the next case united states versus ca rule violations into federal crime they did so through a creative theory that what the defendants were scheming to do they were scheming to cause students to make false representations to universities so that those students could get scholarships and that the defendants were acting with the purpose and intent of causing financial harm to those universities this theory was legally and factually flawed i would like to focus primarily this morning on four defects in the proceeding that require reversal st the government presented no evidence whatsoever that any of the defendants knew anything about the representations that these students would be submitting to the universities to get their scholarships which was the of the fraud that the defendants had been accused of nd the district court gave a conscious avoidance instruction without the required factual predicate and which permitted the jury to find that the defendant had willfully caused the willfully caused the students to engage in a fraudulent act that the defendant did not know about rd the district court erred instructing the jury or failing to instruct the jury that they needed to find that the defendant had been scheming to obtain money or property even though that is what the plaintext of the wire fraud statue requires and finally the district court excluded literally all of the evidence that the defendant sought to introduce which would have shown that what was on the defendant's mind their intent was to benefit the universities and that the object of their conduct was not to cause financial harm to the universities i'd like to begin with the government's complete failure to prove that each of these defendants knew anything about the certifications that the universities that was students would be committing in the deep involvement  representation which violation knowledgeability response well st the government presented no evidence that individuals with similar background or experience knew anything about the certifications notably the government called a cooperating witness named t j gets evidence of these of the defendants knew that they had to high rules violations from the university well there was certainly evidence that the defendants were seeking to conceal and that there would be trouble these were violations of the rules in the fan that's new that they had to conceal the violations from true true the defense and given their experience in the area their knowledge of how things were i mean did they not know that that the that the players would have to make some kind of representation to the universities that they were in compliance with the rules where there was a particular farm on another farm but there would have to be some kind of representation and there's no evidence of that i mean one could speculate of that you know circumstantial evidence that  that some kind of representation would have to be made no and the the government what is really important to striking here is that the government called a cooperating witness t j geffen all who had similar experience background roles as the defendants the government had ample opportunity ask mr geffen all mr gets knowledge if you ever discuss any of these alleged false representations the actus reus of the fraud did you have any conversations about the fraud with the defendants they chose not to they could have asked them mr geffen all did you know given your experience in the industry did you know anything about any representations that student athletes make to universities to get their scholarships they chose not to  agreement that mr bowen signed in order to get his scholarship there is no dispute that it contains no false representation we examine the compliance witness from the university of louisville mr cars and the transcript site for this is  and he's asked about the scholarship paper the financial aid agreement and mr karnes this is ask question he does not represent in this document that he is eligible does he not in this document no question in fact he does not even promise that he will remain eligible does he make that promise not in this document and the court can look at those scholarship papers there in the appendix documents pertaining to the lead in which the representation was inside the one that happened to be the subject of the last operator was in the other document as to that witness as to that athletes ability that athlete at some point in the process also signed something called the student athlete statement which has nothing to do with scholarships whether you are a student athlete that is going to be paying his own way or whether you're going to be on scholarship you sign a student a student athlete statement which contains representations which we intended to cross examine it's a different issue inten examine the compliance witness as to whether or not it's actually false or not and we are precluded from doing so however there is the student athlete statement but has nothing to do with the scholarship process and more to the point there's no evidence that any of defendants ever saw the student athlete statements there's no evidence that any of the defendants had any knowledge of what a financial aid officer at the university is going to be looking at in deciding whether or not to render a scholarship in the case we sought to preclude the introduction of this certifications because we said to the district court there's no evidence that the defendant ever saw or knew anything about the certification so why are they even relevant evidence we are made this argument throughout the trial we did it at rule twenty nine preserve a sufficiency claim on appeal in any event although we made a general rule twenty nine dollars motion we also specifically identified certain ways in which the government had failed to to present evidence and  argument in advance of our will twenty nine argument he refers the district court said in britain they argue appeals on what is called a skeleton argument now i've heard of a couple of very long ones but that is not the intention this is not like an a brief we file we were directed to make this skeleton argument