i'm going to take you about one hundred years from airplanes to coal that new century coal at some point and its operation became a criminal enterprise the question at trial was when and what knowledge and agreement to johnny phillips have about those fraudulent activities the case against johnny phillips was incredibly thin it was thin from the very beginning when the first cooperator came into the f b i talked for hours and hours about all the batek to videos of his associates and never mentioned johnny phillips name it was then when that associate in another recorded hundreds of hours of undercover conversations and not once was there and inculpatory statement about john phillips and it was thin when they searched every document and indicted this case with numerous  agree that underlying all this was a fraudulent set of box so put your client aside pretend he didn't exist talk about rose and the other was a their absolute was a fraudulent conspiracy that was run by a number of individuals and the question of trial was not that ok so we accept that and then we have one review when it comes to sufficiency is a conspiracy charge against your client right so i don't have to require the government to prove the underlying fraud in that phillis participated in it with the conspiracy requires is there is this underlying fraud you just acknowledged that was true he joined the agreement and someone an affirmative act in support of it and you know so so i guess but the point i'm making is you emphasize so much in the briefs the lack of evidence that he your client was doing the fraudulent acts when i don't think that's what the question is on appeal and i'm missing something no you're not because it's not the question on appeal with the first issue with two three four and five it becomes that issue very clearly because the second issue that we raise is this jury instruction we've requested  ok i want to go back to that but let's just make sure we're getting the sufficiency arguments that's important isn't there evidence that i mean isn't there evidence that a jury could rely on to say that he knew what was going on and participated ok ok all right so let's go to issues two but whatever reason that is so important is because the way that the jury perceives both of the deliberations in the question they ask and with our jury instruction that we ask about is to focus the attention on what evidence there was really about johnny phillips his agreement his participation in the overarching conspiracy on the only question the jury was asked about with respect to johnny have specific knowledge and intent there were two counts they were both money laundering counts they acquitted on those counts on the conspiracy charge they asked a jury question that said essentially are the parts of which mail and wire today need to be attached to convict him of conspiracy count so below or just on appeal we were both a trial on some deals i don't know if it was you but i thought his lawyer below acknowledge when the judge was trying to figure out what this question meant uncertainty about what it meant which i found not ineffective assistance i found to be an understandable reaction to the question i think our response was you know after first reading it give us a second to look at it we're not sure what they mean we just read it one time and we very quickly said look they're asking about elements being missing are on our direct in the transcript we said i think i was when i was going to set it no they need to be told all of the things must be included in all of the elements must be present and the judge says well i'm not going to do that so i think that that answer was insufficient because they're asking can we have an admission why that's important they're asking about mailing wire in the evidence focus so strongly on this incident the single person meeting in missouri where there wasn't mail there wasn't wire there weren't sort of conversations about how the johnny was involved in the mail wire doesn't matter right back to conspiracy it doesn't matter that they have to find that i believe he's got to know that there is a conspiracy he agrees to it to its claims yes to its aims and so the question they're asking about doesn't make sense when there was plenty of evidence that somebody was sending things in the mail and that somebody was sending things through wire communications but they're asking about that with respect to johnny phillips in a way which suggests that they have real concerns that johnny is involved in that conspiracy that overarching problem that he is or isn't that he whether or not he was at all and i think the question asked what's wrong with her firing him back to be instructions where you have a conspiracy charge where they can review it and say that he doesn't need to be guilty of mail or wire fraud he just needs to be guilty of a conspiracy with an overt act i think the jury asks can we do so jury had concerns that you know that is a part of the the deliberative process and ultimately they resolve them sermons against your clients and what's wrong with that i think it's a kind of shift gears what with that in part is because we believe they did so based solely on his and is knowledge little other coconspirators had used assumed names and that's why we asked for instruction from sadler to make it clear that that piece alone standing alone could not be sufficient or would not necessarily be material and the judge denied that instruction the government's argue that it's not credit that the saddler basically say that there is a