indictment if i may just so so my question is is this extra territorial extraterritoriality issue a red herring because the rico conspiracy has no overt act requirement in the entire enterprise was intended to have an effect in the united states so if that's what would be the basis for the dismissal well your honor i think the basis  any conduct in the united states that did what but what does that matter though you know what why does that matter if i if i and if if i'm i'm a member of a conspiracy and my only involvement is not in the united states but the but the conspiracy is a democracy it isn't the united states it doesn't matter if there's no allegations that i did anything in the united states if you are and i think have a problem with this and we think there's no principle of law to support this through but when you're saying that just because he didn't commit something in the united states doesn't mean it should apply to him so if you have one case that says we're wrong tell me to in case for move to something else i know your honor i do not believe you have i have a case to say ok you know you cited that the more substantial question that you pose is a limitation time of the  the up be the contested the questions that were given to this guy schachter but the credibility yes or why is that why was that a proper not hearsay it was not it it's improper sir have claimed these threats or occurred it's it's sort of circular to say that this was somehow being only offered to corroborate her testimony when to corroborate her testimony would be to family the question of whether a two thousand and fourteen conversation recorded or not from somebody who is who for add a time when well i guess one could the government save its conspiracy still existed in two thousand that the fact that he gave a limiting charge on it doesn't affect it still was inadmissible it's for the purpose of argument is to assume that you are correct yes why this all lapse into this whole statute of limitations issue the vast majority of the comic that was alleged improvement in this case occurred before odd beginning of the limitations period in march of two thousand and and i didn't get that because as i looked at the instruction it was very clear that the burden was on the government and in fact  burden of proof to establish the conspiracy it is entitle to production that the conspiracy continues to exist until defendants demonstrate otherwise now are you saying that that e and that language comes from the jurisprudence and severest majority of the statue of limitations have to do with with the concept of withdrawal or that or personal abandonment of the object of the conspiracy here we were just opinion the united states with a sniff i believe i mean we we're we're where he talks about i think he refers to this very concept as this we are now find ourselves at the intersection of the statute of limitations and the concept of withdrawal from a conspiracy they are separate concepts in fact i think this court and i think i cited in our brief in its in its comments on statute of limitations actually recognizes that there is a distinction is as well i mean we're talking here again there was fifty there was no question or i could i don't want to phrase it in the negative and neither a pal and i asserted an affirmative step back withdraw abandonment from the conspiracy what this was about was very simple what were the time constraints in the indictment and did the government sufficiently prove now as a matter  of rule twenty nine and legal sufficiency yes they they certainly said sufficiently proved conduct within the scope of a conspiracy then when the issue was put before the jury this is when the whole thing at least in my opinion w joining structures or evidence so what is the indictment in this case the indictment in this case is a very clearly temporally defined indictment two thousand from as early as at least tw whole change in a theory that the indictment never ended in fact if you look at the government's closing argument if the government is putting billions of between two thousand and did jury found to bring the case into the statute of limitation we don't know if the jury found we don't know if the jury found her example that now being yasha was credible partly because of the erroneous your climate others going back to two thousand and five did what it does is it improperly bolsters the credibility of the most important government witness in the case well what about that that why been offered it to show the truth of the other allegations going back to two thousand and five they were trying to show that to push the allegations were true not that it not that the testimony was true but to show that the boy up the witness's testimony if the evidence was probably good for the court then what what what is your argument other than there isn't a rule but a from the jury that the jury followed the judge's instruction and that the verdict was based upon not the truth of what was said but to shore up the it's that it's of the horrendous conduct that was going on with these people for years  and if if if the case were if that issue were were analyzed and in a vacuum of just that issue and not how it likely and could have affected the jury's consideration of it constructively amended and iranian slee instructed charge that's that that's where it's a problem the problem is that that that by allowing that evidence order st issue we raised with respect to the identification that was made of mr trump with respect to one of the tricks one of the acts that were attributed to him as part of a conspiracy this is the incident where photos she immediately eliminates several of them as clearly as clearly bearing no resemblance of mr truck and that the court made a somewhat cheeky comment that they don't they clearly they want these are the fill that there were no significant differences i think in the size of format or the angle or the overall appearance i