we submitted this outline we addressed it and very importantly there was no question that this was an argument that we were making throughout the court instructed the jury and this is the appendix site is page appendix the district court when instructing the jury said the defendants in this case maintain that the government has not proved beyond a reasonable doubt that the defendant knew that the false that are alleged to have been made to the universities would in fact be made to the universities so there is no question that we were arguing throughout conscience avoidance what about the argument that the defendants were aware that there was a high probability that some kind of documentation would be required and there are all these efforts and communications about protecting the universities of the coaches and university don't find out and false invoices cetera wasn't there at least a high probability that they knew that high there was a high probability that documentation would be required i'd like to identify the significant distinction because between concealment which is not a crime and the making of a false representation which in this circumstance at least theoretically could be in the does the defendant's desire or awareness that people will be in big trouble if the n c double a finds out and there could be penalties that that flow from that that is not wire fraud concealment of a fact is not wire fraud absent a duty of duty to disclose that's and there's no there's no dispute about that the government is brief at page thirty it states that there is no dispute that the government was required to prove that the defendants knew that materially false statements would be made to the universities forms but suppose they did i thought part of your defense was that they believed in good faith that what the universities wanted was plausible deniability that with the university's wanted was their athletes delivered on a silver platter and if there was going to be any misleading them they wanted to be told that there was no skullduggery involved but they were speaking of conscious avoidance that they were the ones who are closing their eyes to evidence that these practices go on all the time was that part of the defense well for sure and we believe that there are many reasons why the government's evidence failed and why these defendants are innocent of these charges that is one of them was really wanted we wanted to be told they wanted not to know if there was any problem with that particular instruction request well i would say well certainly there was a good base instruction that was entity but it is the entities employee and cities work through their employees when the employee in other words the entity is asking for the thing how then under what circumstances are you actually entity and we asked for an instruction that we thought was completely consistent with the very clear dictates of the motto which state which states that a defendant is not going to be defrauding an entity under those circumstances when he's acting as directed as long as he believes that his actions are in the entities best interests and the defendant believes that the employee is an conflicted and acting in good faith and that is the instruction that we asked ways like a self defense claim is the defendant doesn't say i was afraid of the defendant just rest on and introduce lots of evidence that a reasonable person would have been afraid of the  victim i do i think i believe that the answer to that is is yes particularly when in a fraud case when the really at the heart of the issue is what is the defendant's intent what is the defendant's knowledge the defendant should have a pretty wide berth to present evidence that may be relevant to the jury's consideration of what is on that defendant's mind why are they doing what they're doing what are they thinking about and it doesn't require the defendant's testimony to do so and really i think it's akin to your honor's concurrence in  cancer where where your honor identify the circumstance where a bank officer may ask somebody to violate the law but thinks that the transaction is in the city's best interest that is really effectively the kind of in part some of the defense that we're trying to put on we're trying to present evidence that would tend to show to the jury that these defendants were not intending to cause financial harm through their conduct which is absolute requirement of wire fraud that's just not what was on their mind that's not what they were thinking about what they were thinking about with the benefits that having a a good five star recruit is going to provide to the university they're going to get there the well wouldn't do it if they were told that it was in violation of the rules whether they were really interested in knowing whether it was in violation of the rules might be a different question i mean there's there's actually plenty of evidence that would suggest that  maybe a universe i would rick pitino argue that or did you that the university knew what was going on and therefore there was no fraud at all they knew that the certifications were false so how could they have been  conspiracy does that mean the university is not the school's of the agency question is university not injured in that circumstance i guess i submit that that is a different question than whether or not the defendant is intending to defraud or is acting in good faith pursuing his or direction of an employee and the guidance for that is the motto you did not try the case on the theory that the coaches and universities were in on this correct well  we tried the case in part on the theory that in fact the coaches had directed this conduct the evidence that coach bill self of kansas who by the way remind remains they had coach of the university of kansas today which may provide some window as to how universities think about this conduct we did present evidence that in fact the coach had specifically directed the payments to a player named sylvia d'souza we presented that evidence that certainly was in part our theory and  and the question became who is the university of other coaches who asked