please the court alex solomon for the government ever served two minutes for rebuttal in this case the district court's decision to hold as a matter of law that embezzlement as to all the funds into escrow accounts had occurred six days after the defendant in this case filed his referee report to the kings county clerk's office was an improper intrusion into the role of the jury as fact finder the jury should have been allowed in this case to determine when and if the did that the defendant in this case demonstrated the intent to treat the funds contained in the two escrow accounts as his own in this case the surplus funds were due according to court order five days after the falling of referee report and the district court held that the embezzlement of all the funds in both accounts had occurred once the defendant was one day late six days after the filing of the referee reports isn't there another way to look at her her ruling i mean that we have a whole period from the time of the deposit on both of the transactions until later in into thousands and up until two thousand and eight in which periodic withdrawals remade mean that prosecution began a twenty thirteen the count back five hears before two thousand and eight the not we wouldn't have to agree that it was on day six that the offense was complete but certainly the and it would have been from our view improper for the judge to hold that as a matter of why there's been intent to steal all the accounts contained all the money contained in the two accounts through you know whether it was being six you construe her ruling as a finding that no reasonable jury could have found that there was not intent to exercise dominion and control over the two accounts as reflected by the periodic withdrawals i mean looks like the defendant was treating each of these as an a t m machine the monies were not deposited in the bank accounts that have been designated it's true that the each had referer receiver after his name but there's nothing else that i could see in the record that suggested that there was any restriction on his usage he had not complied with the obligation to return the funds after day five but even recognizing that there may be a period of time in which negligence could be a reasonable explanation the periodic withdrawals over the many years that passed until two thousand and eight between the deposit of the funds suggests that he was exercising dominion control he converted the property to his own use and the district court was finding in essence that no reasonable jury could have found  otherwise that all of the elements of investment had been satisfied and that that was apparent on the face of the indictment i'm having trouble understanding what's wrong with that analysis yes well first of all your honor that's a rule twenty nine analysis which would be appropriate after the jurors heard all the evidence in this case we strongly disputed that there had been a full proffer of all the relevant facts in this case i think it's helpful to look at the two hummel case out of the district of maine in which a few do barry put funds into escrow and then made checks to himself both out of statute and statute and the court in may and the district court of maine held that the first of all that each of these separate transactions in which the defendant had conveyed monies to himself to his own account or for cash or separate conversions so that's one thing to keep in mind and the second thing to keep and i could see that if the if the fund initially he had not been controlling but again he deposited in a bank account that he wasn't authorized to deposit in and even the indictment says that between july one thousand nine hundred two thousand and eight he embezzled these funds and he was you know the regularly withdrawing amounts starting in one nine hundred ninety eight i think for the for bill street a surplus account so there was there was no way in which he was not exercising control over that money then yes your honor well i think well first of all if you look at the eighth avenue account as of july two thousand and six when the defendant approached and asked him for money so that he could replenish the accounts from which she had converted funds he had only taken twenty something thousand dollars out of that account out of eighty thousand so that why is that is that still not completing the crime i mean he the money wasn't where it was supposed to be he was supposed to have returned he was a lawyer where if that obligation and he was withdrawing the money in the embezzlement was complete as of the time he converted it to his use it's what he subsequently did with that helps establish that firmly but wasn't i where into the defendant's personal account you know sort of automatic deposits each separate conversion involved unique set of facts for example there were times when he transferred money to his account there were times when he of limitations had been submitted to the jury determined that the conversion was complete when the money was deposited into a different can of bank than it was supposed to be used right if that was an effort to  offered a trial that this was an incredibly sloppy of lawyer secondly it's worth keeping in mind that these funds were held in escrow even though he wants them around the bank they're fundamentally held for the benefit of the kings  when you say he held in escrow the only designation is that the name of the account it's john l sampson either r c v or i forget what the other one was right but but there's nothing that prevents him that makes it except for that that makes it unlike a personal account it wasn't the banks were supposed to be kept wasn't compliant with the court order in other respects there's there's only in the abstract sense what was held in escrow is because  that he has taken some funds that he had held nest grow he likes replenish them does that mean that the remaining funds in escrow that you know he hasn't yet stolen from his mind have already