here the janice issue i recognize that there are some important threshold issues raised by the district court's order and its two other alternative grounds for denying mr purcey alice's quorum notice petition the first the district court treats the fourth circuit's decision in purcell a scheme or as binding on the outcome of this case wasn't the same issue that the same legal issue was presented that's true but it's well recognized that a denial  effect even the government concedes that in its brief and under the supreme court's sanders decision a court must engage in an end of justice test before it gives controlling weight to a prior to corpus and here of course we're on a totally separate action it's a quorum nobis totally new track and the district court did not consider the ends of justice under sanders and that was legal error the second threshold issue is the to the issue of whether we're looking at crying in justice here that actually is not grounded anywhere in the record so it so it doesn't even affect the question your honor it's presenting it's true that has its own separate elements under eighteen u s c section two for example there must be someone else who committed the underlying offense that would be the principal maker and for purposes of argument that that would be defined as as provided for in janice that's not i'm not reaching that is a conclusion just for argument and now now someone aids and abets that maker if that were true it may be a reasonable way to rescue the conviction in this case the government's theory was that mr personality had actually duped the company you had duped the officers and directors the district court picked up on that theory and that's why the gating and abetting statute is not mentioned in the judgment which controls it's why mr personality his plea does not mention aiding and abetting and in fact mr purcey alice did not alow q to those elements of aiding and abetting it's pointed state me falsely stated that is legal fee was fixed at three hundred seventy five thousand dollars made a false statement about be underwriting your argument is that  guilty for what reason the argument is that he's not guilty of the crime of which he was convicted namely a violation of rule ten b five and a conspiracy to file a charge under section two where he was charged express counts two and three under section two of the or in a better it's true that the indictment cites section two it's mentioned nowhere else in the record and so that cannot be the ground for the conviction he did not allocated to it because if the facts of his allocution do not sustain the ground of the conviction then that is a fundamental flaw in his conviction the judgment lists the sections of the united states code giving rise to the conviction and it was small to poll the sections for certain counts but it does not list section two and that makes sense because he did not plead and he did not allocute to section two what he pled to was being the maker of an untrue statement of material fact and we know after janice which was decided seven years after the plea that in fact he was not legally capable of making such a statement he was an attorney advising on the i p o and so under janice allocution and the crimes of which he stands convicted do not align and the government can come into this court now and point to other potential theories under which he might have been convicted what's really instructive here is a case petition must be reversed because the defendant had been convicted of mail fraud served a prison sentence and then the supreme court changed the interpretation of the mailing requirement of the mail fraud statute now f judge friendly said that everybody agreed that the defendant in that case the petitioner and travers had still committed the fraud nobody disputed that and he had still even been involved in mailings in connection with the fraud but because of the subsequent supremes court interpretation of the mail fraud statute the facts of his conviction no longer aligned with the elements and the requirement in that case of of the particular nexus between the mailing and the fraud and for that reason what judge friendly wrote he wrote about the simple and universal rule that a judgment in a criminal case in which the record discloses no proof for the elements of the crime charged is the worst type of fundamental unfairness require your client right to be prepared in s c c registration statements for busy yes ok under janice if i understand your argument he cannot be the maker of that statement busy fox has to be the maker of state that statement even though he prepared right that's your answer janice argument yes ok but he did prepare it and so he is the aider and abettor of the statement the busy box is the maker of that might not qualify for civil liability but i'm not sure i'm saying and simply perplexed as to why you don't think the record and your client prepared the statement for busy box knowing it was false i agree that that is what he allocated to what he did not alow q two is the requirement and this is from land and the district court here it quotes this  do that the defendant aided and abetted sorry that the government must establish that the underlying crime was committed by someone other than the defendant is ebooks the the the false statement but that is willfulness busy box according to the district court's interpretation of the government's theory was duped by mr purcey alice into submitting what were false statements in a prospectus the district court said in the sentencing and this is in the second volume of the appendix at page one ninety six the company was as much victimized as the investors that was the government's theory that was the theory on which the district court convicted and sentenced mr purcey alice and that is incompatible with in aiding and abetting theory which is why it's not picked up in the judgment that is a fundamental flaw in mr purcey alice's conviction under section ten b five which we now know did not reach his conduct i've good morning ma'am please the court my name is stephanie lake i'm an assistant united states attorney in the southern district of new york and i represent the government on this appeal the only question the court need to consider today is whether the district court abused it us has already had an opportunity to litigate this very same legal claim before both the eastern