matter that mr poses no risk of flight or danger to the community so the sole issue for the court is whether his appeal presents a substantial question of fact or law that would result in reversal or new trial we have two such substantial questions and he's entitled to bail the st one is whether there is a confrontation clause violation when the district court precludes all recross a new matter elicited for the  time on redirect examination seven other circuits have held that in such a case there is a confrontation clause violation and therefore and we're not aware of any circuit that's held to the contrary well that's a very dramatic way of putting it the government maintains and i think with some support in the record that the judge did not preclude recross she said i have a general practice of wanting to have recrossed but i'll consider what comes up on a case by case basis and then there were several specific instances where one or the other or particularly your client sought recross and the judge  ruled no so shouldn't we just be talking about whether in these particular instances there was an abuse of the district court's discretion to control the recross and maybe there was absolutely not your honor for two reasons st of all the government has completely mischaracterized the record if you actually read the transcript excerpts it's quite clear that the district court repeatedly said that she had a rule a policy she said the st time this came up a transcript  thirty two she said i don't permit recross defense counsel then explained why he wanted reclass including mentioning subject matters that had come up in mr dole's redirect that had not were outside the scope of the cross then we want to be focused for example on that because even if there was some sort of prejudice against recross the district judge has the authority to manage the proceedings so the question is was there some prejudice from not getting requests we are fucked if i could i'd like to address that but i do want to make one other point which is that i think the record bears out that it's clear that the judge said it was her rule that she said not for the reasons you described repeatedly when counsel described the fact that new matter had come up on redirect and what these other seven something that just made her disagreeing that there was a new matter that had come up on direct and is that her saying when she says not for the reasons you described making a determination based talk about pick your best one yes the best one and explain why it is important that there have been for us on that issue the most significant and we think they're all significant but the most significant by far was what happened during mr dole's redirect that we were not allowed to recross on and it specifically there were two topics but the most significant one was his mention of this concept of thor's guys and that mr of had supposedly had had knowledge that mr sure  supposedly had guys who were a guy who was a corrupt broker that was the key issue in the case whether mr hooja was aware of this the jury not only asked for this don't mr dulles testimony but asked for highlights relat scope this was not introduced on direct it was a response to something that happened in the cross but i understand the point about that in the transcript it seems like the lawyers were taken by surprise about the policy in cross but th exhibits but let's just go back to i respectfully submit that's enough to show that the government can't prove harmlessness beyond a reasonable doubt the jury focused on the issue the government mentioned this no less than six times in the what's more the supreme court in delaware van our view van arsdale with chief justice rehnquist writing for the court said that the harmless error inquiry is whether assuming that the damaging potential of cross were fully realized the reviewing court could say that the error was harmless beyond a reasonable doubt and i respectfully submit there's no way you can say that when the jury clearly focused on the issue the government argued in summation and the central issue in the case was whether mr hooja had knowledge of this court my name is justin waddle i represent jeremy shore on appeal i did not represent mr schorr below i also would request that i be permitted to reserve one minute for rebuttal just as with mr a hoosier there is no dispute about any risk of flight or danger to the community or that the appeal is for purposes of delay the only issue here is whether there are substantial questions and we've joined to mr a who has two questions explain to mr hoo motion and we've also explained to in our motion and we submit that they are substantial questions mr sure's defense was that he worked at premium point he  that the valuations were within the realm of reasonableness and when they started to become further and further from where he saw the trading in the market he did what he could to try to stop what was happening this defense was based on a lack of intent to defraud lack of the specific intent to defraud and a lack of a conspiratorial intent as part of that he attempted to prove that he recorded on his own volition secretly conversations with people at premium point in which he said the marks are high marks are eight or nine percent above where i see the market we're how we're high and they also captured case that they're hearsay and i would urge the court to take a look at the excerpts they're included in exhibit eleven you're going to say they're not offered for the truth because when he says the marks are high he's not offering it to prove that the marks  correct he's offering it to show his own state of mind that he lacked that he was not but it's his own state of mind that he is representing in effect to the person he speaking to right i mean know he's are self serving recordings they're not they're not respectful your honor he's not saying i don't understand valuation i just go along with what you people say he's not saying you know this stuff is so complicated he's not saying i believe these marks to be accurate those were those might be thought of as self serving statements these are statements where he says the marks are higher than where i'm trading in the market the market is temper sent down that's not a self serving statement it's not a statement about his state of mind it's a statement about the market not offered to prove where the market is that's the government's case and because that's the government's case there's there would be no unfair prejudice let me start from let me take a step back he's offering it not for it's truth of those statements are not subject to cross examination they're not offered for their truth and therefore they're outside the rule against hearsay sometimes subject to cross examination i mean this whole thing is conducted these conversations are being