superseding indictment but because of the just your chords factual findings regarding the reason for the delay under parker's nd factor in particular the just your courts found that at the time the government filed the original indictment it had already investigated all of the charges that it filed in the superseding indictment it could have filed all of those charges that the time of the original indictment but instead the government deliberately and intentionally chose to hold back those charges so that it could you're is it your position that the government's bad faith justifies dismissing under the th amendment even in the absence of prejudice it but that is my position and  branches yes your honor i do because why do you take issue with the question of whether we've demonstrated actual prejudiced i believe the defendants have both her last witness memories as well as a box of missing documents as for the reasons the district court identified and the reason for the delay in the reason and what this means judge her wits is about when the government intentionally and deliberately delays the presumption of prejudice is even more potent than if they had negligently delayed and again example the government just doesn't circumvent this that's the moment i don't think that that precludes the constitutional violations but judge preston but i think you're referring to the gregory opinion which made this language is dead but more importantly bravery counted from the the what was the decision the government actually made here not a hypothetical decision the government chose to charge in the superseding indictment there's plenty of cases in the bill which demonstrate that the delay must be counted from the original and something i'd there's not going to be a speedy trial clause violation so for example if the government is still investigating the charges if you come forward of a nd factor what the court know that almost certainly not an invalid reason if the government has new evidence almost certainly not an charges the defendants were prohibited were the clear did from conducting investigation two and a half years earlier with the directors to to better crystallize their memory at that time and its importance for the defendant's claims here because with respect to the bank fraud the petaluma greenbrier loans etc part of the defense was that the directors knew what was going on here and the result of that was that the a loss of memory of what happened here director bob nicholas that excerpts of court under the circumstances we're not required to prove exactly that there would have been examples where you know i understand i understand but for example if you had a case where some other witness testified to what these witnesses might  they had a good recollection we might we might conclude there was no prejudice if you had three witnesses say i was at that meeting and here's what happened then you couldn't get the th to remember we might concluded not having a th didn't fight and that's what i'm trying to contributions every circuit court has held that and for prejudice purposes this was extraordinarily prejudicial to mr cutting in particular our brief addresses just all three of her mr cutting this was extremely prejudicial and i dictates the document never looks at it again until the time of trial and then says yeah that's what i dictated i remember the meeting in now that i look at this is refresh my recollection was prepared by another that's what i'm talking about the document i'm talking about the documents yet they went just as my normal course is to dictate stuff after meetings i did after this one as i sit here today i don't remember what i said leave the timing out for a nd because i'm not sure it's relevant my question is really whether he had adopted his own statement she typically we worry about adoption when a rd party says something because we want to make sure about a meeting but here he says i know i dictated something i know my secretary transcribed it i know she's going to transcribe it and now i've looked at this and you know this is what i said if that's the case why hasn't he adopted has multiple assistants we know nothing about who actually did the transcription whether it was a temporary employee full time employee whether they actually followed instructions whether the and this is important your honor but more importantly seven years passed before he looked at this document the document itself says that it was transcribed but not read mr garrett did not read this document to tell preparing for trial seven years later and so that's why it's critical here he did not  well one is that he could possibly remember with such great detail something that happens dozen years earlier but more importantly and this is what is here we need testimony from the person who did this to say that it's accurate he can't stay it's accurate he court found that this document was prepared and in just a litigation the government has not tested that finding and it has not offered that except as an alternative or of comments again that the reason that it matters because there is for the truth of what they heard being stated whether it's on the recording or whether it's a whip yes the behind locks and so the problem your honor is that we are not hearing from that person you understand that they were doing their job accurately and that is the ca even in areas with a court reporter who isn't who is trained to do this properly who certifies at the end of their transcription that they did it accurately which is why this would come in and perhaps on a different stuff than for public records exactly what their employers tell them one hundred percent of the time and we know from from experience and common sense that that's not correct you know nothing about this person we don't know whether they did their job well we don't know whether they had been reprimanded by mr kerik or other edwards judge her with the one hundred and seventy seven or the witness even though he was intoxicated reviewed it at the time enough for the contents then you don't need to bring the person who actually wrote it because it was adopted by the witness at the time that at the time when it was pres memory but again and i don't want to beat a dead horse we're talking about seven years later i just can't i said my last question on this is so what are your reading of eight thousand and thirty five if the secretary or transcriber came in and said  i listened to the tape and this