we'll start with the united states here is block of the nine gap accounting metrics issue in this case and based on that failure of proof we respectfully submit that mr bloch should receive a judgment of acquittal on the counts for which he was convicted at a minimum we respectfully submit that mr black should receive a new trial in the middle of the criminal trial back in two thousand and seventeen the united states attorney's office learned from its star witness ryan steele that ryan steele had been offered a share of the f c c whistle blowers whistleblower award they learned that after ryan steele a testified they learned that after ryan steele had offered evidence in this case that nobody else could offer what pat would you  respond to the view that you have to show that this conversation was material given the other evidence at trial and you've got the district court and mostly undisputed by mr block and the district court also view that the government's cross examination of mr block was in his his words devastating corroborated not on the key facts the most important evidence that he offered during the course of the trial is that after the q two thousand and fourteen financial statements were filed about two or three months later the audit committee was conducting an investigation he alone testified that he had a conversation with graham block where the idea of a loan to fees meant based add back was created for the st time where he claims to have expressed a more prime block that that loan to fees in theory did not hold water he claims that he then worked with brian block to can can to concoct a cover up for the audit committee that was the most compelling testimony that he offered with respect to the guilt of brian block and there is absolutely nobody else who could corroborate that with respect to the events of july th the q twenty two thousand and fourteen accounting itself your honor the only other person in the room besides brian block and ryan steele was lisa mcallister lisa mcallister could see the computer screen that bryan block was working on he did not she could not see the step by step click by click process that ryan steele alone testified about brian bloch also described that when he testified that she was she had a limited view of the situation and when asked why she thought that the accounting was wrong her answer was because brian bloch didn't give an answer and brian steele seemed to be upset when all is said and done the most compelling evidence that ryan steele offer and what made him the star singular witness in this case was the evidence about the cover up and i should point out that a critical piece of the government's case was that bill graham and the very man who offered the whistleblower award came in after we cross examined ryan steele to rehabilitate his credibility basically came in to testify about conversations that he claimed he had with ryan steele and the government never told the court when the court when the government was asking for permission to call bill gribben to corroborate ryan's deal never told the court that they had her and an ambiguously from ryan steele and from ryan steele's counsel that bill gribben had offered to share the whistleblower work with ryan steele i interrupt you there yes  in so then mr blaize interviewed mr steele and according to mr blazes declaration he then corroborated in sum and substance what his counsel had said and quote said mr gribben said he might be able to assist mr steele financially so so there is a clear alignment between what mr steele's counsel and what mr steele himself said to the government that the government did not disclose either to the defense or to the court when they were trying to press the court to allow mr griffin to be a corroborating witness so was mr steele corroborated not on the most important testimony not by a long shot couple of other a couple of other observations about the court's analysis the court did testify that brian steidle at the rule thirty three hearing was forceful and credible i respectfully submit he lied during the rule thirty three here in his testimony at the rule thirty three dollars hearing on the very issue that we're talking about today his testimony at the rule thirty three dollars hearing was that the offer that bill gribben made to him was one of emotional support that's not what he told the government in two thousand and seventeen and from my lights i trust the government's declaration these guys are professionals they interview people all the time they're in the business of remembering what they're told they can they got their thoughts together the ones that flow through the declaration less than a year after the trial the record is clear that in may of two thousand and eighteen less than a year after the trial they got their heads together on exactly what they had heard from ryan steele it wasn't until a year later that they submitted declarations but they got their heads together less than a year after the trial there were recollection the judge below said that they were the least reliable source of information i would respectfully submit that the government declarations with the most reliable they had no bone to pick i eat that you've got to believe that they're trying to be honest and straightforward when they submit that  declaration ryan steele and bill graham and on the other hand when they testified at the rule thirty three dollars here and had every reason to throw curveballs at the court and you know ryan steele did ryan steele testified that he got an offer of emotional support when the record is clear it was an offer of financial support and a share of the whistleblower award but no dispute that he turned it down i think there's and be huge dispute that whatever it is and what's in the record indicate that he said yes i couple of and st of all there's the question of do you simply believe ryan steele's testimony when you know he lied during the rule thirty three year number one and number two keep in mind his to his explanation for turning down the offer the offer of emotional support at the rule thirty three year in your honor he testified if you read his actual testimony he testified to the effect that a financial financial support wasn't necessary and we shouldn't even go there were to that effect it's in the record on the rule thirty three dollars here and when he was pressed about how he responded to bill graham's offer of emotional support why would you say that if somebody hadn't actually just put on the table the prospect of financial support so i think there's every reason to believe your honor that ryan steele lied about turning down the offer now let's say he didn't lie about turning down the offer there's every reason to believe that he had it in his head that that was a vailable to him at some point down the road did it colorist testimony the jury should have been allowed to decide that did it give him