case is nothing short of staggering doctor she was convicted of one count of conspiracy to steal trade secrets even though the government start cooperating witness creba the government described as doctor she's right hand man who admit obligation to consider indian the evidence in the light most favorable to the government in give the government the benefit of all of princes you want the benefit of the bad inference here right respectfully no your honor we think that inference would actually be an reasonable for the jury to have concluded oh silently parsed the statue and quietly thought there might be an agreement to do something with stolen information but not to steal information in any event the burden here is on the government and the government chose not to even redirect but star witness who had just denied that there to be in an agreement to steal steal trade secrets from trial or so we think that speaks volumes the government rather than trying to draw  risking drawing attention to this statement it entirely exculpates doctor she chose to just let it be so we think because it's the government's burden to prove that there was a conspiracy in agreement beyond a reasonable doubt the fact that the star witness and not it that there was an agreement to steal trade secrets from trial the court is a is constitutes enough that there could be a reasonable inference  something else if there is still an information at play here doctor she met with a company called q ming to discuss with them the possibility of some sort of a joint venture and the evidence was that during the negotiations and discussions she was told that q mings technology was proprietary and they would not disclose specifics of their formulations for these micro spears spheres isn't that correct your honor comment is entirely different company from true works of i understand but the point is is that she would have learned from that that formulation of macro sphere is proprietary confidential trade secret information well as an additional matter your honor i'm not sure that the record would indicate to the level of detail you're talking about the types of specifications confidential you need to know let me just cut to the chase here doesn't that evidence plus the fact that she  this confidential information doesn't add establish that she knew that just sort of specific formulation data of macros fears was confidential  information your honor respectfully we would submit the answer to that question is no doubt to be clear there's two elements that are missing from the government's case and the st one is the agreement and the nd one is the not lack i'm not i'm going to get to the agreement in a minute but i want to talk about whether that  is sufficient to give the government adequate proof of knowledge we would say no your honor and the reason is because these boilerplate confidentiality agreements  circular nature they specify that confidential information proprietary information is confidential and must be kept confidential the question is whether a doctor she'd thought whether there's proof beyond a reasonable doubt the doctor she would have concluded that the particular information putting aside coming the particular information that his two employees at scene he might privately used and passed off as their own constituted confidential and trade secret information and what the particular information that his employees got from trial abor was the same type of information that coming had told them was proprietary i'm not sure that we would agree with that characterization of the record your honor but moreover there's a what those are what does the record say tell me why i'm wrong what what what in the testimony said differently than that what we're dealing here with seven specific pieces of information that the government has  alleged constitute trade secrets and that doctor she allegedly knew or believed constitute trade secrets so for talking in particular about the specifications as an initial matter the evidence was wholly deficient to prove beyond a reasonable doubt the doctor she develop and prove beyond a reasonable that knowledge that doctor she thought that information came from childbearing constituted trade secrets there were have to be a string of inferences that starts with the inference that doctor she opened the  email there was no metadata present to prove that nd doctor she opened the needed file of the attachment because if you printed out as many do with looking at hard copy you wouldn't see the word teleport at the bottom so we can't we can't infer that doctor she read in the open in the mail that was sent to him that that's that's not what the jury could reasonably and for giving the government the benefit of oa princes in some circumstances a jury could infer that one would look at an e mail that they received if in fact there was evidence that the person reviews their email some people get thousands of emails don't even review the email so we're not willing to concede that it's a fair inference in any circumstance and opening an email means you're reviewing attachment means you're viewing it in native means you see the notation that says reference trail the court and means of that to you triggers in a in another inference on top of those inferences that the information actually came from trailered and then on top of that the information constituted a trade secret it wasn't something that was even permissibly held by the person who sent it lou and then let's let's let's move on to to the agreement issue may i ask your question st before you get into the legal question counsel are you familiar with the curly case and the jackson case in the supreme court dealing with the in a relationship between the requirement that the government prove its case beyond a reasonable doubt on the one hand and the legitimate inferences that the jury that the government gets are you familiar with that case if you're out or would be so willing to read professional recollection of a specific aspects of the case at issue i appreciate that well this is a case that goes back to the twenty's written been when i was the supreme court of the district of columbia the court was called that but it was our court and it's a very famous case which has been followed by all the circuits except recently by the  that if this were a civil case a jury rational jury would have ruled in our favor i mean the government's star witness in st well you should understand that the for those it's a two step process under our law and the shit backed up by the supreme court the st is the government gets all the legitimate instances now you argue that some of the influences are serving our own region and that's an important step but they get all the legitimate reasonable