is an accurate rendition of what was on the tape and mr gary said i've got no idea what it could have come in because if he's the one me ask you a question that i think central to me on this is i read your briefing it's not that you think that they knowingly instruction was inaccurate it's that you thought it made the instructions on several crimes that at a higher men knowingly obstruction that i think is by itself an objectionable and then we have instructions on the other crimes would seem to be correct in saying you need a you need something they don't need to know what they were doing was model instructions say if you don't get that nd sentence in that circumstance so you know we have rule five six itself which was the basis of the instruction here and the comments say the nd sentence of this instruction should not be given where an element of the offense requires the government to prove the defendant knew what the defendant did was unlawful if we look at the comments to the money laundering instructions they say because it so here i mean the core gave us flight variation of the nd sentence the model instruction what was given in stein in termini are the government is not required to prove the defendant knew now and here is why what it was and try to do it presumably it distinguishes an x done knowingly from just knowledge that distinguishes the instruction of knowingly engaged in a monetary transaction from the the instruction purports to apply to all of the defendants action is predicate acts of fraud as well as his secondary act of money laundering and there the language was the same it  new that the property represent the proceeds of securities fraud etc in turman it was new involved who managed bribe property justice here so that distinction between knowingly and knew and just saying to the wire fraud instruction here the court instructed the jury that it could find water wire fraud based on omitted facts that was an error as a matter of law because confidentiality agreement but that argument fails as a matter of law and it fails based on the very fact a system the government relies on a wire that the party asked for the benefit of another they find that there's a duty ollie when there's an agency like relationship something similar to a employee relationship or an you're not making a sufficiency of the evidence argument with respect to wire fraud so i was assuming that the judge not given the omission part of the instruction and just given the instruction i wire fraud what do we do about the prejudice issue do we assume as we look to see whether the evidence on the other on the other theories was strong what do we do well the  here because the jury was improperly instructed on an element of the offense is that there has to be a harmless error beyond a reasonable doubt my so my that's my question well i'm not sure but let's whatever the standard is how well why wouldn't we find it harmless in a case where there's lots of other evidence of mission bad  record we see there that the did exactly those disclosures which the government argued were missing from the other ones that might just be was a contractor property manager and directly involved in the transaction and the jury acquitted the government says maybe they acquitted on that because they they wondered about interstate commerce or some other reason there's no there's no basis for that in the record there's no indication that was even argued so we have a direct demonstration here address the issue of improper opinion testimony your honour's throughout this trial the government elicited opinions from several witnesses bankers and lawyers and they were opinions based on these people's specialize knowledge gained through years of work involving banking practices and banking law and that the opinion that was expressed was that the defendants were guilty of fraud for each of these witnesses the government began their testimony by asking about their education and professional backgrounds and their qualifications as experts on the subject as to which they were going to be presenting testimony describing the professional experiences the witnesses testified as to their opinion as to the legality of the defendant's actions witnesses were improperly allowed to testify regarding their legal conclusion the expert the compound the problem the expert witness instruction cautioning the jury not to get this testimony and you wait was not given and that's particularly harmful here because what we're talking about are subjects which most people are totally unfamiliar i mean if people want to talk to me about banking law and for this case i know a little bit about banking law now but banking law and ban king practices you would have to rely on people who have experience in these fields to to know understand the testimony and understand what's going on and can i ask you let me characterize the testimony in a slightly different way and you can tell me that's not what happened but i will go look at the record later but let's assume that i put on the bank's lawyer and i say did you review this transaction or just debate in the in the in the discussions with the other side or a bank official and they say yes and say did you did the transaction as proposed concern you and the person says yes because in my laws or put us to put our capital at risk or something like that is me just me just testifying about why he was concerned at the time saying that these were these were not random witnesses they were all witnesses who you know touched upon the investigation or miss legs in one way or the other and they were being asked about action expert opinion and you cannot give legal conclusions that they weren't random they were called specifically they by the banks they were they consulted with the banks separate question was their relevance objection i don't believe though i mean pregnancy prejudice is always pretty you need some other need some other problem with evidence for prejudice to come in so i'm trying understand your position your position is that as long as there is no objection to the original indictment and that the original trial date doesn't violate the  think you do i think you do now to be sure that the new charges weren't tried on the day of the new trial but it seems to me that your argument that there was no undue delay in bringing the charges means that you can wait till the day of trial to bring them as long as the judge and the defense and there's a lot of everybody agrees