others in the brief but st vast quantities of unfairly president has sold for a for be evidence that was irrelevant to the charges and highly inflammatory and in addition he was prevented access to critical defense evidence when the district rules seventeen c subpoenas under an unduly harsh standard first the four hundred and four b evidence submitted in this trial was extensive and covered four distinct topics it was classic propensity evidence there was tax evidence that consisted of improper expert testimony masquerading as lay testimony by an i r s agent there was evidence about gambling that had nothing to do with the charges and occurred numerous years earlier and gambling debts in large amounts there were two businessmen who had gripes with mr bernstein based on numerous and testimony was elicited based on numerous transactions that they engaged in with him that had nothing to do with the the charges which occurred much later and that the and the gambling evidence in particular was kind of a bootstrap the argument by the government and as they continue to argue on appeal they claim that the gambling evidence was relevant to establishing mr burstein is motive for the deals that are at issue in connection with the charges when in fact there's absolutely no evidence that any of them were repaid by any of the proceeds from the transactions that were charged and in fact the government argues that he needed the money from these two guys swartz and stevens to repay these gambling debts but the transactions that the forty four dollars b evidence related to had occurred well before so even if it was true that those transactions disappear they were trying to show i think the motive for why he needed to divert the money in the charges here that he had diverted their money for gambling in part and was trying to and in fact in at least one instance utilized teet t t proceeds one million dollars of the loan to purchase stephen's claim against him so that was their primary argument where you are we're not disputing that that little piece of the testimony was relevant we agree that the government was he said a moment ago that bizz no evidence that any of the money that he took from from them that they tried to use the money in this case to be paid back but there's at least that one instance right well your honor just to be clear what i i was saying was that the gambling that the gambling has nothing to do with this case does the cent they have to show that he diverted tiny piece of all of this testimony that actually relates all of the four of four b that that we're not challenging which is the one million dollars that your honor mentioned however the other all the other deals occurred long before and the gambling occurred long before and there's no evidence whatsoever that any money was used to repay gambling that came from the transactions at issue in the charges when is that their argument that he still owed them the money he still owed them the money from these even though they're all over the money had never been paid and he needed to pay them that's their argument but the that's not that's not what the evidence doesn't show that any money was diverted other than that one million and yet the district court allowed them to testify about numerous transactions for example mr stevens there were five other transactions involving eight million dollars that he was i'm allowed to testify about the gambling and mr s not argued below the government never argue that below and we don't think the evidence supports it and if you look at the entirety of this why did the government need to go so far afield from the charges it's very easy to get the jury inflamed about gambling debts than a one million dollars of casino gambling when these were complex transactions and the government relied heavily on the two cooperators and a lot of the testimony the worst testimony was uncorroborated  documents and so and with respect to the tax testimony we have a number of things the i arrest say agent who told the jury that he was an expert on money laundering and criminal tax investigations and he testified for example that two dollars of the relevant entities had failed to file tax returns between twenty million ninety two thousand and sixteen that the tax code didn't require that even though he was never permitted to supposed to be permitted to testify as an expert if i may i'd like to just to that issue again the basic point there was that if the defense was this was legitimate compensation isn't testimony sorry expert testimony in the guise of late testimony not only did they not give expert notice i disclaimed the testimony they introduced the tax returns themselves which showed only two million dollars in income far less than what was involved here and then on the other and these they just showed the lack of any it was no opinion it was just did this company file a tax return these years so i'm not sure what the opinion was there were there were numerous opinions  most particularly i would direct your honor to pages four hundred and twenty and four hundred and twenty one of the appendix and if you look there you'll see that the agent testified not only that the grey box and he failed to file but that it was supposedly required to file a tax return which itself is controversial and indeed it's contradicted by information on the i r s website and mr bernstein wasn't allowed to introduce his own rebuttal in addition on page four hundred and twenty one of the appendix he also make give similar testimony about sports and both of those were over specific objections if i may i want to turn briefly to the rule seventeen cease c issue because i think this is a very important issue in this circuit has never squarely addressed what is the proper standard for defense subpoenas to rd parties as opposed to the government as the court is aware numerous district courts have as judge kaplan put it mindlessly applied the nixon standard despite the expressly reserved in footnote twelve the question of whether a lower standard should apply in the context of rd parties and said it didn't need to reach that question because the standard that it set was met there is it different the standard should be different