good afternoon your honors henry clingman for pastor trayvon gross who is present in court your honors we are asking this court to permit pastor gross to remain at liberty during the pendency of his direct appeal from his conviction  none of the elements of the bail statute are contested save one that is whether we've raised a substantial question or a close question susceptible to a second answer by this court we've raised not one but three substantial questions and we'd ask your honour's to consider them carefully before granting us bail pending appeal the first issue relates to a admission of coconspirator statements a y that were offered against pastor gross this is a bribery case involving the operation of a credit union the only evidence utilizing the word bribery in the entire came out of these alleged coconspirator statements that were offered against pastor gross after he withdrew from the conspiracy how do we know he withdrew from the conspiracy by the time these statements were offered because  person who uttered the statement that this was a bribery scheme testified at the trial and testified on direct on cross examination that by the time these statements were made pastor gross had withdrawn from the conspiracy in other words the government's take that look when the witness described how the defendant had withdrawn from the conspiracy he was speaking in very practical real world world terms in fact the defendants the excuse me the coconspirators were attempting to draw the defendant back into the coconspirators back into the cone conspiracy at the time these statements were made and in the government's opposition to our bail motion they talk about how these coconspirators were having these conversations among themselves in an effort to reconcile with the defendant if they had to reconcile with him it's only because they had had a falling out over the alleged conspiracy to begin with so these coconspirator statements as this court has found in various precedents should not have been offered under the  once the defendant withdraws from the conspiracy it's a close question it's a question that this court will be asked to answer on the appeal and again we'd ask it to be a basis for permitting pastor gross to remain at liberty the second issue your honor's is a confrontation clause violation based on an extraordinary development that occurred mid trial the only witness in the case against pastor gross who used the term bribery testified that during the course of the investigation the that's the second time you said the only witness who used the term bribery using the term bribery isn't an essential of the of evidence to show bribery one can show bribery through witnesses who will never use the term bribery so when a lawyer makes an argument like that the only witness who used the term bribery that kind of sets off an alarm be very very untrusting of whatever is about to be said let me let me address the alarm your honor the reason i said point out the only witness who uttered the term bribery is because none of the other witnesses were asked any questions using the word bribery or any any analogous term to bribery  statement not to be trusted for the same reason using the term bribery just isn't essential to establishing bribery it is in this case because the defense in this case very few for example very few robbers thieves use the word larceny in their conversation with one another but nonetheless one can prove larceny without using the word orsini i understand your honor but the defense in the case indeed the issue for the jury in the case was whether a bribe had actually occurred or whether this was a good faith payment usually the issue winds of bribery prosecution yet as it did to one of many issues that can arise but in this particular case that was the issue and the point is your honor that as the district court judge found because this witness was the person who described this as a bribery scheme his testimony was essential to the government's case which is why when he revealed in his direct testimony that during the course of the investigation a federal and demanded an explanation from the government as to how this witness had been permitted to take this money and then we were permitted to bring in the secret service agent to testify about the circumstances but after a mere few minutes of questioning we were told we were no longer permitted to ask any questions and thus confront her with a prior inconsistent statement that she had made about that very that very issue in other words she testified that she wasn't sure whether she had authorized the witness to take money but she had said quote unquote unequivocally the day before that she had not authorized him to we weren't permitted to cross examine on that basis thank you m issues we raise first number one addressed this cross examination the restricted cross examination of the agent and it the restriction by the judge prevented us from establishing that the agent had indeed the key cooperating witness in this case against my client not only because he used the word bribery but because he was the only person who said that my client had prior knowledge of payments of these illicit payments to the pastor and who had known my client personally and who would whose whose testimony he was the only cooperating witness who had a criminal record who didn't have a criminal record so in this case this witness was critical and the government of course as it generally will do  the truth telling provisions of the cooperation agreement what will happen if you don't tell the truth will rip up the agreement and what does it depend upon the outcome no in this case we had an opportunity to prove with an agent of the government is who knew all about the investigation who understood that at the time that coin mechs was going to close down and that agent said unequivocally she did testify on equivocally i would never have told this witness that he could take money from the corporation but since we weren't closing it down at the time which was her mistake she just did not remember as i recall we weren't closing this business down at the time he can continue to do i would have told him he could have continued to do what he was doing before with respect to the business now had we have shown had i been able to show the law enforcement memoranda that she received the briefings on this operation she would have easily recalled that this business was going to be shut down and then the agent would have said been able to we would have been able to establish that unequivocally she would never have told the key cooperating witness in these circumstances that he could take a salary and a nice little bonus for him self as that cooperating witness testified and told the government in a proper session and then the government would have been left to explain to the jury whether it was going to rip up the cooperation agreement or whether it was standing by this person's testimony instead the jury was able to walk away with the impression which the government wanted to argue that there was some sort of misunderstanding there would not have been room for that argument are we we should have at least had the opportunity to present to the jury that there was no room for any misunderstanding here and so for those reasons i think we present a an issue that did the clincher give any reason for putting the court gave the reason that she thought it was turning into it that it would turn into a side show which she she she curbed the her own the very purpose that she said that that the way you were questioning was moving things away from the issue in this case well it might have had some and you described what the connection was the focus of the jury was being turned so much that this would hamper the jury in focusing no isn't