here the next case partner versus united states sacks were learned which shows that the facts upon which mr de purdon was convicted of all wrong and or the facts known earlier there's a reasonable probability that the verdict at as the judge made plain in its charge during the trial and after summation mr de purdon could only be convicted if it was shown you know under reason to doubt that he had an intent to cause financial form to the people to whom he was selling coins his defense was good faith that he actually believed that he was selling coins at what they were worth and needless to say the prosecution position was absolutely the opposite that he was intentionally selling grossly over valued coins indeed the theory of this case as it was tried as it was summed up as it was open was this the great disparity theory that there was such a great disparity between the value of the coins as shown by the defense expert witness such a great disparity between what he testified to in his opinion and was due to produce price that there is no possibility that anybody could maintain an honest belief and say the defense expert witness you meant you mean the government's expert i'm sorry i'm sorry the government's expert witness mr sui attack because the defendant didn't call an expert witness did he to convey to did the government did the defendant who is now the told the coins where the values that they were actually were he wasn't he wasn't on the stand for as long as the government witness i mean the government witness was the key government was the witness and think yockey applied like ten percent of the trial transcript but yes the government the defense did call an expert witness to give counter testimony to support the defense of good faith and how do you defend the proposition that the that the  auction sale years later as i write an auction sale that realized substantially higher very much higher prices than the values that were testified to by the government at expert witness how does that show how does that established that the government's evidence was false evidence a good eye and a notch for five years for so i mean i would just live with the word inaccurate the  boxes of points he gave his opinions at the same time i think was the year two thousand and one within weeks of each other he applied to same standards methodology and frankly was looking at the same type of the fact is that they in effect were the same type and kinds of koans so the auction is a test of mr sweet text ability to does a sale nine years later at surprisingly higher prices then were testified to by sweet attack how does that show given the passage of nine years intervene that that  at the at the evaluation was accomplished we faults seriously seriously seriously wrong as you have myself in the same question walks in auctions are our mysterious sometimes auctions are hot sometimes very frequently one sees auctions in the end sub the b s and christy's where a work is sold for hugely more than the auction house estimated for that very option and one doesn't know why and now you have nine years intervening so what is your argument that that that the sale for much higher prices nine years later shows that the nine years earlier appraisal on which the jury relied if that if that's what the jury relied on was was was bad evidence was wrong evidence judge them all we did what any economist a historian would do we adjusted for time we adjusted for the rate of inflation and we also adjusted for this actually there's an index maintained by one of the government's other coins witnesses of how coin prices have moved in time over the past decades so when you would just according to both that index and the rate of inflation both of which incidentally show that there was a twenty three percent increase in the price of n coins during this time period you can make an adjustment for what the auction price would have been had missed this we had tax appraisal been correct nine years earlier out now and now the th yes we're not talking about methodology or opinion testimony or guesses as to value we're talking about actual value of coins now we know what the real value is not what do you opinion as to those values are and in any case between real value and opinion real value trumps in fact i wouldn't you want your saying i understand you to be saying that sui attack just got it wrong he just got it wrong level and it's based on them and he got it wrong based on the methodology that he used and that methodology has been sanctioned by a court in another case and you're saying that that has no bearing on this case but since the methodology yeah but the result is that he got it wrong and because he got it wrong a person was convicted based upon evidence which was wrong and had is that the standard for a quorum novus it must be likely that the jury would have returned a verdict favorable to the defend the language which is used in kovacs which as actually it's the language was to been used in court of novas cases going back decades and in fact i've read some cases last night in which church friendly uses the same language the language is that there if the new evidence creates a quote reasonable probability and quote of a different outcome that's at page fifty three of callbacks and actually kovacs the issue was that the defendant would have presented a affirmative defense and the jury and this court said the standard is the quote that the defense likely would have succeeded at trial a close quote and that was an affirmative defense which the defendant would have to prove where as honest belief is not an affirmative defense it's merely something which the government much does prove beyond a reasonable doubt that now in this case and correct me if i'm wrong there was testimony from  one who graded all the the coins he said he has he assigned higher grades to coins that had been previously certified by independent graders and sold the coins for the higher price associated connected with the higher grade his employees under this understood that the grades and values of the coins were that were being sold were substantially o lot going on in this case not just sui at tax testimony or montgomery's testimony is not right there was a lot going on but the charge was frankly in light of the auction results if the evidence is his values were correct i mean the degree of error which is shown in the auction the degree of error in mr sui attacks testimony they sold for so under those circumstances yes there was testimony that he took coins out and he recreated them well actually that was just a testimony of guilt he was the guy responsible for grading the coins and pricing  city auction itself what information is there about how the coins were sold about the price points the individual price points to get have a better sense of what actually happened auction well you know to address not your honor this was your auction and this is the u s marshals auction that you've collectively have conducted or approved for all the years that you've sat on benches and the u s marshals arranged these auctions for the purpose of maximizing value so as to get the greatest number of dollars possible to redistribute to victims so we just know that from the beginning and i somehow find it ironic that this criticism that we now have a test of the auction and the yorkshire did exactly what we all have always