statutory right too completely accurate information before making an otherwise fair exchange of how does that affect what you are arguing here it effects in the in this way johnny phillips the evidence showed was involved in what he believed to be a legitimate cooperation he did things which would not have made it not a legitimate cooperation spending money his compensation being on the actual return of coal they had deals he looked at them he said that's not a good deal for us to do they didn't do those deals at some point later it looked like from the evidence when brian rose kind of had mental health issues or otherwise was concerned they started to slide indiscriminately and by i mean the people in the johnson city office about a whole series of things you are going to the jury had always been the johnny phillips involvement was not part of this other subsequent criminal activity what happened in missouri there were no misrepresentations that we argued to the jury at all material to the transaction that was happening between the investor and c c at that time we conceded that three of the individuals use names that they had changed two of them changed them legally mr rose went back to his birth name the evidence was clear and undisputed by us that they knew that that false names had happened and the government then argued repeatedly  use was enough to convict it was a material fact to show fraud and so it and i apologize we've not briefed to twenty eight j letter on this but we in the course of prepared oral argument would come across a case in the eleventh circuit that i think judge the parno as well which off and i can provide to the site once why don't you give us a citation the better afterwards and that way the government can respond to it further so the argument is a little more fair what the issue there is and whether it happened here is there maybe all of this this all of this fraud happened over here and there make ultimately be a fraudulent act that happens but if the only thing the jury knows about johnny phelps or believes based on the contradictory evidence is that he was present with false names were used they need to be instructed that that this state it's not necessarily material because that's certainly the way the government argued it we put fifty three citations where they make that are better focused on that question and so it there's sort of two steps if they believe that johnny was involved in all this bad act of a t shirt then they met their burden that they've convicted him if the jury just believes that johnnie was present when they use fake names and that's enough for conspirators the absence of this additional instruction interfere with the way you got to argue the case and do your closing argument and put on evidence or not put on evidence it's a matter stand how it it's the same like you still allowed to argue all of this i think it's the same reason that tax law of dress the sister actually it hurts your argument because it's not bolstered by the fact that it's actually the law if we say the law is one way the government says the laws different the jury looks at the court the court says nothing we're at a disadvantage if the law is but just because it hurts you doesn't mean that it's era there are a lot of things in the trial that going to h and this is why the donald that we focused so much on the insufficiency of evidence about johnnie because it was such a tenuous case because there were so many reasons to doubt that that was when they could hang their hat on the jury they deliberated for a number of days but you started with warm argument one you  said well we're not really isn't our big one we're going to two through five now you've been pushed into five i'm going back to one i'm not i'm not arguing that's how you should reverse but i'm saying the insufficiency demonstrates the price is the question as i understood it was a question of prejudice and i got it and that is the prejudice he the jury obviously disregarded his testimony because he essentially said they committed conspiracy to money that your client conspired to money on are correct that is one thing he said he said and then the other but that was very problematic all agree with you but the jury discounted him we know they discounted him because they found your client not guilty of that correct that's true at all i'll say it's true they acquitted him i don't think it's true that you could say that his entire two hours of four hours of testimony was that i can say some of the critical testimony that you have critiques for they disregarded completely potentially i mean i don't know how it affected the rest of the deliberations we don't get to see that process well he said your client's guilty of conspiracy to money launderer and they said no what he also said specifically that they came together and agreed to organize an enterprise this is in the government's brief and there's three sentences the government actually highlights for you in a it in a drop quote where he he goes far beyond talking about money laundering it's all the government's grief that page please the court for the united states the constitution titles a criminal defendant to a fair trial but not a perfect one mr phillips received a fair trial by jury and his resulting conviction should be affirmed there are several things on which i agree with mr little the evidence of the the overall scheme is well settled that mr brime rose was in charge of it also well settled that there were improprieties at trial will also agree to that the improper we grew with that but as