good morning you may please the court time and breckenridge on behalf of your eleventh of this case comes down to particularly on the bribery count a key witness who committed perjury and then the district court not allowing counsel to explore that perjury with the witness who knew exactly what was said or should have known exactly what was said in this case in this situation there is no dispute in the government's brief over whether he perjured himself was  mayors testimony didn't she say i didn't say that that he could get himself a bonus i i said nothing like that i said something along the lines of the business is continuing you know we should continue its usual operations so that evidence was before the jury from  r that evidence from bear was before the jury but there's there didn't nec it didn't that contradict what freud had said well that if to the extent that you look at the what the government said in its closing at page thirty nine hundred of  the gross appendix the government makes it out to be that that it that it was all really just a misunderstanding and so it wasn't really completely contradictory and that's part of the problem here because there are two there are actually two infirmities with the assertion eight thirty five thirty two i'm sorry no pages a thirty one eight hundred thirty one one thousand of the gross appendix you can see her rationale where she's discussing how important this witness was when she when she agreed to allow some testimony by bayer and given that yes this is the end the government has waived any sort of argument of harmless error or lack of prejudice it hasn't argued it has argued in or should it because  because frank was critical to the convictions on the bribery counts as stated in our brief and that responded to not getting back to the issue of of the change in testimony and so first of all at page eight thirty three thirty or four you have the agreement that was stated you have a limitation that was stated by the district court in the district court said quote the district court on this it said i have and i have indicated inclination to allow agent buyer to be questioned in a very tailored narrow way to get at what i think is the relevant and pro create lead for the jury to consider here which is whether a key cooperating witness testified falsely as we discussed and then she states what the limitation is what i'm not inclined to allow because i don't think it appropriate for the jury to consider is what steps were taken to diligently chase down what in fact buyer buyer it said so she limited to what buyer had said not the f b i steps in determining whether that distinction was key that is what allowed the government to then say oh this was just a big misunderstanding because freud testified at page trial transcript twenty one forty seven i apologize i don't have the appendix page for that but  mac's would be shut down and then she gets up in her testimony and she says well i didn't i didn't know if by if point out m x would be shut down so i would have told him he can continue operations and so we have this information we have we have docu we have friends testimony we have documents showing that she knew that going dynamics would be shut down and it's not to it's not to challenge her on it in a way that makes her look like a liar it's rather to refresh your recollection was mr kreitman purpose in wanting to show her that so that she's considering the fact that all of her testimony is about what she would have said under the circumstances this gives her the opportunity to understand that the circumstances were different than she remembers because was because she knew that point at him x was going to be shut down so then she could correct her testimony to say we presume she would have corrected her testimony to say well gee i actually i wouldn't have said that under these circumstances i would have said don't move any money this is being shut down that's what we assume she would have said and that is consistent with the proper made by the government which never mention any possibility of her saying that that he could he could take money out of the organization or otherwise continue to operate it and  may please the court my name is christensen tello on behalf of defendant appellant trayvon gross in a trial where the jury deliberated for five days before returning a verdict there were multiple errors that prejudice mr gross went to the heart of his good faith defense and compromise his right to a fair trial and i'd like to focus on two of those errors today the first is the trial court's introduction over the defense's objection of unnoticed unreliable and prejudicial expert testimony the second is the end introduction of hearsay statements as coconspirator statements when there is explicit unequivocal and unrebutted evidence of that  all ties with the to clarence so getting to the first issue the trial court determined that the government would be allowed to present the testimony in expert accountant  the reasoning is directly contradictory to the express notice provisions of rule sixteen it's the government's burden to notice the expert and to give the opportunity a chance to respond the government before trial during trial the morning of his testimony and even in its appellate brief contended that this was a summary witness nonetheless once the expert nature of the testimony that the government was going to present became clear defense counsel objected immediately after it became clear defense counsel objected informed the government that it intended to stop it intended to object to the testimony as expert out and that's how you determine whether there was a match how much expert knowledge do you have to have in this world to know that that's way of looking at records that's a way it's one of a number of ways and i think that too as we cited on pages two and three of our brief there are two appellate courts have looked at this issue and have determined that when you have commingled accounts and you have the luminous records and that it's the nature of making that analysis is expert and in this case the there's an enormous amount of difference between whether you're applying one method or another there was no challenge on the evidence summaries it was a summary of admissible evidence there was agreement we don't we don't challenge these we didn't challenge the bank records but there was no correlation there's nothing in the end is to make a