the evidence received by the jury based on the evidence received by the jury no rational juror could have found the required elements of the op it says as alleged in the indictment this case involves eleven counts and nine convictions but our arguments in our brief and and in argument this morning are the same for each count and so will make the arguments together in our first argument this morning we argue that the evidence is insufficient to support the verdict because the individual courts rely on the collective memory of the witnesses rather than any specific memory this collective memory prevented any rational juror from finding the one webbed made mr webb made some particular statement that the witness for the investor heard that statement and that the witness or the investor acted on that specific state this trial occurred years after many of these investments were made if perhaps for that reason the government men made it a point to ask each witness that testified whether they had an individual memory of the phone calls that they listened to or whether they had this general collective memory every witness testified that they had a collective memory rather than an individual memory some more than others but they all relied on a collective memory a collective memory is insufficient insufficient because the record establishes that each of these investors listen to calls both before and after making an investment because the outfit the investors either did not or could not differentiate between calls they heard before they invested in calls after they invested the evidence of what they collectively remember about the calls cannot support the verdict and it can't support the verdict because no rational juror could have found the requirement prior elements of the often spaced on phone calls listened to months after the investor put money into the company now is this court known as the supreme court in need or the stablished that in order to show a scheme to defraud that there must be some specific statement that either did or was able to influence the decision to make the specific investment it is irrational for any juror to have concluded that a statement made after an investment was in fact made influence the decision to make that investment therefore this idea of this collective memory of these phone calls is insufficient to support the jury's finding and reversal is required in our second argument which closely related to our first argument to address this issue of collective memory as a plymouth area matter we don't know how many of these phone calls there actually are but we do know that each and every stock investor testified that they only listen to some fraction of these calls no investor testified that they listened to all of the calls for the government to brew it prevail in this case it had to have the stablished that there was some materially false statement but without knowing what calls the investor listened to and without knowing what was said in subsequent calls we can't know if some past statement was in fact materially false even if we could be sure that some specific investor heard some specific call the reason for this is that it's difficult if not impossible to look at a statement without context and determine whether it's materially false so a statement that might have been i don't want to use a double negative here but not materially false say in quite that way in my understanding of the record as i've been through that written this truth and lived with this from probably longer than i would like is that what these investors said is they had a collective memory of what they were told and they invested sort of based on that collective memory and they couldn't tell us when they heard that there was a contract in place they couldn't tell us when they heard about this treasury bonds stuff that that was going to bring in i think eight billion dollars to the company they couldn't tell us when they heard that relative to when they made the investment so if they heard it after they made the investment it doesn't matter because it doesn't influence their decision to make the investment and they couldn't or didn't differentiate between what they heard before they invested and what they heard after they invested so they say they have this collective memory this general notion of what they remember from these calls but they do no distinguish between what they heard before they invested and what they heard after they invest where they instructed under pattern instruction four point zero five from the seventh circuit pattern instructions that's the one that indicates that the indictment charges the crime occurred on or about a certain date the government must prove that the crime happened reasonably close to that date the government is not required to prove the crimes happened on those exact dates yes judge right and they were they were instructed on that we'd have to conclude that they didn't follow the court's instruction to buy your theory that this was collective memory node drug and i don't think you have to do that in the reason you don't have to do it and i understand that this on or about has some click has suitable flexibility to it in fact but what we have here are witnesses who say this is what we remember about the calls that we heard we listened to maybe twelve to fifteen calls over a two year period this is what we remember and we invested ten thousand dollars the indictment says the i'm just making up a number ten thousand dollars the indictment says the investment occurred on or about april first two thousand and fifteen whatever it is so the date that the investment occurred is what factors into the on or about but the problem here and the deficiency here is that we don't have any idea about what they heard before they invested and what they heard after they invest in and i'm  it's a distinction that i think is is critical here because if they hear something after they invest it it has no influence on their decision to invest which is an element of this often so if they hear about it after the fact it isn't it isn't relevant and so what should have happened here is that the question should have been tell us about why you invested why did you invest in this company what led you to invest in this company not tell me about the phone calls that you listen to the conference calls that you listen to which was the nature of the questions on direct examination so because we can't distinguish between the two i don't think the issue of on or about really ties into this the jury got that instruction that that deals with when the money actually went to them but the issue that i'm trying to raise to the court this morning is that it's not about when the money actually transferred in but about what the individual investor knew or believed before they invested their money and i think i was about to start my second argument my second argument continues this theme of the collective memory and it says that we don't know how many calls there were and weak but we do know that every investor testified that they only listened to a fraction of the calls that were made for the government to prevail it had to have a materially false statement but without knowing what calls the investor listen to we don't know which of the calls they listen to and what was said in subsequent calls we can't know if some past statement wasn't that materially false and the reason is these are presented without context what happened here was they put all the statements in the same pot and the government pulls one out and they say that webb said x at some point at some point x was in fact materially false therefore every time webb said x it was materially false but that doesn't but we have to know is the context that surrounds these statements and without that context the evidence is insufficient to support the verdict now the government's response to this is sort of a collective so what it doesn't matter and the reason for this is to say that there's a general private pattern of criminal conduct that's occurring here and that every investment that went into this company was in fact a criminal act this is exactly the argument that this court rejected in durham seven sixty six f thirty six seventy eight in durham there were really