to postpone the trial to give the other times of judge sides vission time to prepare another that that's not a ding indictment and then therefore therefore it seems to me that your argument necessarily lead to the conclusion that it would have been ok to bring it on the day of trial to as long as sufficient time was given to prepare th position that it can wait it can deliberately wait until the date of trial as long as the additional charges made to block further tests come out of the same transaction and then there's no problem with doing that as long as the judge gives the defense efficient time to prepare for the additional charges i'm not saying that's wrong but it does seem to me that your position isn't again i would think that in that they would have sufficient time to prepare if they were just told the day before the judge remedies that by giving them more time but and i'm not suggesting your position is wrong i just want to make sure i understand your position is always in arises out of the same events as long as it's a superseding indictment and as long as there's no complaint that the amount of time between the superseding indictment and the eventual trial is so short that the defendants really couldn't prepare me lay out my concern about it so the statement that was it made it was a statement of the translator of these do not give or if you will i mean she she said effect saying this is what he said i listened to what mr kerry said this is what he said but she's not there and so we don't know whether or not she made that statement close to the time of the trade scripture or not and as to mr garrett she is adoption seems to come not close to the time of the statement but significantly thereafter so tell me production of the memorandum was not only entirely reliable and accurate and i'm but also one hundred percent mechanical and nondiscretionary respond to your friend's argument that by putting dictated but not when did he adopted when did he adopted i think of it as the answer to that question and i would  deal that comes even close to being a fiduciary relationship and again i think we would like to think of this in terms of based on the substance i understand a lot of the term relationships but we would like to think of th statement was fraudulent or misleading but that's a separate argument from whether or not independently omitting something can be the basis for wire fraud so i understand your argument that that statement was was false because the information they provided was not complete but that's a separate argument it seems to me from whether or not and omission by itself can be the basis for for wire fraud in the absence of some special relationship that maybe that makes that that may be why your argument that this was harmless error is has some force but i don't like still figures significant to a jury's decision to come back to one count as opposed to the other and by any particular understanding by the jury but even engaging in that exercise or saw there were other significantly more likely reasons why let's let's do this let's put a couple of minutes back on the clock for mr gauger for a bottle and let's put it given that he had twice as much time as everybody else roughly put a minute back on the clock for  that we intended to bring the charges and the district court responded as follows i'm quoting well it was also intentional in the sense that you could have brought them in the st time since they've been there the whole time and so it was an intentional choice to go just on the one and then bring the  set late in the day this is not merely a list at all with respect to the the suggestion that they only brought these because there was they waited because there was a deadline the government had resisted that deadline multiple times and  a prejudice the government's arguments about proved beyond a reasonable doubt and that it's more presumptively prejudicial to them doggett rejected that it held that there was it was unclear to do it was more prejudicial and in justice o'connor's  the government never charged you're quiet until the time of a superseding indictment their words there was no in the original diary there was just a superseding indictment and we've got to go back to charges that's why the nd factor is important the court can ask why they did this that's what that is what the courts look to and i want to emphasize the government has not cited a single case not one that holds that you said these rights are of himself transcribed by somebody else who wasn't and then the witness later is confronted with is there any case close to this i think the morning opinion from the rd circuit which involved  those circumstances the rd circuit not just ending arguments about reliability is that it does not come in as a recorded recollection your honor just what you asked did he review this stance really and that i think notably my colleague could not point to a time which he reviewed until seven years later and this is important because what the government is arguing is that through a process that a witness can adopt a document without ever reviewing it an change in the instruction gets rid of the problem with it applying to new the transaction involved criminally in your drive property exactly the same situation as in terman said knowingly sufficient it was directed to the nd sentence specifically and the grounds were allowed a party to argue that the defendant doesn't need to know exactly unlawful and that's not necessarily true and that's at seven  exactly the problem here because the jury was instructed yes it could be an affirmative wrister representation based on half truths also kind based on admitted fact we don't know which they found there no i'm just i'm asking this question when somebody represents to the other side that they've made it complete that what they've said actually said is complete and accurate doesn't that necessarily include within it a representation that i have left out something without regard to its relationship to other statements without regard to the half truth affirmative misrepresentation theory so it's a separate theory and under griffin and other cases  the jury's absolutely instructed correctly as to what it must find factually that certain they have to find that there were five people in the defendant supervised or  organized and the government put out certain possibilities that could meet the five and they said well they were instructed and there were five people