going to the very core of the thing that the injury clause is designed to prevent and that is that a defendant should know the specific charges against them and be prepared to defend them to trial secondly in two occasions the trial court became a partner in the fact finding process with the jury the st occurred when the court gave a conscious avoidance instruction and there was not predicated on any evidence produced by either the prosecution or the defendant the case the nd occurred deep in the deliberat as we made exaction the court said i listened to the testimony to it goes back which is a further indication that the court is making a factual determination based on his view of the testimony and so we didn't really have an opportunity to ask for a curative instruction correct your honor yes but when the jury in the deliberative process asked the question to the court as the courts of recognize the judge's words kuria lot of weight and even though this is reviewed under abuse of discretion the judge has to be careful an exercise in that discretion because the jury puts a lot of stock in what the judge says and when the jury asked not just for in the government's brief they say that it was really it was appropriate for the judge to respond to stargate correspondents but the request the jury request wasn't for st correspondents it was for for cesky stargate duvall correspondents you know that regard the court should have just instructed the jury you've heard the evidence if you want specific exhibits will give those to you but you must use your own recollection regard to the evidence now i'd like to move to my variance and constructive amendments arguments if i can there are really the government has constructively amended the indictment in three ways st by saying they're there indictment alleges a single conspiracy scheme with getting traders in there that he wants why isn't this just eleven big scheme with different operatives at different points doing different things you want i think if you look at this circus certainly at that level it's not just like a single person as for reaching out with spout this is a hub with different people conspiring and other people to do some of the some of the work that's correct judge and so if you look at those people at the center of the hub of the us i think not to do circuits case law if the spokes aren't aware of the other spokes that is a multiple conspiracy so for example do you know hanssen case which at the hub was a car dealership that was using stolen credit cards the folks who were using a stolen credit card the spokes didn't know of each other in this court held as a multiple conspiracy and we would say that the same is true with the mcdermott case which was discussed in our brief so in addition to the single conspiracy issue there's a constructive amendment and there's a variance on the stocks that the government says are the very essence of the illegal trades in this case the superseding indictment listed ninety one stocks two weeks before trial the defense made a motion saying we're entitled to know what sto you allege were illegally traded in the government resisted that motion what the court told them to provide a list when they provided the list ahead two hundred and twenty six stocks which were substantially different than ninety one stocks there was only an overlap of twenty six stocks that goes to the core of criminality in this case and that's a constructive amendment which requires reversal even if we don't show substantial produce which we would since they ended up relying largely on the pattern that was  and the relationship with between certain trades and access to information the various wire services why isn't that enough to show that a scheme to me were how you prejudiced really in defending against that by not having specific stocks to trades that were identified as illegal percent since they were proceeding under somewhat different theory yes you are with the fact that they're proceeding under this theory of trial which is this all suspicious we don't have to show any illegal trades this is a construct of unknown because the superseding indictment says here's a list of ninety one stocks which you illegally traded in preparing for trial the defense counsel is preparing to rebut those ninety one stocks the re illegally traded then when the asked the government's expert witness what about the stock trade the government's expert says i'm not saying any of them are illegally traded i'm just saying is suspicious of these now eight hundred and fifty trades in this isn't more than suspicion though i mean there are a lot of them particular correlations to access to a particular press releases over an extended period of time and very responsive trades tied to those press  releases i mean that's that's how they're more circumstantially maybe than you would like to prove their case but nonetheless that was still the essence of it so i'm not entirely sure how you would be prejudiced in responding to that by not knowing exactly which star trades and the many many hundreds thousands were claimed to be illegal but i think we're prejudiced because and you know the issue of an indictment is that the defense should have to try it seem like we're to a wall in order to figure out what the government's cases and when the supers indictment says here's it doesn't say there's a scheme we're going to prove it passes this is tracy says here's ninety one stocks who are legally traded were i'm sorry are going and were preparing for those of particulars comes in they say ninety stuff and then you say well we're there anymore and they say yes there were they provide more stocks then you got that bill of particulars i don't understand how your prejudiced judge i think that's an absolutely critical distinction i think one of the star own case the u s supreme court case in this circus milstein case the holding in those two cases is if you have a general