the court my name is dan markel i represent jonathan gordon i'd like to reserve ninety seconds of time for vital and i will split my twenty minutes with mr hoffman who is representing stephen gordon you are were here today for a very simple reason in a complex case my client was wrongly convicted and wrongly sentenced in violation of his constitutional rights i'd like to begin my presentation with the strongest evidence the government has against jonathan and demonstrate to you why that evidence does not withstand the relevant standard here which is whether a reasonable jury could find beyond reasonable doubt that jonathan had the specific intent to defraud or to commit any criminal wrongdoing as you know there are specially three types of conduct that issue here on a service just check kiting and false statements i'd like to begin with  ana services scheme first the jonathan gordon have the intent that any points to the fraud merrill lynch of his on a services counts for through eight amazingly the government's brief did not actually even address these counts as a separate scheme of wrongdoing but as we argued in our opening january two thousand and the second is the concealment of the receipt of these fines from merrill lynch the payments starting with the so called drives these payments began even on the government's theory in january of two thousand that was well before karen smith jonathan's manager at merrill lynch ever devised the margin accounts that were used for stanley media that was nine months before any of the alleged check kiting occurred and prevents him from giving his uncompromised loyalty to merrill lynch what's more the government never offered a scintilla of evidence in the court below to contest the simple fact that these payments were part of the history of loans between these two brothers and of the three hundred forty thousand dollars that stephen lends to jonathan was in advance of the signing bonus that jonathan was expecting when he was planning on moving brokerage houses moving his book of business with different brokerage that's in the e r twenty to sixty you know i think that's  was expecting a substantial signing bonus and that steven at the time was a wealthy individual and he was helping his brother with the bridge loan for have his house now it's not in the record but in fact stephen has been seeing his family's been trying to collect from my client family the money that was owed i would be happy to you know get some type of an affidavit so that you know to that fact more importantly the vast majority of the farms were transferred well before merrill lynch precipitated a cash crunch at stanley in october of two thousand right to two hundred three thousand dollars check occurred which was the lion's share of the funds that were transferred was done in early september two thousand and well before any of the cash crunch occurred and there were such payments occurring starting in january which was four or five months before the margin accounts were ever created it just doesn't make sense that this would that the stream of payments between the brothers would in fact form the the motivation for the corrupt services  second aspect that the government relies on is that they say that the government claims merrill lynch was deceived and that's simply not true merrill lynch knew that jonathon was getting money from his brother the notes in the maryland files reveal that the payments were monitored for escrow kar that something was wrong with that but in fact karen smith again she testified twenty call in forty seven trading accounts had to be at merrill lynch personal accounts could be anywhere and merrill lynch had no paul placing an offer limit on the kinds of loans that could be override on his own but he had various times refused to authorize the c m a declines which in fact was that he was a team player for merrill lynch rather than a rebel or you know and this koreans never testified at your twenty call in forty six that the jonathan did not pass on the the override when he didn't feel there was enough information and there was emails that affects your thirteen is an e mail where jonathan says to another employee don't pass on these checks so when he had reason to pass on the declines he didn't recommend their over rocks the other had no reason to suspect that there were insufficient deposits being made during the crucial two week period in which there was a were false names on the ten margin accounts there's no evidence that the government offered that jonathan knew that those were false names and you know there is no evidence that jonathan participated in the creation of those margin accounts in fact the government witness for the testified th jonathan was not at all involved in the creation of those margin accounts there was no evidence moreover her any type of the liberal ignorance jonathan never knew never suspected that there was sham accounts involved and he never took any steps to to avoid two statements that are at issue the first statement was that there were more than five million shares of unpledged standing media stock on the positive merrill lynch you know you are sixteen shows that there was more than seven million shares on the positive standing media those shares belong to principles of stanley media who would be able and who offered to guarantee the loans from us bank if they left the hold regarding the second alleged false statements there was a change in check clearing policy regarding e jonathan said that in the letter he did not make a claim that there was a change in fact very policy regarding all of the regarding all of the clients of america merrill lynch he merely said that there was a change in policy