for several reasons st of all the text of rule sixteen only talks about whether subpoenas unreasonable or oppressive and here we don't even have any rd party to are directed saying that more importantly the the reasoning behind having a tough standard when it comes to the government is that there could be a conflict with rule sixteen and the government's rule sixteen obligations here we not st of all not only is the standard wording the tucker standard materiality standard that's very similar to rule sixteen but more importantly the existing state of play in the district courts with the majority rule creates an incentive a perverse incentive for the government not to seek all the relevant evidence and that's exactly what happened here the government deliberately chose to not seek all the e mails that could have been present for certain i'm sorry on how many subpoenas  things like fifty or something like that we're not arguing that as to all of them were we for our focus and that but if there are fifty subpoenas serve the does sound like a fishing expedition well your honor i would urge the court to look at the specific subpoenas that are most directly relevant here and those are the ones we focus in our brief and i can give a couple of examples but i i think the point here is that if the nixon standard is applied it's virtually impossible for a defendant to meet a defendant cannot show specifically what documents are in the in the possession of the rd party except in a rare case it's not like the government where for example in the nixon case the government knew what was probably on the president's tapes because it had witnesses would participate in the conversation the defendants are not do not have access to that kind of information to be able to know specifically what documents are in the possession of rd parties you know you're out of time you have some type of model we have from the government good morning may it please the court at work in paris or for the government i represented the government below in the district court and i do so in this court on appeal the judgment of the district court should be affirmed in all respects judged castile properly exercise discretion in various evidentiary rulings including including allowing the government to admit the defendant's tax returns during the period of the conspiracy concluding that the defendant open the door to cross examination about his failure to pay taxes and admitting evidence the defendant's prior relationship with swartz and stevens and his misappropriation of their investments in addition the securities and investment advisor conviction should be affirmed because the evidence was sufficient and the investment advisor theories were valid let me begin with the arguments the defendant has advanced about jerry swartz and stevens the judge cast l properly exercise his discretion and in allowing evidence scenes prior business dealings with those two individuals to be introduced st as direct evidence and nd in the alternative pursuant to rule four hundred and four b there are a number of independent bases for concluding that judge  investment proceeds to gambling debts was goes directly to a central issue in the case which was whether jerry swartz backed swartz ip which was the en that received western money and whether he had infused capital into that and eddie a central misrepresentation of burke's dean told weston was gerry swartz this wealthy investor is my business partner and  with ninety one million dollars of money that was false the fact that swartz had invested and lost millions of dollars with bernstein previously demonstrated that when bernstein had an excuse me when swartz had entrusted money to bernstein it wasn't for swartz ip it was for some prior investment that helped explain why swartz was not a part of swartz ip and it also explains that swartz ip never actually had millions of dollars of swartz's money it corroborates swartz's testimony on that point and i would note that the defendants reply brief really attacks swartz's credibility and that underscores why this evidence of this prior misappropriation was admissible there are other reasons as well as judge bianca's questions indicated there is motive here evidence at trial demonstrated that bernstein committed the west in fraud in order to repay all debts he misappropriated money from swartz and stevens in order to pay his own gambling debts and then he lied to weston to get money to repay swartz and stevens so he's using money in a ponzi like fashion does seem to give opinion evidence as to whether for example a tax return was required and why why is that not expert testimony judge chin we disagree that he opined to reach an opinion about what to greece and it's controversial whether or not they had to file anything or not and that they were not permitted to even rebut that piece of testimony well we disagree judge bianco and the reason is again on  ip and grey box all the witness testified was what was reflected on the certification of lack of record which is that these entities did not file tax returns and with respect to swartz ip there was an independent document that established that it was required to file that return what the agent was simply doing was stating what was reflected on the plain text of the document with respect to the issue of whether he was allowed to rebut it this is a misleading argument here  precluded from responding but i think the salient point here is that there was no opinion to respond to all the all the iris witness was doing was authenticating records that was proper under the nd circuit precedent under cases like the lengthy and sanker o to demonstrate that the returns did not contain the proceeds of the scheme he did not reach any opinion he did not accuse the defendant of wrongdoing want to move to the subpoena issue yes your honor so on the issue of the rule seventeen subpoenas this argument is without merit what the defendant is urging the court is to adopt a standard articulated by judge sheindlin and that in the tucker case the government is not aware of any core in this circuit or outside of the circuit ever applying that standard other other than judge sheindlin and it does not apply