invalid after this court's opinion in the united states against newman and in addition as a result of this invalid jury instruction mr gupta suffered substantial prejudice in the case which i will it bring out to this panel is familiar with the newman case obviously which changed what had been the rules we suggest on where that proof of a e i'm never won a lot about this i know you thought about it because you knew someone was going to ask you is now tell me yes or no do you think the supreme court will resolve the issue i'm not sure because i think the case the case in the case of the solomon case very it could be decided on extremely narrow grounds because that's the gift issue between the relatives which is an aura case in no way shape or form was either charged or argued or instructed on the on the gift issue so the answer is yes it may well depending on how broadly this claim is that there is no real showing of any kind of direct benefit yes that you're right and i stand the fact that that google was invested in and had received substantial sums of money from mr roger up on i mean he was invested in gallion funds galleon funds had invested another fun from which rajaratnam himself to draw on the money to make the goldman investments in which he netted thirty three million dollars on the inside tip that mr gupta gave him so now doesn't that seem like the who would have some understanding that if he did something good for mr rajaratnam that he would himself perhaps benefit when i say two things that number one this question goes really to the sufficiency to sufficiency of the evidence and we would see a number and it doesn't go to the prime issue here which is instructional error here is the case was tried argued in charged an incorrect theory that's that's above and secondly your honor as newman's newman pointed out when that there is the temporal factor is important the government argued oh gee there was a quid pro quo because he had given in the past investment advice or career advice to the to the tipper and in the newman case this court said too late too early didn't there was no that happened a year ago the fact that it one time they had business relationships really doesn't go to the issue of the fact that it was neither argued nor proved nor charged that there was any exchange here or quid pro quo let me let me just me wasn't there proof that gupta was chairman of galleon international and had a to stay away from long term because it was going to report fourth quarter losses rather than profits well i would i would suggest no because the evidence which i think was reasonably indisputed at trial is that yes there was proof in the spring of two thousand and eight about the possibility and indeed there's evidence in your honor knows this because your honor of the initial panel decision about that but the undisputed evidence was it never happened that the the never happened that he never became that the chairman of galleon international he never got a fifteen percent stake and what is critical here is that he never received a dime in connection with anything in the fall of two thousand and eight and to take you back this is an instruction eric case let me tell you all the things that are house that cause than for not raising it on direct appeal what i say two things one judge droney that first of all one always argues to do is bet as well as you can and not necessarily get the full extent of of what the court can do think of an example the judges are all over the place in how they charge reasonable doubt i mean some people put this in it some people put that in it sure h o a certain charge which i wouldn't like as a defense lawyer and reasonable doubt we would be acceptable but it doesn't mean i don't fight to get a better charge secondly there was an intervening fact here the opus case came down from this circuit after mr gupta's conviction but before his appeal the opus case made it clear that mere relationship with help more was enough for benefit the timing of that really made it kind of futile and i go to the the most recent case of this court you terrorism against smith in which a people from their core justified him myself radically change the decision of the new york court of appeals within eighteen months from twenty years or forty years consistently under determining sea change in the law this was a made it issue and was raised by a number of people indeed raised by newman successfully apparently newman wasn't into futility but i would say two things judge wesley most respectfully newman didn't raise then it was a lift if judge parker was more than willing to lead them without even a suggestion from someone else or the government in one filing after another with this court and in their unsuccessful petitioning for rehearing on bank and their unsuccessful petition for certiorari referred to newman unprecedented sea change in the law redefines the issue of personal benefit cetera time after time after time and indeed as a result of the newman case they had to dismiss any number of cases including ones where there were pleas of guilty the will with it's hard to talk to the new york  on this very issue so therefore it's there for aid lawyer there would know that there is at least one judge and that court who is sympathetic if i know i'm alone with them i'd like to see deal with the wrong and at least for respects with respect to newman first he said in the benefit could be modest newman says it has to be consequential the he he said the benefit that will translate into future earnings and the benefit one would obtain for simply making gift of confidence in financial information to a trading relative or friend that's a nominee at four fifty two insider personally will benefit directly from or indirectly from his disclosure absent some personal gain there has been no breach of duty thank you mr arthur also hear from the government in morning your honor isn't it please the court my name is the me and williams i mean assistant u s attorney here in the southern district of new york and i represent the government on appeal i also represented the government in the district court proceedings for judge rake off  listen i tell us made an important concession that this case was not tried on any sort of gift newman of course was a gifting case regarding personal benefit in the context of a friendship the evidence at trial in this case showed and the government argued repeatedly that gupta tipped rajaratnam in anticipation of receiving the cuny area benefits and that kind of quid pro quo is not impacted at all by newman's holding the government specifically argued that gupta tipped rajaratnam in the