government invited the jury to convict on an alternate basis that was not presented in the original indictment for three reasons first because the original indictment by fair reading of its plain terms clearly only describes an outsider conspiracy second because a prosecution repeatedly affirmed it clarified the same indicted theory and third because the prosecution's invitation to the jury in closing argument that it could convict on insider conspiracy ran counter to the theory of prosecution that had been presented to mr james for over three years so to go into the record a little bit about what the indictment says and why it was clear that it was only an outsider conspiracy we can look at the first six paragraphs of the indictment or describes who james and his partners were we can look at the manner and means of the conspiracy from paragraphs thirteen through twenty four and in all these paragraphs there is no suggestion no hint that any age p c l xmen furder the fraud that was charged here in fact and  the indictment says that these purchasers posed as and users paragraph nineteen it says that done james as partners misrepresented the end use in paragraph twenty one it describes thirty three different over acts alleged and further it's the conspiracy none of which him tat any participation in the conspiracy by h p insiders or h p from now if all this one enough over the years of prosecution of the case the government repeatedly reaffirmed the same theory so for instance when mark james subpoenaed h p to get communications by h p salesman to find out more about what they may have known about what they may have approved the government in a in a subpoena hearing on the over the motion to quash said you know your honor we don't think any of this that that would be brady evidence potentially favorable to the defendant but also quarterly in the trial briefs submitted by the government in order to explain the allegations of the indictment and explain hires outside purchasers excuse isn't it fair to say though that the defense counsel was not surprised by the government's reaction my understanding from the government's brief at least is that this was going over  are that if the defense pursues that they've been aware of the defense interest in condemnation condoning of the of the activity and  defense of the argument so doesn't that in a wave at least acknowledge that the governor was only reacting to what the defense was doing and indeed making the legal argument support perhaps there's not enough or some going to legal to know where the other people you were talking about so it does seem to me that you were fully aware that if you went one way or the governor was going to respond i disagree what the government had been arguing on board the higher and in the challenges over the jury charge was that hey the approval of one h p salesman isn't enough and that's why the government argued against any combination struction being included in the in the jury charge but h p is a corporation and corporations act through their agents so the defense was entitled to present this theory the government never in these discussions about was their approval was there knowledge never hinted at the h p salesman being part of the conspiracy after all in the government's brief here that's factual recitation and even in other parts of the opening argument it could have argued and did or you know other parts hey there wasn't knowledge there wasn't proven but that is drastically different than saying that the salesman were coconspirators themselves after the defense had spent six days eliciting testimony and trying to establish that h p salesman knew the government closing argument tells the jury if h p salesman knew that means they conspirators i think your honor may have also been alluding to something mentioned in the government's brief about you know we we undertake this theory at our own peril if you look at the record what they're undertaking at their own peril is the difficulty of showing condemnation but that's very different than saying we accept the peril that you will now twist the indictment to introduce a new conspiracy theory now i think it might be helpful to to highlight just how different these two conspiracy theories are under the terms of the original indictment we had this posing as representing deceiving when you have these james and his partners making fraudulent misrepresentations to their counterparts at h p the h p salesman but if h p salesman or part of the conspiracy and it's the government invited the jury to conclude well those communications are no longer fraudulent right there's no intent to defraud so where's the predicate proc taking place it's all behind h p s doors now misrepresentation might be that the salesman is telling another department yeah these these deals are kosher you know searching the products which might be a fraud by omission where they're passing along the order form and they should have spoken up but these are not the misrepresentations and this is not the fraud that's and you objected to that at the time did you not there was a contemporaneous objection and the counsel as per the court's instructions then further developed that after the break and there was also no correction on a quest we weren't committing fraud because they were they were green with us because under the invitation extended by the government it said if h p salesman knew then they are called conspirators themselves they are in on it we can't agree to that because that's in furtherance of a conviction that's inviting the jury depends on how you consider it what they consider part of the fraud is sought could be part of the cutting condoning you see what i'm saying what i would say is that you're inviting the jury to say or carl's of knowledge or if there was knowledge that's all the more reason to find a conspiracy that he's guilty but it's not the can conspiracy that's