correlation between the fact that there this one hundred fifty thousand dollars was spent on this massage and it's actually absolutely not the case because this this church had income every sunday people were making donations to this church there's all sorts of ways that money was being distributed from this church that as the witness himself said it would be impossible to draw such a direct correlation nonetheless it was a refrain it was a frame that the government emphasized in their opening statements in their in their summation and in their rebuttal to gross use this money to line his pockets he used it on massages he used it on his pool supplies on broadway shows and this case was about whether he was acting correctly or in good faith this was an issue that the government knew would go to the heart of that issue and they have alluded to the fact that oh well maybe of some benefit to the church there could be a conviction on that basis but they were not content with that and they have repeatedly stated that i think it's very telling that in their summary of the evidence in this case they still treat as a fact that those in the statement of facts that he spent this money on himself because it was a very important issue in this case and highly prejudicial highly prejudicial you know especially when you had a good faith defense where mr gross  said that he was acting in good faith to benefit the credit union to benefit his church so moving on to the next unless anybody has any further questions on that i think that you need a united states v knurling or establishes that declare it in any of these situations there are three well the just the conspiracy with regard to the collectibles club was the collectibles club joining the credit union being members of the board of the credit union and continuing to that's the charge conspiracy and continuing to be a part of the credit union the government doesn't dispute that gross forced anthony merging on the other members of the collectibles club out of the credit union had no further communications with them from that point for board there ever again to the extent that that could properly be characterized as concealment it was the concealments concealment of a conspiracy that had already concluded and is well established but that does not extend the conspiracy for purposes of coconspirator statements errors individually might not be enough to this grows a new trial collectively they do i think i think standing alone they would but i do agree that they all wind up all wrong the same issue which is whether he was acting in good faith you know with regard to the evidence to say that he lined his pockets use the money on trivial purchases like massages and broadway shows it shows a callousness as to his character that i think  denigrated his character and would have influenced the jury the second issue is that members of the collectibles club they maligned his character they called him greedy money hungry money to unbelievable things  statements fell outside the scope of the coconspirator exception because he had explicitly been drawn from the case not only that but the government expressly made the key point is case through those statements which is that course of the trial and they were used in summation to effectively establish that this was bribery and that he was in fact money hungry and that was his motivation a corrupt motivation when our argument the defense argument was that he was acting in good  good morning hours and may please the court my name is daniel mobile i represent the united states below and i represent the united states on appeal i'd like to just address the three issues that were raised collectively by counsel and i'd like to begin with harmless  eighty nine of our brief we say explicitly state that that subject harmless error review and all of these errors that are pointed out are subject to harmless error and the over the evidence in this case including of trayvon gross's  bad faith which was really the key issue at trial was overwhelming we had to cooperating witnesses testify jose flying to and ricardo hill both of whom paid were involved in paying the bribes trayvon gross took the stand testified that it was their understanding that they were paying bribes to this pastor to take over the small federal credit union which they used in furtherance of not only coin daughter next but also cap charges operations  the evidence also included the fact that trayvon gross repeatedly lied to the national credit union and ministration in the course of it examinations of the credit union if he were acting in good faith if he had on his sleeve believe that he had accepted these donations to his church in a legitimate manner why lie why cover up the scheme why not disclose the payments to the national credit union in ministration instead grows repeatedly maneuvered behind the scenes to manipulate the examinations he created and backdated records when the examiners were coming into the bank he even himself proposed false statements to his coconspirators that they would supply to the ends who ways such as the fact that they had a virtual office located in lakewood new jersey so that they would qualify under the field of membership requirements that came from trayvon grows he also proposed to his coconspirators that they manipulate the net worth ratio in order to cover up the fact that they were processing over sixty million dollars of p c h transactions through an eighty bt tiny federal credit union that was for low income designated members did not have any type of anti money laundering controls did not have adequate capitalization in order to process those transactions he proposed a way to hide that from the n c u a to manipulate the net worth credit ratio in addition to that he took the stand in the perjured himself he lied under oath at trial if if if you were truly innocent if you were acting in good faith to the jury judge nathan found by a preponderance that he had lied she applied an obstruction enhancement at sentencing and that obstruction hansen is not at issue here on appeal so there was plenty of evidence that trayvon gross acted in bad faith by accepting this money from the collectibles club and from cap charge in order to see control of the credit union so with respect to just that the merits of the the underlying issues i'll start with gross since i've been talking about him mostly  testimony judge thrown in you asked whether five