trial court st the government never should have been allowed to introduce before all four didn't concerning the events at the jury conventions in miami and las vegas the case was b and the trial and the fraud was e i don't see that miss a broom of in particular but even mr murtha was shown to have done anything that was criminal to any of the people with whom they dealt in miami or las vegas crime something that the government isn't titled to offer as bearing on the credibility of the drones which is yes and i agree that they can essentially present evidence upon the credibility of their w though then are you saying that there should have been a limiting instruction i think the evidence shouldn't have come in the way that a ten men ultimately she was allowed to have by our defense counsel's objection and frankly whatever value that there would have been was already elicited there was already testimony that mr maraton presented himself as a member of that he had your client would namely at that point knowledgeable that the check would bounce with involved in some kind of fraud and we offered it because we are going to test more that he waiter warned that it did bounce and that that was evidence that he knew that they can pay for the diamond i would argue that was then given a temporal context based on how it was presented by the very strong imprint mr maraton was intact involved in somehow perpetrating a prod here domestically against merchants and at the miami jewelry shop and that's what makes it particularly problematic wasn't the check paid eventuality so the under mr as mr know kind of testified it was not  mean comes up all the time and i've never understood it so maybe you can help me this time the government the government has some evidence in the form at least as has been mirth as he said we know what's going on but mostly aren't they arguing from circumstantial evidence that anybody in the position of the defendant would have should have must have known based on all these red  that the people they were working with had no intention of paying for the time now again whether that director not isn't that the argument they were making you know that i agree with you i understand your hono f g red flag these defendants must have actually known is a different thing than an argument that asks the jury and you don't even have to make that inference not to make that for the fallback arguments of willful blindness so here the evidence was all focused on actual knowledge and so their argument with respect to these red business they were appraisers and if you look at the case thought that the government cites for conscious avoidance ultimately it's those defendants knew and  stated that they had suspicions they had that there were problems that they recognized but they sort of close their eyes you know the whereas there's there was no such evidence here it was all that the evidence was directly that in the hypothetical that you described sure but there was then why not why isn't why isn't that so when the judge gives the instruction a front that if you find this particular set of hypothetical actually say in their own mind where in this book a bunch of guys who don't plan to say that they were the only reason they didn't say that to themselves is because they chose not to say that to themselves they chose the blind themselves the red flags because there must be ultimately some sort of some sort of a factual connection between the theory as charged and the actual evidence if there are very sample if there's no indication that maritime damage maritime restraint from all actually caused their eyes to anything in it that's never been a duty that was never elicited that you know they had they had some sort of suspicions that they disregarded the conscious went into struction but here there was no such factual predicate and that's why i keep falling back on the phrase ultimately it was they had actual knowledge and accordingly that's what they're in is where the instructions time i know they did argue some of the submission but no one in that one letter but in terms of what they were argued to the jury were they were arguing over and over again that they that it was knowledge from the beginning that there be no they want to argue that all the like did they know these people where they all are the same group and up the why would you say that to someone the government could argue i think why would you say that if someone unless you were trying to get them to do immediate loss followed by the victims be made whole sometime down the road their defense was we believe these women generating transactions and making the new alternate hard instruction and with them know over the harm instruction has to do with even if they believed in good faith that the people they were working with didn't fend to say they intended that in a timely way this is all they believe this is perfectly all fine why would you call that a  order to induce somebody else to extend credit what difference does it make you are defrauding the person out of out of not extending the credit and even if it does even if the loan is  believe that there would be payment but it's still a fraud if people were in use to buy a line is to make a decision about what to do with their assets that they wouldn't otherwise have  done and that's an interesting argument for a th of may well be perfectly correct of the statement of the law but this is something the jury would have intuited based on something that the government said with respect to what they repeatedly said that is in essence a right to control theory this notion that the merchants had the right to make informed decisions about who they were selling the dogs to and so in that sense the argue it was with one of them by the prosecutor and then i think the instructions contributed to the actually the record is somewhat confusing that during the charge conference defense counsel says listen this is this is not more development goals that we hold our defense all along is that our clients believe that the religion in transactions and in response to this record says you know what you're right i'm morning and made plans to court the panel is absolutely correct the government's