please the court my name is valerie carter and i'm arguing today on behalf of the appellant charlie and i would like to ask the court if i may reserve three minutes for rebuttal yes you may thank you  thank you your honor the vast majority of the trial in this case was devoted to the three insider trading charges asserted thank you it will your honor we believe that we have preserved our our position starting with the pretrial conference in which we asked for verification from the government that the false statement claim related to the factual contention that mr chen told the f agent that he could not remember his trading investor print so with that with that verification we proceeded to the trial several days later and the government the government made its opening statement and the vast majority of it was devoted to the insider trading charges the the the judge gave the government a two minute warning and they quickly finished up without even mentioning the false statement claims fact i and then we proceeded to testimony and the st witness testimony was somebody from vistaprint and that ended the day heard her testimony was not completed the next morning before the jury was called back and we raised the issue with the judge that the government did not mention the false statement claim or mention the the in correct false statement claim which was that  mr chen denied that he was close friends with the so called tippers so we believe that we preserved it at that point and it was clear throughout the trial judge that there was this dichotomy between the two false statements or the lives that the government call them one was a close friend statement the other was what we call in our brief the recall statement and there was never any precise definition from by the government to the jury about which of those statements form the basis of count four and we believe that there are of use cases and was a means by which they were they were able an objection that was overruled and you'd be asking us to preserve preserve terror so far the only thing i've heard you say that you raised with the judge is that the prosecution didn't mention in its opening the the statement that was being identified as the lie with or any other objections to you raised to the testimony mentioning other alleged misstatements did you ever say throw shouldn't be admitted or anything like that well it in our opinion the judge was well aware of the what we're calling the lee is let's put to one side mind reading that the judge i have trying to focus you in on a specific question to see if you can counter the government's contention of  forfeiture here is there any objection that you by defense counsel that you would direct us to in the record that is relevant to this appeal i  don't think that there is the words i object were uttered but i think that after the opening statement the colloquy that we engage in with the judge was the was tantamount  to the objection and as you related i might have misunderstood it now go back and read it in full but as you just related it it sounded more like a complaint regarding the adequacy of the government's opening argument than it did like the request to the court that certain testimony not be allowed that you are now complaining of was allowed it's not so much the adequacy our position from the beginning was that in order for us to prepare an effective defense of mr chen we needed to know what the factual basis was for the false statement charge because there was in  the pretrial proceedings a confusion by the government and if we didn't know which of the statements they wanted the jury to consider then it was no not the adequacy of the indictment because the indictment specifically said that the recall allegation form the basis the one and only basis for the false statement but they claim dollar wise at trial and if you look at even after the opening the order of the witnesses the witness that they put on st from the f b i was dealt with the close friends to that testimony because it was still at the beginning of the trial and we still didn't know where the government was going and whether they would end up telling the jury what count for related to and why didn't you just why didn't you just assume that it was as in the indictment that's that's what they were alleging you said that was clear and therefore be happy when they put in evidence on other stuff because that wouldn't support the claim before the jury and then file a rule twenty nine motion and begun with it the jury would never hear the indictment so they never saw the the fact that form the basis of count for the judge did not tell them they recall allegation or really are summarized in so you can probably anticipate my question response in a did you ask the judge to instruct the jury that the only alleged lie was x and they had to find that was a lie and finding other things would be sufficient on that count i did not your honor and the reason for that also is that the burden i believe here should be on the government to not mislead the the jury and i think that's exactly what happened correct that you agreed to the instructions as written hempen and greet instructions yes we did and one of the reasons for that is that if you notice in the insider trading in the struction zz they were all consistently relating to the facts so that the judge would out what identified the facts like the date of the trades what the amount of the profit was and then she would give the instruction but when it came to it and we assume didn't we assume that when she got to the false statement count that she would do the exact same thing that the pattern would be consistent and when she got to the false statement charge she simply read the elements of the false statement charge and did not indicate to the core and to the jury what there you should decide the case under a clearer standard of review and i think we meet that standard also and the reason