district of virginia and the fourth circuit both courts ruled against him on the merits holding that janice did not apply to his criminal conviction for securities i believe that's an incorrect understanding of the way that aiding and abetting liability operates under eighteen us c section two would be one can be guilty of aiding and abetting if one causes another individual to do something that if the secondary actor did himself or another person did would be criminal and there is ample authority for the proposition that it is in fact not necessary for the the primary actor to have knowledge that he's committing the crime so you're saying that section two is broader than aiding and abetting because it also includes a counsel's procures several other things that don't like aided by the require a violator who you have aided it requires causing another person to act but it does not require causing that other person to act with the knowledge that the person is acting in violation of the law so i i drugs into the purse of an unknowing third party who then gets on an airplane from the dominican republic and comes to the united states the person who unknowingly brought those drugs into the united states is not themselves guilty of a crime time but the person who put the drugs and that second actor's luggage is guilty of a crime that person what is that crime is that eating and abetting that's the person who caused those drugs to travel on the airplane it is it is and no one else did that that's correct anderson the second part it's under eighteen u s c section two b which is causing another person  says hold up if the if the theory of the government's case originally is that the company was the victim i mean how do you aid and abet a victim to victimize itself at a certain point it gets really tendentious so perhaps another helpful example to to draw on would be a government employee who is is duped by a third party who would be the defendant  this example into committing some act that violates the laws in a way that only a government employee you can can violate the law the person who caused the government employee to act in that way even though the government employee didn't realize that they were say passing on an application that had misstatements and the person who caused a government employee to act can still be liable under section two but is that government hypothetical government employee a victim of crime yes in you know not not fact i don't know that it's necessary to draw a distinction between a victim and somebody who was used as a conduit to commit the crime for purposes of analyzing liability under section two b is the market which does not have the accurate information but i understood you were using the term victim with respect to the company and that it was made the actor in all of this unwittingly precisely ok but let me ask you what case would we look at to say that to be does not require the the actor the principal actor to to have acted with knowledge i believe that the four circuits decision in sallust makes the point that we and it here that that decision goes on to quote united states versus richardson and i believe that the point is also made although less directly and united states versus jordan which is a second circuit case and this is on page sixteen of the government's brief and now although i think  the question of how section two b operates and how it is possible to cause an innocent intermediary to commit a crime and still be liable for that crime is an interesting question fundamentally the question here for the court is whether judge cote abused her discretion in declining to entertain a real argument of issues that the appellant already had a full and fair opportunity to litigate in judicata doesn't apply in the same mechanical way in this context that it might apply but in different lines it's always mechanical well i believe that united states versus sanders sets out that even  apply there's no principle of law that would require a district court to waste its traditional resources and reconsider an issue that has already been litigated and adversely decided here there's no intervening change in the law between  circuits decision against mr purcel us and his attempt to essentially appeal or what he calls get a read determination of that decision in the southern district of new york and moreover i think the test for quorum no business supports the district court's conclusion there were not circumstances certain i'm sorry circumstances compelling action to achieve justice because  raise these arguments because he was already able to say i think the law has changed and that i am no longer guilty because of that change in the law he raised that argument his petition was denied and there's simply no legal basis on which to conclude that the district court abused its discretion in saying you already had your opportunity to litigate this corum notice is an extraordinary remedy it very rarely applies and certainly under the facts of this case is what i understand the argument to be streamlined unusual and rare remedy and it might only apply circumstances in which the person was convicted of a crime that doesn't exist i believe corum notice is is a very rare remedy that would apply here or there is doesn't happen all the time but as as an initial matter no court has actually applied janice to a criminal case so i think that's a threshold question has the law actually changed as it applies to this criminal conviction and i would submit that the answer to that is no it hasn't changed janice is a civil case  and in addition here the ends of justice simply do not require a redetermination of a prior decision of a sr circuit if the court has no furthe two quick points on rubato first as to aiding and abetting i'm not aware of any case since the land was the last time that this court spoke about aiding and abetting and it was in two thousand and sixteen in the court said that there the government must prove that principle requirement if that's right your honor there is nothing other than aiding and abetting that the district court mentioned in this subsection two i'm sorry eighteen u s c section two in the indictment appears to be  aiding and abetting in referring to section two but it is in fact into farts yes so again we're on core no basis in the question is whether your client i mean you're arguing your client is guilty of anything