been stolen i would think is judge livingston's just suggesting that the facts fully support the conclusion that the conversion in the crime was complete early on after he deposited them in the bank where he wasn't authorized to each of those accounts as if they were his own his if the whole fund was for his personal use there's nothing other than your statement that they were in escrow that demarcates them as having been somebody else's funds sure but there was also evidence that it used to trial showing that he in fact when he did open these accounts that we characterize as escrow accounts and on many occasions he did actually remit the funds from those accounts that he had held in escrow which would indicate that he held them as a fiduciary rather than remitted them so sorry so he mr sampson operated as a referee in approximately twenty occasions i believe we introduced evidence that fact at trial and at least treated other accounts you know for example we didn't explore whether he had opened the other accounts and with the incorrect financial situation and whether you know the proper conclusion to be drawn from the fact that he opened a can account with that he necessarily meant to steal those so in some instances he would deposit money into the wrong bank a bank contrary to instructions that then ended up permitting the funds on a timely basis yes and these are all questions that you know that we could have presented to the jury and that the jury should have or solved rather than having the judge resolve this issue before trial is it true that some of the records were no longer around yes some of them of the time that had passed since the original deposit of the records yes like ninety eight twenty thirteen i don't believe it was that long a time frame for the eighth avenue account for which approximately fifty something thousand remained as of july two thousand and six there were some records missing so we were able to ascertain whether sampson had vessel of those monies up to that date up to july two thousand and six or whether he had actually been making payments consistent with  i'm trying to understand the theory in which the indictment charges the investment of the eighty two thousand plus on yes two thousand and eight so looking at those two thousand and six events he with he  e twenty seven five hundred that has already been taken out of the account yes there's fifty five thousand implats that remains in the account and he withdraws it at that time and gets a check payable to two kings county yes the theory the government's theory is that was not an act of embezzlement he had not embezzled the fifty five thousand during the entire time that remains is in his account right and it was not embezzle when he took it out and got that check because at the moment he did that he was intending to remit bracts because the check was payable to the king's county clerk so when did the embezzlement of those funds take place so our view is that the end doesn't it took place in two thousand and eight when he exchanged that bank check payable to the kings county clerk for eight separate checks payable to john sampson personally that's when he demonstrated intent to use the friends affirmatively as his own i'd like to follow up  we have a lot of embezzlement here sure i mean a lot of investment so as a practical matter someone coming to you we for the first time can't help but be struck by the fact that you have felt the need to roam over the legal landscape to find cases that support your interpretation we're as we are the engine of opinions not just us but the state courts of new york what gives things doesn't strike you as a little odd that you don't have second circuit or authority or indeed authority from respectable state courts in our sure well conversion is complete once the defendant sent funds from escrow to his own personal account and i think doesn't work for you completely because i don't think it's to dispositive on the point that we're arguing here i think what i would simply argue or honor is that these are rather unusual facts where you have a fiduciary who gradually over a period of time to head an assortment of unusual things with respect to two accounts actually it's seems to me to be entirely usual if you're talking about embezzlement you're talking about new york here this is what one does to embezzle so maybe not having firsthand knowledge as to investors i would have thought you should have for it that's your inaccurate at the oral argument before judge irizarry the government made the very same statement your honor we have and proffered all facts judge irizarry then allowed the government to make a supplemental submission of whatever those facts would be which the government did which judge irizarry properly found was was irrelevant so as to the proffer issue that that simply does not exist at this point in terms of the fundamental argument that there is a jury question about embezzlement incurring in two thousand and eight the government can not take that position credibly now in part based on its prior admissions first we have the charging instrument in this case which says that investments designated by the court order i think there are dirt two ways to look at it one is that if you look at to see for example and irvine which i'd be happy to discuss in greater detail at the end of the period into see was a five day period in which you're supposed to act if you don't act you have committed the crime in irvine they talk about it as a duty of an immediate payment and a refusal to comply with that duty so just door to the jury i forgot to register for the draft i was busy with my comic books you know you can't you can't hold that against me but that does registering for the draft not that the crime  doesn't it certainly but i do think that there's an analogy that brings however a different point up which is the allegation is not that mr sampson on the sixth day said shucks i forgot to deposit those funds let me do that in fact