we meet that standard is that there was so much confusion and sold little mention of the recall allegation and the false statement claim in the trial that the jury could have convicted on the friends statement for which there was an awful lot of testimony and that we believe you don't know whether the jury convicted on the actual indictment and that's why i think even under a clearer review as rare as it may be we meet that standard also one of the thing the government says that the other testimony but other than just leading statements are all relevant to the other count to the insider trading to do you dispute that there was only one other  misleading statement that they pointed to and those were that was whether mr chen denied to the f b i agent that he was a close friend of the chippers so there weren't that myth is not relevant in isn't that relevant to the insider trading climb it may have been relevant to the insider trading claim but you can't rule out that it wasn't the false statement claim either is actually the st place in the record where we would contend there was a waiver so on the nd day of trial the defense attorney noted that in our opening statement the prior day we hadn't gotten to a description of the false statement underlying count four we responded at that time that we had simply run out of time and the record of course supports that that construction  defense then responded that with that clarification this is on page three hundred and sixty five of the joint appendix with that clarification where fine like i said i just heard them say yesterday in the closing meaning opening i recognize that the government ran out of time and that the misstatement was about the friendship so as long as we know how to argue the case i'm fine so that was the defense position concerning our opening statement and then we go on from there to point out a series of other waivers that occurred both with respect to the jury instructions not sending the indictment back to the jury the verdict form the failure to argue defense has to show so that there is a reasonable probability that the jury in this case returned its verdict on count four based on a statement other than the one alleged in that count they haven't even tried to meet that burden either in the opening brief and of course there's been no reply brief and again it oral argument just no attempt whatsoever to meet that prong three burden we would submit that three categories of record evidence bear in extremely intense focus particularly in the government's redirect and in the fence recross and just count the statement underlying count four if you look at page seventeen of our brief we actually quote the the recross redirect of the government and the recross of the defense and you'll see that every single question was directed at that false statement the one underlying count four so that's category one category two is the fact that the arguments also focused on the count four false statement in particular the defense attorney right at the end of the defen closing argument said to the jury and this is it page seven hundred and sixty nine of the joint appendix don't find beyond a reasonable doubt that because he didn't specifically recall you know the vistaprint  recall meaning memory that he's trying to lie to the f b i use your common sense on that one and just after that the defense rests rests so we would contend that by focusing the jury on the reasonable doubt standard in connect in with that very count four false statement the defense is zero in the jury in on it makes it less likely that the jury would have relied on some other false statement in convicting the defendant and then finally the rd category of record evidence we point to is that in the preliminary instructions in the final instructions and in the special verdict form the judge consistently referred to false statement in the singular so we don't have a situation where it's likely that the jury simply convicted cham on the basis that he was somehow a serial liar and also if the case that the count for statement is a more discreet freestanding false statement a singular false statement unlike what we refer to as the relationship minimizing remarks which really consist of a series of assertions in which the defendant attempted to distance himself from the vistaprint executives family so that in a nutshell is our position if the court has no further questions we're happy to rest on our brief waived or we haven't met the clear error the st is that he argued or he argued just know that every question that we asked of agent killen was directed to the recall statement and he uses that as a means by which to say that we were the ones who informed the jury what the basis of the false statement was i don't think that is an accurate interpretation of what our questions were and he said that we focused in on the closing on the recall statement we  we he can't have it both ways if if we if all of our questions to the agent were on the recall statement then mentioning it in the closing doesn't necessarily preclude that the friendship statement wasn't part of the account for and in the jury instructions the judge in consistently referred to the false statement in the singular and in the plural and that highlights part of the problem of the case altogether because there were if the government had just told the jury in the closing that that charlie told many lies and then the judge indicates that in the plural of monk point that there were lies floral then the confusion is carried all the way through so i there there is in our opinion a reasonable probability that the  government or that the jury convicted on the friends statement as opposed to the recall statement and it was done because of the confusion throughout the trial thank you thank you very much concludes the argument in this case tourney card or on a train lockhart you should disconnect from the hearing at this time