broad indictment and then you prove specific things which are encompassed within the broad indictment that's not a constructive moment but when you have a specific indictment both those cases the courts found there was a constructive in london because it was a specific indictment and then the court the government broadened the proof a trial in the court held we can't tell whether the defendants were convicted under under the facts in the indictment were facts outside the indictment and therefore those instructive amendments so that's that's how we would say we are prejudiced under these are having to have a conspiracy to engage in the illegal gambling  they the government approves or or offers in the indictment that certain people who are engaged in this and there were certain you know wagers made but then they they they come in and say well after going to find the defense that indeed there were other wagers made why can't why can't that be all part of the same scheme i don't understand why this is any different i mean in this case didn't revolve around the stocks themselves and the nature of the companies and so forth this case involved around inside not insider but but confidential information being supplied to the to the traders illegally and  your honor both parties agree that the difference between a constructive amendment and a variance is a matter of degree and yes the government said x in the indictment but then that they didn't just say plus x they said here's here's ninety one starts in the  twenty six stops over here are two hundred and twenty one stocks only twenty six of which overlap when we're preparing a case based on this set of facts and then two weeks actually seven days before trial we get a whole new set of facts a whole new set of stocks how can we defend what that scheme or that general suspicious pattern allegedly suspicious pattern looks like when we haven't been adequately informed into a week before trial of what the start actually works thank you very much  where the x constituting the office took place and the and that one's actually called the essential conduct elements it's the x take place and it's where where oh where she certain of the the i t v d's occurred without which there wouldn't have been the transaction and as i understand it the mechanics of the transaction involve test i'm saying that the test is when the transaction goes through i does it go through the area in which the the jurisdiction in which the case was brought not not a question of intent not a question of worrying usenet that's where the nasdaq is and that's where the new york stock exchange lies that's where he has that's where the trays were executed they were executed in the eastern district of new york the government or anybody trade confirmations i don't know what happens like trying to get used to be a time when you had paper and yes i'm afraid confirmation is generated from within the district why isn't that sufficient the government so their argument is that the processing of the train may happen in some other location but the difference comes up the finance actions took place in business minutes in brooklyn and the processing took place in manhattan but does this is the issue here as far as you're concerned whether it was reasonably foreseeable or not that the action would take place and there would be aspects of the transaction that would take place in the eastern district and you're saying it wasn't for reasonably foreseeable yeah this isn't like in some sort of all over this court adopt a reason for sleep then finish was and texas he was on his computer he went online to his charles schwab account and traded on inside st he made thirteen charades after the st trade charles schwab sued him a confirmation stating the trades were exchange and secondly he was sophisticated and given the nature of the stocks he was training and it was reasonable for see the trend but that the the trades will be executed in the southern district but there is the trades were executed and the southern district of new york no trains were a security resides is the location of venue the buyers transaction occurred in a market that market was in in new york so venue is not properly he's interested any more you have two minutes a proposal here from the government good morning i believe they please the court my name is julia nestor and i represent the united states on appeal i also represented the united states in the district court along with my colleagues at counsel's table could you could you begin by actually by addressing there are a number of factors that what exactly occurred in the eastern district of new york where the prosecution took place through their own there are a number of factors that led to venue in the eastern district new york one or the counter parties on some of the trades or in the eastern district of new york there were also potential counter parties one in two chance of other transactions that also were in the eastern district you actually have a flavor of two different things but there were actual counter parties on the other side of transactions that happened in the eastern just and as to mr kalu skew we know which transactions we're talking about as opposed to a pattern we know some of the transactions and we also know if there's a pattern so for instance there were transactions in the  server in new york is that right that's correct but i think your honour's referring to the d t c c which is another another avenue for the new and that we believe the government takes a position that was a ministerial all of the transactions were processed through the illegal trades here those illegal trades were all done and they're saying illegal illegal yes your honor there are thousands of illegal trades here there are don on the new york stock exchange and exchanges in new york these were sophisticated defendants both defendants h a great deal of training experience with trading they