two issues there the government the court rejected that argument because one there was no evidence that the entire company existed for the purpose of perpetrating this fraud and to the argument wasn't brought up at trial so there was no opportunity to defend this court called it a hail mary that's exactly what we have in this instance hail mary arguing that there is a general pattern of criminal conduct everything that went on with this concert with this company was fraudulent and therefore all the stuff up talked about doesn't matter but that wasn't the government's case the government's case at trial was that this started out as a legitimate company at some point it ran out of money it stopped it didn't have enough capital and at that point it switched from being a a legitimate company to acting fraudulent so there was no evidence that the stablish is that the entire company existed simply for the purpose of perpetrating a fraud are you bending the restitution argument i don't like to do that but i think that we don't clear plain there on that and so it was raised yes yes thank you counsel included an avalanche of statements by the defendant concerning everything that mattered to the investors the existence of contracts for products and services the expected large capital investments that were always imminent and the state of the technology that the company was founded on the evidence demonstrated that these false statements began as early as two thousand and five and continued in fact continuing even after the state of illinois had issued a prohibition order for the defendant to see selling shares of the company country to the defendant argument there was ample evidence as to when these statements were made and that the investors relied on them specifically but they were dates attached to the statements that were recorded in writing offering memoranda the executive summaries there were also recorded conference calls and the question in which conference call and investor listened to but what the statements that they heard were and when they heard them and there was ample evidence that investors heard these false misrepresentation to making their investments and all of that all of them are false from the get go because by the time you began courting these investors this venture was already failed as i understand it yes that's right at the the government's evidence  trial showed that at the beginning of two thousand and seven the company only had thirty eight thousand dollars in cash on hand at that time and no contracts or in the contracts or capital investment forthcoming right so it wasn't as if the representations were truthful at one point and became untruthful later they were all false from the get go so the dates really don't matter and i'm not sure that's exactly right because when the company  the government made this argument at trial it may not have been fraudulent from day one there were good intentions there however it was soon clear that the company was going to fail and so the government's evidence at trial showed that as early as two thousand and five the defendant was making false statements about contracts that had been secured investors relied on these false statements two hundred investors are more than lost over nine million dollars and drawing all reasonable inferences in the light most favorable to the government there's no question that a fact could have found that the elements of the crime were proven beyond a reasonable doubt in terms of the collective memory issue that was raised by the defendant of course  court will not weigh the evidence or second guess the jury's determination and the defendant argues that there's no way of knowing which particular statements investors relied on and when but the jury was properly instructed that a statement is material if it is capable of influencing the person so the government need not prove either that every statement was false beyond a reasonable doubt or that specific investors relied on specific statements with that said as i've stated there was plenty of evidence showing that specific investors did rely on specific statements for example about contracts or capital and to the extent that the objection is to the foundation there was no objections made at trial in that respect and even if there were it would go to the weight not the and miss ability of the evidence if there are no further questions the government will just ask based on these reasons and the reason stated in its brief that this court respectfully affirm the conviction and  you speak to the point the judge slides made about truthful or untruthful it doesn't matter because none of this would have worked i think the record will show that some of these were i think the treasury bills i don't think you could ever make an argument were going to be anything but when you look at things like the food safety through b s m you've got lieutenant colonel reed who worked in it who then invested in it he said it worked the bacterial collection the food testing things like this i think actually did work they were the representations about the contracts that were made to all the victim investors that they never existed so those were false from the start and i would say that that that in some cases we have to look a little farther than that i think insights and we would look something to like the washington metro case where the contracts where in fact they won the our earth p not only did they win the r with p but then they go to washington and they enter into a contract negotiations with the washington metro in unlike chicago where these i am meetings are going to be placed outside and had been tested in gold putting them inside a metro i think the court can take judicial notice that it's warmer inside of a metro station than it is outside so it's within the technological capabilities the evidence was in the record that it's within the technological capabilities to do this in the case of something like the washington metro contract now that have been truly felt through but it's a contract that they won it's a contract that they sat down and tried to negotiate it's a contract they brought their partners to the table on so i don't think we can say that none of this was going to work some of it was less likely than others but some of that i think we have to look at a little more critically now to point  not arguing the credibility here we have made no argument at all about credibility what we're arguing about is the sufficiency of the evidence the evidence is insufficient and there is no requirement to object to the insufficiency of the evidence  trial we're not raising foundation here we're saying that the evidence wasn't sufficient therefore the verdict cannot stand any further questions it's understood her position i could be wrong if a question is asked of one of the position i certainly don't mean to speak from her but that's how i understand my problem with that is that i think that we were allowed to let that go and allow them to pursue that and then to claim that the evidence is insufficient i think we don't have to check the insufficiency of the evidence they didn't do their job asking the questions they should have asked but you have to object improperly ask questions well i'm not sure it's an improper last question i don't mean to sound important about that i just think it it's a question that asked for one thing but they really should have been asking for another and it's not our job steer them to their burden of proof so your position would be of if the government would ask a witness on witness stand a completely improper question  opinion that this defendant is guilty beyond reasonable doubt that you can sit back and say nothing and not object and then complain on appeal that there was an improper question no i i don't think so and i think that takes the argument a whole lot further than i'm willing to go what i'm saying here is the question was in fact proper the question asked for evidence that would have been relevant in this case it just didn't loop around all the way connect all the dots to make the connection that was required that this investor relied on this particular evidence in order to invest it's not that the question was wrong or improper he just didn't complete the circle