offered to avoid his testimony that that's not correct your honor these are real time recordings of his interactions with people a premium point in like if we if we flip this over and and think of it from the other side in every case where the government has recordings they play the recordings because that's the best evidence of how these people are interacting and it shows a lot about their relationship their conduct the things they say to each other whether they have conspiratorial intent whether they have that kind of relationship and and because those are statements of a party opponent and these are statements of the party and but they're not offered for their truth and i think that sometimes talk to the compliance officer that you're offering i it sounds like you're talking you're saying it's relevant or because of the substance of the interaction or what he was saying it's it's relevant for both purposes the compliance officer came into office of if it's miserable for the mere fact that he had this conversation how does that support your case like it was that probative of his because well to take the compliance officer example a normal coconspirator doesn't go to a closed door meeting with a compliance officer and so there are levers there are ways to fudge the valuation we're getting pressure from a partner that is we could argue about it the jury might decide well this is a weird coconspirator he did something weird but we're entitled to prove as part of our defense that he did things that coconspirators may not typically do and we're entitled to put that in front of the jury and make an argument about it the government blocked that defense and the district court played along with it and the statements were not offered for the truth in fact the government opened on the fact that he was pressuring partners so there is even if so sometimes when statements are not offered for their truth they're nevertheless excluded because of the that the jury might take them for their truth which would be unfairly prejudicial there's no unfair prejudice to the government if the jury were to take these statements for their truth because they prove the government's case they were they were essentially a concession by jeremy sure that he knew the valuations were off the market so he's conceding knowledge in order to put on a defense of no intent and that defense was completely blocked by the good morning may please the court my name is max nicholas i represent the government of the spiel and i was one of the attorneys representing the government at the trial below if it's ok with the court i'll start by responding to counsel for ho recross issue in particular the issue of ashish delays testimony i think just putting this in a little bit of context is important with respect to that quote unquote shores guys are shores boys point so that this was a six week trial and i think the majority of the trial and if not the majority a huge percentage of the trial was cross of cooperating witnesses and i believe that the cross examination mr dolet was to were two and a half days on cross examination examined thoroughly skillfully and extensively on who she has knowledge of the fraud who just conversations with ollie about the fraud their discussions about how the fraud worked so the notion that the district judge violated her discretion by considering that a line about shores boys was not substantively new was not a departure from what had been substantively discussed already in direct and cross is incorrect that was not a understanding from both her remarks prior to the commencement of the actual evidence when she was instructing the jury and as these things came up was that she had a general a general policy i think was her way of putting it against recross but that she would consider did no such thing the government simply response used redirect to despond respond within the scope to what was elicited on cross examination and in fact that's a good that that's a good segue into a question that i wanted to answer the judge scope of mr dinu cheese cross he was asked over and over about whether jeremy about about whether jeremy shore ever who who jeremy sure meant when he referred to his boss whether it was me me g d or his bosses is plainly within the scope of the direct and the district court needs the ability what about documents themselves in effect can't they be cross examined once these documents are introduced maybe there is another take on what those documents mean why shouldn't the defense have an opportunity to ask about those pacific documents in other words the sequences yes the witness testify this is what the situ ation was this is what mr hu jin knew and so on this is what boss meant then this cross examination no it isn't no it isn't no it isn't and he maintains his story on redirect the government says up and lays down a trump not here we've got a document that shows that this is what it means that's a pretty big deal and it's not that it's improper it's not that it's beyond the scope of the cross but then why shouldn't the defense have an opportunity to document is a deuce of trumps you know it's a little trump it's that's where the government offers it is because it bolsters the direct it wreaths you look across but if it's only if it's not a real trump if it's only a deuce maybe they've got a three to two that respect what i would say is that is the function of redirect redirect is always going to attempt to reset cross to get back to the points elicited on direct and so i then you have recrossed the trial would go on forever i think it was within judge bayless discretion this is it this is tried many a case of the lawyer as a judge and there's usually recross and the trial somehow comes to an end and not still trying those cases from years ago today and they come to an end because usually there's direct when there's cross the cross typically is longer than direct in a criminal case there's redirect briefer than  have recrossed if that's what was said and what we want to i don't i don't think the judge said we are never going to have recrossed i think she exercised discretion on the factual issue with in this instance marks were out of the market range but to show that he went to the compliance officer and somebody who's gotten involved was because he doesn't do that soon why is that not relevant evidence and wash and that have come in you want a couple he below counsel for mr shaw referred to that recording the compliance record and i think for the reasons your honor is is is bringing up as his chief quote unquote chief recording that's the one he really wanted in we consented to that coming in the whole point of consenting was to resolve this issue of you considered to it after his record decided that all of that was hearsay so i'm asking was that germination i mean if if using it should come in