prosecutor regarding mr times credibility frankly based on wetherspoon but it's our position that there was clearly a violation this the stay there were his repeated i think statements they were also couched in terms that's it that's improper argument the judge tried dissented in why the spoon he didn't necessarily think that i think arguments are improper but the law the circuit right now is that such arguments are improper that alone constitutes error and what i'd like to do is few factors number one is the jury deliberating this case for three days and this court has held on repeated occasions that length of jury deliberations there's a factor to consider in the harmless error analysis number two this was calm improper comments about the defendant's credibility in testimony which is the heart of any defense case so we're talking about the heart of the matter here these are comments that go to the heart of the matter that's another factor that weighs against harmless error in addition these comments occurred during rebuttal closing argument the very last thing in the case the defense did not have an opportunity to respond again another indication on the of harmfulness not one was there and of course the objections were overrule think those are all strong indications of harmfulness as opposed to harmlessness fine i'd like to talk about the strength of the government's case which they rely on in the heavily in saying that this was harmless error this was not the overwhelming government case as they put instances where we believe the prosecutor overstepped the line in his room but also so yes i mean he you know you look at the you look at what occurred in the improper comments and you know the extent to your way in harmfulness you need to you need to look at the span of that but  it's our position that in that rebuttal the prosecutor tells the jury in effect that they can use the first of all he says that it's very i have read it and we don't need to re read it to me i've read it nag in the product right before the at a media way before it he's gone through the evidence that you three so in context anybody else made no statement about anybody else had nothing to do with anybody else except walker so where is the brittany walker's and statement incriminated or the mc ok and  only goes against walker can be used against all three and for god's sake just a couple of pages later in the transcript the prosecutor tells the jury that really quick this is page thirty seven  on several factors in claiming that there was substantial evidence that the jury heard walker repeatedly mislead potential test players about the nature of the program the refund and return conditions and the credit card charges that he's missed representations  establish a reasonable inference that he knew about the scheme but on the other hand there are quite a number of factors that weigh against this conclusion that this might be a reasonable inference though he was paid the walker was paid a higher commission he was still paid on the basis of sales rather than being a and having any share of the profits  there was little evidence that he was an insider or confidential or confident of mr walker it's just the fact that he was being compensated based on sales itself people he's sending these things to than he conceives of himself if he thinks of being compensated for sales and he's telling people we're not selling you something we're sending a test clubs isn't the inference possible write them that that he knew he was that there is little evidence that he was an insider or a founder or organized you have to be an insider to know that he's telling people something that he thinks is a cake different from something he thinks is the case well he solicited his all deals on his own part  t he worked he worked independently of mr crawford told people that were not something you called clubs were sending them for test purposes and he was thinking of himself as receiving compensation for sales those two aren't the same thing he doesn't have to be an insider to know those two zones are the same thing and it seems to me ample for the jury to infer from that he knew he wasn't telling the truth but what else is there a does not doesn't in the absence of it and the evidence of him an insider you don't need direct evidence and you surely don't need to be an insider to be the fraud or if he knew what he was doing was was not truthful when telling them that we're not selling your golf clubs he's guilty of fraud the fact that somebody else may be collecting some of the profit because they've got a grand scheme doing this to lots of people as the insider doesn't mean that he wasn't doing our that he didn't know he was doing it but he didn't work at the headquarters of this organization and if he's telling people i'm not some new golf clubs and he knows he's receiving compensation for sales what more is necessary what's all the insider but he's not being convicted of being an insider he's been convicted of fraud and telling people that i'm not selling you something when he was selling them something sounds to me like fraud but i thought the case is to say that in order to be convicted of wire fraud that there has to be evidence when there on behalf of the united states i would like to take on weather system a before i do i want to make one small point on the length of the deliberations in this case and i would invite the court's attention to titan excerpts of record one thirty one to one thirty two and government excerpts of record five one thousand to six twenty eight and there you'll see that the jury only deliberated on three days and on the first day the jury deliberated there's over one hundred pages of transcripts so the jury didn't even get the case on the first the of the three days until late in the afternoon and then there's a full day of divil deliberation and then they come back so in reality we're talking about two here maybe two days and some change of in deliberations and that's really not a long time in a complex fraud case with three defendants and hundreds of exhibits the cases that the defendant cites about a three day deliberations or forty deliberations