think that's what the judge held as to the i mean that's a subjective characterization that you know at it and made a judgment we submit that that judgment was that the only identification of you finding that there was no in court identification this was just this photo array she said she she could not make it in court id they did it based on the the and the photo array omf her identification of the photo now in the motion the agent and the government said she was identified she identified this was there she didn't testify in the motion she testified at trial the agent said he would he was identified when we get to trial there is a far from a unequivocal identification and i'll just read this because it's it was shocking when i when i went back and looked at the record she says again not being absolutely right because it was been many years ago if that time i would i would see the pictures fifteen years ago i would recognize them one hundred percent right now i can't i don't know if that's the picture taken that time or one where there were older to me it looks like this is would be they would be actually older at this time of their life and people change too so i cannot say i would be lying if i would say it's one hundred percent those that those people so even when we get to trial she acknowledges under one who did that she can actually that was not a that was an equivocal i did so so initially are they able to assess an acquittal cool idea that happens every day  that and i would point out this that the other side of this is that the court needs to look at the at the reliability of the identification separate and apart from the actual identification process you know the five fact is that the courts have identified which would would which which might cleanse the suggestiveness well of those factors weigh against reliability you're talking about number one opportunity to view so you have two strangers mi says two strangers approach her and her and mistress mania unexpected nodding in a not not expected to be seen she the incident takes fifteen seconds it's a fleeting and stormy experience to the degree of attention she admits to being scared she's focused on two separate individuals figure to fifteen seconds and it's occurring with two individuals that's the that that that addresses the degree of attention three the detail of this description prior to the idea process and this is really important there was older one was younger that's the extent of the description there's no detail i don't even know what looking ukrainian means other than for b you know a european caucasian but i don't even know that that's an essentially d meaningless description what about the level of certainty she says under under the child she admits that to her description lacks certainty under what she says that the th factor is what's the time between the incident a confrontation fifteen years gatekeeper and when it's a suggested process and the courts have said a suggestive idea is a violation of due process so there is a due process gatekeeping function that the truck with this should this idea should not have been in there it should not have been in the truck this this incident should the podium i would say that that with this said nd most important it is the you know the vast continent of hearsay that was admitted by the trial judge concerning  you know countless countless other bad acts by by the by the co defendants it was it was it was essentially became in some respects the tail wagging the dog dog certainly with respect to mr trump who for which there was a great paucity of habitants there were two witnesses who described bad deeds by him most of the most of the witnesses said he wasn't involved in bringing in the illegal d entry in every conspiracy mr i mean that that's what you know with respect to his role in this case the day d in day out drumbeat of the hear all of this your say which really was not required because the purpose for which the government sought to operate which was this this atmosphere of fear there is nothing that you can do with only a lot of hearsay coming well courts have said in the court the courts have reversed cases in those situations where it's so overwhelming any government too much but it's not a question of should i do it's not a question of too much of an it's that it's the quantity and the nature of the evidence which became it played in our view i mean i understand the here's the me please the court counsel i am daniel bell is for the united states there were quite a few issues discussed especially with mr sadr on involving the statue of limitations involving the two thousand and fourteen record call and over for the truth the court they were stating not for what they are for any other reliable reason well they were not offered for the truth and part of the difficulty in this case is that we are talking about a recorded conversation and to this day the defendant has not identified which particular statements in that conversation he thinks is hearsay we could you know in theory goal d line by line through that conversation  there is nothing that the coconspirator one million dollars being except that the government would offer for the truth of the matter asserted now ya shook was on the stand so her statements in this conversation are clearly not hearsay she is subject to cross examination and  the purpose of the introducing this recording was to bolster ja ships credibility because in this particular case she is not the one who initiated the call it was a one million parts of who initiated the call she was even aware that she was being recorded so there are certain builtin and disha of reliability regarding her credibility she is confronting the actual threatening who happens to be a coconspirator about the threats that she had received in which the government alleged occurred in this case  so her statements when she's confronting him about you remember when you said you were going to cut me up