wanted to accomplish now i did not put in more evidence of the auction at the hearing because i didn't think it was necessary the government did not put in more evidence of the auction that they conducted and by the way paid two hundred thousand dollars to conduct i mean this was really a professionally conducted auction so i mean i i know how the auction was conducted because i've seen all the sheets and everything else but i just thought it was enough to put in the results since it was a government or sho asperity you really didn't make an inquiry into what actually happened at the auction how it was conducted what the individual price points might be you know i mean all that stuff is the government it's they could recover it if they wanted to i mean you have the pictures you have everything else you know had to have lots were divided up how many days you could talk except for executives but again i did not think that was necessary to make the point because in a way i accepted the logic of the government's argument which is that there's such a great disparity in price that we can draw an inference from it but now we know what the real great disparity in price not between the a pint values which we now know to be wrong but between the one real value that we have in this case i mean grading is subjective the appraisals my mistress we attack was subjective the auction prices are real real and indeed it's the government's own witness was to montgomery the greater who actually refused to put a value on any of the coins for of course he said the only way to really know what they're worth is to go to the world the real public world and have an auction which is what we did so the fact is that based on the facts we now know it is  reason we probable that a jury would have accepted to good faith defense and not found who have three hundred reasonable doubt frankly it is inconceivable how they could have found proof beyond a reasonable doubt the coins worth what they were being sold for there was no evidence that mr de printed had the intent to defraud thank you good afternoon your honors me please the court i'm sorry paul scottie for the government with me counsel table has joined a vigorous your honour's corum noblest relief is rarely granted and is reserved for only the most extraordinary of cases where a fundamental error has been established has been proven that invalidates the underlying proceedings and that granting of the writ is necessary to achieve and required to achieve justice the option here that is the sole premise upon which the petitioner real lives is completely unrelated and unreal in irrelevant to the overwhelming evidence that was presented at trial of the petitioners guilt including the overwhelming evidence of his intent to defraud the auction itself first of all the coins at the auction itself were not evidence at the trial they were not at issue at the trial they were totally separate and apart from the coins that were presented as evidence that the petitioner over graded and inflated the grades in their by giving is selling coins at inflated values second of all the you explain that further yet yes your honor the coins that were sold at the auction were not called inventory coins they were twenty six thousand plus coins that were seized at the time of the defendant's arrest but they were not none of those coins were  issue in any of the counts in the indictment there were about i think seven hundred two coins that were issue in the actual indictment that the government experts both mr montgomery and mr sweig tech had examined and graded that mr swipe tech had also placed a value on but the coins that were auctioned off in two thousand and ten none of them were at issue a trial so that would be the first focused on the trial klein's are different from the inventory point is that your yes your hon yes your honor so the first point is that an auction of coins that were not related to the trial at all cannot be then used to to undermine the evidence at trial but in understand you say that that's why a tech render an opinion with respect to the value of seven hundred two coins yes your honor and he and he testified that those collingsworth very substantially less were these coins that had been sold the restaurant and had been sold by the involved in the nine year later auction no none of those coins were sold in the later auction it's why the tech expressed an opinion and the opinion we with respect to the coins that were sold yes your honor and that is the basis that is the premise upon which the petitioners petition realizes that after the trial mr swad tech was a was employed by the government to grade and appraise the inventory coins after the trial after the trial and i see so so this is a post trial yes evaluation of the inventory and at the trial he rendered a value which turned out to be much much lower than the nine year leader so price yes your honor in  government's position it's that attenuated link that is saying that because of the price that it sold for in two thousand and ten then it therefore proves that the methods of grading which as this court determined in rimando it's the grade that determines the value and so that therefore his methods of grading must have also been wrong and in a further attenuated link after the ramana case came out the petitioner was then forced to now not just wrap methods of mr suad tech the problem there is that mr swad tekken mr montgomery at trial agreed on almost all of the grades of the inflated coins that were put in evidence so now the attenuated link gets even further attenuated because the petition to now discredit not just mistress white check but mr montgomery because mr montgomery testimony was the overwhelming was the predominant evidence a trial which established over grading inflated grading and the grading was as the court said was what the customer was bargaining for the price is not the issue here it's the it's the grade and the value assigned and the overwhelming evidence the trial was that the petitioner was grading the coins far above grossly inflating the grades of the coins and therefore selling them far higher values of the coins what we have in two thousand and ten is an auction that just gives us a price price that can be subjected to to numerous different factors not the least of which while the petitioner talks about passage of time not explaining it and the increase in inflation that indicates a steady and stable increase that is not what the markets are and that is certainly not what the markets were in two thousand and ten two thousand and ten was when this this economy was coming out of its great one of its most significant crisis and since the great depression there were clearly volatile markets the stock market had lost half of its value in the previous year and investors went significantly from stocks in equities to commodities things of value things that were tangible that weren't numbers on this on a computer screen that represent a dollar amounts that could disappear in a day that's why silver and gold skyrocketed between two thousand and seven and two thousand and eleven the value of silver during that time went up four hundred percent the value of gold three hundred percent and coins are a commodity that clearly can at least give a reasonable explanation as to the the price itself but what the auction doesn't tell you and as as