you just noted that was harmless error here because it didn't affect the actual outcome of this case but it seems to me you have  questions a lay a witness giving opinion that as to the ultimate issue which is almost universally disfavored as a trial judge i never let it happen because agents always wanted to do it and it was it's very problematic when you have a government agent that is inherently trusted by the jury opining on someone's guilt and their point is ok that's fine you're right judge the money laundering we weren't convicted but he also said and this is what they underlined all these individuals essentially agreed to the plan in which they presented to the investors using fake names they made fake representations to these investors and they essentially sold a coal mine that they had no least to so what they're what are you saying there they're also guilty of conspiracy why isn't that equally problem are more problematic in that case as to that portion agent washroom is summarizing evidence ideally should not be summarizing the evidence for the jury that's what we normally do in closing argument but th bringing people in right i would disagree with that he's at the bottom he was central to the scheme but he was not involved in day to day operations defending himself testified at trial that most of his interactions were solely with pri rose they were verbal they were not in writing and it was usually just the two of them so it's unsurprising that brian rose and the defendant are the only two who could testify about those conversations the jury heard from both men and if they government's favor and that's not what an agent should be doing on the stand that's not when they get to the what do we do with this problematic testimony because it's the money laundering i agree with you it's harmless because he was not guilty what do we do with this testimony after they object the testimony comes in and does the judge give a limiting instruction right there after after after the underlying question you just read to get i do not recall i'm sorry well did you give a  when they when the question initially asked him did you conspire to money laundering the judge gave a instruction which is complicated this does not specifically tell the jury to disregard it it seems that there was a lot of confusion at that point i don't think that was a satisfactory limiting instruction at that point i don't know if there was a separate instruction after some of the other testimony by the agent to which the instruction  asked to decide the back sure issues applying the legal faster what the court said at that point was to the extent he's offering an opinion you get to decide whether or not to credit is opinion and when you consider that in context with all of the other instructions the jury received at the end when they were told that they were the sole arbiters of the facts that this was their job to determine i think that corrects any in completing this any miscommunication in that original limiting instruction during th agent's testimony defendant was central to the success of this case and what made is not what what you heard from people said is that the bottom what made him in your argument central to the scheme as brian ross testified he was the only one who had any experience in the coal industry without johnny phillips involvement the scheme would not have appeared legitimate that's the reason they asked him to pose as a third party buyer that's the reason he came to investor meetings my recollection i don't have a page i d offhand i'm sorry obviously showing defendant's knowledge in a scheme is rarely proved by direct evidence we submit there was ample circumstantial evidence from which the jury could glue that he knew the full scope of his game that he knew that it was  as i said earlier i know this is a somewhat lengthy record it was a busy relatively long trial they suggested the government made fake name central to support that argument they said that we asked over fifty questions about it just like to remind you this was a case  fifteen government witnesses over two hundred exhibits lasted nearly two weeks there were more than five thousand questions asked a trial so fifty questions although it might sound like a large number it's less than one percent it was hardly the key focus of our  and this case as the defense recognized as the court recognized several times this case was about far more than fake names but the fake names were a key element from which the jury could conclude the defendant knew that something fishy was going on and he would either deals verbal ie only with mr rose the jury credited mr rose's testimony in or should find him guilty of conspiracy and this court of course doesn't revisit those credibility findings in our view mr phillips was fairly tried although not you can you know that in part because once he goes to missouri meeting those investors who are eventually they don't invest immediately after the missouri meeting they go they actually visit these sites they are having constant weekly or daily conversations with the other coconspirators they don't see johnny phillips to  the investors that meeting don't recall his name don't even know what he looks like can't identify him the court the two who were there gave her but some got involved because of his reputation correct i think they may have that afterwards but when we actually cross examine them about what they did sort of due diligence none of it had to do with phillips i mean it all had to do with we went out there right but they said it in the