and then after you've done that you compare the evidence on the other side and if we conclude there are an equitable ways then we should reverse that's our law i would have thought you would have been on that shouldn't certainly helpful to your case your honor if the court would find that to be helpful we would be happy to submit supplemental briefing on those points but it is we appreciate the court's consideration of those cases and will certainly take a look at how they apply the circumstances but we agree with the court's conclusion or george zimmerman's conclusion or suggestion in that circumstance and particularly when the e mails judgment was mentioning information at issue is confidential is a certainly a disputed issue and depending on the particular trades you're worse than many of the trial of personnel themselves including the president of the company and the head of innovation and technology  conceded that some of the information was unclear if there was even a requirement that they not disclose it for example for instance some pricing information other of the information was unclear to them whether it even came from trial or in the st place you're saying that there is a dispute but that's not as judge so berman pointed out that's not what we're here to do now is to look to see whether you disputed evidence were to look at the at the evidence of the light most favorable to the government and what i'm saying to you were witnesses even if you could say that they were crystal clear that all of the alleged trade secrets were competent shoulder were very clear that many of them were and demonstrates that your argument that the government didn't prove beyond the reasonable doubt that these were even trade secrets is is one that we we have to reject that no your honor respectfully what the standard is and this is in the jury instructions in the case law particularly th circuit would be that the government had to prove beyond a reasonable doubt that doctor she had knowledge or belief and same about at least one alleged coconspirator that the information was subject to reasonable measures to keep it secret so the mere fact that the information could have been confidential is plainly deficient in the case law on top of that even if the information work confidential and we respect we think the evidence shows to the contrary minutely sentences  there's insufficient evidence to prove the doctor she even knew the information chain from trouble so when doctor she interviewed two of the former troll board employees they both told him during the interview that there was information that that they could either had kept from the borg or that they could get from trouble or that could help them do the to he could reach out to friends and get but he didn't specify that that was confidential information he didn't specify certainly that it was trade secret information it's best if i there was information you should be able to get from trial were there wasn't available on the internet and then if you look at what happened next so not only did dr she not ask him about that never asked him to reach out to someone to tell her to get information is just a unilateral comment during a lengthy interview if you look at what happened next it makes clear what ogust intentions were here  i'm trying to make here is that if doctor she wanted to manufacture macro spheres and he goes to a company one of the leading company in discusses that with them and they tell him that the specific formulations and data with respect to that is confidential information and he knows as a journal matter that that sort of data is confidential information and then if he goes to hire people who are former trouble borg employees in ask them can you help me manufacture macro spheres and they say yes in that they're going to use information that they either kept knows that that information is the type of proprietary information that the cumin was prepared produce protecting him by hiring them knowing that they're going to use that proprietary information whether they say it or not he's entered into a tacit agreement with them to use stolen information to do the job why isn't that a completely reasonable way to look at the evidence in the light most favorable to the guard well there are several reasons your honor and i would start with the one that the star witness in the government described as doctor she's right ha and it would have been at the center of this conspiracy according to government denied that there was an accessory made so that dispels any of those other inferences that can be stacked in suspicions that one juror might consider in a normal case this is not a case about credibility of witness have evidence keeps so so so you say that our case law supports that if there is a denial that that trumps and over all the other evidence your honor in this particular case and in fact in other cases that have come before this court i think where the decisions come out is that when the key witnesses who would know whether defendant was involved in a conspiracy and were highly motivated in admit that fact they would testify against the defendant if he was involved in the conspiracy deny it and yes a rational juror would not be able to reasonably conclude that the defendant was part of the conspiracy and in ready those cases gaskins and wilson for example there were instances where there was evidence that a germ i consider of the kind that you just described your honor  such as in gaskins the employee who worked for a drug fucked up front there was an investigation company he called in plane tickets or had his name on the lease where the drugs were being where the drugs were being packaged there were bad facts in those cases that the end of the day those who would have know and those who were called by the government in order to prove the element that there was an agreement deny that there wasn't remit so rational juror that was you think that there should be a different rule for proving a conspiracy to participate in a drug offense th there should in the case of conspiracy to those to misappropriate trade secrets well your honor that to answer that question if i may go back to some of the premises in your question because we don't agree with some of those premises as well glean from those cases is that the government in conspiracy cases chooses to charge a conspiracy to get certain benefits of the doubt when it does as opposed to a substantive charge and one of the things that has to prove those difficult reading gaskins your honor it's a good question and we certainly don't need a per se rule in order to get a reversal of a conviction in this case which is warranted i suppose some judges might think that this is such a obvious insufficiency defect in the