understood how treatment worked and that was part of the record and the vastness of the scheme here your honour's we believe leads to venue not just based on the counter parties the trades but also the fact that all of the transactions are processed in brooklyn through the d t c c and i would say for mr moore cesky there's one other point he had a business called n t s capital that business clear nenny of the illegal trades through brooklyn actually to j p morgan in brooklyn and so that was another point for c ability he actually got transaction records that indicated that the transactions would be being cleared through documentary evidence he would have had access to or seen that shows that there and prove the existence of four different conspiracies i want to make sure that's clear because i don't think that the briefing papers really make that very evident so there are four different conspiracies the objective so there is wire fraud there securities fraud conspiracy computer intrusions conspiracy and promotional money laundering the goals of each of these conspiracies was obviously to steal press releases in addition for purposes of the securities fraud conspiracy the goal was to trade on the press releases and your honor that they do need to know that other people exist or they have to and it should be something that they could be aware of but in this in this particular case they are aware that this is a pretty vast conspiracy  multiple people they know they're hackers in the ukraine were doing this they know that they're middlemen in the ukraine doing this they know the duba boys are doing this they see the vast amount of training in this case mr kaur chatzky at the beginning of the scheme accesses the server  hackers and he's obviously dealing with a dupe of wires and and so on but we wouldn't necessarily suggest that there are a lot of other people who are pursuing the same goal is he sure and the purpose of the conspiracy here and this this was proven th scheme yes you're on and just briefly on constructive amendment first i would say that mr backup just when you when you talked about for conspiracies i thought there was a conspiracy to commit wire fraud on a charge conspiracy securities fraud and computer intrusions conspiracy which is and one count your honor i see that answered the court's question for constructive amendment it's the government's position on that's exactly right there is no constructive amendment or variance here because the evidence of the additional trades that mr parcher objects to fell squarely in the charge scheme that as your honor pointed out the charge scheme here did not need to allege one or two or three could have lunch and number of trades in which it did and the government provided extensive notice pretrial judge series direction at times of specific trades that are a proven fact pretrial  briefing in this case gave away a very detailed summary of the government's evidence we laid out exactly how we were going to prove the evidence we indicated certain trades that we were going to highlight the two hundred and twenty one trains that we provided a list and in advance of trial the government's exhibit star papers are good thank you very much you your honor with regard to the single versus multiple conspiracies issue i think that this court's language in macdermott case is important here because mcdermott the court said that the issue isn't what is the purpose of the conspiracy the issue is what operated to provide him access early access to press releases that he could trade on and the nature of that venture is a significant one it necessarily involves multiple people and it would make it wasn't being done just for him there was basis for him to think it was being done just for him so why it's isn't reasonable to think that he would have anticipated the involvement of other similar traitors such as mr kalugin your honor is right that he did not have to know of mr kalugin name but this court case law represents the fact yes you know of mr coop ski by class in fact the government's testimony is they're cooperating witnesses said that we drew mr core cesky into this conspiracy by telling him we needed a traitor in order to carry out the conspiracy traders a group that lies likes and packages that and gets it all ready for retail and then wholesales it out to distributors who then sell it to other people who distribute the drug to the  customers and there are multiple suppliers to this conspiracy so those can spike suppliers all have to know who the other suppliers are they don't have to know the specific other support to know that the if it's a big conspiracy isn't it sufficient if they if their suppliers and their other suppliers well they don't know necessarily who or how much they supply you want to it's likely that there are it's highly probable that there are multiple multiple contributors to this to this scheme we would say the analogy in this would be just you being the person who selling the drugs if the course using the drug analogy and so therefore we think it's like the  were executed on the new york stock exchange mr clue that probably get that kind of confirmation but that just shows that he would know that his trades happened in the southern district of new york the government didn't introduce any effort and any evidence that he was given information about counterparty locations in in the eastern district nor obviously no one gets notice of where of what back office clears anything i don't believe and their yesterday just now but they have to prove he did x in the district and if x occurred in a district he has to prove they have to prove that he was that they were forseeable but the acts have to constitute a crime trades  construction of venue this venue would be too far too excessive if you know the venue in any place just because i guess and he's interested in a lot of human beings there so any well populated place in texas california