all right so everyone's here in the in the cases to be argued and i think all of us are ready to proceed so let's begin with the first motion and united states v johnson it please the court my name is alexander shapiro and i represent appellant mark johnson this appeal presents three substantial questions of law any one of which resolves in mr johnson's favor would result in reversal or a new trial given the limited time i'd like to focus on the first two questions and rely on our briefs for the third the first question concerns concerns the misappropriations doctrine which was developed in the very different context of insider trading it only applies where there is a fiduciary or fiduciary like relationship and the question on appeal is whether the doctrine can be applied as a matter of law to foreign exchange trading conducted person went to a written contract between  that it was karen that insisted the transaction should be governed by the written mandate letter which it incorporated the da agreement karen's advisor drafted the contract and it was reviewed and approved by karen's inside and outside counsel the mandate letter expressly states that it shall be not not be regarded as creating any form of advisory or other relationship and that h s b c is not responsible for providing party understands the other party is not acting as a fiduciary or as a as an advisor the agreements shall be regarded shall not be regarded as creating any form of advisory or other relationship each party is not  principle and not the agent of the other and that karen has made its own independent decisions to enter into the transaction based on its own judgment is capable of assessing the merits of the transaction on its own behalf or through independent professional advice  court merely has to find that it's a debatable question one that could be decided otherwise either way appellant does not have to show that we're likely to prevail on appeal and i also want to highlight that the district court itself essentially acknowledged chauvet the before sentence and after sentence where was a difference in that regard how what kind of sentence did the government for the government asked for a seven year sent over the government for seven years saddens us for probation or something of the yours and then two years was given thank you correct and the guidelines range was seven to nine yes and and can you talk a little bit about the circumstance your client district court as we discuss in the papers found after the verdict that rejected the government's argument that he should not be permitted to travel back to britain and found that given his family ties  has a wife and five young children the fact that his home which is his major asset is incumbent the government has a lien on it that there's there was no realistic possibility of flight i want to be very clear on this  these two who journeys took that took place after conviction correct and just before sent brecht and each time the sentence was postponed once or twice and  in on both of the trip one of the trips to return was for the actual sentence and before that there was another trip before for sentencing which later got postponed and i would just highlight for the quarter that in that first return between for what was at the time the schedule sentencing mr johnson had just to stand a very serious injury which later was diagnosed as a torn a c l i mean none the less the day after sustaining that injury got on the plane and came back there is really no dispute no no serious dispute here about risk of flight the government disputes that and indeed the government suggests some things which i will take up with them that because i am not at all pleased with some suggestions of the government's read but it isn't undisputed they say expressly that he is a risk i understand your honor but i also want to highlight for the court that at sentencing in this is that the sentencing transcript page seventy four the government admitted that the flight risk was the weaker of its arguments the worse the what the weaker of its arguments i see my time's up can i just say one more thing with respect to the risk of flight flight i want to highlight that the levin case cited in our papers while the government tries to downplay it that although that defendant was a u s citizen actually the circumstances there i would argue created a greater risk of flight the defendant was sentenced to one hundred sixty eight months he had a manhattan apartment that the government did not have a lien on that he could have sold he no longer at the time of sentencing had any family ties to the new york area and he also had a prior conviction unlike mr johnson thank you thank you has gone to europe were before conviction read that paragraph and anyone who hasn't looked into feelings gets vets yes now i must say very gently i don't expect that from the government i see it in people's briefs but i expect the government to say things as of a are and when the government does it upsets me it is also the first thing stroke of a crazy clock that is not only wrong in itself but casts doubt on everything else and i must tell you but when i read that and read the other thing it made any number of other assertions that you make in your brief about whether something new certain or not uncertain so again you know i'm old you're young don't do that i understand you and i certainly apologize they sent that was at all  it certainly was not our intention and defendant returned united kingdom both during the period and post for it pre sentencing on on several occasions and there's no dispute about that history so i  did pose a risk of flight and that finding is subject to review for clear error here the defendant cannot show that he does not pose a risk of flight he has no residence status in the united states he's a u k citizen a u k resident his family's in the k and under these circumstances be difficult to see how judge care if it's is finding of a risk of flight could be clearly erroneous the defendant does have substantial means having a little difficulty and help me understand where i may not understand the record but i'm having a little difficulty in seeing how the district court did anything other than invoking the presumption the presumption does go in your favor the presumption policy there are other factors here that make this case different from a lot of presumption cases including the two trips back after after conviction and the other circumstances in this case it does but i believe that sentencing made the point that the circumstances have changed she acknowledged that in the past but in what way i mean years and he goes and comes back so that while you know often i mean there's a big difference i agree between pretrial and after conviction in terms of this but in this case it's hard for me to see any real risk i think that that change in circumstances is based upon that the certainty of a pending sentence that defense argued very strongly very adamantly that a non custodial sentence was appropriate and i think they thought that that was that potential outcome at the time of sentencing and then at the time of the sentencing him there in that he faced the certain really think he was surprised that he got  least increase in the value of the pound throughout and that seems to run against all of these transactions you know if the argument of the government were narrowly but there was a f duty specifically not to do side trades that would be one thing but the government's argument here and the government's fear is broader but when you enter into something  party agrees to make the pound rises slowly as possible and i think that would just mean none of us trades because the whole point of a party entering into it used to make money by doing that the side trades is another issue with other traders at the bank so yes in order to execute the trade the trader assigned to do the deal had to purchase pounds that was that was part of it that was going to maybe have an impact on the market but the type of information disclosure that we're talking about is more akin to like an insider trading theory where he shared that information with other people at the banks that they could do proprietary trading on behalf of the bank put themselves in the position to profit some of those pounds that were purchased through those front range areas were ultimately given to karen's part of the deal some of them are sold to the open market h s b c just took the profit out of a strongest board that's the first duty in addition h s b c did undertake a duty and mr johnson himself represented to their client that they would not as much as possible by campaign the highest price and they succeeded their client paid the highest price for pounds at that entire day you have a number of case in which there was a base agreement also be a functionally equivalent to a fiduciary duty an arts presentation to the jury was that there was enough evidence in our case to establish the functional equivalent obviously in any case there's going to be different facts that way and the assessment of a duty and so i would argue this isn't a new new legal territory it's just another example of application of the same theory you address the defendant's home in britain and why the fact that the surety for the bond is  some guarantee an additional guarantee that he will return it certainly is you know something that we demanded to place a strong incentive on the defendant to return but it's far from his only asset the defendant has hundred in the home he does he has a number of children and a wife at the home and in england he also however has hundreds of what's the value of the home i think it's i think it's around between one and a half and two million dollars a couple but i'm sure the defense counsel correct me if i'm wrong kratz i believe it also factored in the incumbrance on the home he also has several hundred thousands of dollars of liquid assets including cash and easily liquidated securities let me just ask back to the merits thing is it possible that the agreement of confidentiality is a valid contract that might give rise to contractual damages from bank h s b c against and we would argue that agreement that presidents are clear that duty is a question for a jury and in this case the content and shoddy agreement was only one part of the evidence that was presented to the jury to conclude that there was in fact a duty and so even if the court on reviewing the sufficiency of the evidence felt that the confidentiality agreement for whatever reason wasn't sufficient standing alone to create a duty necessary to impose criminal liability it's only one piece of my piece of the puzzle thank you thank you very much thank you both take it under advisement