government's case that star witnesses actually go the other way so maybe there is some room for per se rule here but certainly in a sufficiency case we don't need to rely on a per se rule here we just need to look at the evidence in the  record the arguments in the briefs and we think that we're confident that when the court looks at the proofs of the court looks at the record evidence it will conclude that it is not the st court to ever decide that in circumstances presented here where the government's coconspirators none of them complicated defendant think there is something about the employer employee relationship here that that further makes the inferences reasonable where you have a small company with only a handful of employees and an employer employee relationship where the employer is saying you know you need to go out and get this type of information and we know that he had possession of some of those documents i mean is there is there something about the employer employee relationship that also supports the inferences well again your honor we would disagree with that premise that doctor she the evidence is clear didn't ask lou to go out to get any information he didn't ask to go to that get information during a lengthy interview a volunteer that they could potentially have access to someone specified information but your question about the employer employee relationship to the contrary we think that actually created a lot of grounds for a jury confusion here because doctor she'd set out to run the starter with jim it registered tax funded operation and when you do that you hire employees with experience you don't hire people in a startup when you're trying to create a better product you have no experience you want to hire people who work at good companies have their own ideas but happy experience to be able to make spears and these things were around for fifty years or so i think it was more than that some people in the industry knew the basics of how to mix here's so you go out and hire people with experience and yes maybe some of them will say during an interview oh i have friends i have contacts i have network i could get other people to maybe work here too that comes up in a lot of these interviews but since i think that a legitimate business somehow becomes a conspiracy because of the association that contravenes settled supreme court precedent that says a mere association is not enough to demonstrate a conspiracy so we're actually of the opposite mind which is that the jurors might have seen two other way he said actually oh you're right lou was actually expressing concern that see him on his recipe so what if i if i don't think that that if i don't agree with you that he came out the other way you know i look at this in the light most favorable to the to the government well my supposed to do with that testimony that i just read to you your honor we think that the only reasonable inference when a witness is says one thing on direct testimony says and then our cross examination cross examination it with this memory is refreshing and comes out and says i'm not x and on redirect there is no child i asked you a question i'd like for you to answer my question because i told you that i don't agree with with your characterization of what happened on redirect so let's assume that i dealt with him i suppose to do with that testimony that i just read to me across rather than we're not refreshed and updated change depending on how you look at it what should the court do with lose initial testimony yes well doesn't understand bullish that she was told there is no agreement and it clearly dispels is not competing inferences one piece is a direct testimony from the charged right hand man in the middle of conspiracy say you can't make that inference and that wasn't crossed by the government  other panel members have questions now go ahead all right we'll hear from the government was he concerned about whether trial dark would know its own ingredients were in that rats answer yes and he says there's a different has to question and that's a different test from the test in the e mail that mister is i'm burnt the defense counsel showed you yes were wrote the opinion why is that relevant you realize that we're all equal black robe judges did you think we should give particular deference to the fact that my prior colleague who's now s if isn't that absolutely illegal for you to state that if that argument had been made to the jury when there was an objection what would the district judge h it was that you cannot use the guilty plea of these other two against she and yet you're doing it on appeal i disagree your honor it's not substantive evidence and she's got it is evident that in this company they are this is not a five hundred person company where he might have no idea what's going on it's a very small company where there are only a couple of people and  admitted that they were involved in a conspiracy which they did this absolutely emma improper to and used to infer that she is part of a conspiracy if you had made that statement as counsel before the jury improper isn't it it's improper to convict someone of a conspiracy merely because they're coconspirator has pleaded guilty that's true but i think even as my friend on the other side would agree that if someone testifies i joined a conspiracy and the defendant was in it with me but the jury that's not the issue you're saying here or in your brief that because two other members plead guilty to the charge conspiracy and a very small company for the wording the point is that that two other members of the company that only had four people in it were involved in the conspiracy they testified at trial about what was happening in the company about their actions and about what happened in front of she the point is your honor that in this tiny environment it is simply impossible and sick i conceive that she did not understand what was going on  say i guess we will just be in disagreement about what whether what you did was appropriate let me go on to some of the other statements you make and your statement of facts you're accurate when in the body of the brief it seems to me you make some misstatements let me start with oh go and loon who both told him during their interviews that they would need twelve hour day to do what she wanted them to do meet the data to compare when he would need data to which he would compare this very produce and then he can get the data from calgary no that's not what he said he had friends at roll over that he can contact to help him get the data you never asked the question how much more it could have been ten bucks so where do you get substantially more that's a misstatement too isn't it you are in the argument questionnaire brief