the next case is also a battle here in united states versus pur morning they please the court my name is alexandra shapiro and i represent helen david bernstein this appeal presents substantial questions about whether appellant was deprived of a fair trial for purposes of the bail motion we focus on two first the erroneous admission of will for all four be evidence and second the question of will seventeen c subpoenas the district court with respect to the first ish set of issues the district court erroneous lee admitted copious amounts of four four b evidence was extremely prejudicial and which mr bernstein had no fair opportunity to rebut and these rulings allowed the government to create a false impression that mr burstein is a bad person which polluted the jury's findings there's a substantial question whether these errors individually or cumulatively deprive mr burstein of a fair trial now we've detailed four categories of this type of evidence in our papers and i'd just like to briefly discuss two of them the tax evidence and the gamble and i ask you i thought this was a situation where if he was a substantial flight risk  then that's enough your honor you are correct that the district court made a finding that mr bernstein was a risk of flight we submit that that finding was clearly erroneous mr bernstein throughout this case flight and that there are substantial questions i had intended to address both ok i can address the risk of flight first of the court would like me to very briefly and then i'll turn back to the substantial questions  in full compliance of all bail conditions throughout this case despite knowing from the outs that he faced very serious charges and a potentially substantial sentence he took several foreign trips with the purpose mission of the court always he's a u s citizen lived in california for the past thirty four years very strong family ties with two young children ties to the l a community and he even proposed in his motion for reconsideration after the verdict a substantial security package with twenty four seven monitoring if the court thought that was necessary but there's been no indication throughout the case that he had any inclination to flee or you know of scotland with his entire family and to some foreign foreign country so we submit those findings are clearly erroneous and with respect to the district courts the government's representation that he had access to a private plane in fact in march of this year he divested and entities in the entities interest in that plane with respect to the issue the issues if i may just government the government claimed mr bernstein controlled it created a false unfair and extremely prejudicial depiction of mr bernstein as a tax cheat there was no legitimate purpose for this the government's evidence included in its case in chief testimony by an i r s agent who has defied that he focuses on unreported income and money laundering and then proceeded to detail not only the two years of personal terms the district court had previously said could come in but to go on a great length about his opinion that various entities filings were deficient and that they should have filed certain returns but didn't over the period from two thousand and nine to two thousand and sixteen and the defendant took the stand right correct so a lot of things would be relevant to his truthfulness right so does this come down to way whether it's more prejudicial even though it might be relevant to his his as impeachment evidence no i don't think so you are for two reasons number one the i r s agents testimony was really expert testimony which had not for which the defendant had received no notice disguised as late testimony and we've detailed in our papers the case law explaining why that's improper miscible and then on top of that he was not allowed to rebut it he had no opportunity other than through his own testimony which i submit is not enough the uncorroborated testimony of the defendant he wanted to put on an expert to explain the tax issues and the government created this impression that he should have paid taxes should have certain returns that he didn't and he never had a chance to have anyone and explain why the government's insinuations about these tax issues was incorrect and all of this was we respectfully submit completely irrelevant to the actual charges in the case and when you take it together with the other four or four b s you said i'll just running out of time but i'll just touch for two seconds on the gambling i mean the gambling evidence was totally irrelevant inflammatory related to two thousand and seven and two thousand and eight several years before the transactions that related to the charges even occurred there was not tied in any way to these weston loans at all and then lastly i do want to just touch briefly on the r seventeen issue because i think that that is clearly under the statute in this court's holding in randell a substantial question on appeal it's a novel question this court has never addressed whether the nixon standard applies to rule seventeen issued to third parties and the supreme court indeed reserve that question in nixon itself although it is true that the majority of district courts in this circuit have applied the nixon standard there are several district courts including  very thoughtful opinions in tucker and rajaratnam that we cite in our papers where the district courts explain why it shouldn't apply in the context of third party and why the concerns about beating will sixteen discovery don't apply in that context and if i may just make one additional point i think what went on in this case here illustrates why rule seventeen c shouldn't subpoenas shouldn't be held defendants shouldn't be held to the nixon standard in this kind of context what happened here was that the defendant the government was able to avoid obtaining certain evidence that might have been helpful to mr berg seems defense by not fully subpoenaing for example personal e mails of the two cooperators and then it moved to quash the subpoenas for that very evidence thereby preventing mr burke seen from accessing information that could well have helped his defense so for those reasons we asked that the court grant bail thank you thank you very much  mr imperatori good morning good morning may please the court edward imperatori for the government i represented the government in the district court and i do so here on appeal as well the court should deny the defendant's motion for bail pending appeal on the