embrace today charge that they charge us and british by the indictment and that of course is the inquiry that should take place here in a constructive amendment issue now when the indictment says conspired with their son kno n what does that mean the short answer is that it would it could mean other outside purchasers we already know that the phrase other persons as set forth in this indictment cannot include any h p insiders that would not make sense in light of the other paragraphs the indictment saying how they were deceived it also doesn't comport with how the government clarified it or people even narrowed the terms of the case and it's pret there were a number of things but some highlights include the fact that h p salesman often gave discounts to resellers that h p internal policies made it practically impossible for salesmen to mistakenly make representations to james and james partners he says he told the informant tell them that i'm another h p salesman who will do anything to get them anything they want and he's trying to blend in like another h salesman while james believe that if this is the same gig that's going on these salesmen are willing to approve these sales so because the end of his haitian was extended to the jury to indict on this alternate theory we don't even have to know what the jury ultimately decided as i'm still roam but because there was an alternative theory presented to them they could have convicted on either it was a constructive peremptory strike but we believe that a motion to strike for cause was sufficient and that was and that was denied and and the issue was plainly raised before the judge so for two reasons we do not believe that the district court applied the correct legal standard and then the judge you know when she was writing her explanation about all this she says that cura sat next to the witness box was told to raise her hand if she couldn't she couldn't understand things and apparently in the post trial at some point oh when the jury recalling occurred she she doesn't hear the question of first but then she answer questions poster of the problem with the reasoning and the standard employed by the district court is that it excluded even non evidence that could have been presented in an eviden hearing even under the case relied on by the government tanner waiver webster and all those there were at least evidentiary hearing was inviting non juror evidence to find out more about the gravity of the problem who didn't participate in the deliberations other affidavits from court servers or counsel there seems to be some dispute or uncertainty as to whether there was actually whether you actually raised a specific objection can you point to anything in the record where the objection was raised i'm not talking about the comments from the district court i'm talking about your specific objection regarding just your we rely on junction that is as a moralized in the district courts a summary of the facts on page nine ten of the record why it's not in the transcript we don't know but very close to one trial occur defense counsel apparently the government apparently the court and the clerks helping the court right its order over a member of the same thing and the court even gave its reasons for the denial just mysteriously doesn't appear in the transcript we don't we do not find in the transcript but we believe and we know that it is in the record are you contending that it was an objection made in open court by defense counsel during the proceedings that is our position some the core three times the district court rejected that a constructive amendment had occurred it found that the isolated remarks during closing argument didn't introduce a new theory or an alternative theory and it didn't modify an essential element of the offense moreover contrary to what mr james was representing at no time for the government in the jury to convict mr james on an massive big deal just counts by misrepresenting the product or for their internal use and would not be resold as a district court found the government was responding to james's condemnation defense and clarifying what would have to be established to show that philip packard the government did this by summarizing the overwhelming evidence using james's words his actions his e mails financial documents and other materials the government's point during these isolated comma what is it was that if an h p salesman had known about the fraud it didn't put h p the corporate entity on notice or mean that h p condoned the fraud as judge southwick pointed out this particular issue was discussed right before trial at the april twenty ninth pairing and the reason this is so obvious is common sense dictates that sheila packard when consent to being defrauded there was no evidence that the salesman were in on in his brief james references and e mail but that was from two thousand and four the time of this conspiracy is from two thousand and nine through two thousand and eleven and i'll explain that a little bit further in a minute but there was no evidence that the salesman knew what the evidence showed is that every time he discovered fraud was going on a day big deal was shut down this h p was and on it  think about this logically it would defeat the whole purpose of the big deal as the brief points out and as people testified big deals were for two reasons primarily one to develop new business or to expand honour's that can be found on pages nine hundred eighty nine through one nine hundred ninety he only received a two thousand dollar commission from a one point one million dollar big deal the straw buyer  however received forty thousand dollars so that shows you how the big deals worked and that can be found at page two thousand and ninety five so again the government's point was just  under your view you point out that the closing argument was contingent maybe is the word were there such a