submission of a numerical estimate of rates of which the banks quote could and the b b a did not require the use of any particular methodology to arrive at that tunnel one is the long socks the concept of reasonable markets the dva did not define how large balloon that your hypothetical estimate was supposed to consider and because the evidence is that borrowing costs increase as the size of the loan increases that naturally creates a range of different prices for different sizes and the loan size of the rule can be considered and changed on a daily submissions so the question comes down to how do you choose within the range well just like how you talk like yesterday that the d d a provided new methodology or disruption and how to choose between double alternative since he just said submit one right and as the government cooperate or jeans thing testified he always put in a reasonable rate what if even when he beyond the language of the rule or the need not and that is comes in the form of a very important letter that the chicago mercantile mercantile exchange the whole of the largest of the time other arbitrary selection from a moment to see any makes clear any simitian within the range is truthful it does not matter what the motivation i how the government tries to sidestep the c m e the obvious suggesting it be rewritten to face the word arbitrary with random i'd like to consider this suggestion because i think it shows that the but if the submitter arbitrarily pick six six in part based on a trading position the same six six is not false according to the government respectfully this is nonsense six six is either truthful or it is not is either believed to be within the range or it is not the motivation to the selection impact and this very point was something that another government cooperate or mr curtis or the leader and the boss who ran the submission process agreed with on doesn't mean that what they're saying about the market isn't true and the reason for that i respectfully submit is that intent and falsity are different elements and what the government is asking you to do here them and then just simply alumina the requirement of falsity and that's not respectfully the law moreover it is clear that the government simply invented invented this rule that a reasonable rate simitian transforms magically from truthful to false if it is influenced by a trading position why one it's not in the b v a rules it doesn't say that anywhere and the b v a after all is a trade association we need to think it's not the law it's nothing more than that to the evidence in rivet of traders until years literally years after the events in this case and so one sees here is that whatever instinct there is the goal itself flex the need for a range because you can't run it any other way and it is clear that you have to pick something reasonable within that range and that interpretation is not only confirmed by the language that's fine recognized this is this is what falsity means under the rule currently and the dva responded thank you all for the comments for keeping these market size unchanged accepting that this is a correct interpretation now there is no rule is no mechanism to choose all you have here is the ability of someone to choose a rate that the bank can borrow  mr black with no ties to the united states in pursuit of what prosecutors personal predilections may tell them but they are not allowed to literally initiate a retrospective prosecution that somebody was lost or again doesn't tell you anything about their net position and so it is something that the government did not even seek to prove and there's a very very complicated question as to whether there is any actual loss here but the court is correct that there is a theoretical there is a possibility that under certain circumstances money to begin the last and i would say that that is wrong or everyone is well aware life or system and how it worked and would rule was clear the rule there this is not a case of any other people the people following the rules as they were written one can have a debate of whether life or had weaknesses if it had conflicts of interest in fact of the court and according to the rule it is truthful as a long as it's within a reasonable range now if you submit a rate which you do not believe is in the reasonable range for that purpose then remember sixteen rates are cut in every wrong size and deviate immediately throws in the garbage the top four in the bottom for an average the other eight so whether or not the point is that those were the rules as they were set up those rules as they are written and i recognize your honor that there is an instinct that says this system doesn't seem like it was a very good ok it was started a long time ago and that's what happened and in fact even the district court at sentencing found that's what happened so i would respectfully ask that we look at what the rule says it requires a range and the fact that here little wonderful conversations to have but they should not be had in a criminal courthouse young people from their countries to try to imprison them for something that doesn't violate the rule w right this is too loose here's a methodology for how you're going to select the right here's a calculator for how you're going to do it here's the way you select between rates we're going to bar anybody who has any training positions on being part of the process that all happened it just happened several years after the fact this case concluded so there is no there is no need and we do not defend but there are parts of calls the bank literally put the desks of the submitters and the derivatives together so they could talk and here's one more point there is not a shred of evidence in this record that my client ever expressed a view that did not up a bit if i may on what i took to be judged poor is concern earlier i think we're talking about the definition of fraud on the federal statutes and i guess my question is whether we ought not to consider community expectations and norms of fair play think the question you asked me is all the questions of intense if somebody is doing something that they know or should or of are that is wrong so that be taken into consideration certainly on the question of criminal intent that is taken into