the allegation as to for bell is that between one nine hundred ninety eight and two thousand and eight when the government says the charge embezzle mintz occurred there was no deposit at all that's a ten year period as to eighth avenue the funds were supposed to be deposited with the court in two thousand and two and in two thousand and eight the government says no deposit had been made so if we look back again at irvine which we submit supports the view that failing to comply with an immediate demand for payment constitutes the crime it also speaks to a distinction between excusable delay and first of all we have the charging instrument which says that investments occurred at the time when the only action was the violation of the court order it was not a matter of funds being withdrawn at all and instead those monies were held in accounts that the court didn't even know about so contrary to mr solomon's argument we can't say those funds were legitimately held in escrow then during the trial the government said to the jury quote the defendant's lying and stealing began quite a while ago the late one nine hundred ninety s or early two thousand when he embezzled strolled hundreds of thousands of dollars from referee accounts that he controlled close quote again in the late one nine hundred ninety s and early two thousand there are no withdrawals at all it's only the failure to deposit money then into briefs to the district who i thought you were withdrawals from the two accounts in the early one nine hundred ninety s no your honor that till two thousand to show as to the eighth avenue account the first evidence that we have of withdrawal is in two thousand and four and as to the fore bell account the first evidence we have with the drollest two thousand and seven now i would note as to for bell although the first withdrawal was in two thousand and seven by the time we get to the charge crime sixty thousand or so of the eighty thousand dollars had been withdrawn which i think underscores the point that the court was making earlier that we also have the serial with drawls during the period in which the court orders are being violated which  further establish intent and presumably is why the government argued to the jury and to the district court where it said all embezzlement were completed by two thousand and six and security charging instrument that tied the investments to the failure to deposit funds the facts are not disputed here sampson was a referee in two matters the statute directed him to deposit funds within five days the kings county supreme court orders directed that the funds be deposited with within five days there were no but posits within five days in fact there were no deposits as i said for ten years before the charge crime on four bell and a client for five years after payment had been demanded the supreme court said the crime was committed when there was a duty of immediate payment and quote a refusal to pay on demand without just excuse close quote the statue limitations was two years the charges were not brought for five years the supreme court dismissed the charges we could hardly have a more authoritative demand in this case than we do we have a new york state statute and we have t court orders that set a very precise date certain as to when payment was supposed to be made but there was a refusal to pay and in fact that referred order in the statute created a legal duty on your client part that the  i'm not sure that that constitutes a demand you know our view a statute any court order telling an individual to make a payment within a certain period of time has to have as much authority as a private party who isn't a principal telling an agent i'd like you to make a payment as of a certain date we don't mean and a demand that is outside the ordinary course when you describe that and the government has described mr sampson his hat managing many different referee accounts according to this process you know the funds get deposited there supposed to be returned at a certain time because judge livingston says that i see that it's in the nature of a  legal duty who's you know if one overlooks it by a few days or ten days that's different from declining to produce in response to an out of the ordinary request for payment  someone calls and says hey you haven't paid and he says i'm not going to that something else rather than a failure to remit timely it evidences in my view a level of consciousness of feel you're to comply with the duty well there's nothing there's nothing to suggest that mr sampson who is mr solomon said to handle these matters often was unaware of the statute or that the court orders and again we would submit that directives that issue from statute and from courts have to have as much effect as a directive that issues from a private party who asks or agent to do something in irvine the supreme court said you know it would be unreasonable to prosecute this kind of case twenty years after the fact obviously we're not talking about twenty years here but as to for bell the government is trying to prosecute fifteen years after the statute and court orders requiring payment as to eighth avenue the government's trying to prosecute eleven years after the fact i think it's critical to note that in irvine there is absolutely no discussion of withdrawals by the defendant or any other activity with funds by the defendant that simply is not an issue the issue is that he was directed to provide funds he refused to do so he continued to refuse to do so but the court found that when he failed to respond to the demand that's when the crime was committed make of the government's view that there ryan case in effect this fall into this w alleged crime most of the man that came in from the well i'm probably guilty of doing this myself but i do think it's an old lawyers trick that if there is a case that was issued many decades ago and you don't have a particularly good basis for distinguishing it you just say wow that's really old