booker morning and thank you for having us i want to make two points before we really get into the meat of the issues and number one is that it seems to me that the government is talking out of both sides of its hand on the one hand they have an insider who really did something bad an insider who knowingly told his friends nonpublic information about his company that's bad so the government gives their insider unity no prosecution of him paints him as a victim and prosecutes this case as one of misappropriation against only eric macphail and the region so i don't know i guess they can do that they've done it the other point i want to make is that trading on the basis of nonpublic information is not a strict liability crime ok so the facts of this case are very very simple corporate insider tells his golfing buddies is that enough to impose criminal responsibility on those lower down the chain i don't think so the government's case against  rests on the nature of the relationship between the insider and mcveigh it rests on whether or not those two shared a relationship of trust and confidence that was legally bind his friend was going to take that information and set up a network and use that information in order to make the very large return that information yes your honor the relationship between those two people but how is somebody who's not a party to that relationship because that person posted the fans love the first but first note the information he or she is getting they should be yes they only know that you're on or if i'm going to get how can i just finish my thought before i lose it i mean this issue and that is that the third party cannot if this is an element of the crime this relationship a third party can defend as to that aiding and abetting cases that's always going to do characters to the issue is did he know about it and i think as i understand your argument you're saying one of the things that the indictment was insufficient for was that it didn't allege that he actually knew that this was material nonpublic information that was shared yes before you get to that are you challenging the whether the relationship itself even if known could be the basis for liability so you're only argument is that the downstream person didn't know about the relationship but that if he did know about the relationship who was aware that he knew about the relationship then he would be but but i'm asking a slightly different question are you contesting whether the nature of the relationship as alleged is such that it can't count that's that's an open question no that's i'm not and i'm that's what you're arguing in the only reason you're claiming it's insufficient is because it did not allege that region had enough knowledge of there being a confidential relationship well if that's specific i know i can't see that the relationship as put forth by the government was sufficient cause i don't believe that friendship without something want to bible without give back is enough to satisfy the gets an incorrect verdict that has to alternative theories one which is correct one which is not when the jury comes back with a general verdict you cannot say that it did not rest on the incorrect  your answers to both parents questions i thought you were arguing in your brief also that the relationship between the insider mcphail was not sufficient because there was no expectation by the insider that he would perceive something of that be that they're part from doing so because the statue giving them a six month safe haven to see korean brightman does not apply here doesn't save them because the original indictment was insufficient it's not being dismissed for a violation of speedy trial let's say this is this orders it would be in the lights of a double jeopardy claim almost i'm not i'm not saying that's what it indictment to allege actual knowledge i don't i don't know i don't think so but that's something i have to have that happen i'd certainly want to look at  going out with friends i'm going to red sox game and i saw my friend last night i'll have dinner with my friends ok friendship doesn't so we're finding that his friend had to be some top level or pretty insider it the indictment should have alleged that her that either eric macphail told her region that he was getting the inside information but but facts of friendship don't ever rise to that there is no duty to inquire not if they want if there is to be one that's something congress has to put in place a duty to impart if i get information from my stockbroker or stock analyst i don't have a duty to ask whether it couldn't a jury find that you in fact knew that this had been shared with them by an insider in well going back to the original problem with the indictment is that this grand jury could have found based on that that region sh you're not talking about it now you took at the evidence you're making a separate point as i understand it the allegations were insufficient even to establish knowledge that the reason why that is not so is you know i thought about this issue in terms of  inside if he had yes probably would have had a duty to make sure the information was non public but he's getting information from a golfing friend number two the information was wrong as much as it was right her region lost money this is not the kind of information that would put a person on notice that it's coming from a high up corporate executive it's coming from his and again there is no duty there's no duty to the wire but even if there was a duty what would preachin have done he would have said hey which are you getting this information and eric would have said what he test it we know what his testimony was from his trial that he was getting it along with other people on the golf course so that's all that a region would have gotten is that thought your argument was that he didn't know about the relationship between the insider and the miss and the alleged misappropriate or are ok with that it's not an argument about what the content of the information that was transferred from the alleged misappropriated to pretend that's just a question of whether even though there was a misappropriation by macphail region knew that it was obtained through deception the insider ok so the rest i don't quite understand why why you're arguing this these other points i thought the argument was that he didn't know about that relationship the strong that's ok so wrong and on that score the indictment alleges in count two that this was done knowingly and willfully and then there is a bunch of factual detail that's one of the reasons could you name some of the other reasons i'm just having trouble is that what you're trying to get us to conclude because the the factual allegations about the region's knowledge  if that's the case that allegation still needs to be supported by suppression act and knowledge and the friendship but friendship get togethers properly quotes the statute and it says provision did knowingly and willfully blah blah blah but then when you get to the facts to to style that out in allegation you say parisian and others who knew or should have known that the inside information was material and nonpublic and had been disseminated in violation of a free to share your duty so all  crucial see enter facts are alleged under the rubric of new should've known but when i then look at the brief that you gave the district court judge you elaborate on that should've known to adopt the civil standard of had reason to know which the judgment has in this decision so we've got a decision by a judge picking up on your indictment that says it's enough that someone knew or should have reason to know which says to me is you go on on the merits of this thing are you arguing that you win under a new or should have known standard or you arguing that it was alleged that he you know i think i'm arguing somewhere between answer your or should have no formulation and what about judge stall reference language that he was aware of the relationship or you arguing that was the speaking allegations indictment are properly read to have alleged only that he knew or should have known that  respect to the speaking allegations i understand the point of a paragraph at the five in count two were properly uses the word knowing in wilfully with respect to the speaking allegations is the government's claim that the speaking allegations only refer to the region having known or should have known of the relationship or is the government arguing that the speaking allegations properly read allege that he knew of the relationship lot ok could you point us to where in the speaking allegations the speaking allegations alleged facts not region knew of the relationship as opposed to merely knew or should have known  on the understanding it would not be transferred that although there was information he could be home between friends that it was understood by region that that information was being conveyed in a confidential way such that the insider would have expected it not to have been transfer but i guess the concern if i understand the logic of this is that any time somebody gets information from a friend if i understand your theory as long as i know that the insider was conveying information to a friend i'm liable if i trade on that because i just should have known that the insider was conveying it on the understanding it would not be passed surreal but let me ask you in a hypothetical and let's assume we were to decide that the negligence standard isn't good enough you've got to have knowing in the sense do you actually knew a willfully disregard the elements that make it a crime is there is there anything you point to in this complaint in the allegations in the complaint other than the recitation of the statute that would say that you've covered when you actually cite the evidence for each element and you told the court below we've covered each element and one of the things you pointed to was the new should've known clause which the court then picked up to say the can indict was adequate meaning the defendant must trade within ten and with the knowledge that he's not supposed to use it which is it does not say any friends it's something more than that not every friend to friend exchange as i understand it meets that rate that's ok so the worry is since that's the case the liabilities gonna depend on knowledge of the confidential relationship that that ring sets forth and what it's what it seems that the speaking allegation suggests is that there's knowledge of the friendship and that he should have known in consequence of that friendship that there was a confidential relationship indictment is not a ledge or imply that mr prediction being simply aware of a friendship between the two men sufficient for liability that would not be what it says is he is aware or should have been and i assume that if there had been a trial you would have led you would have brought it there would the factual scenarios which would have shown should have no evidence at trial went right to  just makes a good suggestion if either council wishes to shed further light on that specific issue both council has leave within ten days to file will twenty eight a letter within the limitations of twenty to delete the should have no