so both at the district court level and here before this court the defendants have conceded on multiple occasions that mike mayer was qualified to testify about how call options trading works and and to provide a factual analysis of the defendant's tradings and we respectfully submit that on the basis of those concessions as to his qualifications and what he can testify to that the vast majority of what is at issue on this appeal should be allowed to be presented at trial in this case and that includes all of these sub opinions within opinion sides that are at issue in this appeal those sub opinions deal with factual analyses of the defendant's trades and there are certain some opinions that we have identified that we intend to use on rebuttal and those opinions have to do with factual analysis of the trades and explanation of how call options trading works and so respectfully on the basis of of that we believe that all of the issues in an opinion five should come in and so that leaves opinions three and if it looks let's not let's not leave opinion five yet i want to make sure as i have to say following what is in and what is out in this case has been difficult for me because it seems to be  the sand seems to keep to be shifting can you take a look at i think it's opinion five so of opinion five you're saying that is no longer you're not seeking to admit that anymore some opinion opinions when there are fourteen year old and you're appealing the exclusion of all of the sub opinions are always so we are appealing exclusion of some opinions one through forty six through eight and ten through thirteen that we created a chart to try to track all of this so that's my charge consistently so those are the issues and in opinion five and again we respectfully submit that those are factual analyses of the defendant's trades that were excluded and the district school district court order on those some opinion should be reverse now going to the court made a pretty broad cursory ruling that are relevant but the expert isn't qualified to render the opinions what is it that you're asking us to do reverse and then go through each category of police say well we disagree with the district court but there's a lack of qualification here open remain on the parties and the district court can sort it out that's what this district judges are better equipped to do but we are requesting that the core reverse the district court's  ruling to exclude the opinions at issue in this case so our request is that this court reviewing the record which we believe is fully developed reverse the exclusion of these specific opinions that issue in this appeal and we believe that based on the record this court can reverse that decision and there would be nothing left for the district court to do as to the specific opinions at issue in this case that should be a company that w honor we are appealing the exclusion of evidence so we are taking an interlocutory appeal to exclude through to appeal the exclusion of the evidence so it's our view that a reversal has to these specific items that we have identified in that we are appealing that reversal would follow that those are  three yes your honor so moving now to opinion three we believe on opinion three based on really the same concessions as to mayors qualifications to testify about how options trading works and to provide a factual analysis that the majority of opinions three comes in as well because if you look at opinions three almost all of opinion three is a factual analysis of that event as trades and looking at how different the different features of the call options they use resulted in different profits and so really now than only arguing about i think a handful of sentences in opinion three and those handful of sentences are where might merit the phrase certain things and use the word probability or have used the word lightly and as we have repeatedly stressed both below and in our papers he's not providing an empirical analysis of how traders behave he is providing an explanation of how a rational trader can increase their profits using the futures of call options and that's explicitly what he says in opinion three and the specific sentences  that that the defendants have identified i think a really taken out of context when you look at the paragraphs of opinion three where he is discussing the economic incentives the traders have and the risks that are involved in trading in call options and so he's explaining how a rational actor can increase profits with if they're anticipating a materially positive event in the future so for example if they are anticipating  materially positive event within the next two weeks might may or can explain what call option features what irrational trader use in order to increase their profit and that really is the framework that the trying to pin down exactly what the government once on this appeal has frankly been a little bit difficult in part i think it's a bit of a moving target the entire purpose of smears testimony below was to draw conclusions about insider trading behavior based on his characterization of their trades and what insider traders would normally do and those conclusions as i understood from the briefs are now abandoned the government does not say that it's permissible to allow those conclusions but those conclusions are in every challenge sub opinion they permeate opinion three they permeate all of opinion five they are in every one of the fourteen some opinions of the new five and i can list at least twenty eight different instances in which he takes draws a conclusion about defendant's behavior about people's behavior in a way that i think i understand the government to say is an impermissible what that means is that what the government seems to be asking for is i'd like to sort of go sentence by sentence in each one of these opinions pull out the things that i think are just neutral facts about trading and distinguish them from the claims about how the defendants behave or what might or might not be indicative of insider trading and they ask you one question about it appears from the record the district judge was concluded everything is out is that exactly what happened heard it correctly some or some summary of what happened with the i would he did not say everything is out but with respect to these two opinions opinions three opinions five  yes and i think the answer i think the reason for that is quite simple he was it was concerned about the ultimate conclusion is you they don't appeal now but he also spent three hours in a daubert hearing watching mr mayor testify and watching mr mayor testify i think he quite correctly came to the conclusion that that testimony is not reliable on any of these sub opinions that conclusion is subject to broad discretion it should be reversed only if it is manifest the fact