argument to the jury was the same one described in the complaint and charged in the indictment the defendants the pain of millions of dollars in diamonds for fraud as part of a conspiracy that they knew would never pay for that but the government at the panel's article pointed out made that argument especially to the jury multiple times mr abramoff theory on appeal that the government argued in the alternative that the defendants could be convicted of a conspiracy to merely deprive the victim's of important economic information was not argued to the jury at all nor was it referenced in the district court's instructions articulate all the different types of harm that had been proven up to that point in trial that is to evidence to the court why it is that the defendant's request for an arrow neophyte legal instruction was already at odds with proof and that letter tracked different types of harm that sort of tracked the effects of the conspiracy in time and so the st harm of course that the conspiracy visited upon the victims was to trick them into doing business at all but of course the government proved in argued that that was merely the st along a continuum that ultimately concluded with an intentional nonpayment for the diamond joint which you can argue for example increased credit risk exposure was was the harm to any increased transactional risk like credit risk that would be a right to control type farm and that it deprived the victims of important information about deciding whether to engage in the transaction at all but of course the government defendant intended to deprive the victims of diamonds and separately the mens rea that was real or quiet for the jury to find gifts what mr brown of attempted to do below was to have the court miss instruct the jury that there was some not intent to defraud but for him intent to steal that they were required to find for his guilt and it's in that context that the government opposed that instruction in told the court that of course that's not the law and there's all sorts of other satisfactory proof upon which the jury could find that there was intense of the court asked questions about the a no ultimate harm instruction that instructions language came from language the parties jointly proposed that that docket three o three and although there were misgivings by initial conference there's no mystery where it ultimately ended up before the jury because what happened after that charging conference is that the court allowed in the parties did brief this very issue at the conclusion of briefing the court said on the record in light of what i've now learned about where this is going and what the parties arguments are i've fleshed out the good faith concept and it went back into the instructions and thereafter for two or three days the defendant had repeated opportunities to object and didn't make an objection and ultimately it was delivered to the jury without objection  to turn if i could to the evidentiary arguments mr marotta asserted that the evidence related to the jewelry conventions in the united states was qualit different obviously that is both factually false but also ignores the fact that the conspiracy also operated in the united states out of the diamond district and in fact in las vegas is to actually point it out there was a critical confrontation where the defendants asked the cooperator it was centrally we see this won't be paid ever we know we want you to grease us up so i think that that claim obviously can can be rejected with respect to a conscious avoidance in as the court was giving out the factual predicate was not direct evidence that the defendants close their eyes but enough circumstantial evidence from which the jury could conclude that that is effectively what they did and here the scheme as various members of the panel pointed out at all sorts of different aspects that called out for inquiry the lies about who they were where they work for that they didn't know each other that they would be paired up with people who knew nothing about diamonds working for companies that were just created all those things would be sufficient for a juror to conclude that the defendants had in fact closed their eyes at the panel defendant actual knowledge was so overwhelming as to justify a to allow for the alternative theory of conscious avoidance to also be presented as an instruction and the jury are which they can read it or not british i agree with your honor i would also say that in light of the general lack of evidence surrounding the w component there shouldn't have also been a conscious avoidance instruction the government does not get the benefit of every theory and would like to throw it against the proverbial wall to see if they can get a conviction i think it was a close enough call to ultimately at least raise a reasonable probability that the jury convicted on the basis of a faulty conscious avoidance theory as opposed to the actual knowledge  government is now mary jane in that it had no interest in pursuing the sort of right to control theory of why was a benefit time in defense counsel asked the jury to be instructed that jury would need to find these defendants intended not to say why did the government vigorously object to that instruction and that was in fact the government's theory and of course they were successful in stopping the jury from hearing that it struck me as far as the objection to the no alternate harm instruction  continuing to raise it and i don't think there's any basis in the law for this notion that that objection was not preserved and finally the last thing i guess i would say is as far as there being a constructive amendment or prejudicial variance those sometimes occur because of the instructions provided by the court but it doesn't have to be accompanied by express instruction by the court it can be the presentation of evidence itself which lends itself to that constructive amendment or prejudicial variance and i think very much that's what happened here and was really aggravated by the instructions but it was it was the argument that was thrust in front of the jury forcefully it really cut the legs out of the defense here that good faith defense that we believe the d