do you remember when you said you were going to cover us in blood all of that has certain built in addition of reliability and so it is really her statements in that conversation which the government introduced the tape to support obviously the government had to prove that there were threats made because they were humans one of the predicate offenses so in a matter like this it was perfectly admissible there  no hearsay being invented it was not offered for the truth of the matter asserted by only on box opinion so it would it was completely proper and not an abuse of discretion for the district  case but yes her testimony was that in starting in two thousand and two she started to receive phone calls and threats from all one million bucks when you know and at the same time she received some other phone calls and then the he actually visited her in later years into two thousand and five the defense in this case besides statute of limitations was that all the government witnesses were liars this is the way the opening statements started and this is the way the closing statements ended her credibility as mr jones stated was very important because it was the threats made to her which really maintained this case within the limitations period so of course the government has the the obligation and responsibility to make sure that that is credible evidence and that the jury would find the evidence and the witness is credible so in this particular case she testified regarding those threats and this recorded phone call corroborate her testimony because she is actually confronting the person who made those threats who happens to be a coconspirator and there's actually another level of reliability here as high as a one million bucks being it is concerned although arguably the conspiracy may be over by this time when he contacts or any statements that he makes could be statements against his penal interests because this could be viewed as an obstruction on his part a new and separate obstruction because he's asking her to have witnesses change their testimony in order to assist him in two thousand and fourteen so there stated the district court is in fact the gatekeeper and there is a two step process so it has to be determination whether or not the process was unduly suggestive thereby tainting the identification only if it if d there's a finding of undue suggestibility then we go to the nd totality of the circumstances type of of analysis but in this particular case as in any case the district judge takes a look at the process there was an entire hearing on it the agent testified as to exactly how these photographs were laid one by one before the witness and the agent testified about the witnesses certainty in picking one photo regarding one defendant who is now  d and her heard the difficulty she had picking out the actual defendant who was on trial that is not a suggestive process and the court performed its function perfectly and it made its own findings regarding the photographs in that identification it was all completely proper we go to the decoction theory for a minute yes is it is it the government's position that conspiracy remains ongoing today because there are in court that th answer is no but i submit to your honor that that's a red herring argument all right there is there's no need to determine whether or not this conspiracy exists today the issue is whether the conspiracy reached into the limitations period and that is what we conspiracy reached into the limitation to matter it matters if the way that you read into the statute of limitations period is the same way that you would get to and i'm going to see today right if it's this if it's the same argument for both of them it's not a great hearing well it's still is because the jury wasn't asked to find whether it goes into perpetuity this is not a finding that they had to make all they had to make was was there was this conspiracy of any particular well i would disagree with with your honor that it was not referenced in the indictment in fact a careful reading of the indictment would show that that was the root of every single one of the predi offenses that were charged the debt was initiated when they were st recruited in ukraine and their travel and visas were paid for by the demands involved so yes yes and so it  the the debts are the root of the immigration offenses the debts are the root of the extortion because they're collecting on the debts the debts are the root of the of the i'm sorry i'm i'm blanking on the the othe obligation that they could not leave until they paid their debts that the debts were the root of the extortionate conduct in ukraine where are these people who ran away if you think they don't if you don't bring them back you're going to have to pay the debts i'm going to put your are the obligation of the government yes and the court clearly stated that that the government's burden in this case was to establish a conspiracy within the limitations period that was clear it own the jury was instructed that only if the government made that showing only if it showed that the conspiracy existed where they too would the burden shifts to the defendant in order for him to prove one of two things one that the conspiracy ended prior to limitations period which is a lack of evidence or two would that he withdrew and as far as the droll argument is concerned i submit that's also a bit misleading well it seems to be that that that you're right in the sense that the defendant doesn't have to prove that and it's direct case but if it's claiming a statute of limitations defense and the government has proven that the conspiracy is within the limitations period then the burden does shift to the defend it to show that it did not continue into the limitations period and the defendant claims that smith somehow only deals with withdraw and so therefore it's an applicable in this case i submit that's an  reading what the smiths court found was that withdrawal