we're arguing inferences support no no you're certain this is an inference you said she prayed or go substantially more that's a factual statement it is not supported by anything in the the modifier is not in that in the testimony you're darn right it could it could have been ten dollars you an obviously it wasn't very much for you would have asked the question at trial just now let me go on she substantially did excuse me initially did not think leo would be worthwhile and changed his mind only have to learn that leo had based on his record so i liked him so it's not fair to say that he changed his mind about leo being a worthwhile employee after you interviewed him he would have interviewed him without but he were not interviewed him if he didn't think it was worthwhile potentially in the future so in other words you might have argued there's an inference you could draw but you made a statement of fact which is in  at best oh now here's a long there's more serious even page nineteen of your very she hired both men knowing they would use trial of work secrets to do their work for him and it's also quite a stretch now let me go on because this is another statement in your brief  has to find that if you try to take the phone apart disappears structure and break and then you can test them or see what their density is actually his testimony is some reverse engineering like that is possible at very expensive depending on how much you need to know so a gun there's nothing in the record can be issued to suggest it is obvious that is impossible to reverse engineering spheres so that a misstatement to counsel your honor when there  you think it's obvious but you don't have record testimony for that at all you have no record of reference at all and you don't argue that this is an inference i can draw from something that this is just obvious it's not obvious at all the testimony is contrary spears this is unsupported isn't it it's not your enemy he sent to date on january th teen and there's testimony that they didn't develop the laboratory capacity to make the spheres until april and that at that time you know they were still trying to set up a lab but all go testify that he deleted all confidential testing data and produced his own was developed which he sent to share he produced a template so he didn't he did so he did why would he do a leap or confidential testing data and produces own results if he was part of the conspiracy so this is exhibit twenty five dollars that we're talking about jaylen seventy six dollars right so the this is the test procedure and he takes it to make a and a template that he can use and just show she that they can how they do the thought of that but that suggests that he didn't want that she wasn't part of the conspiracy respectfully your honor they made that argument to the jury and the jury didn't buy it i think the jury was entitled not to believe it and this court and the deferential how about oh go was prohibited from appearing at the congress booth even though he knew the most about the product now the evidence much more reasonable that she did not want to appear because she didn't speak chinese it's such an obvious reason her i think to combine that piece of not appearing at  convention with two other pieces of evidence which is that she told not to tell the phone suppliers that they were trying to make macros here's who knew that ago might have worked for trouble work and that when she hired to do you hired him at a different company to hide the fact that he was working for a child or competitor so you put those three things together i think it's fair in friends of the jury could try that what she was trying to do wit the guilty pleas of the subordinates should be considered by the jury in determining whether she was part of the agreement and that i think is possibly what happen in the case but it's certainly inappropriate now one last point here no i have a few more  you have a statement possess thus a jury could either interpreted both test all in light of his plea agreement and conclude that well agreed to take to trade secrets discount clothes testimony and credit is plea agreement against a testifying witness it's credibility where he's saying something in his testimony and that and you know arguably isn't i mean you can interpret it that he's just asking about steele and so that didn't ask them that question because it didn't want to they didn't want the answer your honor i think it goes both ways the defense only asked about steele they didn't ask about the seven other birds and you're right it wasn't addressed and redirect when it could have been but i think so i think that's a fair inference from the testimony from the record from all of the course it would be appropriate brief writing to argue that there was an inference here but you just honor when i think the evidence established it's unfair to say that the circumstantial evidence established as this court's precedents a direct and circumstantial evidence are an equal footing do we look at the circumstantial evidence i think it does stablished that that was his plan because the circumstantial evidence is that he interviewed these people and when ok i'm sad i'm going to need to do my job he hired him anyway and when lou saturday that's an oversta so the data you said you would need to compare with is that something you said during the interview that's correct and did you indicate where you would get the data from i remember saying that yes i have friends at trial work that i can contact yes and did you explain why you needed the data or why did you need it and he france that could have been drawn and they argue that to the jury and the jury rejected it and the nd point if i look i agree but it if i had been writing the brief i would have argued that that instant rather than making a statement of fact and even that's not you the most important thing that bothers me is your argument in the brief that would have been almost round for mistrial presented before the jury or i'm finished quick question counsel but suppose i conclude that in your argument you've made a number of misstatements how how does that weigh in determining whether you should prevail in this case or not hearing myself poorly then i apologize and i will tell the department that but you should not hold my to here against my client if the evidence is sufficient the evidence is sufficient willis is a and i have to look at the cases between two your honor we put into the record thirty seconds that we believe support the argument in the beginning of the argument we identify to abide it says that the standard is to take the inferences in favor of different acts and dock the premise on which we need the arguments ok a little yes your honor and i understand the