consideration it was taken into consideration here there's just no evidence of it but i respect you talking about something different because this is probably on just at the heart of the problem the government wants to but you can't say that the scene number is both true and false about the market if the government couldn't prove that numbers were being put in outside a reasonable range that's different but here you when in fact there is no record there's no there's no testimony at all that he did but but but i agree that your question is this is both the question one needs to focus on because it shows the problem you have to have but you need to you know you can't take the fraud your honor out of fraud if all you have is is you have taken an action that you did it with ensure thoughts when you were thinking about putting further and say ok let's say whatever was being thought of is somehow wrong for some general sense the problem is this you are if you take away the need to actually prove factual or believe falsity then it's just a thought crime hey i left a completely good faith view of the market i was right about the number which is what you see throughout this entire record mr black but yes i have a trade off border prosecutions they're bigger they are being handled by by main justice is that right yes sure there's no there's no blood or case handled by anybody that means justice have been prosecuted for this conduct one of their senior folks the evidence in this case your honor with it every single thing that my client did was open notorious and not only open it was the policy of the bank the bank acquired traders and casters to sit together so they could talk there was a whole world wide phone call of all the traders to change this information all of this and this was true throughout the banks and in fact there is evidence that the judge referenced in her her sensing that the b d a central banks in europe the united states were involved parents in moving lied to or during the financial crisis and i think you have to say work so the notion and i think the record some of which you know now when demonstrates that these prosecutions really were selecting a few people for prosecution for what i believe are retroactively creat london now you are at that time we had very little to do with why board is part of his job and he was the person who quote had the least to do with  directors to go after matt conley a mid level manager of the desk in new york and gavin black a mid level employee is monday well a lot of other people were not charged and procedures believing that there was permissible leeway in a reasonable range as mr levy described three occasions may conditional requests in the rules permit and never asked for anything outside the reasonable range edits court the case against me at conclave rest i merely three e mail exchanges and a line cooperating with were lying or that any further true that many of these cooperating witnesses said they knew what they were doing was wrong isn't that correct while your st that the jury decided all these charges are time barred against me a timely and they have not they didn't prove that there was a new or ordered increased risk of loss as to do it which makes counter parties they were all hedged they didn't prove how much did improve and he housefull made several colorful comments and accusations about trial team and while those characterizations are not accurate and do not provide the full picture the record below speaks for itself and just report systematically and thoroughly rejected their spend in turns the required deferential standard of review on its head by looking at the evidence in isolation and without drawing all reasonable inferences in favor of the jury's verdict as it must ask to the district court the district court relied on that relied on all the evidence that the earl opinion and that's what the court must do as well under the proper standard this is what the jury could find a lot more submitters caning her lawyer had the expertise to come up with an estimate rather than submitting fat honest lot of arguments to be the instruction when they are allowed to say they didn't understand it wasn't allowed the jury rejected all those arguments and defendants in fact got a very defensively jury instruction the jury wasn't directed at the government have the he said in allen the lot more submissions are necessarily imprecise even when there was a decent market information such that any given at any given time there existed a range of reasonable i bore submissions is that the government's you that that is not so your honor you know it's true in this that there is flexibility and herons and an estimate and therefore different people can honestly arrive at different estimates but that does not mean that the jury had to believe that either the b b a the marketplace or the defendants believed it was permissible for the conspirators to arrive at an honest estimate and then skew it to benefit trading positions just too long as they kept their changes small part of the thing to not get detectives to not get detected and there was good evidence support to support this the jury was entitled to rely on and dr concept i've never heard of that idea before that there was a range of true borrowing costs that banks could choose from rather there was always an understanding that they would submit the one best estimate of the true borrowing per denies that in setting live or quote you could move within a wide range of off a rate of offered rates rather he said the fitter have to come up with their pay and he further tests by that he's never even heard of the concept that it was permissible to move of the fraud to keep the adjustment small so that they could not be detected and keep the fraud going and keep taking money out of kind of counter parties  heavily rely on the scene see any letter but that's the place they argued their interpretation of that letter to the jury and the jury rejected it the letter doesn't say a panel thing can move its life or position to benefit a trading position a on defendant lack of foreign home confinement sentence without determining that it was both feasible and appropriate after expressing doubt on both wars but this report here imposed that sentence about determining three