is withdrawal and a lack of evidence or conspiracy ending prior to limitations period are two sides of the same statute of limitations but the charge of the jury seems to me to be  at odds with spent that what you're arguing the judge said that once they establish a conspiracy that exists until the defended proves it's no longer in existence yes  and you're saying that conspiracy exists forever know what the accordion structure the jury was that what they had to find that the conspiracy existed within the limitations period once they make that finding or if they make that finding offense once it is proven that the government is entitle it is deemed to continue until there is an affirmative showing to the contrary by the defendant as i would the judge charge berth for the defendant to meet and the what judge cowan just read to you or i'm sorry but your exchange with georgetown model jury instruction actually it certainly shifts the burden to the defendant and the boy in each instance it does the law seems yes and because the defendant was asserting specifically the statute of limitations that is an affirmative defense and going already satisfied its burden and that was what the court instructed the jury and it was a proper shifting at the time the defendant's claim that he didn't argue with drawl or that he was only arguing a lack of evidence me focus the court there that there is a rico conspiracy instruction and rico instructions in the model charge however with respect to the rico conspiracy there's a subtle difference between the three hundred and seventy one dollars conspiracy and that is that there requirement this court and its model instruction to specifically said other than that distinction everything about eight thousand three hundred and seventy one conspiracy applies so now if we go back to the model instructions on has what burdens of proof this is what this court has said and interpret ng smith and grant a well the statute of limitations is an affirmative defense and therefore the burden of proving the statutory period ran before being indictment is ordinarily ordinarily on the defendant citing smith then the court goes on in its commentary to say the court in snith acknowledged however that quo we have held the government must prove the time of the conspiracy offense if the statute of limitations is raised this is the this is the be and then they say graham i don't understand your argument the two preceding paragraphs to the one you adversary just cited two i think capture the law pretty well the preceding paragraph say to find the defendant guilty of conspiracy to violate rico you must find a conspiracy charge in the conspiracy but the defendants allege that the conspiracy if it existed ceased to exist before march th two thousand and five if you find the conspiracy ceased to exist before march th two thousand fans must be found not guilty for rico conspiracy once the government meets its burden of proof to establish the conspiracy it's entitle to a presumption that the conspiracy continued to exist until the defendants demonstrate otherwise  r are you saying that those paragraphs don't capture the essence of the model jury instruction and that they are error as a matter of law when when you right i mean how many times is this court said we look at jury instruction as a whole so now that could be your honour's looking at two paragraphs you need to look at the next paragraph which is the one that judge cowan has been talking to  minutes this is where this whole thing when a right conspiracy is a continuing of fans you may consider each and all of the conspirators actions in furtherance of the conspiracy providing the conspiracy continued into limitations period and until there is some are firm showing that it is ended this is the burden shifting that is not recognized by smith grown a wall or as far as i could tell any other case and again this is not about an affirmative issue of withdrawn and it's not a red herring with the government with the defense claim was that government did not prove the temple constraints of the conspiracy that was alleged which which which we've not even spoken about how the how the allegation was substantially altered and constructively amended because but but but but but but that's a whole separate issue and in the butt but we know that through the evidence in argument as judge who ordered recently noted and through the government's theory one might suggest that the two found that the  conspiracy that was alleged to have x ceased in two thousand and seven still continues today is really not a red herring it's exactly the most important aspect of the case but do you disagree with this basic proposition and in in in this case the defendant the government believes that it showed that the conspiracy existed into the statue of limitations period then to do you agree with the following proposition that at that point if the defendant is going to prove it's affirmative defense the burden must shift to the defendant if the government prove that the statute of limitations was satisfied then then point but that's a separate argument i understand if you want to argue that the government didn't prove its case that's fine but what we're talking about right now is is it proper for the burden to shift once the affirmative defense has to be shown if you are talking about not if you're if you're and again and i think if you're talking about affirmatively saying i withdrew from the conspiracy that's when the defendant if the claim is that the government did not prove the conspiracy existed then that is not something to defend it has to show the that that's not a question that is on the table whether the government has the burden to prove that the conspiracy existed within the statute of limitations here that's that's not an open issue that that bad is actually with all due respect or that is the issue that on the table by the erroneous joint struction given by the district i'm to thank you