involve one transaction drug cases now on on to the witherspoon and  i think the government's contending it is that this argument was not improper in a legal sense certainly it was in our fall and counsel should attempt to refrain from using the first person in any part of closing argument regard all happens to be that the most unscripted part of the case you're responding to arguments that have just been made by defense counsel i think it's easy to slip into although we are always trying at least most of us try to guard against that the danger in wither that's one of the cases that the defense side say all rely on this core legal principle where the government vouchers for a government witness or the government implies some knowledge of facts outside the record jury should you know rely on the prosecutor's opinion take my word for it this guy's guilty and in that sense these these statements were not improper counsel really focuses on the words i think in some kind of magic word that makes it per se improper here what the prosecutor was saying and i was the prosecutor in this in this instant was when i think of clearly a proper analogy in a case clay making a proper analogy at this gentleman has changed his story from what he told the agents in two prior interviews where he very clearly had knowledge of the fraudulent scheme he said that to the agents and this was likely in say this but it was a ponzi scheme in the sense that they were taking money from you test players to refund all test players he knew about the gotcha terms he knew about the the fact that the refunds you know weren't being given he said all these things the agents then he gets on the stand professes good faith in lack of knowledge and it's purely proper argument so i think improper if you know yes it was improper in the sense that one should stay away from first person arguments but i don't think it was legally improper because it didn't cross that line and i would invite  it's a liar smashed and basically you have four witnesses that matter in the in the government prosecutor in that case is this basically he's saying that these guys that cops that operated truthfully i don't believe it's really more than that i mean over and over i think i have no reason to lie they're going to get fired they're going to be convicted of perjury they lied to you they lied to the judge these witnesses are telling you the truth i don't believe these poor since of of the two lay what this is in that case all that implies some that that prosecutor had that he was trying to get the jury to use this didn't happen in this case in this car i understand this think you're wrong i think it has a lot to say about the question that your driver was asking in terms of the impact in the difficulty with rather small and i don't want to debate whether it's been either the difficulty it makes very clear that it's not simply i have extra knowledge on the side so you can believe me it's the notion of standing up and saying i'm here for the united states and i'm for the government you trust me and as long as that elements there it's really difficult i think to apply wetherspoon to say well sums ok and sums not because just the fact you stand up and say you're for the united states runs the risk of somebody inferring that you've got the the stamp of approval from the us government but you can take everything you just said lead into the second part and mock that we're characterizing this misconduct but really ask a serious question is this something that's going to have the improper influence on the jury you're concerned about i think that's exactly right you're right and i believe you really at that to be correct about the state this is when i think of statement is a lot more a knock us than i think i believe so i believe that point is made and i'll move on to another part of this and th the you know asking the witness up front of the understands the oath there again there can be a danger point here where it prosecutor gets up is in the middle of cross examination gets an answer that he or she doesn't like and then goes about saying to you know you're under oath blah blah blah well that's sending a signal to the jury hey i don't believe this answer that's a danger that danger did not occur here it was a question at the beginning of cross examination after a lengthy direct examination that was given it was totally a fair question and it's set up the evidence to come for the jury to consider the fact of whether this person is telling the truth or are they just being accurate are they not being complete and the witness in this case  obligation was to tell the whole truth and not be misleading but another witness may have said something different ken lay i think said i'm you know here it yes your questions or something to that effect and so i think that that's helpful information for a jury who's been called upon to see truth to make a determination whether what this is lying the passions argument same thing is the danger i think there is where prosecutor brings up something that's irrelevant to the case  such as in wetherspoon about the impact on the community here the abuse that was being suffered by people was relevant evidence because the company in the people involved would use that to get people to give up seeking their refunds and i think you know common sense will tell you that that will have a greater impact on older people you know i believe that argument came in direct response to one of the defendants saying hey wait a minute the people who got their money back in the credit card companies which would include of some of these  older than fifty five five people here they weren't really victims because they got their money back and i think it's a fair point to say now wait a minute now this abuse of being lied to and and you know the feelings that go along with that that does make victim even if it you know six months or a year later you get your money back from the other source on  to address mr size point and it absolutely make another argument real quick before i do that on on why that this is harmless error and this goes for all three defendants and in fact i can speak