the fact that it's ancient and still on the books if anything underscores its viability and again we would address the issue of the demand by saying it's not as if sampson had no obligation to remit these funds to the court it's very clear that he was obligated to do that both by the court orders and the statute so to say as the government does that there's no demand in this case i really think removes any meaning from the word demand and am i right in understanding though that between two thousand to in two thousand and six mr sampson the records show that mr sampson meet periodic withdrawals from both the eighth avenue and the four bell street accounts the we are missing records which is a point i'd like to address in a moment but what the records we have show is that by two thousand and six twenty seven thousand five hundred dollars had been withdrawn from the eighth avenue account the records show that by the time we get to the charge crime in two thousand and eight proximately sixty five thousand dollars had been withdrawn from that account the lion's share of which was withdrawn in two thousand and seven ave and i'm sorry no no twenty seven thousand five hundred on eighth avenue and then asked to for bell by the time we get to the charged crime in two thousand and eight something in the neighborhood of sixty five thousand dollars had been withdrawn much most of which was withdrawn in two thousand to remember that by week six and month six and in the case of four bell year six there had been no deposit with the court now the government is very careful never to say that as a matter of law there is no embezzle meant on the six day or in the six week or in the six month or in the six year and we can all be fairly well as sure that in a different case if we got to the six week or six month or six year the government would argue that an embezzlement had occurred based solely on withholding and without respect to withdrawals and so it is careful to try to preserve that flecked the flexibility to that in a subsequent case but you can't have it both ways if the crime if there is no defect as a matter of law in charging someone in the six month then you can say that the statute of limitations has not begun to run and if we think about statute of limitations issues more broadly to come back to a point that was raised earlier one of the main purposes of the statute of limitations in a criminal case is to protect a defendant from claims based on still evidence here the government's theory is that no matter how long you hold this money it's only embezzled if you withdraw the funds but we don't have banking records for for bell from one nine hundred ninety eight to two thousand and three we don't have banking records for eighth avenue from two thousand and two to two thousand and four what if all the funds were withdrawn in those years and then put back even under the government's theory that would mean the embezzlement occurred well before two thousand and eight but we simply don't have those records another implication of the government's argument that there's no embezzlement with drawl is that a referee could just hold funds indefinitely for years without withdrawing them without using them and not commit a crime if the referee died decades later and somebody else used those funds without knowing the source presumably under the government's theory there never would have been any crime at all you know again we know that the government wouldn't really take that position in another case the government trying to prevent against premature prosecution where looking for something that there's been a clear reflection of an intent to exercise to take the money for oneself to convert and use the money and that's what each of those withdrawals reflects why isn't that a legitimate approach well i won't comment on what the government's true motive here is your honor but to address that point in irvine the court said look if you have some excuse then potentially the crime hasn't been committed but otherwise when you fail to respond to the demand the crime has been committed in this case this is plainly not a negligence case because funds were not remitted for the life of the period before the alleged crimes occurred  and again ultimately what the government never says is that it is not a crime as a matter of law if you fail to remit funds within these periods now obviously if the government prosecuted somebody on we have undisputed facts that these funds were not withheld for some short period of time after the demand but rather for years that during those years of funds were withdrawn and we have  see which as supreme court cases stand for the proposition first that if you don't respond to that demand for payment and you can't come up with any excuse you have committed the crime and second if a five day imposed trial papers that your client had an investment funds in the late ninety's and early two thousand if i'm reading this correctly that it never represented that all the money had been in by two thousand and six that is utterly false there are two briefs submitted by the government to the district court in which it explicitly stated that the investments were completed by july two thousand and six that's in the special appendix of page twenty seven at page twenty nine moreover it said to the jury that in the late one nine hundred ninety s in early two thousand hundreds of thousands of dollars were embezzlement well that necessarily means all the money that was in those accounts and the charging instrument when it says there were embezzle mints in one thousand nine hundred eighty eight and two thousand and two when there with no withdrawals at all necessarily alleges that the embezzlement was based on the failure to pay the failure to pay relates to all the funds no subset of funds was treated differently from any other therefore all the funds were embezzled those times mentioned appendix twenty seven and twenty nine what is it that was forced to find the instead