was really an esoteric concept it was not and in fact it was applied in this case because it was the most conservative methodology it in fact gross me it was an expert testimony at all it's not expert witness of some sort we could have called somebody from the agency we could have called an accountant who would have been in dition of that just for any judge nathan specifically instructed the jury that he should not be treated as an expert as an expert witness and that summation and done this analysis ourselves that would have taken a lot more time we would not have had the benefit of having those slides introduced methodically through a summary witness but essentially what it showed is that you take the money in the bank account the church's bank account that was there initially you assume that that's all spent before he starts spending the bride money and to be clear the record shows the evidence showed that one hundred fifty thousand dollars in bribes was a substantial infusion of cash to this church it was a you know not not a wealthy church and so then from there you just take the withdrawals and it was a relatively straightforward calculation i mean you can see in the slides yourselves this is not rocket science this is not the type of expert summary witness testimony that's required to do the tracing we have to do with the money being spent on personal expenses yes just a methodology has to be applied it could be a first in first out it could be last in first out something has to you have to make some assumption about how the money is used this is the assumption that we that the government chose reanalyze the transactions didn't well he analyzed it to the extent that it was necessary to apply sound like an x rather than a fact w ell he did not apply any expert opinion as to the applicant or the the appropriateness of that assumption it was yeah analyzed the transactions he didn't just say this one was first in this was first time he looked at what they were or for and analyzed the use of the five will he clearly perform basic calculations that is true but the same type of calculations are applied by i r s revenue agents and you notice them as an expert why did you make that decision because we did not believe this constituted expert testimony it didn't require any kind of specialized scientific skill these were calculations the jury could do themselves and you know i think this could be excuse my language a damned if you do damned if you don't situation because if we had noticed him as an expert they probably would raise the argument that they that was raised in the ninth circuit case fox which they they raise that this isn't actually there the defense argued this is an expert testimony and by putting the mirror of expert on this witness  it gives him you know a greater his testimony greater weight than is necessary because these are truly calculations that the jury could have done themselves which is what you know how much notice the fans have of whose appearance plenty of notice your honor so we had noticed him as an expert what went before trial began and there was a four week trial and he was our last witness so at least for weeks we disclose his a draft of the slides which clearly showed that we were going to apply the five  methodology included a number of slides which we later removed to to narrow the gap the slides before the start of trial they did get the slides before the start of trial right at the start of the trial right at the start of the trial but they had not we had expert witness so the jury might have thought he was an expert because you went through his credentials but we have to assume that the jury follows the instructions of the district court and judge nathan accurately instructed the jury that he was not an expert witness he was not testifying there as an expert and that they should consider the underlying evidence not the summary charts or his testimony themselves as evidence but the underlying bank records so if there are any question of further questions on that issue  confronted if you're to identify them as a witness so i guess i'm asking for what your calculation would have been as to whether or not he used to be in that fight as well as an expert witness for so i think our  reasoning was for the reasons i've stated we didn't think this rose to the level of expert testimony but we still made the disclosure that we were going to be calling a summary witness that who is going to be applying to five full methodology to testify about the tracing and that was done pretrial and had they objected had the defense timely objected we could have sort of this issue out instead they objected like you i know if i had five specifically proof yes the draft of the slide specifically included that the five methodology that assumption had been chosen back and forth and we wrote back that we didn't believe it was expert testimony it wasn't actually raised their suggestion that they might bring the count and then also the there was they didn't they never suggested that budgets nathan did judge nathan gave them the opportunity to call their own accountant either a summary witness or an expert witness she even offered to delay the trial slightly so they could do so and that's the that's the underlying problem here is that it up to bring in the computer expert witness absolutely absolutely your honor and and they never availed themselves of that into this day they don't point out anything that's wrong in the analysis in they don't even point out why it's particularly difficult analysis to do this is something that the jury could've done itself and the government you know  twenty second i think it was he was the twenty third twenty four that there were some statements for them right that's correct how are those admissible under rule eight hundred one if that's if they're out of the conspiracy so the conspiracy as i think your honor alluded to earlier actually continued the conspiracy was not just to pay the payments to trayvon grows to take over the credit union it was also to obstruct the examination of the n c u a to make false statements to the n c u a in furtherance of that scheme in addition cap charge and it's clubs people who continued in the conspiracy after november twenty second yes for on it so for example they say they continue to make representations to the n c u a that they were properly members they sent a letter to the n c u a after the quote unquote falling saying