principle and as your honor articulated the critical st step is to take the inferences in favor of the verdict i think when you do that here the evidence is not an act of poise that the defense made a bunch of arguments to as the district court noted that that also could refer to whether there's a written or formal agreement and last that i'm not required i frankly think that's almost a ridiculous and friends the nd legal point is that the there's no requirement that a particular that we even put on quite creators or that we have somebody answer that question and the question is when you look at all of the evidence together is there evidence that the defendant agreed and there is so protection side of the nd you have c in a page three hundred and sixty two you're talking about the email in the body of the e mail it says the information received from trial board and then you have again when they're talking about  you know i think that's probably the strongest one if you look at that for his knowledge because he takes twenty eight which is when he gets it from she from lou and he doesn't just forward that you mail or you could infer that he didn't look at it or anything like that the home run data that tells you you know the density of the spheres to where they're going to survive and the fact that they survive under pressure is the most important part of making it reliable product it's not going to survive under pressure it can't do its job and then you get the other data that says how many coats you have to put on it which given the amount of competition between these companies it's really important to not use more material than is necessary because it's really expensive so knowing the exact number of times to coat the spear says you are a lot of money and a lot of time and having to figure that out and i think the evidence if you put it together is i think clear but at least i'm rational for the jury to have concluded that she was guilty any further questions  connecting the dots as the prosecutor expressly said in closing markets and the jury is not in agreement and that seems fairly clear the case law as to the government's point about circumstantial evidence it's all the lie by direct evidence and while the there there's just no evidence certainly not enough to prove beyond a reasonable doubt that doctor she had knowledge or belief that there were reasonable measures or what they were to keep this in a probation secret and the government didn't even argue it as to an alleged coconspirator which we submit is a waiver on that point provided to dr sheet was confidential or that he knew who was trying let's assume let's assume that there is evidence in the record of that well your honor no the answer is no because the statute in this has been litigated as the jury necessary is if the government crew that the defendant knew or believe the information was proprietary or confidential but that's not what the statute says statute to find street secret and it defines it in such a way that it has to be subject to reasonable measures so in most cases it's fairly straightforward most of the cases that involve conspiracy to steal trade secrets the defendant is a company insider or a former company insider it knows exactly how the information is treated it's highly unusual for the government to charge a conspiracy involving it outside  the company who didn't pay someone inside the company for the information for example exchanging a briefcase in a hotel room in one of the cases in order to get the information knowing that it was subject to see measures to keep it secret so here the government's trying to trying to build this connect the dots theory of doctor she's knowledge and agreement and it's just stretches the evidence way too far so i go back to one of the st questions that i asked during your your opening argument which was that she started out by trying to get the sort of data from other companies in and was told that we're not giving you that data but you can't  have that data well your honor in that particular situation involving coming and mark's label i believe was that president actually was trying to pitch according to the evidence a joint venture which he was going to receive that six million dollars for a couple of his partner six million dollars for a couple months of work so it's not something that doctor she would have necessarily agreed it whatever i don't know dat it i don't think it's clear from the record what cummings referred to or whether it was an expert when they can just argue the same thing from tim francis i mean what what do we do with the fact that there are only four companies companies in the whole world that create the spear spears so we're supposed to say notable corporation that has a long history of creating manufacturing spears i believe it had the testimony was that none of their spears were qualified you you say that in your brief and i don't have time to go through all of the mis statements in your brief but but but the testimony in every instance that you cited the person qualified it and said that they had or  sphere and be commercially successful at doing it then why did they hire doctor she in create this company and we were here to figure out how to make them we're not right my point is that there's four companies in the whole world that makes these spheres but you're arguing that somehow it's a stretch to to for a jury to to infer that the precise data that you need to make them is it is really a trade secret even though there's only four companies in the whole world that can make them that's your art your are your honor they were not arguing that c b m f was fully capable of manufacturing  that create this these figures i mean these these have been around for a very long time this is not some new technology that you had to either license the information or us trade secrets in order to do like any start up in a in a in an industry that has some saturation frankly there are four companies but these are large companies and like any start up what you would do is you would proceed by tried it you would consider as a business person whether to whether you could cheaply license the technology and they found out that wasn't the case so you hire people who already have the experience know how to come up with their own ideas about how to develop an already extensive process in a way that actually exceeds the quality and is cheaper than all of the competitors and that's exactly what they did so the notion doctor shu just because someone marshal told him we have some information that we're willing to go in or to eventually work and tell you that i don't think you can transpose that to a different company involving a different set of circumstances and say that's enough to satisfy