regarding who was criticized by the lower court for its monumental incompetence there's no reason to assume that jonathan who sends out a fax to a third party would think that the facts would not be found it somewhat more that he could keep it a secret that just makes no that what's animating blakeley is that there would be specific facts determined by the jury beyond a reasonable doubt and i don't think that this jury verdict supports the fact that there was you know that jonathan gordon my client was trying to help his brother out i don't think he was he never had any criminal intent i don't think the government's evidence shows that there was any criminal intent merrill lynch benefited from johnson having a relationship that kept stanley media's accounts at merrill lynch so there was a lot of information that was circulating this was also during the period of the nasdaq rational and when new media companies such as stanley media were being hit hard and i think and say it seems to me is that someone in mr gordon's position is entitle to have the jury make those decisions rather than have the judge at sentencing saying i've heard all the evidence and i find in fact there was fight in the sentencing hearing about the exact amounts of loss and changes from the pre sentence report and lots of confusion about what it was even between the judge and counsel and a long period afterwards it's clearly the jury didn't make well he yes i mean he was asked the question that he was asked was now based on your review of the checking activity in your understanding of the facts of this case do you have an opinion whether check kiting was present in the case now whether the this or was yes based on my analysis of the bank accounts and detailed analysis of the account balances and deposits in this christmas there was a pattern of activity among these web together and what the government says is that it's harmless because there was a practice cross examination but once the expert witness gets up there and says that the central issue in the case is decided anyone else why can anyone else the side that was checked well i think if the jury was allowed to make that decision without the expert saying that it was that's a fair that's a fair different than any of the tell you what you might call modus operandi type of i think it was just the question is what you observed consistent with shaq and if that was the question that he answered i think he was committed to answer that question but he didn't answer that question the question that he asked is was tracked fairly present in this case that under under was uncertain it's a question plainly designed to talk about the mental state because he had already define asked this question and there's a timely objection to it and here is permitted to answer these central issue in the case if you recall that the government rely on this expert testimony  then the closing argument there are three pages of argument that rely on duff's testimony he did as as i read the testimony here the government did not rely on this particular answer in the  but i think you can ring that bell and that's why i was objected to and that's why we say it was a violation and i think it's particularly important in a case like this where you have lots of testimony for example from karen smith about the fact that she came up with the idea that have all these margin accounts she came up with this idea that benefits family media because it was a big client and they knew all these well all these checks were and you have a completely consistent testimony from mr gordon believing that there was more than enough stock in a publicly traded company to cover all this and that he wasn't writing checks for insufficient funds and that when he was ready choice between accounts he was doing dealing with maintenance because the jury could well have believed that and was entitle the twenty one thousand dollars that actually hit jonathan's account at merrill lynch for two hundred thousand dollars the additional two hundred thousand dollars that stephen gorton provided never hidden account because again because an executed route in so it never showed up on its ears report and if there's any doubt about that the court can look at government exhibit three thirty i think it was three thirty years reports three thirty three and parents testified that she the jury could have also infer fraudulent intent from what the things that jonathan gordon knew that he was not supposed to do and yet he did for example he knew that certain that he was not supposed to be allowing checks to circulate between  transfer between accounts so that was less than one point five percent of the time the second disingenuous claim that jonathan raises is that he too like all the other merrill lynch witnesses he didn't know that funds were being circulated between  to support the writing of all these checks and he immediately suspected of having now as a financial consultant jonathan had access to the same information in maryland his computer system and in fact it was his responsibility as a you guys at us bank you have a real reason to be concerned because there's cashiers checks that that are being purchased at your bank they're being deposited at our bank which means that there aren't any real funds and it's just checked going back and forth more importantly a two week hold on all customer accounts and he agreed with one of the u s bank representatives that this was causing chaos and problems for his other customers and that's the governments that strip searching through fourteen forty five two earlier that year he knew that merrill lynch policy required him to show his manager that letter before going correspondence