now maybe i'll try and kill three birds with one stone here and talk about why the evidence was overwhelming in this case against all three defendants and be particular about what is what what was it that was overwhelming in this case and what was overwhelming in terms of the evidence was that each of these three defendants made misrepresentations personally to test players and there are many of them but three that come to mind are that their credit card would not be charged secondly the nature of the program what it was actually a good faith product evaluation for sale and finally the terms of the program that there was some risk involved and you know in each of the defendants cases the government brought in victims who testified directly for each one of them this person lied to me about the credit card charge where the terms of the program were the nature of the program we had tapes that were played each of the defendants voice on t v which the jury heard for themselves these defendants making those misrepresentations we had coworkers at least one coworker  each defendant which said i heard them making misrepresentations they directed me to make misrepresentations and then mr thompson case his testimony at trial and i do want to invite the court attention to a particular part of the record because i i did like to put this in the fact that although it's discussed later in the brief and that is the government's eggs are prefer record three fifty eight and then at six thirty three and what you have there is a statement by mr totten from the witness stand where he talks about knowing that these things are sales that that's what's going on at six thirty three we have a script it's labeled script number one it's produced in the middle of the trial for the first time despite being asked for shippable discovery on redirect examination he says yeah this is the script that i wrote up and had my people use and lo and behold the last line on page six thirty three  tells the telemarketer tell the person that we're not we're specifically not trying to sell you anything we just want an honest evaluation just couldn't be more clear a lie and those are two things that mr patten said from the witness stand regardless of the conflict in testimony regarding his statements of good faith versus what he said in the interview same thing with marvin walker in i believe  i forget which of the justices brought that up this morning but judge justice clifton really hit the nail on the head and that is that and especially with respect to intent to defraud the law know all those layers of proof that i discussed previously finally at i believe justice reimer brought this up and got this right there's no there was simply no approving issue here mr winters was not the subject of mr walker's statements number one number two the structure of the argument it was a you know you have three people who did the same thing it was just a convenient way of  structuring at the thing in this case as they all knew that the that the product evaluation statements were false and the prosecutor then discusses how each of the new top new because of these reasons wears neal because of these reasons and walker knew because of his  missions the only people who didn't know were the people receiving the call you know they knew it at the end i really beg to differ i i can't understand how a reasonable juror could even could think that prosecutor was asking them to use walker's evidence against winters they were all discussed individually and that that request was never made by the prosecutor to the jury in this case and was the court has for the questions  the government introduced only nine prosecution witnesses who presented evidence against or even mentioned mr winters the defense presented twenty one witnesses doesn't sound like an overwhelming prosecution claims to me second forty one the california supreme court found that when deliberations go on for more than five hours the issue of guilt is far from over and shot so this this is not an open and shut case  clear that a redacted confession must not reference the codefendant by implication and that's not read the jury to conclude that the statement refers to the codefendant before them now when the prosecutor said that this statement by martin walker is very strong evidence the only people who didn't know the purpose of the call over the people receiving the calls and these guys knew again knew it was false that statement they these three guys does exactly what the united states supreme court and very versus maryland said you cannot do that's why it's i just want to go over some of these facts the government mentioned as to why the case was overwhelming first on the issue of sale versus test play i believe the evidence was clear that mr totten had the people in his office and he himself called what was being given on the credit card a security deposit which is what it was he wasn't telling them that your car was going to be charged he has people telling them it was a security deposit there is also evidence to show that he would speak with him and his people would speak with or he was  g them to speak when they were speaking with the potential players was there any evidence in in the trial that any of these individuals got their security deposit back yes several did get him back a lot did not get him back don't get me wrong i mean there was a there's no doubt about it but what the government is doing is the try to lump everything into one and say this whole thing was a fraud and therefore you know we proved it in this or tottenham this is guilty but you have to look at each particular individual and what they did and what they knew mr trying to make it clear to the people in his office you have to call it a security deposit don't tell them they're not going to be charged the government claims that they call the witness who said that mr totten lied to him when he spoke to him on the phone well it turns out that that phone conversation was recorded and the supposedly lies that mr tom supposedly told were not on the record so i mean that the evidence was not overwhelming you have to look at each particular individual