here for a variety of reasons st as nixon and bowman darry hold a subpoena is not intended to provide a means of discovery in criminal cases the holding applies equally to both defendants and the government there is no basis under the rule or under nixon or bowman dairy to draw some artificial distinction between what a defendant can do and what the government can do under rule seventeen and the bottom line is the defendant's tools for obtaining discovery are rule sixteen and in any event this  repeatedly applied nixon albeit in summary orders clashing defense subpoenas to rd parties in criminal cases that happen in multiple cases including both cutie and conway and in any event the defendant can even satisfy the own the standard that he himself asked the court to adopt here which is the tucker standard for two independent reasons one is under tucker he was supposed to he it was required on the eve of trial under that's standard he didn't do that and secondly he can even show a room in articulable suspicion that the records he was looking for contained material information material to his defense and i think the examples he he he demonstrates highlight that st of all he claims that he was entitled to discovery of someone named paul parmar and that somehow discovery of parmar could highlight berg's dean's you know good faith intent that makes a so therefore there is no reason to think that somehow discovery parmar can shed the arguing in part that the government is using the nixon standard essentially this shield themselves from their discovery obligations  there was the mail in the record at the attached defense counsel the prosecutor in a back and forth the defense more say can i have x y and z and the the prosecutor said they're not not possession we don't have to produce those to you so what's your response to this is the government skirting its discovery obligations through nixon that's absolutely not the case here your honor the government produced thousands of e mails of both cooperating witnesses that were exchanged over weston's email  servers the government also made a request and this is in the record two hallux attorney for relevant e mails and hallux g mail account it produced those e mails it did not make a similar request to welner because there was scant evidence that welner used his personal email to exchange communications about the scheme but there is no required i mean some certainly the government was not playing tactical games here that was not the case at all but in any event the government was not required to seek discovery from its cooperate or as it did in the case of halak but certainly there was no no game playing here and there's certain there's also no prejudice to the defense either or the defense can articulate any evidence that it claims it was entitle to that it didn't proceeds that he controlled and then dispersed to rd parties i think it's important to keep in mind the flow of funds here the defendant sought loans from rd parties of season from weston he used shell companies that he controlled to use with these were transfers going to be allowed to give these opinions if you look at the appendix three hundred and eighty six trial transcript page one thousand three hundred and seventy eight the defense counsel specifically says that they're going to need to call a tax person to basically say in these situations this is what you would and wouldn't have to report that's what it would be the court well you do have the issue of the expert deadline having passed and the colloquy continues and defense counsel again says  we didn't know we were getting experts they didn't designate a tax expert we weren't looking to do a tax case all we would be doing is a rebuttal expert and then the court says to the government well as your i r s guy going on as an expert mr  point at which it becomes few tile and that the judge had made his his opinion clear and the defense counsel that had previously raised the issue and we don't think it it you know that he had to keep raising it it was clear the court had ruled  with respect to nixon the government talks about bowman dairy boman dairy involved a government subpoena and a nixon as i mentioned earlier footnote twelve expressly reserves the question of whether a different standard should apply with respect to rd parties  test the nixon test itself is not based on the plain language of the rule nixon was decided in the one thousand nine hundred and seventy s as the supreme court mentioned in one case last time statutory interpretation has changed quite a bit and it's much more based on the text today they're simply not fair to have a standard that significantly lower in a civil case as to rd parties than in a criminal case when a defendant's liberty is at stake and with respect to the importance of the material i'll just you know they mention a couple of examples one of the things that was sought was the fun prospectuses and the government claimed that the funds were only supposed to be used for certain purposes  defendant was never able to get copies of the entire prospectus two to test that there was also with respect to the t t transaction there had been earlier efforts by weston to engage in a similar transaction called the core transaction there was evidence suggesting that there were opinions of counsel indicating it would be permitted it was a very similar transaction that could have shown that in fact this type of transaction would have been permitted use of of the form and so those are just a couple of examples we have others in our brief and then lastly i see my time is up but i do want to or may i make one additional point with respect to just wesley's questions about the forfeiture st of all  two transfers we gave a couple of examples in our brief but in fact there are other examples and the total amount of five million three hundred thousand was dispersed directly to rd parties and not through any thousand and two wimbledon fund there's another seven hundred thousand and two western capital asset management so there are three transfers to entity an entity called general health technologies sage group consulting there are parties should also be reduced thank you thank you rob well reserve