specifically asked for cash to be delivered to be given to the family of one of  these athletes who was in question in the case we sought to present that evidence and we were precluded from doing so on what ironically actually won't being used for a different athlete but still in violation of the rules and none of that came in and in that recorded conversation that we were precluded from putting on the coach says what i want to do this is my job like that i'm sorry what would that evidence show why would it be offered that evidence would have shown that  that the defendants were acting within the four corners of the model that they were acting in what they believed and the only issue was what they believed for a properly instructed jury that they were acting at the direction of a corporate agent they were acting in a way that they believed was in the corporation's best interests and that that employee in doing so was acting in an conflicted matter in other words he wasn't getting a bribe or kickback to line his own pockets with us that his interests were divergent  and this is where the great comes in as to what the universities want the coach wants to keep his job and the coach knows that keeping his that he's going to get fired a lot quicker for having a losing record than for having a record of tolerating violations by boosters and sponsors and that's i think something that you were allowed to put in evidence on maybe not the evidence precisely that you wanted but there was a stipulation about  louisville responded to the scandals around coach pitino well we were the stipulation was extremely barebones and what the jury did not hear is then what was the scandal that the university of louisville said we're going to keep coach pitino on and that but the point is there was evidence in the record about that and it was possible to make precisely this i mean you did make this argument the coaches were up to their eyeballs in this kind of  behavior that's right i mean that's what you were trying to do that's correct and the district court silenced that defense by giving the jury an actual authority instruction saying that these coaches they're not the university because the only issue  universities in describing what is the university the district court said the university only act through employees that are acting within the scope of their authority so in other words the district court in a manner that in a fraud case irrelevant told the jury the coaches are not the university because the government also presented evidence although none that the defendants were aware of of the contracts between the coaches and the universities that that showed that the coaches were acting outside of the scope of their authority but in a fraud case whether or not the coach is acting within the scope of their authority does not matter all that matters is what the defendant thinking what is the defendant's intent what did they understand eligibility i think no and certainly none that the defendants had any awareness of and i'll just also note on this point if i may that the th circuit united states versus walters specifically noted that lawyers specializing in sports law didn't know anything about certifications submitted by student athletes to universities about their eligibility and i also noted a long time ago i also know your h panel picked up on or seems to in their questioning with the argument the st is that he starts with the wrong legal standard mr schacter would have this court adopt a completely new rules of this circuit in a scheme to defraud case the government is required to establish direct evidence that every member we shouldn't be worried about instructors point these with three dependents because some other scheme or knew that there was going to be this representation yes your honor that did in fact exist brian bowen sr the father of brian bowen who was scheme participant who was a member of the conspiracy testified to having personally observed the certifications that were completed by his son and to knowing they were false at the time they were completed more generally what was required though as judge kaplan instructed the jury point of the scheme the scheme is to deprive the universities of scholarships money or property by false or full projects and pretenses that is that the student athletes are eligible for the financial aid they're going to get your question your honor is how is it the defendants could know that false or fraudulent representations are going to be made so st and foremost the whole point of the scheme is to get these kids kids the defendants have rendered ineligible through their conduct to nonetheless get the financial aid they've been rendered ineligible for the defendant then take myriad steps to conceal their conduct knowing that if the universities find out the scholarships are going to be rescinded so we identify this in our briefs they're the bat phones or the indirect money or not the universities are going to rescind the scholarships i thought there was evidence in the record the universities under the rules were intitled to the defense so to speak against the n c double a well they didn't know about this and the students most importantly didn't know about it and so maybe they should be held out replete with competition and then restored to deceive their scholarships and be restored to eligibility after a partial season suspension so you are each of the three universities specificity that one n c a a rule is that every student athlete complete the student athlete statement it is one of the key certifications it is an n c a a mandated for every single student athlete has to complete it it includes a very broad statement of eligibility and all three of the compliance officers from each of the schools tested by their institution would not issue a scholarship to a student athlete who didn't or funny that you called the compliance on the series in call the coaches and the inquiry university presidents who might be able to people who are in a position to adjudicate any dispute between compliance officers and coaches i mean you know it's not like calling the affirmative action officer and asking