but their agreement as to the facts in this case which bore out during the trial and errors alleged in the indictment was that they were going to split the profits so as a financial gain to both and could be considered a gift as solomon discusses that it could be a gift as long as too long as the information is provided to a relative or a friend the relationship the threat that she forms with peter curtis is also a relationship where they will split the financial profits of any trading that is to take place now the relationship between mr portis  weller there is no discussion in the beginning to discuss profits and as the government concedes in their briefs it becomes the issue of whether or not it was a gift because the quote unquote a friendship so the  before your honor's is whether or not the indictment is sufficiently alleged that mr weller knew that there was a breach of the fiduciary duty that was owed to lifetime fitness and whether or not the allegations are sufficient to show that he knew that mr fleming the insider received a benefit a personal benefit and if you look at the indictment specifically paragraph three f in this case indicates what mr portis told mr weller one that codice and learned the material nonpublic information from sources close personal friend to their quarters as close personal friend had learned the information from a close friend and senior level at employee of life time that in this ng and three that the senior employee of lifetime fitness inc had misappropriated the material nonpublic information from line time life time fitness inc in breach of a duty of trust and confidence to keep such information those are the allegations in paragraph three f of the indictment there relate to what mr weller supposedly knew at the time of the charge there is no allegation whatsoever in paragraph three after the indictment and your honour's that's because it starts off as the conspiracy count because then there's also the substantive allegations or counts as to money laundering which mr weller was found not guilty was convicted  conspiracy count which three at st appears in three at strike him three after there is no allegation that mr weller knew of the personal benefit given to the insider if there was one and what for either cast it the a friendship or the gift of friendship there just simply is no allegation and because of that that count was deficient in what allegations are required under the supreme court law in  and even including sol now the nd issue as to the indictment which is raised in our brief is whether or not that interesting issue carrying into the conspiracy which we argue does not exist the allegation of the personal benefit gives is whether or not there is simply one conspiracy charge here or multiple conspiracy charge and at the prior to trial the issue was raised as both issues were raised as to whether this conspiracy was suffici the information provided within the indictment the argument here is that if you look at the players who are in ball it indicates two separate overreaching conspiracies one which involves the insider and bestially chastity clarke and some of the other defendants who read to share profits it was up front agreement to date came up with to share profits based on any trading made now peter courtis then brings in four other going to share if the percent of their profits from the insider trades then you have this court this court is individual who bet reaches out to separate individuals that he knows and enters into agreements with those individuals to provide information to them again without indicating what the benefit to the tip or the inside tipper is and agrees to have different ranges but that based on the allegations in the indictment should have been dismissed because it's insufficient as a matter of law as to why me allegations as to the personal benefits which then ties into the breach of the ferry duty and the conspiracy count because in itself the charge are aware mr weller was found not guilty of the actual insider trading counts which you can't read four and seven he was convicted on the conspiracy count however looking at the evidence most favorable in the light to the government's there is insufficient evidence again based on the testimony of all the park present testified and the only person that could testify as to what weller may have been told is mr course there is no testimony in the record which indicates that weller is  that the tipper shane fleming it's going to receive a personal benefit the allegations and the testimony only indicate that they are close there is a post brenda relationship and given that a rd party to be there needs to be sufficient evidence for him to have knowledge and see enter that piece predating or participating in a conspiracy to commit insider trading and that peter portis having split the profits relationship and the evidence that's in the record is that a friend that's it a friend high level friend gave the information to a close friend and then gave it to who then provides mr wallace based on dirk's based on evidence from this circuit based on solomon record is void of any knowledge that mr weller would know that this is an inside trade because the lack of evidence that there was a personal benefit to this or fleming the tip was there any information or in a relationship where mr ware talked to anyone else about how to deal with ok and those are the conversations that take place the other evidence that's in the record between mr courtis and mr weller are they had it in an individual will testify lining up when the telephone calls between it took place to took place number so you become a believes that there is simply insufficient evidence to show that he engaged in eighteen overall reaching conspiracy with the other individuals who again as seven circuit case law says you don't need to know she's not to mr kennedy because he's not dealing with mr mansour at the time the trades are happy that ties into the issue of whether or not him by cell jury instruction should have been given at the end of the trial now prior to the end of the trial judge conelly reserved ruling on the substantive counts and the end allowed in did not reserved ruling on the conspiracy there was a discussion on the record as to buy sell and buy sell instruction was submitted however judge can only refuse to give the buy sell instruction the request by the defense it was a theory of the defense case and it is a political in this situation because again what you have here based on a motion dismissed based on the evidence that was presented before this for the trial court is a situation where you have mr porter is dealing directly with several individuals that tipper does not know these individuals the st level to be does not know these individuals it's the nd level to be who's making his own deals with or other individuals and that information and if you look at what buyer seller discusses and i know it concede that music comes up in drug cases but it can't apply to financial fraud cases as we've indicated nor grief where you have a situation where it's information going back and forth which you have court is giving information to mr weller mr weller does his own research on that