between approximately one thousand nine hundred eight and july two thousand and six the defendant embezzled approximately four hundred forty thousand dollars from escrow accounts it cetera close quote that four hundred forty thousand dollars is the total that the government says was embezzled not only from these accounts but from two other accounts that it cited evidence of for various purposes page twenty nine and on page twenty nine if we look at the second full paragraph on that page and in that paragraph the penultimate sentence again it says quote instead between about nine hundred ninety eight and july two thousand and six the four hundred forty thousand dollars was embezzled the conclusion you draw from those two sentences is one that consistent with the arguments made at trial to the jury consistent with the charging instrument the government is saying that the funds were embezzled not simply due to withdrawals but because of the failure to pay and obviously when their putting an end date of two thousand and six there hadn't actually been any withdrawal at all from the four bell account so that statement about investments ending in two thousand and six is utterly inconsistent with the idea that oh you can only have an embezzle ment if there's a withdraw now as to the question of the government's true motivation as you called it and to which you expressed this is or took the fifth amendment what should we make of that do you have anything to say on that question i think that the government is being very careful to preserve its ability in another case to argue that if somebody wrongfully withholds funds for six years but doesn't withdraw them embezzling can be charged and also say in this case well you need a withdrawal and so holding the funds for six years  that doesn't really matter in terms of the embezzlement which is the position is taking now contrary to all of the admissions those two positions can't exist simultaneously as a legal matter right and we've given you fact under with respect to the issue of intent secondly with respect to the issue of the two supreme court cases relied on by my colleague irvine and to see irvine is inapplicable it is old that's not our main argument or main argument is it doesn't apply here because we're talking about a different statute the different elements there is no demand element and the investment statute at issue here secondly two season and an applicable because yes it's a supreme court case but it's sealing with enrollment for the draft which is a strict liability crime that is not the case here the third point i'll be a little bit longer on and that's our alleged misrepresentations or prior inconsistent representations to the court i think it's useful to me if you can indulge me for thirty seconds with some background after judge irizarry dismissed our two investment counts we successfully moved to introduce as evidence at trial of the investments to show the defendant motive to commit the alleged obstruction a case so the evidence showed that as of july two thousand and six sampson had embezzled a certain amount of money i think it was approximately four hundred forty thousand dollars he approaches two thousand and six is because that's the date when he has the conversation with adam od and receive some one hundred eighty eight thousand five hundred dollars check from adam od so there is no it simply was not the case that we were arguing to the jury or arguing to the court that all of embezzlement had been complete as of july two thousand and six there was a very precise reason why we mention july two thousand and six in our briefs to the court what numbers how do you add up to the four hundred forty thousand dollars what do you want contributing to for bell street and eighth avenue as of that time period i don't have the math in front of me your honor but there were four separate accounts that we introduced at trial there are these two accounts there are two other accounts from which she had embezzled funds if you look at all those funds together as of july that is not my question my question is what numbers are you re the purpose of moral argument is not to entrap him from going great thank you your honor i think i appreciate indulgence so my colleague informs me in this is consistent with my memory that the four hundred forty thousand dollars to not include four hundred forty thousand dollars did not include the amounts that were still remaining and the four for the proposition to the extent there are prior representations made by the government that are inconsistent with its current stance that the appropriate remedy is dismissal of the relevant charges that's not what she stands for and she stands for to the extent there are prior representations the inconsistent those representations must be presented to the jury so this court were to find that we made representations which were inconsistent where there are presentations this court and we disagree with that would disagree with such a finding then the proper remedy is to take thirty seconds looking at page thirty seven of the government appendix which is one of the many charging instruments but this allegation remains the same in all in  government's appendix at page thirty seven paragraph five since approximately nine hundred ninety eight the defendant john sampson embezzled approximately four hundred forty thousand dollars in fines from escrow accounts relating to foreclosure proceedings involving four brooklyn real estate properties this underscores that four hundred forty thousand dollars is the total amount the government claims sampson embezzled on all properties including the two at issue here and directly contradicts the idea that the government subtracted out from its submissions to the district court paragraph six it irrelevant or doesn't bear it doesn't bear on the issue of what the four hundred  forty thousand dollars refers to and whether it includes all amounts in the four belen eighth avenue account ok thank you very much