your burnham action officer is the university committed to affirmative action well course and that person job to try to make the university comply with the rules doesn't mean they do it and that doesn't mean the people who make the ultimate decisions are always doing what the compliance officers want done i respect that that's not quite right the trial evidence establish that when there was a conflict between the coach and the compliance department the compliance department had the final say at two of the three schools of the rd school it was the provost's office but either way the code the testimony of stablish that it was not the coach's decision to make which by the way was consistent with the terms of the coach's contract all of which are in evidence all of which required the coaches to comply fully with the n c a a rules and to bring to the institution any knowledge they had of rules  they don't what happens to the test well i'm not sure that's a relevant factor for purposes of this particular appeal but the evidence established all the logic determination it relevant to what these people thought if these people think we're operating in a totally corrupt and take system where violations are blank all the time where we as sponsors are held accountable for trying to get people to come to the universities that we sponsor athletes to come to the university we sponsor where coaches are held accountable for recruiting star athletes and then using them to win competitions and bring in customers to the university we think that's the way the world works and a reasonable person might think that's the way the world works right but i think the problem with that your honor is that is not the way these defendants thought the world works and the way we know that is because the evidence established overwhelmingly that these defendants knew these coaches could not do that and therefore they had to protect the coach and ignite and indeed you you point to a conversation in which the twenty two of the dependents are kind of laughing about what we're doing is protecting the coach because he needs honor and from that a jury could infer that the defendants knew full well that whether it is true or not and there is no evidence in this case to support that but whether it is true or not that these violations happen all the time this particular coach was not allowed to know about it because if you knew don't know about it because they want to be told that it didn't happen right and isn't there a difference between a university saying yeah if you tell us that you bribe our athletes of course we're not going to give them scholarships and the university actually thinking we don't want anybody who has been bribed to attend this some space between those two things and i'm not sure there is on the facts of this case what the universities as institutions said through their compliance officers who is a noted for a number of these institutions were the final arbiters was we care deeply about the answers to these questions and by the way just let me pause on that point here's what the evidence did show the evidence did that when carried oil for example found out that one of their players might have engaged in a relatively trivial rules violation she was so concerned about it she went out to a site with a measuring stick to determine whether or not some arcane n c a a rules violation had occurred she cared deeply about her job and represented the university in that position or matters for purposes of this case because of the language of the demaio standard is whether or not the defendants thought that the coaches who they claim were asking them to make these payments had the apparent authority defenders exhibit seven defendant doc and says that he can't tell pitino the details because he doesn't want to put him in jeopardy in the two calls the defendant gatto places to rick pitino ostensibly according to defense counsel and of the defendant about these payments there is not a single word about the payment both facts that the jury could use are you saying that even the defendants knew the swap approaches montanus they didn't have the authority apparent or actual to do it  exactly right you are to keep in mind the model requires far more than simply a request from a university employee from a coach it requires one the request from the coach to that the coach have the apparent authority to make the request and three that the coach to be appears to be acting in good faith and on conflicted and the way the government principally argued this case to the jury was that you can stop on call number two because yes there is some evidence that at least one of the coaches made a request was more ambiguous with respect to some of the other deniability there's the talk about not putting rick pitino in in jeopardy there is no mention whatsoever by jim gatto in his two calls to rick pitino about this very subject that money is going to change hands because the defendants know full well that to the extent the coaches are asking for it offered by the way these do the same form the student athlete statement completed by every single athlete in this case that the statement that mr jack the ripper to me it is not your honor and i was glad you asked him the question that you did because he's referring to one of many forms that brian bowen filled out at the university of louisville he filled the crime on filled out a university specific student athlete sheet which mr schacter is correct on cross examination mr karnes agreed with him that the language was a little bit ambiguous but just several days later i think these were very sophisticated and very experienced actors in the space who had deep familiarity with n c a a rules in fact one of the defenses that was advanced a trial was the defendant dawkins thought all of this might be ok because under an even more arcane rule than any of the rules we're talking about he had a quote unquote preexisting relationship there's a very substantial evidence that the defendant understood and to a will and this form was one of those rules so from that evidence a jury could infer that much as the defendant know about all the other