information and then decides to invest in with that information to buy the lifetime that is options and the relationship is specifically be tween courtis and well a therefore given the information that's before the jury you have any information it's been provided support to buy sell agreements buy or sell or jury instruction would have been appropriate this case because then the jury could have focused on whether or not they believe that there was a overall reaching conspiracy as charged in count one in the indictment or whether or not mr courtis and mr weller had their own individual agreement but this one period of time and the government argues well there was not a buy sell because mr corps was not paid for this but if you look at what's what is on the issues of buy sell credit is only one thing to look at you have to look at the longevity of the relationship you have to look at whether or not there's one ultimate goal amongst the people and again in this situation there is no conversations that mr weller's proceeds will ever go back up the chain flemming the timber there's no agreement in the record that indicates that there's nothing in the record to indicate that portis was going to pay brett besh st of all to be any of them being paid by mr bill so for that reason we believe the court arrogant not giving the buy sell instruction in this case specifically given the facts of the evidence that came out in trial the defense theory was supported by that evidence and that instruction should have been given and the conspiracy instruction itself did not define the buy sell agreement which this case mr weller a rd party to be received a year and a day sentence however the tipi mr fleming only got sixty days there's a very large disparity in this case as you know case law says  is responsible for the entire quote unquote insider trading fraud yet he was given sixty days mr mann who was at the same level rd party but made less money in this case based on the trades received four months he would be at the same level of mr weller rd party to be the reason the court gave mr weller a small so dear sentence then the actual tip the tip or is because he made the most amount of money which we believe is an appropriate and believe believe that there the discrepancy in the sentencing in this case is one reason if this court is not known as counsel why is your mom in you don't believe that makes any difference judge you believe on behalf of the united states this court should affirm the defendant's conviction because his knowledge of the personal benefit to the lifetime fitness insider was properly alleged in the indictment it was proven beyond a reasonable doubt at trial and it was the subject of proper jury instructions st the district court correctly denied defend its motion to dismiss the indictment because it sufficiently alleged  defendants knowledge of the personal benefit it's primarily that paragraph that the primarily is a nice weasel word that's why i asked you if there's any other part i wish you'd tell me what other part that is so your hon for purposes of proving the defendant's knowledge it's exclusively that paragraph ok so it's not primarily that's it all right now i'm staring at that paragraph and i don't see the the indictment itself that paragraph alleges that the defendant knew the information was tipped by a lifetime fitness insider to his friend and that in doing so or it alleges that the senior employee at lifetime fitness had misappropriated the material nonpublic information from lifetime fitness in breach of a duty of trust  but you don't have a breach of the duty of trust and confidence even if the original message procreate or never made a cent and never made an extra friend indeed that was the very allegation that was at the core of jerks and we know what happened dirk swan in the end why is this allegation any better than the one the supreme court held insufficient  as reaffirmed in the united states versus solomon burke specifies that quote when i want to tip or gives inside information to a trading relative or friend the jury can infer that the tip are meant to provide the a quibble and of a cash gift b the allegation is that the defendant knew that the information had been tipped to a friend and that the tip when when making that tip the insider breached duties that he the indictment as written does not seem to allege a personal benefit it would have been easy to do that it would have been plausible right a jury finding of personal benefit would have been entirely sensible but i just can't find the prosecutions and the indictment doesn't a legit it's as if the department of justice just went out of its way to try to find something to challenge the holding of dirk's well that's fine but that's not a job for a court of appeals so your honor be the allegations in the complaint in the indictment allege that the defendant knew about the friendship between the insider and the person he tipped and so at that point and i go back he says but that was true in dirk's to the source of the information in jerks was a friend over a jerks held well dirk's one i'm trying to figure out how this allegation and you say it's the only one that matters meets manages to distinguish this case from turks so your honor the that dirk's and subsequently solomon stuck confirmed that it's the intent of the tipper that matters and so that is so it's i a breach and is there a personal benefit and so here while under certain circumstances a disclosure from an insider to a friend would not necessarily be a breach and for personal benefit there doesn't appear to be any allegation that the original tippi that the original recipient of the information intended to help anyone it says close personal friend who learned the information from a close personal friend doesn't allege intent doesn't allege intent to benefit doesn't allege benefit right it alleges pretty much exactly what the supreme court held was inadequate in jerks that's what bugs me it would have been easy to allege something that passed that are understood your honor be the but be the allegation as written satisfies the relatively low hurdle for alleging the elements of the crime and putting the defendant on notice and specifically your honor because as as quoted from solomon dirk specifies that when a ticker gives the inside don't think there would be any problem with making an allegation that would satisfy the requirements of dirk's and of sauer and the jury have it had there been such an allegation would have been within its rights to find for the prosecution i'm trying to figure out how that allegation was actually made your answer is essentially well the jury could have found on this evidence that dirk's was satisfied and i'm inclined to think that that's true but there has to be the allegation and not just the sufficiency of the evidence that's my problem and i hope you see what the difficult i understand your honor and i was in articulat as well as i could what what i'm trying to what i was explain with trying to to explain it to get across was this concept that what the good with the elements of the offense of this isn't a case obviously where there is a statute with specific elements that need to be that need to be