basis of the evidence and facts before the district court the district court properly found that the defendant was both a risk of flight and a danger to the community the defendant does not come close of meeting his burden to demonstrate that judge castile clearly aerate in making either of those findings that is particularly true in light of judge cass tells finding that the defendant engaged in an extraordinary obstruction of justice which included pervasive perjury both before the jury as well as the f c c and prior testimony and even attempting to create fake backdated documents for introduce to introduce in his own defense at trial there was no basis to disturb these findings on appeal now because either of these findings the finding that he is a danger to the community and the finding that he is a flight risk either one is dispositive to this question before this court the court does not need to reach the question of whether there was a substantial question of law in this case but even if the court reaches that issue none of the issues raised by the defense either alone or in their aggregate warrants reaches an abuse of discretion and in any event in light of the overwhelming evidence of the defendant's guilt which included the testimony of two cooperating witnesses e mails containing misrepresentations and bank records showing misappropriation a victim funds any errors harmless let me begin by addressing the risk of flight argument it simply cannot be said on the basis of this record that judge castile clearly aerate in finding that the defendant was a risk of flight that finding was based on a host of factors first of all the extensive obstruction of justice in this case the return of the guilty verdict which judge castile found significantly changed the landscape here the fact that the defendant had access to significant we that he had access to multiple private aircraft the seriousness of the charges are serious says that he no longer has a aircraft the owner of that claim is improperly raised before this court your honor and that claim is false there is no evidence of it the government has learned that this aircraft a twenty two c gulfstream jet is currently registered according to f a a records to shell company called f p world of which the defendant is an officer so even if the defendant raised that question before an appropriate forum in the district court the defense the government would show that the claim is wrong in any event before judge cast l the facts demonstrated that the defendant had access to multiple private aircraft he used western funds to fly on at least two private aircraft he also traveled on multiple private aircraft in recent years so it certainly cannot be said that judge cast clearly erred in making that finding and of course that was only one basis for finding that there was a risk of flight and the court also of course found that the defendant's proposed bail package would not mitigate any risk  that the defendant could move assets to another jurisdiction and relocate there was seven security your honor to judge how still considered fully consider that and was well within his discretion in in concluding that was not appropriate here he made two important findings that are relevant for that first of all he found that that proposal would not keep the defendant from moving assets off shore and relocating it also would not preclude the defendant from continuing to do business while he was out on bail that was the basis of his assets and frozen they are not frozen your honor so he would those are each independent basis for concluding that that was inappropriate of course courts like this court in bonking found that it is not error error to deny bail on a private security package and of course other courts have found that it certainly does not replicate the circumstances of of of incarceration by the bureau of prisons so the judge cell certainly did not clearly error in concluding that that package was inappropriate on the facts of this case at bottom he found that he could not trust the defendant the defendant obstructed justice on a grand scale bail of course that bottom is it is an issue of trust and the defendant certainly could not be trusted to remain out on bail after his extraordinary obstruction of justice in this case was if the court would like me to address the substantial questions of  just briefly address that as well these arguments rests on a number of mischaracterizations of the evidence just briefly on the tax and to piggyback on judge or a status question the defendant did testify in this case the government did not introduce fourteen years of tax returns what the government did is it appropriately questioned the defendant in cross examination about those returns the defendant opened the door to questioning by claiming more broadly as part of his defense that he was illegitimate it successfully you can see in the issue the expert testimony there was no expert testimony judge lawyer that's a mischaracterisation what happened the government  called an iris witness to authenticate two types of records the defendant's tax returns for two years two thousand and eleven and two thousand and twelve which were the years of the conspiracy and certifications of the i r s that the defendant and  that the defendants energies did not pay tax returns those were business records that were properly authenticated under cases like the lente and other precedent of this court that was fully appropriate here the defendant opened the door to admission of those records by claiming in his opening statement that he was genuinely received income from weston the government was entitle to rebut that by showing that he paid no taxes on it and the witness who authenticated those records provided no opinion testimony whatsoever he simply explained what the document showed his testimony did not deal with any specialized knowledge the defendant did not object to that testimony so it's reviewed under only under a plain error standard the claim that the defendant was purported from calling  expert is wrong that never happened judge made did not preclude the defendant from calling the rebuttal expert he never reached the issue and in any event the defendant raised all of these responses in his own testimony and opined himself on the meaning of the tax code so that if she was not is a total red herring it certainly does not amount to an abuse of discretion by judge cast l i c m over my time unless the court has any further questions this motion should be denied