before plant out and he didn't instead he conceals the fact that he ever suggest that that now the court has already pointed out that jonathan has pointed cited some alternative explanations for the evidence for example his claim that perhaps the two hundred thousand dollars was alone in student gordon testified to that or that bank never showed up in the maryland accounts he claims marilyn's may have just lost that fact well that's one inference to draw that that is certainly not the only inference to draw and the issue here is not whether the evidence excludes every single possible hypothesis other than question would fit into this that's the sort of compel there might be something other than that right yes if for example the government had asked something like was there only one asin isn't it true that somebody could have done all of the things that stephen gordon to written all these chest checks circulated them between accounts in order to avoid making calls and the end result would be that there would be conclude and that's only half the game the other half of the game is beyond a reasonable doubt and that's part of the standard under jackson that's part of the standard bishop and we cannot forget the fact that there might be some conflicts in mind was he was trying to help his brother out in a time where there was a lot of turmoil at the company and i think he felt you know basically was trying to help his brother out help a client out during that situation but i think it's important and it's crucial your honor to understand that jonathan's knowledge at that time was quite limited as to what the arrangement was to bring down the margin loans because that was an arrangement made between the principals of stanley media peter paul and  the vice presidential candidate use but in fact that's actually really suggestive of how complex and complicated and convoluted the scenario was right the fact that nobody in the century city office none of jonathan's managers w michelle even or karen smith were involved you know intimately in the case that they didn't see that there was a check kiting going on i mean why would that redounds to jonathan's mess around i mean it just doesn't make sense the fact is that someone else outside who that wasn't involved was able to see that if you're in mashed in this complicated scenario that the twelve business days between mid october and early november all the sudden you know you might lose the forest for the trees right but that's not what happened i mean from jo there is something devious about the fact that jonathan started a new bank accounts at a different bank in june or july well the point is that at that point jonathan and this was the testimony that was uncontroverted jonathan knew that he wanted to so why would he want to have to answer questions you know from his manager regarding money that he didn't have to report under the merrill lynch regulations it was add another account there were many other employees who had other accounts at other places so that it was all if you had a trading account that you were obligated to report this type of information so he has this money why you know think about it from his perspective in june july three or four months before merrill lynch pursuit that takes the cash crunch because of parents mi stake and circumventing the new york directive to not spend more than half a million dollars for the creation of the margin account in june or july jonathan is thinking well you know i'm going to be leaving merrill lynch soon and i don't want to have to really answer all these questions after the government rests that this case against jonathan is really pretty weak you cannot square that with the constitutional obligation to satisfy the beyond a reasonable doubt standard and if that office thank you i would actually of i think there's not a lot of there it's a difficult question i think but but it seems to me that you can sort of take a jury verdict that that occurred before this with some numbers and that there wasn't present intent then it would be just meeting maintenance goals which is what they've been going testified to and what the alternative theory was of the entire case so it's either yes or no either steven gordon is right and he's innocent me and or suggestion knowing that they were controlled by the same people and supported by stanley media stock and what happened is that she had and had had flight the restriction on credit by the new york office and then when that was from mr gordon standpoint at least from his alternative explanation before the jury from harmless our analysis he believed that there was more than adequate credit on the stock that merrill lynch had to cover the checks that were being written and had the checks not been stopped by merrill lynch none of the losses would have occurred at all and in fact they were waiting for forty million dollar infusion of capital from the astor group on december first only two weeks after the plug was pulled and so what was happening is they're trying they had a cash crunch merrill lynch was was causing that that's to be difficult and they were trying to make keep the company alive and meet payroll that's what was going on and from stephen gordon's standpoint he wasn't doing anything fraudulent everything was above board with merrill lynch and and karen smith they knew about the into recount transfers when they was called that they would you didn't do it and so that's what it was all a balance and that was a perfectly plausible legal explanation that i think  means in from the standpoint of this error that once you allow the expert to say that it's tech kind and it it just knocks the rug out of that in turn of explanation tha