included in the indictment it's its elements that are created by courts that need to be incorporated in the indictment and here the but the key element that needs to be incorporated into the indictment or one of them is that the there was a breach of duty and the breach of duty is the element the weighted at the breach of duty is proved is by showing that there was a personal benefit to the insider and so and the way that the personal benefit is proved is by showing that the this closure was made from one friend to another so be the indictment as written alleges that the information was passed from an insider to his friend proved is through showing that there was a personal benefit to the insider and the personal benefit the insider is true much through the friendship and therefore your honor it's the the government argues that the circuit in the guy bill case from back in two thousand and four as i understand it gobbles says it's impermissible to convict of a conspiracy unless the source of the information asking here about the allegation so i'm asking about the jury instructions did the jury as instructed necessarily find that fleming wanted or expected wide distribution of the confidential the instruction itself as proposed by the defense the defendant was that you may find a personal benefit to the insider if you provided the information to a friend intending to benefit the friends now i understand what the friend would you counsel mr mitchell i am not asking here about personal benefit i am trying to be as clear as i can that i'm asking about the holding of gobble which said you can't convict of conspiracy without finding that the original source wanted or expected wide distribution of the confidential information so get personal benefit out of your head and please address my question i apologize your honor the the  holy bible as i understand it was that the the insider ones not subject to was was not subject to being held liable or or prosecution because he didn't understand that the information was going to be widely disseminated here is it's a very different situation because we're talking about a b defendant understood that the information had come to underst the exact chain of the corrupt chain starting with the insider and ending with him and so the defendant so in this case is just different from guide will in a sense that that's focused on what must the insider know to be held if i understand correctly is there any chance i could get you to address my question i apologize and i'm not doing it intentionally i just misunderstood my question is whether the jury under the instructions given necessarily found that fleming wanted or expected wide distribution of the confidential information no your honor there's there's no specific instruction that  directed the jury to find that the insider expected or wanted why the distribution of the of the mail isn't not a problem under god  i think in the in the brief your honor what we were arguing is that guy will is is is distinguishable and it's just a a different situation because in guy will the focus was on the insider and what the insider had  t the insider knew in terms of the dissemination of information here the focus is on the defendant who is the downstream at least suppose we don't agree that gobble can just be brushed aside are you asking us to disagree with the nd circuit your honor i i see i'm you just conceded that what god will require was not required by this jury it struc i what your honor what i was conceding was that the the instruction did not include a instruction that but the it nor to find this defendant guilty of insider trading  that it needed to find that the insider intended to have the information widely disseminated that i absolutely concede i don't think that under a guy will be there is a requirement that under circumstances such as the ones presented by this case that a jury would need to know that insider intended not just to tip a friend for their friends benefit and rather than for the benefit of the company but that that be insider intending for why dissemination of information i think mr mitchell that you're confusing what's required for a substantive conviction with what's required for conspiracy games gobble that the things that's interesting about this case is the jury acquitted on the substantive charges and so the only thing that's before us is a conspiracy really very hard to see how this defendant conspired with fleming and fleming didn't conspire defendant isn't that hard to say could you say the last part of it was it's hard to see that fleming a conspiracy is an agreement among a group of people to find a conspiracy you have to be able to find the agreement gobble is about what is required to show that the source of the information agreed to share to share it with others if there is no if lambing is not in on this conspiracy  the holding of god it's very difficult to see how anybody else can be cured of conspiring with him see the problem i do your honor i think on her the the but based on the jury instructions that were the proper jury instructions the jury was able to find that there was that the defendant participated in a conspiracy based on his agreement exclusively with with curtis that wasn't the the extent of his knowledge of the conspiratorial purpose or his agreement but no that was sufficient the defendant agreed with curtis to use the information i have to now i'm afraid now i'm really puzzled so you're saying  while or could be convicted of conspiracy even if fleming was not a member of the conspiracy yes your honor the the the audience for it's only fleming's breach of duty and personal benefit that makes a crime of this behavior exactly your honor but be the so st of all the position is that there that and you've told me the jury didn't find that and then you backed up to the argument that wyler could be convicted of conspiracy even if fleming was not a member of the con weller's knowledge of the conspiracy and participation in a conspiracy and so it was focused on what did he know and what was his participation and so it's focused on his agreement with with others and in that instruction properly using the seven circuit instruction was that there you can find that the defender participated in a conspiracy if there was an agreement with one or one or more other  could have been just the conspiracy that dream and between curtis and weller that wasn't the extent of the evidence that was presented at trial and the instructions didn't contemplate th city flemings knowledge of the dissemination of the the information there was evidence that was presented regarding fleming's knowledge that the information was disseminated but that since your jury instructions or defend it well or were focused on defend and i understood correctly judges to brooks's question was focused on whether fleming knew that the information was going to go beyond and up to a person like weller and the answer is the evidence prove that he did the indictment alleges that he that he did the ins jury instructions were silent on that issue because this jury instructions were focused on well or and well as knowledge your honor as i see that my time is is out and i must there are additional questions i