with the question of voluntariness the april fourteenth two thousand and eleven statements that mr greene gave then proceeding to the jury instruction cluster of issues and then time permitting moving on to the mail fraud count and the sensing issue is he out of prison and he actually has been released earlier honored as of his participation in certain programs is the sentencing issue moo not truly moot your honor to the extent that if mr green were to have counts of conviction reversed and there were to be a remain for recent saying it's certainly it would give the district court guidance as to what the new sense would be i think most the most likely result would be if the government were to retry mr green and if he were to be convicted that he would simply be sentenced to time served but certainly it is at least a minimally active live issue your hon we do contend that there are certain findings or are there clearly were erroneous and certainly to the extent of the district court found that there which one specifically i went to the extent of the district court determined that there had not been any sort of ruse or deception or as of april twenty second april twelfth twenty eleven was almost certainly consider a target because he received at his appearance a target of letters so there were very few what else besides telling him that he has to obey the subpoena w intent and this is this is true based on the circumstances including the pre positioning of a laptop computer printer preparation of an ally and exclusively for the interview itself the clear intent of the agents and  was under compulsion which mr green's father rudolf green testify the suppression hearing they infer that to mean that he would be arrested if he if he did not they never said that and thank you and i i ask you is there any other finding  that you contend is clearly erroneous space science think the statement that according to the district court there was no coercion or threat are there any other of the findings of fact that time for mr green to be for the grand jury we would submit that that finding is clearly erroneous but all the rest of them you're accepting no firearms were displayed he was told he must not under arrest he declined to answer some questions and they were not was not told he had to answer them and he thought the other sort of factual issues you're considering it's a good thing we're not contesting your honor that from the moment mr green appeared in the conference room and was presented with a target letter and how the target letter read them we're not we're not we're not arguing that anything from that point forward rendered the statement involuntary ok what we're arguing is that everything everything everything perceiving the reading of the target letter the statement that he was under compulsion to appear combined with the circumstances strongly suggesting to the government and it only to would you be arguing that that was deceptive i mean it seems like you're kind of playing at both ways that if they tell him there's a subpoena that's coercive but if they don't tell him there's a subpoena that's to sept so what are they supposed to do other can't happen because they have a choice they can either tell him there was a subpoena which you say is no or they tell don't tell him which you also say is potentially problematic so what are they supposed to do i think they should have been much more forthcoming about the circumstances your honor i think they would they should have done was told him that he was under subpoena and that they intended to meet with him first because they consider him to the universe a good story target who could render valuable information to the investigation they didn't do that redundant unnecessary overkill under the circumstances that not only serve to confuse the jury that had already been charged with primary theories of liability regarding mail fraud and wire fraud  obviously mr green was charged with conspiracy in count one and so pinkerton attached to that and we didn't we did not argue that the pinkerton instruction was incorrect but when you have and of course originating in a betting instruction so when you have judge if he stiff this case charged with both conspiracy and with aiding and abetting baleful i was the judge supposed to tell the jury i think the judge should have decided as defense counsel counsel argued not to charge regarding particularly given that mr green that a valid theory if there is a failure on a run this circumstance it was completely unnecessary because mr green was only charging counsel or in ten counts in which the government according to its proved mr green personally participated so the government wasn't arguing that mr green was vicariously liable for conduct in which he did not purchase only personally participate so under the circumstances when you have this you know for lack of a better term a complete mish of very confusing there is that even attorneys than themselves will have to parse very carefully that the jury was simply too confused by all this you know when i was reading this it occurred to me and i don't know if this is right or wrong but it concerned me that this coast scheme or theory and the conspiracy theory were basically these same things like a multiplicative indicted but i don't understand it that objection was ever was conspiracy that he's any of the particular defendants was a member of a conspiracy isn't that the difference between fifteen and eighteen it's one of the differences there are but as we mentioned in our in our second  issue relating to this instruction you know when you look at paragraph two of instruction number eighteen there was anything any type of reasonable doubt requirement specified in that and that  and town which are this specific things that he is alleged to do personally right the mail fraud on the wire for on and then he's convicted of conspiracy which is not the same as co scheme or so what well as indicated did not fully understand the vicarious there is a liability then that would call into question his mr green's conviction on count one as well count thirteen conspiracy to two money launderer is predicated on morning may please the court peter kofi united states it seems the court understands our position as far as the voluntariness of the statements on was the court has specific points it wants me to address on that i'm just going to go to the jury instruction as far as the jury instruction to address your question where it was possibly different because one of the organs that was made of the rule twenty nine motion was that not only was there insufficient proof of the conspiracy but that we had charge of the wrong conspiracy and that is the point the judge moscowitz made when he was just debating whether or i can't think of a scenario if you have the charge conspiracy where it is not the same answer the question this way what would the scheme in this case the scheme in this case was to defraud mortgage lenders by submitting false applications  differ from from a conspiracy in this case i would say as we charged it as we prove that there was no difference lies in a multiplicative would be just for this for starters i don't think it would be multiplicity simply because there are multiple theories of liability that would all point to this defendant's guilt i don't think that as i understand it is the definition of multiplicity when you charge the same act into two ways if you say there's no difference between a scheme and a conspiracy to start with with a scheme in a conspiracy i'm not clear why you haven't just doubled up on it are you are you saying that the conspiracy count thing is the same act as the substance i'm asking you how to me how they're different why don't you said basically in this case there is no difference if i understood you right by the theory of liability you reach the same result but i don't think that necessarily means the charge is multiplicities because the charge you have a substantive act of mail in wire fraud and you have a conspiracy which is by definition not a completed act but if the theory of the ma fraud is a coast scheming theory and not some other theory i don't see how there's any difference between the conspiracy in the co scheme or my understanding of multiplicity and we didn't brief this but my understanding of multiplicity is that you look at the elements not the actual underlying conduct so in this case you would be looking at the elements of conspiracy versus the elements of minimum wire fraud which are definitely not the same this indictment was an attack on the ground was it all right at the point i was initially going to make about the there was an argument in this case that there were multiple conspiracies so it was possible for in this case that the jury might find they didn't commit the charge conspiracy and therefore whether or not the indictment is multiplicity yet no i don't think that it's i don't think that addresses the issue that potentially you've identified a little i don't think it applies in this case hypothetically suppose we said to these can these instructions are all felled up what we've just been talking about and we threw out the mail fraud conviction let the conspiracy conviction stand what practical effect would there be is there make any practical difference  i don't think so and while the losers of a one hundred dollars penalty assessment we can walk a little taller because he's got a hundred bucks back but that's about it right i mean that's the only yes  far as the notion that giving the co scheme or instruction somehow confuse the jury there's there's absolutely no indication this jury once confuse they never asked a single into question about the coast struction there's no reason to think that this theory of liability is any more confusing than any other theory of liability that applies in any criminal case so i think that's simply just an absence of any indication of confusion on the part of the jury and you know as far as the question of why give the  instruction there's just no way to know what a jury might convict on if it applies legally and it doesn't this case there was a foundation in evidence then it should be given and they've never contested that there was a foundation in evidence for the  wasn't raised my point was it would have been a lot easier to sort this out at the charging phase of this and you know once it goes to a jury and several theories that play the cards were dealt with the way it is i said you're out of