not because as i care about the truth of what he's saying on the recordings but from the fact of the example when one looks at the transcript the transcript seems or self serving it's not the so you're saying that it could prejudice the jury if the self serving statements come in but you're not saying that he wants to admit it for the truth of the self serving so you know i think you are respectfully i think that that is that was the functional purpose of why they wanted it in for example the statements included things and i'm not quoting word for word only clear but the substance of the statements included things like mr schorr saying well it's a gray area that that that that that is a self serving statement made when he olo know is that he's recording himself and you know he can then hold that up to the jury it's a gray area that's not consistent with a jury charge jury charges i knew i was doing something wrong shows at the time i thought it was a gray area i was worried about it i wasn't really sure what was going on and so and so somebody who's conspiring to do the thing doesn't do that so so we're not actually not actually admitting it for the truth of the idea that it's a gray area right you know i think i think that he is i think the substance of what was said on the recording is the reason he wanted to put it before the jury and i think the mere fact of secretly recording oneself would not be relevant to guilt or innocence one way or the other without the substance what was being said but in any event we let that sheaffer corning in and for any and in any event this issue of the chording is in our view has been waived and we believe it's it is a true waiver they made a listen agreement that if what we're doing right now would not be th i just have three quick points st and most importantly so question for this court is whether we presented a substantial question we don't need to show that we're going to win on the merits that's for the merits panel and  secondly with regard to whether the district court was exercising discretion she said repeatedly things along the lines it is my room i don't allow cross and i think in the reply papers at footnote four we've cited a number of other cases in which the same district judge has said the same thing i think it's fair to say it is her rule and her policy and you can't the cases make clear that discretion only comes into play once the there is an opportunity to cross examine on the particular matter lastly i do want to reemphasize the point about shores guys my adversary tries to say that dolet and the other cooperators were thoroughly cross examined as to them and that is true as to the matters that came up on direct it is not true as to the source guys or those two exhibits that came up under new she's and with respect to shores guys there was no document corroborating the testimony of dole a or machine to the co op the cooperate in the district judge that was thoroughly impeached indicating that mr a who had any knowledge of that corrupt broke so called corrupt broker thank you thank you i think what's critical about the curtailment that was placed on the use of the recordings is that the government was able to instead of what about the fact that the main thing that mr nicholas argued it seemed to me was not so much for things your honor mr nicholas said that it was a true when you for the government waived the true waiver argument and we've put that in a footnote in our brief so i think even if there is a waiver we're in plain error of you and i think it's easily satisfied here because the tapes were not hearsay they were not offered for their truth where did they waive the waiver in their opposition to our motion for bail they argued that because of the that are taking place in the district court the exclusion of the tape recordings were subject to plane air review so we're not in the realm of a true waiver we're in a forfeiture around and they've waived the argument that we're in the realm of true waiver honor but if they haven't then how does it become a waiver for us because we're supposed to be predicting is this is substantial issue for the merits panel right but that's a substantial issue in itself i think it actually is a substantial issue in itself is  whole import of this waiver colloquy on whether there's a valid and effective way for i have three responses the st is that the decision had already been made and it was final under the rules of evidence that decision was conclusive and preserved for appeal before any discussion of waiting for occurred nd the purported waiver was not voluntary because under the circumstances in which it was is extracted the district judge had conclusively ruled no recordings are coming in and then started to bargain with mr sure's counsel about his appellate rights and think in those circumstances it's not a voluntary waiver when basically someone is being told you're going to have no defen or you can have a small morsel of your defense if you give up appellate rights rd mr shore's counsel expressly reserve the right to to use twenty five dollars identified excerpts of the tapes that a multi month period of time they're set forth in his letter which is the c f one hundred and ninety nine dollars it's exhibit eleven which is attached to our reply brief those statements are clearly not offered for their truth mr shaw was blocked from using them the critical difference that took place there for was that the government was able to argue based on completely inadmissible hearsay that was admitted not for its truth without limit instruction but then the government in some asian expressly relied on it for its truth they were able to argue that there was a single episode of mr schorr complaining about the marks on december th two thousand and fifteen and that it was related to his bonus that is false it's not what happened what happened is that mr schorr was complaining about the marks from the middle of two thousand and fifteen through the time that he left premium point and if he had been permitted to admit and use the excerpts that have been identified in his letter with his cross of majority he would have shouldered a multimode the period of time in which he repeatedly said the market is said no he would have been able to argue that for months long before bonus season mr sure complained and spoke to both  fact that where he saw the trades was substantially below where the valuations were that was not offered for its truth he could've been wrong right what it what if he was just not very good at valuing things or not very good at reading the market and he was wrong and the market was forty percent down or the market was up five percent either way he was not engaged in the missed marking conspiracy or he was entitled to put in an evidence in order to prove fairly present to the jury his argument that he