person and that person would be a coconspirator if they had actually a di problem well i think what i think what's a little bit different here from a lot of the authorities that have come out of this court is for example in mr james authority to do so and many of the others oftentimes there's evidence that goes beyond the indictment here there was no evidence other times as induced a and some of these other cases the jury a structure instructions go astray and that didn't happen here either so what we had here was an isolated remark hung out if all of a sudden a prosecutor pulled something out of the air that had never been discussed or what have you know the and there was no evidence to the fact that a fact it certainly plodders the record more but they could respond to that in rebuttal but i think as this court has said these cases are very much fact dependent and here the facts are such that no constructive amendment occurred and what's important to remember here is james is not challenging the sufficiency of the evidence he's not challenging whether the jury instructions were correct and addition and to tracking indictment and the applicable law the jury was specifically instructed that the only person on trial was james and that could be found at eight thirty to eight thirty nine forty and the jury was also instructed both at the beginning of trial and at the end of trial that just attorneys statements are not well actually the judge responded immediately saying that she wasn't going to give an instruction to that effect and talked about some of the instructions in the past which i think she was referring to the jury instructions designer answer your question but the government or hear you saying that the government did not respond when we were of the over there should be curative you know the record is a very quick dialogue between james's counsel and judge rosen and just to be clear james as i said wasn't lord into anything he made a conscious decision to pursue this to fans and the overwhelming evidence negated the condon condemnation in defense and i think it's important just to highlight a few points there he was warned in two thousand and four with his media and wanted to do big deals and h p said absolutely not so several years go by and what happens is he knows that he cannot do this and to hide his identity she recruits these straw  buyers and he does so as i said to hide said to identity and if you look at the e mails and we cited this many times in the brief he has to he says things to the effect of loose lips cost lives it's very very clear he knows what he's doing there also recorded conversations that the jury had the opportunity to hear with incriminating statements and of course he admitted his culpability at the time of his arrest which can be found on page two thousand and eight seven not to be clear just on a couple of what i would consider these diversionary tactics the tax documents it's very important for this court to understand that kin at who had a resale business that's what his business was he was in the ticket resale business and ironically and perhaps sadly his number one client was hewlett packard so these rabbit trails about resale in relation to him he specifically testif that he never told dean who was his contact through the year two distributor he never told him that she was a reseller and deem talked about how trust him or is routinely require the movement removal of sales tax so they can handle it her that's not unusual at all dealing with those turning to the purpose of verdict complaint there is absolutely no evidence on the record that a motion to strike occurred the record is seamless about moving to strike jurors and the government steadfastly maintains that nat never heard the government response to the motion for new trial s because the were dark heard on four twenty nine and when she filed his most and for a new trial that was may sixteenth so some time had passed and clearly you're preparing witnesses defending doing opening arguments closing arguments that the government just was didn't have the benefit of the wrecker and it's very clear that what happened according to the record of course it's his birth to bring forward the proper record is during for dire of the jurors hearing was discussed and the district court determined she was competent she specifically asked her james off to her first to the jurors saying something to the effect sometimes i have i believe it sometimes i have trouble with but the that's the point the word is with her she never answers that we don't know if that's the legally she doesn't have her problems on her say but she never says that it's her hearing also the court pointed out not only did you not move to use a jury but he specifically agreed to the panel when they saw the panel of both people i'm seeking both parties agreed to that and that's on page fourteen eighty three through ninety eight and as the core pointed out the jury had been instructed to alert the court if they had trouble seeing or hearing the evidence witnesses of course in turn as were used to choose the microphone and she was of course seated closest to the witness box but what's really also important is that during the discussion dismissal of the alternate jurors james never objected he never said please remove juror number one let's get rid of her the strike is enough but he did not move to strike a judge rosenthal says the found defense counsel moved to strike juror one for cause the court denied the motion to strike and i understand that but with all due respect the record does not support that i think what happened was she relied on or didn't inquire or didn't have a footnote here we can you know i don't remember this happening but this is what defense counsel sent and i'm assuming you know if you hand but even if we would continue to disagree with even if they had moved to strike they were affirmatively except on