engaging in activity misrepresenting material facts to induce consumers to purchase an item he said that injunction he signed it he was aware of it this this underlying case started in two thousand and thirteen presented evidence contrary to the f t c is position that he'd engaged in fraudulent activity or in any activity that was prohibited from the one thousand and eight and that it would include assisting anyone else in any of these schemes that is correct your honor actually or oh look i don't know where my colleagues stand but i'd like you to address the assisting how is that that he can that he can be a consultant which everybody admits that he was consulting on a mailing of mail skene well your honor  determination made that and the overall mail fraud scheme that's at issue here was fraudulent the core addresses some of the fraudulent mailers and that's part of what is at issue here if you look at our briefs it's very facts heavy on the evidence that was presented and your honor speaking specifically about the mailers on their face disclosures were provided to the consumers well first and then i take issue with that word consumer because burke it was argued in the briefs and initially it was argued at oral argument it's in our briefs on the record in front of this court here today that there was no i don't i don't see thing i'm looking at the at the injunction and i don't see that the injunction refers to fraudulent schemes that is there has to be a determination that something in the scheme is fraudulent this looks pretty broad while your honor it's and i think it goes to that material misrepresentation and section in part of this  i'm looking i'm looking at the page four of the the original engine order the injunction and before says that he is has barred from performing marketing services of any kind for an entity seen order there never actually been findings of facts with respect to the underlying seems at all and it's our position by the f did that the end and is it your position that when you get a notice that you've won five hundred thousand dollars and you just need to provide he's assisting the question is with the assist in the scheme right yes there are but what's interesting is that you said he helped create we also take issue with that position because mr burke was employed by a gentleman named earl seals there is deposition testimony there is thousand any injunction though is the material misrepresentation so counsel i'm for example i'm looking at your for fourteen i'm looking at a e mail from good to burke that says glenn here is something for your artist to try i want to look like it came from a law firm unofficial paper with borders i want to simulate what a contract looks like with printed with printed on little yellow stickers where everyone is shown to sign so that is an e mail that was sent to mr burke and that mail or i something for your just you definitely have one you just need to send us money and we'll get you your check i don't think that that's what they say and that's the point that i was trying to make there is disclosure is listed on every one of these mailers and the first line of every one of those disclosures and i can cite to some specific ones that the court would that is the first line and every one of them is no purchase necessary also no where do they pressley say you've won money there's an amount of money on the mailer and if you read it closely it says documents will be provided where these people a when they were also told that they didn't have to and they would still be eligible for the same sweeps as mistakes until they were told that there were they were told one thing that you should provide some money to us but they were told elsewhere that they were told that if they provided money that they would also be they would receive them when they returned were not i'm sorry that's not misleading well they were told that if they were if they provide money they would receive something in exchange for that but they would still be eligible hoping to get all these checks deposited right while he was the processor for overseeing advice on the checks amounted to twenty million dollars by the f t c is nothing that's how much how much money those prizes and that prizes for more than a dollar twelve or seventy nine cents were paid and how much how much were what was the largest prize that she could remember one hundred dollars i believe which has gotten worse yes or no took in twenty million dollars and it paid out checks of a dollar twelve maybe one hundred dollars to somebody that's correct and again i would ask the court to look at the disclosures because if you look at the disclosures that were contained within these mailers themselves there's actually a ratio to them and a dollar twelve seventy nine cents one hundred dollar winnings are listed on those sweepstake updating the consumer lists from list brokers we're going to you know when i looked at the factual findings that the district court made and then dug into the record to see the citations one thing that i was concerned about over and over again is that the evidence cited by the district court these e mails and letters and receipts seem very ambiguous i didn't see a single document in there that unequivocally ties burke to this specific scheme in a way that qualifies under the precise definition of assisting others in fact some of the documents that you folks rely on heavily don't seem to relate to the scheme at all what is the strongest single piece of documentary evidence that you think brings mr burke within the four corners of violating this injunction ok we have a list of them in terms of arranging for consulting in his own words on the content of the miller's excerpts of records four or nine through four nineteen and four twenty three four twenty five are changes of e mails between mr burke and copywriters receiving from them examples of what the mailers would look like given them though if you look at those e mails much of them were e mails that were sent to mr burke and his part of that is just a snippet some of those e mails refer to things like astrology in japan bulletins which of those e mails specifically tie to content in this and he wanted it to have quote unquote more he says that your e mail is there anything in that e mail that tells me specifically what mailer we're talking about or whether it would come with if you mean which particular mirror was used was this in a change or was this a mailer related to this particular scheme one of mr burke's attributes seems to be that he's got his fingers in a lot of different pies and  opposed to there was no other there was no other mailing scheme now and we know that what the e mail talks about a mailer but it if as i sit here today is there anything in the record that tells me burke was not engaged in some other scheme this is a guy who according to the c is one of the world's great fraudsters while these were all e mails that came from his own office from the from his record there was no other scheme that was alleged