up bias to try to convict brian block so they could improve the chances of bill gribben getting a substantial whistleblower award that he might get a share of the jury was entitle to know that and make that determination not the government so for the reasons laid out in our brief i see i'm out of time i'm happy to continue to discuss this and yes your honor you you are you  know what is what is actually you know the element of securities fraud what do they have to prove or the respect to the false certification counts what was it that the parties had to agree to for the conspiracy count it's a question of you know was the underlying statement false that's the way the government indicted the case that's the way they presented the case to the jury their argument was that the numbers were simply false and the case law whether it's on a care or virginia bank chair speak directly to the notion that that because the securities laws do not impose liability merely for the impurities of directors unclean heart that's the language in footnote two of of the care that cites virginia bank shares which cites to stedman and and and that basic concept there tie directly back to the books and records of a s a p for q one and q two of two thousand and fourteen so they were accurate we're not here to retry the case about whether you know brian block i did or did not intend to present accurate numbers we're here to argue want to appeal that that the government failed to prove that those numbers were objective lay false thank you good morning your honors in may and please the court my name is brian blaise i'm an assistant united states attorney in southern district of new york i represent the united states on appeal and also represented the government in the proceedings below your honor judge in did not abuse discretion when he denied mr blocks motion for a new trial based on alleged disclosure of failures appropriately found that there was no reasonable probability that the undisclosed information would have perhaps perhaps your honor if it were impeachment material that should've been turned over with respect to graham and then it would have been fair game to use against steele in a cross examination of course ok so i mean i guess i'm trying to figure out i mean that's correct that is with the declaration and i'm not sure i understand the you know the difference between the two but and then at the hearing steele says there wasn't any financial offer at all and your own i think if you look at the he testified at the hearing that it was an offer by mr rubin to quote take care of him that he always understood that to be one of emotional support but that he speculated to the government when the government asked him if there ever had been a financial arrangement between he and mr gribben that that conversation in which mr griffin said he would offer to take care of mr steele could be construed as a financial an offer of financial assistance so that was mr steele's explanation certainly i think it  is not is not the case of mr steele lied at the rule thirty three hearing i think if anything the evidence shows that mr steele was trying to answer the government's questions in a deliberate way and then an offer  that he as he testified at the hearing construed to be one of emotional support could potentially by someone else be construed to be one of financial support and explain at the hearing that that was why when the government asked about financial support he offered the conversation he offered the the existence of that conversation as an answer to the government's question could you help give me some context on this in terms of how this all played out what is it that specifically in the record but i think the true answer is in abundance of caution we were doing a full and complete giglio check before putting our witnesses on the stand we received the answers that we received we had an internal discussion about whether the information that we had received constituted and again this was not a decision made in isolation by the trial team in the heat of battle this was a decision that was vetted with supervisory person office in the conclusion that was reached in good faith was that given that the offer of assistance had been rejected that there was no agreement or understanding or expectation of any future benefit  by the witness in fact mr gribben himself at the time that we asked the question in the midst of trial did not recall the earlier conversation we made the good faith the ultimately did at the hearing  remember the conversation and he indicated at the hearing that he had been refresh by reviewing filings in in this in this actual case so he was refreshing did recall the conversation about the time he was originally asked in the midst of trial explicit i will give you fifteen percent of my whistleblower award zong as you rejected it your views it's not impeachment that it that is our view your honor i mean it is clearly if there had then in agreement or understanding certainly that is impeaching and would have been disclosed will i think it's also our view had there been an offer that was and responded to by mr steele that simply remained outstanding that certainly also  is likely impeaching and would need to be disclosed but in this instance the facts that we had which was that two and a half years before the trial at the time before there were any charges at the time before there was any indication that mr  steele would be a witness at a trial there was a suggestion of financial assistance that was rejected and according to our two witnesses never discussed again never brought up again we took the view that that was impeaching nonetheless even if it wasn't even if if if we violated our giglio obligations as a result of not not disclosing that information judge nonetheless appropriately found that had that information been disclosed there was no reasonable probability that it would have impacted the result of the trial and that conclusion is well supported by because of the evidence being overwhelming in his view correct that the evidence was overwhelming that the likely impact of the undisclosed information would have been minimal at the trial and certainly that the notion that mr steele was testifying under some or was fabricating a story about there not being support for this adjustment as a result of some financial incentive is just belied by the evidence at the trial including evidence of mr steele's own conduct that for example on the night that the adjustment was made mr steele protested that there was no support for that number he indicated that he would not deal with any inquiries that came regarding these adjustments and in fact steele as he indicated would for those e mails on to miss macallister and mr block and didn't deal with those issues and i think most importantly the notion that some meeting and it is entirely consistent with the testimony that he gave at