old you know that one of the rules is that you have to make th hundred different but one of the n c a a mandated forms and elo are a letter of intent that alone could lead a reasonable juror to conclude that participants in this scheme understood that paperwork including n c a a mandated paperwork was going to be completed by the defendants early there's a difference between knowing that people work is required if you're applying for a scholarship and knowing that there is insufficient representation that is all that is going to be made available but i'm not sure the latter is required what is required is that a false or mr fraudulent statement made to the university that is the representation that i am eligible so the question for the jury is did the government establish that the defendant understood that in order to obtain a scholarship at some point and in some fashion and there was going to be a false representation to the university that the student athletes were eligible that's the question and on that point we've got the enormous evidence of the defendant's own efforts to conceal which under this court's decision and bergeson under this court's decision including is in and of itself sufficient to permit a jury to doesn't get you there in the absence of information duties so in this particular respect your honor i'm not sure there'd be that's a distinction with a difference let me move because mr schacter reason i'm sure the court wants to discuss it to conscious avoidance because to the extent the defendants were actually maintaining below and no your honor they did not make this in their will twenty nine a motion to come back to that minute to the extent the defendants were actually making the argument below that our clients had no idea that these kids were going to be representing that they were eligible for the financial aid they were receiving the government itself was a sham and the result was going to be that accountants a g people that did not work directly for at least some of the defendants and that some of the defendants never spoke to were going to book the transaction in a particular way and what this court found was that the red flags that the transaction was a sham coupled with the defendant's own efforts to conceal it by doing a side letter by demanding absolute secrecy about its terms could both support an inference that they had actual knowledge that the actus reus the accountants not the defendant were going to be representation of all student athletes in order to enroll sic my asking why there wasn't in the government's case an explicit attempt to drive release attention to what you say was a human universal here which is a requirement across the board institution athlete  put to every compliance officer and every compliance officer answered at the same way which is this is an n c a a we're required for every student athlete every once in university across the country complete that the question was put to every cooperator every scheme participant is did you know this was going to be concealed from the universities and the answer that question was yes that's different that it's not quite the duty means i'm not going to volunteer that we pay doing that well but we'll follow that your honor could lead a reasonable juror to infer the existence of the duty which is you know you certainly have the evidence establish that you're a pauper law clerks were all required to complete a universal form for example a universal financial aid form and many colleges used and had that you know student athletes student failed to disclose that by the way my parents have a one million dollars in the bank that i'm not telling you about and the kid gets financial aid is a really any serious dispute that everyone in the scheme certainly the student and the people helping him to sealed a one million dollars that is let me ask you don't know is going to be required make the representation before you run a time how do you respond to the defendant's argument that they were acting with the best interest of the universities and mind they were trying to help the universities lie and nice five star athletes if that's true where's the criminal intent so the bigger problem with that argument which unlike this this efficiency point was in fact the core of the defense at trial is that the defendants were trying to quote unquote help the universities by lying to them and under the well established law of this circuit a good faith belief that everything would work out in the end is not a defense so some of the calls for example the difference between the belief that everything will work out in the end would it not be a defense if they believed the university did not want to know all the details of these we wound up there so under d'amato the answer to that is no unless they could establish that the person asking them one who makes the request because what the model requires is that if let me just finish if i may judge chin's i think it pertains to the question your honor is asking which is keeping universities happy by hoping you don't get caught is not a defense to wire  because that was the only way the universities were going to be happy on these facts is if the n c a a the universities as institutions never found out about this conduct because if they did as they did in fact in this case then once the student athletes were eligible and they couldn't play and so any benefit the university might have gotten from having this player hoofed to they couldn't risk they couldn't we issued a scholarship at that point so they couldn't replace the player with somebody else for that particular year and three they were subject to any number of fines and penalties which in the prior incident involving louisville prepared to testify that at the end of the day it's still worth it because at the end of the day the university has made the money the university won that national championship and that's what the fans care about even prepared to say that if you were really in this for the money you would take that time so i'm glad you raised the expert because that's not in fact what the experts at the expert did not and could not and was not