that the government now concedes it can't go to the ultimate conclusions given the fact that those ultimate conclusions are in every sub opinion they permeate the whole opinion it was well within his discretion to say i'm not going to go sentence by sentence and figure out which parts of these graphs and which parts of the senses are permissible and aren't the government hasn't identified which ones are and it hasn't done so again on this appeal and the right a reasonable thing to do was to say i'm going to exclude opinions three dollars and five dollars altogether i think that's not an abuse of discretion and it is worth noting that mr mayor can still testify to the sorts of things that the government says it wants him to testify to it he can testify how options trading works he can testify to what trades were actually made those are in other of mr mayor's opinions which were not excluded they will be able to come in and i will also note that in the prior trial against mr agger wall the government managed to get in all of the factual evidence it's now trying to use mr mayer theoretically to get and by introducing it through an f b i agent so the problem here is that well the factual claim of when the defendants traded i don't think we can test but it is not accurate to say that they have got some opinions were not at issue the government does say that in its opening brief forty five dollars but that is simply not true we have acted to all of individual specifics of opinions it ruled on the general objection to the reliability of mr mayor's testimony and let me just be clear why it is we think mr mayer says the money is unreliable this is this is not someone who had a methodology at all this is not someone who used a peer reviewed methodology this is someone who is only a testifying expert he has no experience in this industry and what he did as he himself admitted in the hearing was look to find things that were consistent with what someone would see if they were trying to take advantage of material nonpublic information i noted things that i identified and wrote about were things i thought were important i did you rely on any social science research no i relied on my experience province of an expert but then the experts have it saying that now this is consistent with someone taking advantage of material nonpublic opinion that's specifically what he said checked into so counsel offer to the courts of your honor me where i think you draw the line that's the line we're suggesting that he be able to give his expertise read these complicated records do his analysis but stop before that pivot and that's consistent with someone taking advantage of nonpublic information so now and things that she actually twenty six that seems to be a pretty reasonable position that counsels taking look these records are complicated jurors may not have an understanding of it if an expert can read these records and speak to them as a factual matter there's no objection to that but then when the expert pivots of the say well here's the significance of it that's the part that i understand the government has now given up to so why can't we go back to the position that counsel had proffered to the district court in the st instance what's wrong with that i don't think there's anything wrong with that per se but i think the way to do that is to affirm all of the factual information about trading is the  to section in the report like section four three opinion four three he can testify here's what trading happened the problem is that in opinion five in an opinion three he takes that data and mixes it together with his infinitely malleable views as to whether or not it constitutes insider trading and i think the district court was well within its discretion to say that opinion is impermissible because every one of those sub opinions is tainted by those opinions and so when mr mayer says picking options is something insider traders do but then later says not picking options is something insider traders do picking the highest option prices consistent with insider trading picking the lowest prices consistent with insider trading becoming the most profitable option is consistent with insider trading not picking the most profitable option is consistent with insider trading or all those opinions self contradictory are bound up in opinions three and fall i've and the right thing to do i think is to say  i think that maybe the government and the defendants are not that far apart in what should be done but if that's right if the answer is he can testify about facts but he can't testify about do these facts indicate insider  objected to now if we think the talks had or should be written that the order should be reversed because it was so blanket one remained and do you do you still want the opportunity to make these arguments you're making now as to some maybe and some may be out or do you think we'd be justified in requiring the district judge to admit everything the government now wants to admit well i absolutely i think we want the opportunity to remain and i  know that as the government's concession in the brief which does bind them indicates you can't simply say we'll let in all of sub opinions in five because a bunch of those are bound up with ultimate conclusions that they now concede government's own concession and under rule four hundred and three which the district judge never had the opportunity consider and the last thing i guess i'll say on that point is i think that this court can reasonably conclude that the district judge already exercise that discretion and yes there was not a full opinion that explained why but the district court could reasonably have said i see the line that's being drawn here everything in three and five is tainted it's permeated with all of these opinions the government now concedes are impermissible we'll just let him testify about  some of the arguments you know in terms of defense counsel you know explaining that they believe that it excluded all three dollars and five dollars but that somehow we'd still be able to get the actual analyses that are set forth and there in a trial i don't believe that's the case and that's why the government had to take the appears appeal in this case was because they had taken the position that it excluded all three and five and this is very important evidence for the government the trial we believe is very order and it was a very significant ruling for our case which which we took the appeal and so in terms of the consistent with insider trading opinion you know we recognize things that would be beyond the factual matter well found a couple of sentences where in the record do we go to look for what sentences the government believes this is truly an issue yes your honor that would be  the argument in this case the matter submitted for decision thank you