your honor pointed out is any kind of analysis to establish that the grades which was signed the value were wrong and information as the petitioner said petitioner didn't dig deeper because if you have records about how the coins are actually sold what the individual price points for we do your honor we have records from the marshal service we don't know that we have all of the records related to this auction it was in two thousand and ten after all and so the we did obtain certain records from the marshal service with respect to the auction itself and but what i can what i can tell the court is that and your adversary was saying he didn't request it because he didn't feel it was necessary because to him the case is based on disparity along right looking at the difference and in price and your honor as this court is held in rimando and as the district court at the time and everyone agreed at the time is that the massive disparity and the court is the district court stated in denying its rule twenty nine motion the massive disparity between the grade the coin customers anticipated receiving and what they actually received for the money which clearly events the harm contemplated by the numerous group defendants in their scheme to defraud that's in the appendix under forty nine the newest group defendants were all of the coin selling companies that were owned and operated by the petitioner but what the what is the glaring omission from the petition which the petitioner has an extremely high burden to meet is any of great analysis any information as to yes the price may have been higher but as i stated before that could be related to the the market circumstances and in fact it is certainly that was a significant factor in the high price but who were the coins regraded before the auction who graded them what were the grades how did those grades compare to the grades of mistress y tech previously we don't have any of that information your honor and in fact that leads the more reasonable conclusion here to be that as the quarter pointed out before auctions can be their own animal themselves you can have particular buyers if there was just one buyer out of all them who wanted all of the coins and was willing to pay or higher amount there's different factors that can explain it that are a lot more reasonable then finding as a matter of law and as the petitioner states several times looking at th scientific proof discrediting to well established credentialed experts in the field of grading and again these are people who've been established as experts over decades richard monk was president of p c g s at the time  the trial he's now president of n g c those are the two preeminent grading services in the country upon which the entire coin market relies upon so to to say that this auction now discredits and that's the reason agreed on the grades at the time of trial i'm sorry inventory corns had they been graded by the defendant or deport your honor i'm not aware of that i they again they were seized i believe in a warehouse at the time of his arrest i am not certain as to that they were however graded and valued by mr swire tack for purposes of of of the auction itself that would ultimately later be held nine years but i don't is wondering if there was a comparison between those inventory coins and swipe tech that could be made i don't i don't believe so or if there was i'm not aware of it i haven't seen any of the records but your honour's just seem a time is running and if there are no other questions obviously for corn novus it's an extraordinary relief that's being sought and it can only be granted when it's the only recourse to achieve justice your honour's justice was achieved the purton was convicted he was convicted as the core pointed out by overwhelming evidence that was not just the experts but numerous witnesses that proved just deceitful practices over an extended period of time and nothing in this option or any other evidence was done anything to undermine his guilt thank you runners there are i mean there are consequences to all this of course i mean you you can see don't you wonder fund right that there is the collateral consequence of  continuing disenfranchisement yes your honor but the government does acknowledge that however there has been no fundamental error that's been proven it comes nowhere close to establishing that the auction in reality has nothing to was not challenged by the government it was not challenged by the court and one of the dangers of sort of like trying to present new evidence in oral argument where you know mr scotties talk about well you know maybe the market was going up  but we put in evidence of where the market was at the appendix one ninety two to one ninety three we have the charts prepared by their expert mr amman governing in fact the point market had plunged at the time of the walk it walks in from a prior height had the option been conducted several months before the probably would've been several hundred thousand dollars more again to do auction and as to what actually happened at this trial regarding the other evidence and whatever  this case was about valuation that that was what the case was about mr mr scott he has referred to grade it's almost like you will concede that maybe there's a problem with value but he says well there was testimony regarding grade mr montgomery said the grades were all wrong but this really shows how judge that really misunderstood the issues grade and value to use a poor expression two sides of the same coin the judge said it at trial the government argued that in some nation any coin if it has a hot it if it has a high grade has a high value  low grade and has a low value to sort of suggest as mr scott he is the dow say well maybe the coin really had a high value but it really had a local that's an impossibility that doesn't occur in fact a trial judge spat made it very plain that the only reason he let the case go to the jury was because of evaluation testimony he says and we quote it in in our brief you know he found this grading stuff very confusing you know very you know the values were clear you know the difference between a seventy seven and a seventy four and how you distinguish between one and the other you know that that's not clear but the fact is that the testimony france we attack was that the corn being sold by mr de purdon for ten thousand dollars was only worth two thousand dollars he can understand that and indeed he said well it's because of that great disparity that the jury could find that the grades  wrongly stated or that the jury could find that there was an intent to defraud because of the great disparity so that grade and valuation move up and down it was all about value i mean that the primary exhibit at trial exhibit thirteen hundred it was a list of sweet text values compared to the ells prices it was the exhibit most referred to in some nation most refer to what the witnesses back and back again used to do purdon sold the coin at that value mr switchback said it was only worth this case was about valuation and if you believe that the auction says something about valuation which would have created a reasonable possibility of a different outcome and i don't see any other alternative then this is precisely the kind of case for which the writ of corum nobody should really be warranted thank you thank you both hear arguments f