and the government is now arguing he certainly guilty under sept section to be so what's your response to that i think the resolution here and i don't want to see my argument is that my client isn't guilty of anything my client is not guilty of the crimes of his conviction and the resolution may be seen in section twenty of the exchange act the government had the puppet tearing provision of the exchange act to charge my client with at the time if it believed to guilty and to be because it's our position that  the section two charge in the indictment was a reference to aiding and abetting and that that requires that someone else i'm sorry section to the end of  section two b still requires him to cause another to do that which he could not do on his own and in this case do it in various ways he can aid that someone else doing it but here it's that he procures someone else to even gives the false information to the company which according to what everyone is telling us unwittingly submit it to the  there's case law that section two does not have to be it doesn't have to be specifically cited in the indictment and i don't think you have any case law that says it has to be civically cited in the judgment every crime can be committed either in the abetting and there's something fundamentally flawed about that which was the theory which we believe was the theory of section two was not in the judgment but again even if this court is going to step through the indictment which only mentions section two and didn't articulate any other theory of aiding and abetting even it's even if it's gone over look the allocution which didn't get into section two at all and the judgment it should not also overlook the district court's decision or form notice isn't the whole of these arguments are actually quite interesting but isn't there you know i think will short circuited by the fact that janus arguably does not apply in the criminal context is as you have a serious argument because it's really based upon evidence reluctant to the supreme court to to to expand the scope of a private right of action created by courts not at all your honor the janice opinion is a plain language interpretation of the word  b five the court opens by citing dictionaries and rules of grammar and then articulate its holding without reference to the private right of action and then it goes on to say this holding also comports with our hesitation with respect to an implied private right of action and even if the district even if this court disagreed that that was an unambiguous interpretation and footnote it in janice actually refers to make as not ambiguous but even if the court disagrees it still has to borrow the interpretation from janice under the textual identity principle and the lowest common denominator principle and even if not for those under the rule of lenity and so janice must mean in this case and this is also why the government no longer brings ten b five actions in civil  c civil unfortunate proceedings even though that also would not be controlled by janice a government essentially challenge due to and deuce and controlling authority extended janice to criminal cases and i take it you did not take up that challenge that the controlling case is janice itself i freely admit there is no court the only other court that has considered this question on the appellate level is the fourth circuit in  alice's first opportunity to present this issue to this court because he was required to file his happiest position in the northern district and this is his first chance to file a quorum know best position the reason that the fourth circuit decision notices an extraordinary remedy i wouldn't think it applies when you've already had your chance to argue the very same thing in front of another circuit well the ends of justice just under a new channel would be the supreme court not another circuit court in order to simply rely on the fourth circuit's decision as control and there would have to be an ends of justice test and that test would fall immediately to the fourth circuit's completely wrong interpretation of janice and so because of that under sanders which the court by the way i want to point out does that doesn't drive us to critique the courts are going to pay of course it does exactly the same subject of course and with respect to exactly the same  well with respect to a koran nobis petition but i agree with the premise of your honor's point which is that it's true there's a chance that this would put the second and fourth circuits at odds with one another and wouldn't be the first time that that happened in the same case  unusual to have a circuit split in the same things fair enough but the supreme court in sanders already asked whether that is acceptable and it comes down to the ends of justice the ends of justice here are satisfied that the court should not simply defer blindly to the fourth circuit for two reasons one janice definitely applies the face of janice in the opinion shows that it is not limited to private rights of action second because mr purcel is here when the court looks to the ends of justice mr is standing convicted of a crime that does not match the elements to which he allocute it does that you know that done to be if if the court perfectly if your honor is referencing section two b and if if if the court is persuaded that section two b is what was meant in the indictment and that he allocute it to those elements and that the court should ignore the district court same court that was the sentencing court and there would be an opportunity what the court is going to look at term and whether your client out to a prior to what is now recognized as a crime you're saying the district court has to do that why and i would think that's a decision made on a record that is now frozen i agree your honor it is nonetheless a factual determination or involves the application of lots of facts and the district court may have particular inside facts or just written down yes yes exactly that they are they're written facts that's true the bottom line here is that there's a fundamental flaw because everybody's focus and this is b five in the substantive principle violation of rule ten b five a look at the record confirms that and that exposes a fundamental flaw in mr personality his conviction for ten p five and that fundamental flaw requires the writ thank you thank you thank you both