jury could credit that he was an important victory and there was testimony to that is very thin but if there if you took those pieces you could better not right there was but in the go to the agent i mean he was allowed to testify in a reply brief as well sort of put most of these but he was able to say that rose received income that was not legitimate coal income investigators have found no evidence of the actual production of coal earlier all of this starts on p t id thirty seven thirty four it continued for half an hour to an hour with us objecting repeating that can i go back to something you argued that earlier and i just wanna make sure i'm getting your point and this is this additional instruction you want to get not on the statements or material so what we're trying to do with that i mean is that both of the things you want of the judge to add look like things that go to whether there was an underlying fraud also again that takes you back to the question that this was a conspiracy charge so to try to figure out so let's just say the instruction was a good idea in the abstract it would have seemed to be been a good idea and a case about the underlying fraud a lot about conspiracy and evidence to join the fraud is one of the difficulties conspiracy was multiple acts that could be seen is fraud in the tackle that i mean you've already acknowledged there was a for how to we never acknowledge that johnny was part of it so let me give you the of case there's an hypothetical in there where an individual lies about getting someone to come to their house to get a dollar to exchange a dollar for four corners that lie about hey come to my house my child sick i'm going to give you a dollar give me four quarters that is not fraud because there are four quarters that are handed over there's no property that's being deprived there at the same time of the person who lied that seems helpful to showing there was no underlying fraud second question but that's not your argument but to get their promise and to get there the second part is that the same lie takes place hey come you're a guy i've got a reason i'm lying to you about about why i'm exchanging this dollar and instead of giving you a real dollar for four quarters i give you a fake dollar counterfeit dollar well that would establish fraud here the question is we disputed whether johnnie was part of exchanging that you can imagine scenario in which there's a dispute about whether or not that dollars counterfeit but there is a dispute about whether or not the individual who were representing is part of that agreement to give a fake dollar over so then the really two things the jury is looking at first is that an initial lie sufficient to prove fraud and second is the second deprivation of property the taking the fake dollar across the table fraud but we can't our government or even use the knowledge of the fake names to show knowledge of joining the conspiracy not it has nothing to do with whether that was underlying fraud so that's why the instruction doesn't seem to me they can have that material they can absolutely argue that it's knowledge but they argue that it was sufficient for conviction and they say the closing this is material to through the fraud this is material sufficient to the fraud and so the jury could be led to believe without that instruction that they can convict solely on the use of those fake names without having to resolve the dispute unanimously amongst themselves about whether johnnie agreed to participate in the rest of this but the jury was instructed to consider all of the evidence in the case and so i mean i don't i don't think that you can called bring up the language in tact law that addresses this but the problem i wrote back i know i think it's i think you're talking about apples and oranges judge sutton's points a valid one which is the jury surely can use the knowledge of the false names to conclude he was a part of a broader conspiracy it's a different way of peers in this and that's what it seemed the government was doing here we don't disagree but we thought the jury should also be aware that that's not sufficient and i think that it's not sufficient to actually it's not sufficient to establish the probert sufficient for the jury to music to conclude he was conspiring with rose to commit fraud and how can a g ever say that he and how can it be harmful if you agree there was a fraud but because if the what judge the parts just said if the jury was told that it in the way in our trial we wouldn't be here with those issues these are things that i think this panel certainly knows these are things that we believed but it's not was that the judge never told the jury that they had to consider all of the after them but it's not a question of all of sufficient to complete the fraud or to agree to a conspiracy if the jury thinks i don't want to get into whether or not he had knowledge of the rest of the stuff we i think it was enough to use fake names he had knowledge of that that we want to convict and the smiley on the there is page upon page upon page where you objected the judge changed his rulings was unsure about really what he was doing about whether to come in couldn't come in he ends it by giving instruction this person is an opinion witness they can rely upon his opinion that these bad things that happened we believe that alone can justify a reversal all right thank you so much to both of you for your helpful briefs and oral arguments thanks for answering our questions which we always appreciate clerk may call the next case that case will be