the panel before the trial started also when they were discussing it was how many times do they have to object to preserve the objection the you know that at the end of that colloquy some time before trial starts the court says is everybody agree what do you have to do do you automatically waive that objection assuming that it's been made be would waive that objection by saying out and said that they were fine which again once again fine with the court's normal procedure which would leave juror one intact but most importantly what happened here is they're complaining post conviction when the juror was polled they just stop there james was convicted and german one was polled that's the heart of their complaint of course but they sat and they waited until the jury had been just missed and what's ironic about that is in the motion for a new trial they had with great player of all these things about juror one which of course had occurred from four twenty nine for what supposedly did or did not happen but the day before and they say well they don't have the benefit of the record but they think that this is what happened but regardless they're relegated to a post verdict posture and the post verdict posture is is a high burden and it's very unfavorable to them for  an internal matter in other words it is not something that you make a purpose verdict inquiry as opposed to an external influence on a jury or something to that effect instead it's internal and here judge rosenthal in addition to following the law determined and of course she was in the best position to do so that neither a hearing or new trial was more until the juror had come from poor that she may confirm during that's undisputed yes and james had knowledge during the discussion about the alternatives that juror one had raised the problem and just and judge rosenthal after observing the juror for six days or whatever the trial was she attributed the slight hesitation and answering because she was polled first and probably confused about the process she also rejected the same argument in the bond motion and by then complaint had mushroom from james's great concern post verdict about joe juror one to now a patent hearing a parent in actuality what his position is is really an eleventh hour attempt day after the trial in our motion what's most interesting about that is all that said in our motion was we made a motion to strike it's the district court who independently recalled the rationale and reasoning behind her so i don't think there's any question from this record in after all her findings that are part of the record on appeal and if that truly were an issue about the comparison of that ruling to the transcript the government could have moved for ruled and correction i'm still a bit confused about how this came about after go in the modern day of all sorts of fancy court reporter apparatus including recordings of food court reporter can use and of course being on the spot to put down every word that said i mean has there been any effort on your part to sam in the transcript to see when he was there just some kind of missing pages in the transcript or what how how possibly could this have happened that an objection was made during the proceedings in open court i get again i got were pretty messed up was there some kind of a of a gap or something or some kind of glitch in the in the recording in the truthful answer is i don't know i've spent a lot of time for using that transcript because i remember the objection and i don't see missing pages i don't know if this i do know that this out i don't know if the court reporter left the room for five minutes i don't know if we came back and it's chaotic in jury selection and needless to say that's the exact reason why i would say we didn't move  preemptory strike you know you've got a hundred names and you're trying to scribble things down and so i don't know the answer to your question but what the district court recalled that like we did in the government had four opportunities we didn't say your honor we want to come in and interview juror number one that's all we want and that's all that will six o six b if it applies here it doesn't understand tello applies to so there was a whole nother set of evidence that we were entitle to submit to the court on this issue we could have interviewed alternatively we could have interviewed the court staff the case manager so so there is a legal error here by applying rule si were just responding to the defense will of course that's the same as in to set and i don't see as in chambers as in still around that's what happens you have been indicted theory a factual basis that describes that theory the defense rebuts it i would say in this case overwhelmingly the government has to react and what is it do you want in its theory it invites an alternative theory and this this idea that this was just an if a condition precedent hypothetical well hypotheticals are very powerful and in one sentence and then the minute long explanation it was a broader theory that swallowed the entire defense i know because i spent six days putting on the case that the insiders knew and then was surprised to hear of well that under this indictment they're just  so if the if the panel doesn't have any more questions i think mr chavez was actually one last point mr wilson he said we don't challenge the jury instructions well that's not true and it misunderstands a constructive amendment argument we absolutely asked for if your instruction and it was denied so that the instructions are correct as a matter of was in the abstract but when you change from the indicted theory to a constructively amended broader experience the instructions are no longer correct and that answers judge jones question why didn't you just argue that in rebuttal if there coconspirators we win well the reason is because we couldn't under that on an alter jury instructions after not