that they were still met they were proper members and board members of the credit union in addition that they tried to open another credit union and throughout the course of those efforts they continue to conceal and make false statements to weigh just like trayvon gross and cap charge continue to make false statements and obstruct the n c a a s examination of the credit union in furtherance of the scheme to both perpetuate the processing and restart the processing of a c s transactions in two thousand and fifteen but also to to cover up the fact that collectibles club in cap charge had made these payments it was in everyone's interest not to disclose to the n c u a that these payments had been made and so we submit that judge nathan did not clearly err in determining that trayvon gross did not withdraw from the conspiracy because he committed to the things that this court has said stop or prevent a withdraw all defense one he continued to receive benefits he got further payments from cap charges your honor observed he continued to work at the at the credit union because they obstructed the examination made false statements and covered it up and in addition to that not only did he receive the benefits nine even if judge nathan erred in limiting special agent buyers examination which she did not and here is harmless beyond reasonable doubt in light of the overwhelming evidence of defendant's guilt there is no argument to support that in any way shape or form there is no response  argument at page eight of our brief where we describe the importance of mr fronts testimony there is no response to the district judge billows discussion at pages a three one one nine  or right around there of the importance of mr foreign to testimony so even though there is an assertion an unsupported assertion of harmless error i don't i still think it's waived because they did not actually respond to the discussion in our brief unless there are any further questions thank you i want to address a few issues one being the notice issue the government said they were going to put out a summary witness they represented that he would be a summary witness at the start of the trial midway through trial and give us their they did they sa sam witness we did receive his resume until march third which was a couple of days before the testimony and the day that we the day before we identified the issue which included you know thirty five higher material his resume to back up tracing analysis that would put us on notice that he was had the credentials that they were going to try to qualify him as an expert and that he would be presented as a what next when it's i guess it's going to your thought process what who did you think he was not know how their presentation would go they said from the beginning that they were editing that back that it was a draft it would evolve over the course of the testimony in the course of a four week trial when you are analyzing voluminous exhibit a something that may fall out of the document is not the subject of objections particularly when there's been no notice that this type of issue was going to be on the radar what we would have done if we had had notice that it was an expert opinion is challenging i doubt it grounds and the court would have had to perform its gatekeeping function in this case they said that we at the trial court clearly erred in saying that we waive the right to make the daubert challenge so i think there's two or one is they failed to notice it in the second one is that she inverted the notice requirements of rule sixteen wouldn't give us a chance to perform that gatekeeping function and us having a battle of the experts after him we could you know i think that the gatekeeping function has to come before the expert ever testifies you don't put on junk science and put on another junk that that just you know that there's a reason why the judge has to make the preliminary determination and she expressed slee abdicated that decision no but i think that it was a prejudicial formula that was applied yes and i think that some of the cases that we cited obviously i did not find cases that were in this context with regard to sort of you're saying how was he influenced by this payment and they drew a one to one specific correlation oh he was influenced by it to get himself a massage typically it's done in completely different other contexts applying the fivefold methodology i'm not saying it's never appropriate in any context but in many contexts courts of excluded said that it was it created a mirage it inflated losses so it is inappropriate formula to particular contexts and it was inappropriate in this case because it created a false correlation the government promised the jury it would prove that what could you have done which you were not able to do well but we want the remedy that we requested was that he not be allowed to testify to this correlation because it was not legitimate and we weren't given a hearing on that he could have shown the records he could have said oh these accounts you know have some overlap and to the extent there was more money in the church he could have had it he could have used it for something else but he couldn't say he used it on this because that's impossible  we didn't know who the winner who the expert was what his resume was what method he was using what instruction the government gave him knew it was going to post as a bank as a bank to summarise the bank records but we didn't know exactly what he was going to be saying because they represented that it was going to be of all being over the course of the trial and we also didn't have you know i think if if if you read that what he said on march third tonight we will disclose the thirty five hi hero his resume this tracing analysis in the in the slides and we're cutting the deck over the weekend so all of those factors that could in the fact that he wasn't noticed he expressed represented these in summary witness i think united states we cruise establishes that he should have been statements so so i think it was critical and i would i would say that to this issue that the government the trial court said that he was an opinion witness the government in its summation invoked the aura of expert testimony they said he had a look at his analysis the numbers don't lie when defense counsel in the opposition tried to say look this is a formula it doesn't make it's arbitrary formula doesn't make sense they said