trial information that he provided to the government before any financial incentive as a result of this purported as a result of this offer of assistance from m a rose so had the impeaching information actually come in at trial i think as judge can recognize the government had a very powerful response not just pointing to mr steele's conduct that was consistent there being a fraud on the night of july th but the fact that before the incentive arose he told the government or provide the government information that was entirely consistent with his trial testimony and we would have been able to introduce that information as a prior consistent statement just one thing with respect to the gribben still conversation one is left with a sense that the whole truth has not been disclosed that is that one is left with a sense that something is missing in terms of the full explanation of course your honor the government had to make its disclosure decision of june in june of tw seventeen based on the information that was available to the government in june of two thousand and seventeen we certainly didn't have the evidentiary hearing testimony in november of two thousand and eighteen at the time we were making our original decision you know we do in mr steele's testimony and you know jackie and was obviously the trial judge in this matter and sat as the as the judge in the evidentiary hearing had a view said that ryan steele was an extraordinarily credible witness  so given that we believe that judge judge conclusions were appropriate and supportable by the record thank you and you would agree though that if if if there were something there that it would be  inappropriate for the government not to turn and not not to report this in some way as brady material if there had been and yet agreement of course your honor we don't dispute that had there been an agreement  understanding about a provision of a future post testimonial benefit that we would have been obligated to disclose that under giglio the evidence that we had at the time that we made the disclosure decision was that there was no such agreement that did not take notes of the conversations at that time in the same way that we are in atlanta in the same way that we asking it in the same way that we often do not record negative responses to giglio questions if we ask a witness have you ever murdered anyone have you ever you know traded child pornography and the answer to those questions is no we don't have an obligation to record the record and disclose the nonexistence of giglio information having made the conclusion here that the information was not impeaching we also made the conclusion to reach the conclusion that it was not necessary to memorialize i see that my time has expired thank you thank you know your honor the only reason why the government can get up here and tell you that the offer was rejected is because within the confines of the u s attorney's office they decided that they wanted to believe what their witness said to them that's the only reason the only reason that is a credibility determination that the government should not be allowed to make that is a credibility determination that a jury should be allowed to make and they denied the jury that possibility and they denied us the ability to cross examine both ryan steele and bill graham can you imagine what would if not for that so when the judge in the in the end is an additional opinion try to reconcile these conversations that's the general's job that's his job and you're absolutely that's the jury's job and i don't know how you reconcile these statements you know and i will say that as a broad proposition what i think i hear the government saying is that a rejected an offer of financial support to the government's star witness is not brady that can't be true that isn't what the case law says that's not the kind of way the brady and giglio case law has evolved offers hopes expectations you know motivation to lie those are the kinds of things sure an agreement is great but all of those other things can form the basis for a brady violation and if that is the government's view god help us h that would have been a game changer just eleven seconds so let me just say the following ryan steel was the government's star witness ryan steele did say things that nobody else said that went to the heart of the government's case ryan steele held himself out as a boy scout he said his only reason for testifying is he wanted to tell the truth he could not sleep at night he told the jury and that's what the government said to the jury they said he had his stomach hurt he couldn't sleep at night he had to tell the truth that's why he came in and they said those things to the jury knowing that the whistleblower award had been they didn't offer to share that was a lower award by the very witness they called to corroborate ryan steele the fairy witness and in the summation they point to that testimony and they say you know how you can tell ryan steele is telling the truth bill gribben they do that in some asian and they know that they had a conversation government predates this alleged offer i think it's a great point and one for which there is a really interesting answer i think the answer is that the jury would have learned as we did during the rule thirty three hearing that for that st interview bill gribben and ryan still rejoined at the hip there's a lot of testimony in the rule thirty three year in about conversations about the accounting the grand thorton work the audit committee investigation the f c c investigation the government of escalation you know what i mean the record is clear that the only reason ryan steele got in to see the government in december of two thousand and fourteen is because bill gribben asked the government to speak with them and he did that because ryan steele asked until they were joined at the hip but it is clear that those two were joined at the hip and had a motive to cook up a story to doing it the hip line of cross was available throughout the week on a we just had no clue we had no clue that there'd been any discussion between the two of them about sharing the only thing you didn't have available to you was in the conversation in which an alleged offer from financial assistance was made but the other things you just talked about those were all fair game for cross and available to it right there was nothing in obviously fair question there was nothing in the thirty five on the material as i sit here today and as i recall nothing in the three thousand five hundred material that shed any light that suggested for even a moment that bill gribben and ryan steele had discussed the his financial interests but there was nothing to suggest that bryant steele was anywhere close to potentially having an interest in that all came out in the world thirty three hearing this trial would have ended differently if that information of been available