hundred and thirty three things the feasibility of probation administering home confinement in a foreign country to appropriateness of allowing defendant black to use while the son monitoring by a private contractor an option that might exacerbate with a one hundred thousand dollars fine both had supervised release terms and i'm sorry i'm just it's it's two to three years and i just can't find where in my notes that back number is i believe it's in our thank you any questions from this route which of the street suits of the sentence and black did the government to object to in the district court how whether whether the defendant was going to fund that yes your honor we did so we didn't object to the fact that he might be funding it he did not so i think that our feeling at that point there was going to be a requirement of a twenty four hour seven day a week type of monitoring then certainly the defendant should pay for it we did not mean to be saying least that it's necessarily appropriate given the economic and equities about it but we didn't make that objection we agree that we did not provide the systems to the district court that we should have and that's why we're here on planning or review and what we want what we're trying to do is to make sure that the sentence the district court wants to impose i well it sounds it sounds as if it's something that the that the government considered and simply decided not to object to rather than something that the government overlooked and didn't  recommended for home confinement sentence initially the district court did ask the parties to address any sort of sentence but dependable active service broad and the child seemed just did not think home confinement what was the history what does the record show about the emergence of the idea the st time that was mentioned in the record was with defendant black sentencing commission and he did thoroughly discussed it but doesn't think the mission or file simultaneously so the government didn't have another opportunity in writing at that time to respond but again we agree we were on notice and have the opportunity to respond we could have asked to respond in writing or we could have brought something at the sentencing hearing and we did and we didn't pre to the court that's not part of the record i didn't also say that we want to be taking this appeal if we didn't have a defaced basis to believe that there's a strong possibility that the sentence cannot be effectuated under current mechanism the experience with foreign home confinement and other cases well i can tell you i did i looked into it as much as i could your honor and i checked with other portions of the justice department and unaware i am unaware of any defendant serving foreign home confinement in a foreign country it is true that supervised release sometimes a search in a foreign country and in this case a judge right off sentence current war and some of the other problematic defendants to serve a supervised release in a foreign country but it was not borne home confinement and we believe on home confinement it's qualitatively different because that's restricting someone physically to a certain base and under the guidelines it must be enforced through appropriate monitoring surveillance whatever that is and we don't there that there's not a record that there is a way to well it's really the standard of her view your honor that's not what we do when we look at what what we look at what the evidence shows we look at all inferences in favor of a verdict and it could very well be might have just felt that connally was not responsible for that the rd count that a put it on was a continuation of a conversation that they convicted on so it really could just be a matter of they thought that was that he didn't care what he thought about why gordie has no knowledge of it in fact he said he couldn't even find the walls online so he had a look at them didn't know what the concept of market size were he provides no support for the government on the sentencing honor's st of frankly is innocent in my if you could not be supervised is merely a question of the probation department will sort out as it does with every single one of its supervises and there is nothing on this record the idle speculation and the government's sour grapes to suggest that you shouldn't visit this they had not one but multiple opportunities the truth not to address it there is no point error here i part ways district court on the merits here but on the s was in our papers and frankly given the technology as we pointed out i don't think this is really even a big deal but and i'm sure the judge mcmahon if this case is not reversed who has full supervision over store black and he is totally some client will be able evaluate probation has any issues for the government doesn't get to do respect with your honor if they didn't just not respond or have a chance they were  submitted letters asking to impose sentences recourse aeration and they didn't get what they want and it's just your pointed out after the sentence was issued if they had any concerns when they raised their issue about c they could have raised them then the city sure way to court but you've been playing error there's no there is no possibility that they can satisfy that there's been this seriously affected the fairness integrity or public perception of the judicial proceeding added compensation for promoting a particular investment also tare versus etsy which talks about the fact that in opinion statement cases like this are only actionable if it's proven that there's both objective falsity and that it was just believed by the judge that at the time here there wasn't any any there was a rating so there was not object faulty countrywide homa office i didn't  you know the answer we got i think that all the jury was being timed no acquitted charges acquitted conduct can be used if the jury's decision i'm on the merits of the case it was the defense testimony this rule not credible but was considered in the judicial review the same logic appears here the governor doesn't dispute that authority last week with sentencing i heard that the district court specifically heather their sentences that's completely inconsistent with the record the judge district court made a very specific list