by the other side by mr burke there was these e mails whether the often tissue of them or their relation to this particular scheme was never challenged to look they challenge generally your ability to prove by clear and convincing evidence that there was a violation of the injunction right and you but now but not this particular whether this particular e mail related to this particular scheme there was no other scheme it should be if they had said nothing if they had stood mute at the hearing it was your burden to show that the evidence you are relying on showed by clear and convincing evidence that he violated this injunction and you gave the district court a lot of evidence that arguably has nothing to do with the scheme let me turn to a different piece of evidence that you got a t r o an order of access to his businesses in las vegas an order of excess from from the here gives one in there and just gather papers out of his office yes your own and is there anything to show counsel for fourteen exactly and then for eighteen shows that text put into the format that would look like the e mail or that would be sent to the to the consumer what about five twenty two five twenty two glenn burke wrote ya dollar twelve used to work really well now i need to find a bank that will take all those checks yes you home and in under i think that there's there's probably something that links this this to a dollar twelve payout but how do we know what this is linked to i mean this would be very incriminating if we know that that dollar twelve was actually what they were going to pay out all in the sweepstakes scheme but how do we know that i can't tell that just  looking at this e mail although it seems very damning  let me ask you these were all these related including among other things related to the list brokers that he was working with to purchase the consumer list documents that are in the excerpts were submitted to the district court and accepted by just a court without objection correct so even if we assume that you presented evidence that links contradict at least a couple important parts of what the district court found why shouldn't just a burke face looking down the barrel of a twenty million dollars seventeen million dollar contempt order have had the right to present his witnesses if i may just answer your question w sure that vendors and printers and developers and employees were all be paid for that scheme what provision of the injunction does that violate would be under the assist to the assisting others when i first read the this case assisting doesn't seem to be defined in its assisting in the generation of potential customers for the entity for example so when he uses his business account or his own credit card to pay for the consumer lists that then would be used to mail under one question i think your point took the position that this injunction applies only to fraudulent screams and that this scheme was not fraudulent that this cream scheme aside from mr brooks role in it the disk image itself is not fraudulent was not raised before the district court to get the district court you know make any finding on whether the scheme was roger  although i don't think they did i know there was their findings about you know material measure misrepresentation and things like that but you know i don't think it uses the term of fraudulence no it's not because that's the language of the language of thing injunction does not talk about fraudulent it talks about material misrepresentation in the purchase of so you more good or so as to whether or not a fraudulent misrepresentation is equal to or the same as a fraudulent  screen or an element of that your position is that if this scheme involved a material misrepresentation that's sufficient to violate  this one ok so with respect to the e mail itself like you said it appears to be very damning but it goes back to the f t c put forth a lot of evidence but they have not directly tied all of that evidence to mr burt can you tell me this is did you controvert this and is this is accounts and he was just using his american express card and he was just a consultant to mr sales affidavit on its own with your honor's position that it doesn't help us much might be true but if you look at mr steele's affidavit and all of the other evidence that would support that misrepresentation subsection if he is mailers or if mr burke himself did not engage in assisting others with making material misrepresentations to induce a consumer to purchase an item service or good then he did not violate his one thousand nine hundred eight preliminary injunction what about this issue let's say that hypothetically we had concerns about the strength of the government's paper evidence and that that evidence that let me finish the question might not have been enough to get the government over it's clear and convincing but we also have here that mr burke took the fifth and the district court credited the or took the adverse inference against him and the district court cited the rule that if there's independent evidence of this of the fact they can make the adverse inference here the government presented however strong some independent evidence do you detect that with h it was good advice because since this case has been filed an indictment has been brought against mr burke on criminal charges so there's that there's that issue and addition at the time that mr burke step ization was taken he was undergoing extensive cancer therapy and chemotherapy he was actually had a medicine bag attached to his body at that time so i don't know if mr slaughter could have given him any other advice then to preserve his fifth amendment rights because we don't know what his state of mind was under medication if you had the ability to understand the question those issues could certainly could have been raised separately by motion for protective order to stop his deposition instead what happened was he took the fifth and wasn't appropriate for the district court to say the government's paper evidence however strong even if that alone isn't enough to get us when we're clear and convincing when we add in the permissible eberstein friends here that does get us while there is another interesting issue because the initial judge who issued the order that brought up the d two thousand and thirteen appeal in this case had since retired and the judge that issued the order that we're operating from now in two thousand and sixteen never heard any of the oral arguments or any of the evidence but that decision was issued a wholly on reviewing the briefs on the records and i don't know that i don't know that judg would necessarily have the same benefits that judge pro had from actually having the arguments presented in front of him and further there was definitely objections me and sue to the government's papers that were presented at the district court level and have been since the beginning because this wasn't the questions ok thank you thank both counsel for the argument to the f t c versus burke submitted