so that's another thing it was up to the jury and the court said no five of them as a whether i'm having difficulty figuring out why the burden of proof or standard of proof matters the district court seems to have said i'm going to find that you cause the bag failure based on the pre sentence report i'm not sure how that evidence is that which is that these defendants cause the failure of the bank that evidence was the f d i c report was was compiled before the bank failed it said record three dates and i think that causes a problem and i do think the standard of proof matters and i agree that that would that would render that incapable of proving it under either standard of course is a constitutional matter the burden of proof that the court is applying is important but  is something important here which is that the p r stars assertion of seventy four percent of the risk appears to be wrong when you look to paragraph twenty four dollars of the report it quotes statement that mazza lassie represented seventy four percent of the total risk  capital at the bank and the probation officer from that one statement extrapolated to say that from this quote to say that the bank failed from capital decisions she quote because seventy four percent of their risks were taken up the concern here is that the government did not provide evidence to substantiate that seventy four percent of the banks risks right which is a different issue than the total risk based capital because that the f b i has to report shows that that is not a one hundred know and the concern here is that that statement made it into the dando got the district court relied on the p s arc and it the concern is that the district court was apparently misled into believing that magic lessees loans were three quarters of are actually law enforcement officer reports relating nd hand there's no live there's no testimony from a friends that i want to be clear it can't be fairly disputed that the issue of what caused the bank and what the effect of the financial crisis on require specialized knowledge i mean this is the this is the head of mi of expert testimony there's no live testimony there's no definitions under oath from anyone explaining these factors and the three documents that the only three documents submitted were law enforcement that it's about for cause indeed the government's submissions at sentencing show exactly the opposite and if we look at the f b i seized victim impact last statement submitted to send jane it really tells the whole perhaps more importantly because we talk about charge offs here and whether the charge offs you know where there was ten million for this charge shows sixty million it shows charge offs you know prior to the two thousand and ten failure charge offs for the house cologne zero not only that it shows that f b i he was able to sell the house car loan to west america for full are valued the entire value of the hire nine million four cause with regard to mr linage on the investigative report the only other thing submitted they also are no support for a finding against mr lyons again and they attribute to long lost money and the allow that loan on its books made it unsustainable could there be causation of the failure even though later on the money was collected maybe so but let's look at the to show that the government has met its burden which by the way is clear and convincing evidence i don't think is needed is not met under any standards but but yes i mean that the standards for clean convention clearly not here valencia you know this this is a loss increase defense levels twenty times increase linked of sentence nine times the factors that have been considered important the final two plenty of factors clearly met here the government tries to make an exception for conspiracy but the rationale of that you know half of all ample opportunity to improve on this in trial has no application year i mean one because the judge ruled out any evidence with regard to failure in the  exception to the rule and absolutely there was just no nothing at trial that went to the issue that was the issue ascendancy you know which was the causes of this loss in particular with regard to relevant conduct and i just gave i mean that that we had to look at his law relevant conduct only after his entry certainly not being a trial judge that in any way or you know gets you out of clear and convincing evidence that's true  saying issues here also requires you know but for an approximate causation also not responsible for liability caused by coconspirators all of the same issues apply there and make the good decisions here in arms in brown you don't count victims unless they're part of your calculation under to be one point one year there were two victims for that calculation and those were if the i take it on the ten it's my problem with the thirty one day trial is none of it was devoted to whether or not the magnitude of the crime caused the bank to fail it was just devoted once you could get out of that trial was the magnitude of so if i'm right in my characterization of that evidence your argument necessarily is that the district court was entitled to rely on these three additional submissions even though it didn't say it did needed some number and it would know then we could that could be calculated and i don't know that in twenty million dollars they there's something there but the theory of the f b i report and logs he had are that a combination of loans led to the loans you put on some evidence that the loans a trial but didn't ask the jury to make any finding about them but nonetheless you're saying it's part of it's part of the charged conduct and that's what i'm having difficulty with your argument and for proximate cause of the failure of the bank we have at the i c report that something this one i'm not i'm not sure where the government theory is located in the record beyond just you making the argument for how it could be supported and where was it in the p s r otherwise discussion on this my question is was there evidence from which the district court could have made this conclusion is not enough it is just a court makes the finding defendants come to us and say that finding was wrong because it's not supported by the record and so i'm trying i'm trying to do is find out not simply whether the district court made the finding that he caused the loss but whether or not the record supports that i'm not saying for the moment she needed to make more specific