that something where we might or might not agree but is very much in the court's discretion it's it's in this case i would say that it's not in the court's discretion the court's discretion the court understood the importance of us being able to impeach the credibility of a key witness i didn't even get to question i proffered to the judge what i would how i would question it would take a very short period of time just to read refresh this witness is the agent's recollection that this business was going to be shut down and it was very important to the case because it goes to whether it goes to the integrity of the investigation on the if on the second issue which is the bank fraud count and the reason why i think that we have two  major two cases that are critical of the supreme or it's cases in shaw and walker and in the shah case the the bank fraud statute was prosecuted under subsection one and the issue  was the defendant's use of a account holders account numbers to fraudulently transferred funds his argument was i didn't defraud the bank i defrauded the account holder the government said i mean the court says defrauded the bank too because the bank had a property interest in even as a belief in the account holders account the did and so the difference here though ok even though it's being prosecuted itself from a willing seller and the bank was deceived by as to the nature of the transaction but wasn't defraud wasn't deprived of any property by false has property interest is superior to everyone else except for the account holder here the account holders property interests are superior so the account holder had the choice to purchase  to purchase the bitcoins the bank was deceived but no one was deprived of any property by fraudulent statements and very much thank you  please the core good afternoon your honors my name is daniel noble i represented the government below and i represent the government on appeal the defendants bear a high burden to obtain the relief that they seek not only because there is a presumption in favor of  after a conviction and sentencing but also because of the nature of the claims that they face here with respect to the evidentiary issues that are called the special agent buyer curtailment issue and the coconspirator statements issue both of those will be reviewed subject to harmless error and even if there were any error and were not conceding that there were this court would have would necessarily find the those errors were harmless in light of the overwhelming evidence of both of the defendant's guilt in this case we're talking about our bribery scheme in which the quid pro quo was laid out in documentary evidence specifically e mails among the coconspirators including mr gross there was in fact a co op cooperator a who testified against both defendants other than mr four ain't and that's mr hill's testimony and urged the court to review that testimony because it directly implicates both mr gross and mr ford and in the conspiracy even if mr hill does that i think that's a distinction without a difference because under that analysis the court would necessarily have to draw all inferences in favor of the government including credibility determinations and the cooperators testimony is corroborated by not just the e mails i referenced but also text messages and a recording including the recording in which both of these defendants participated in which they discussed paying an additional fifty thousand dollars bribe in exchange for control of the credit union  the court certainly needs to take the evidence and like most favorable to the government on the issue of sufficiency are you saying that we need to take the evidence in the light most favorable to the government on the issue of hormuz well with i apologize i misspoke to that extent not on harmlessness the court would have to look at the full the full totality of the evidence in determining whether or not there was sufficient evidence to conclude beyond a reasonable doubt that any error would have been harmless in any event with respect to the coconspirator statements issue we believe counsel for mr gross has defined here you have an additional burden because they don't need to day to prove that it was they need to prove to show that there is a significant chance of its be found not to be harmless assuming of course with their reserve which is another matter but all they have to show is a significant that there's a significant chance because with respect to the coconspirator statements issue they defined the conspiracy way too narrowly they defined it as a conspiracy to commit bribery but there were two are at least two other objectives of the conspiracy that were charge which were to deceive the national credit union in ministration and to make false statements to the national credit union and ministration and that conspiracy clearly continued through two thousand and fifteen because the entire success of the endeavors that they were engaged in depended on tricking the a preventing the n c away from discovering the underlying scheme because even if mr gross broke off from working with the collectibles club with mr lebedev and mr murdoch go he continued to work with cap charge who judge nathan reasonably and correctly found was a coconspirator from the outset of the conspiracy they continued to work together and in order for that endeavor to succeed they had to continue in the original objectives of the conspiracy which were to deceive the  weigh with respect to the special agent buyer issue that again is that is also not a substantial question first of all judge nathan did not even she had the discretion to deny their request to call her in the first place as both extrinsic evidence and falling outside the scope of impeachment by contradiction but even if you know she given that she decided to allow them to call special agent buyer it all timidly as judge nathan found turned into a side show the defendants agreed ex ante to certain limitations on the questioning and they but they did not limit their questioning to those limits that they themselves agreed upon and judge nathan was full fully within her  client was prosecuted only under the second prong of the section thirteen forty four which only requires not an intent to defraud but an intent to obtain money or property from a bank through false representations  or omissions and that's exactly what occurred here mr price men i believe conceded his defendants or his defendant and this coconspirators deceived the banks they lied to the banks in order to convince the banks to process the  transactions and in doing so they tricked the banks into releasing funds of their customers that were on deposit at the banks and that's sufficient under the supreme court's decision in law fron to to to uphold the conviction on the bank fraud statute under the bank fraud statute i also wanted to raise just one last point with respect to the other claims that would be subject to did novo review and that would be the constructive amendment claim that late that raises and then the sufficiency of the evidence on the bank fraud and wire fraud those claims even if the court were to find that there was there was error with respect to those claims under this court's decision in randall the because the defendant's convictions on other counts with which they were charge would stand that would be sufficient basis alone to deny bail pending appeal so unless your honour's have any further questions we would rest on our submissions just quickly the clerical question the status of each of the defendants is one your honor this court granted their motions for a stay of surrender pending the outcome of this motion for bail pending appeal oh except for except for mr merge who is not appearing today he is incarcerated and he is appearing pro s