qualified to say that universities regularly knowingly take this calculated risk all the time what the expert was repaired i don't know what my arsenal they that i didn't say that the expert was going to opine about the state of mind of the university the question is would a reasonable person upper rating in this shadow world of sponsors and boosters think reasonably that what a reasonable university at the highest level cares about is building a winning basketball team at more or less any in the law of this circuit and the law of this circuit under tomato and its progeny is that if someone who doesn't work for an employee is either lying is knowingly lying to you and to that or misleading that institution in order to have a defense based on your on your honor's stuff position here which is that the defendant genuinely believes this is what the company wanted this is what the university president wanted he didn't want to nose rubbed all the details but he wanted the good basketball team in order to do that three things have to exist which is there has to be a request from a university employee to that university employee have to have the apparent authority to make that request and three the university employee has to be on conflict and acting in good faith that is what this court said in the motto it is the same standard that has been used by the circuits sets and those three things didn't exist on the facts of this case or at least a reasonably improperly charge jury didn't conclude that and again i know this because i think it's significant that the defendants do not raise the sufficiency challenge as the defendant in d'amato did on the good faith issue they are not challenging the sufficiency of the evidence to permit the jury to conclude that the defendants lack good faith and they can't because the evidence is so strong that the defendants knew that these coaches did not have the authority to make this request they didn't have the authority to bind their universities to something that universities as institutions were required under n c a a rules not to do they didn't have the authority to subject their universities to the very substantial risk of off your honor n to the point about winning and winning a scholarship winning a championship that's all well and good but if a couple years later the championship is rescinded your coach is out you're down five hundred thousand dollars a university may well say no actually we don't want to take that risk and in fact that is precisely what the compliance bottom like to respond to a few things that mr discount said st and foremost mr discount that the evidence is that every single student athlete signed what's called a student athlete statement that is incorrect the court can scour the record there is no student athlete this case involved for student athlete there is no student athlete statement signed by mr preston or silvio d'souza not in the record it's nowhere there but that's really almost beside the point st of all it's not a document that is signed in connection with the painting a scholarship but it's beside the point because the issue is did the defendants know about this false representation and the government can see they don't have any evidence that the defendants were aware of the student athlete statement even if it did have something to do with the scholarship there still was as the defendants had any awareness of it they point to what testimony did they say they pointed to they will get a compliance witnesses knew about it recruiting these athletes they're not sure makers they're not people who happen to be high school who choose their people whose job depends on getting these athletes to the university sounds awfully naive to think that they don't know the athletes at some point or their families or somebody is going to be asked to certify that they didn't receive the kind of believe that the universities are at some level but is it really conceivable that they think that no one is actually a pause the literal policy is don't ask don't tell that no one's going to ask whether there are payments made in violation of the rules the answer is that there is no evidence that a certain person of similar experience and what's really important is the government called a witness who had identical experience to the defendants they could have asked mr ghassan all who was a consultant for adidas who coached a u basketball mr guess nola do you know about the certifications that still would have been insufficient under this court's ruling in united states versus patrice so the government is required to prove the defendant's guilty knowledge not that of his co defendants it would have been insufficient but at least it would have been something and the government studiously avoid ed in fact you heard from mr discount they didn't ask that question do you know anything about the false representation instead they asked about concealment and i'll note that that omission and concealment is not even a theory that was charged the jury and could not even be a basis for a either what makes these defendants simply guilty of violating the n t w rules or guilty of a crime that carries a jail sentence so i don't think it is hypertechnical the false representation is critical nd i commend a score to judge  opinion last year in pawling which specifically says evidence that something is likely or even probable is insufficient for a sufficiency analysis the government needs to present probative  even even one could speculate that a student athlete may cite something i get the money that's not the issue here the issue is a certification that there are maybe there are no payments that i'm not even aware of that payments to a pair of family member that i don't know anything about to suggest that that a student that the defendants somehow knew that there is a particular certification to obtain a scholarship that would have covered that behavior that is outside of what paul this court in pawling said can withstand a sufficiency analysis it's because the false representation is what makes it a crime that somebody can go to jail for argument thank you thank you both sides will reserve decision