fall of two thousand and eight with the anticipation and the hope that rajaratnam would help him with his voyager newman specifically by instructing the jury that maintaining a good relationship with a frequent business partner that not at all told the jury that they could convict on the basis of  mere friendship or at the existence of a mere friendship which is what of course newman was concerned with what's the difference what's the difference between a good relationship and a friendship a good relationship with a frequent business partner as opposed to a good relationship with a family member or a college friend that is very different between that a good relationship with a in a professional capacity and of course the government argued that the tips between him benefit in the fall of two thousand and eight around the time when his relationship with rajaratnam became a little contentious because of the voyager investment and the government said no matter how upset gupta was with rajaratnam he was in d to chip in with confidential information to get his money back by hook or by crook and it turned out that he decided that tipping him with confidential information was the way to do it we pointed the jury specifically to july twenty ninth two thousand and eight wiretap call we're going to discuss confidential information that that occurred at the goldman sachs board meeting and then immediately after discussing that confidential information was gupta had no that it showed the powerful quid pro quo lation ship between the two men now the government went on including we opened on the theory that that group had a financial had an intent to benefit himself specifically with regard vigorously contested that point before the jury but again the government said to the jury that not only did they have the wiretap call not only did they have testimony from witnesses including kumar on this point but goodness own statements about being upset about it and wanting roger on them to make him whole that was the motive to tip in why he continued to tip rajaratnam and we went on and said good to have been tipping mr rajaratnam in the fall of two thousand and eight about goldman sachs and proctor and gamble he wanted rajaratnam to make him whole so the notion that the government never argued a quid pro quo at trial just doesn't match up with the facts of course we didn't have to use the latin in order to speak to  the whitman charge now of course the government's position is that that charge was consistent with pre newman law but that under newman there is doubt as to whether or not the jury could have convicted on the basis of mere friendship have assumed benefit by the existence of friendship now here the govt instruction was substantially different and it's not until their reply brief that they actually grappled with the key points of departure previously they had simply said it a good relationship as the theory but if you if you widen the aperture and you look at the entirety of the charge it is clear that just recall was telling the jury that you have to that if gupta tipped rajaratnam with the intent to maintain a good relationship with a frequent business partner order indicates some kind of ongoing business related relationship absolutely your honor and furthermore the government argued before the jury we never said that gupta was gifting confidential information so that their relationship would stay good instead the government always argued that it was something for something it was a tip for something in return and that here by tipping rajaratnam with confidential information gupta was still expecting something first of all the arguments ably made by my worthy opponent were not the ones that were made to trial and that's not how the case was tried as well as the instruction there indeed one thing that they we've raised in five different briefs that the government never answers because i guess they don't have any answer is how the government utilized the instruction by judge ray cough which is in the at appendix three eighty the assistant u s attorney got up and said you've heard a lot about benefit in the defense nation but the truth is there wasn't a word about benefit the defense or mason it was all about lack of motive why someone lack of intent why someone at this stage in life who was a philanthropist who had never done anything wrong would actually choose to become a criminal at this point in his life that's what was argued instead  he characterized it and he said well you don't benefit all it has to be is something modest listen to a judge or a cough is going to tell you it doesn't have all it has to be is maintaining a good object to the judge then says that objection isn't well taken what what the judge what he's saying is accurate and the charge he then goes on to say this doesn't have to be financial it doesn't have to be anything it doesn't have to be a kickback it doesn't have to be money you'll hear that from judge rake off period and that's how they tried the case period that's the way this case was tried in addition juran most respec the words exchange your quid pro quo means there's two sides to the coin it's not it we think they were we think that they're under their unsuccessful arguments which are really only two lines of like a hundred ten page summation about he had a motive to curry favor there was no evidence of any agreement with rajaratnam that if he gave him this information he would get something back there was no word of evidence about that for a quid pro quo you need a quid and a quote even if we assume and i think the evidence doesn't support it that our client had a motive which is all they argued that's not enough for a benefit indeed is the quoted language from newman relying on dirk's is there has to be an exchange it has to be done in exchange for something it doesn't it does  expectation and expectation isn't enough most respectfully there has to be some evidence that this is going to the fact that somebody may have a hope or an aspiration that it isn't enough indeed i most respectfully submit that dirk's as quoted by newman says it has to be in exchange for personal gain and there is there was in and ounce of evidence so they would have argued it you know the interesting thing about this case unlike every other gallion case every other gallion case there were actually quid pro quos people received he had they received tips in exchange there was a the plaza hotel saying red light green light it was none of that there the flaw that the government had was they had evidence which was found to be sufficient on these two charge they lost by the way they keep on saying that the