i client was either convicted on an actual fraud theory or willful blindness theory given the jury question it seems clear that the jury i believe my th and th issues regarding the need for a jury unanimity now i admit that under eight circuit jurisprudence that is absolutely a stretch but you know after the outcome of this case perhaps the u s supreme court w like to consider that i don't know but i think that it's either under either a willful blindness or actual fraud theory there was insufficient evidence and let me just take the substantial likelihood of fraud going on and conclude that that person actively avoided learning about that fraud now ere the government lies on burns's access to that there's really no evidence that my client did anything more than act recklessly in regard to the fraud going on around him and recklessness is not enough for willful blindness he never did anything to actively bury his head in the sand so that's why whether this is just myth what about his misrepresentations about the state of the investments state of the investment itself that he that there was this money there and that this money was even he was not forth right even with the people even hired to sell this investment  it was moving monies realm but it is businesses making this representation that he was going to be the main contractor to the construction of the facility and he was going to get a one million dollars he didn't he didn't disclose that to the people who were selling the investment i mean the permission that would have tipped off people to the given suspicions to the to give this and other information out but charleston and sell her are not credible in the least these are supposedly investment experts but they didn't know about private placement memorandums they didn't know about state bonds they apparently had read the p p m which said there would be no escrow and they comment on the they turn to burns and they said hey there's five million six hundred thousand right byrne said yes at that point i don't think there's any evidence that burns knew that that was false as far as arguing the incredibility of charleston cells were absolutely judge logan that's an uphill battle d but the standard on insufficiency of the evidence is not that there is no evidence but it's that no reasonable juror could believe that  work you know these guys are one and two things either they're completely incompetent so any comment they make about this this this investment can't be trusted or the themselves are the major fraudsters in which case they can't be trusted and in my opinion no reasonable sure could conclude that they're to be believed but look at the jury conclude that is not an element of the crime if i had a contract that firm it it may you want to go to whether they would believe him or not they it could certainly go to whether the jury believes burns or not but i think that's independent of also that sell for but as far as that as far as the money transfers go we have a contract in which burns is  contractually able to receive up to a one billion dollars prior to him spending any money he does that he puts in his own accounts at least some of which are accounts for dollars contract and then they did i think three hundred and twenty thousand dollars contract he wrote and signed the contract itself right in there with the evidence once my understanding is that he did and maybe i would agree with that they speculated that it was a way to cover burns's fraud but that's just speculation and let's keep in mind the government's own financial expert was unable to establish that burns spent one dollar of this project's money on himself the experts speculated that but could not establish what he could was that burns a great deal of money on this project and that money came from his private accounts so you've got money coming from the project into his private accounts and the out ows are going to the project and if on the sub contractor and i get money for a project the st place it goes is one of my private accounts and under the terms of the  contract the the burns's obligation to do with he didn't do d was never triggered because he never actually received the one million dollars and i have to revisit this this whole plan spent any of those funds on himself the financial expert was able to establish that he did spend well hundreds of thousands of dollars on the project itself most went to the  n to be guilty of wire fraud but the lack of gain is certainly evidence of lack of fraud and you know there's there's other points i want to make here there  unable to present evidence that you didn't get anything that's evidence of lack of fraud add to that we have a lot of checks and balances maybe we have a lot of checks in th system we had charles didn't sell for or that legally obligated not to provide investors any information outside of the p p o but they were given the full picture they did know be it a one million dollars contract that was going to put him before read a bar arm hard and it's and you say it's distinguishable without explaining why i find it very hard to distinguish so i hope you get there i will go straight to that judge loken the best evidence of  of whether he had actual knowledge we certainly believe he had actual knowledge of the product by the jurors might conclude he was well fully blind and it must have been one of the two either he knew that he knew what he was saying to the salesman was false he admitted that on the stand the st of all tell me what a fraud he was deliberate he was deliberately in your column because i said and agrees very confusing as to just what what was the underlying fraud or frauds here the fight at st of all for merrily the financial picture of the company it was suggested in the p p m that they had five point six million dollars on hand so they would have fifty one percent of the equity of this eleven million dollars project that was represented everybody has not brought up well and and so that caused questions to be raised as well can we see that your balance sheets and the salesman were told that they ha admitted on the stand it was as an e mail everything in the e mail was a lot and what he said was i had jack he which was his private bookkeeper sent me over the balance sheet and it is not for public consumption at this time never purchased any equipment he's saying he's looking at the balance sheet when he's relaying this information to his salesman and he says i purchased these things through global aqua ponce which was the fifty one percent be either because either he knew he was lying in the e mail but he says well i assumed that we did have this five point six million dollars that was his testimony he said i thought we had it so he either knew they didn't have it and created those lies to satisfy the investors on the salesman or he said i don't want to know if we have it or not so i'm going to create these lives to satisfy the investors and the salesman the mayor said i'm afraid to ask it's been if we do have this course he did have access to all the accounts so he could have looked and if you look to know that none of that money was there but he claims he did as he testified he did so he was putting on for his testimony in a good fa ignorance defense it medically lied in the e mail but he didn't admit that he didn't know that they that they didn't have five point six million dollars he's testified they did mr parsons maybe i can make this a little bit clearer least it was my understanding that mr burns testified that he didn't look at the accounts and instead rely on mr right isn't that your deliberate ignorance book here that was  testimony i don't think that was necessary believable testimony about a jury could have believed that that's why we needed the willful blindness instruction i think he knew that there was nothing there from the beginning we think this is an actual fraud case but the defense report on through his own testimony was i didn't know and so certainly the jury's entitle to the willful blindness instruction to make their assessment in his credibility and and then whether he believed his lies based on knowledge or you believe there's a lot are put forth as lies based on ignorance was one of the other either he knew it was all of a fraud or he stuck his head in the sand because he didn't want to know that was  out these lies to get other people to invest now what would happen was he controlled the investor account the only people whose name was on the account were him in his private bookkeeper and so he would tell a salesman and this is all distributors the distribution line for the food and the fish so already in place that was a lie and he told the salesmen to go out and make these presentations based on all of these lives they had a groundbreaking they told people we are already on the land they had a groundbreaking state attorney general was there with a shovel they didn't even own the land that was alive and they said we have to have the ground groundbreaking so we can get people do invest to create an investor excitement so as soon  money would come in twenty five thousand dollars informations from the investors the money would go to mr burns he deposited into the investor food security account which only he had control over it and almost you can see the testimony of our investigator flanagan an f b i agent special miller almost immediately the twenty five dollars grand goes into the investor account it's going into all these other businesses that same day goes into multiply those into centex it goes into open equity goes in a concrete contractor's goes into his t shirt apparel company and it's what it's being used for it's being used to pay payday loans he has a lunch high interest loans he's paying off his credit cards he's paying off the vendors for these other companies that he's in debt it's a sad story mr burns was hopelessly in that he was playing a shell game with investor money and as soon as the money went in it was gone and so what happened eventually the salesman were suspicious they w mr burns was a rock in the office he was always looking at computer screens they could see negative balances on the account he would say when's the next check coming and i'll double your bonus your commission if you get a check in today we need to check you stress is a raging ball suspicious so when he's on a hawaiian vacation attend a hawaiian vacation the bookkeeper in the cells will have a chance to meet without him there and compare notes and she reveals there's nothing in the accounts there is zero in the food security account well the investors are raised about half a one million dollars and it was gone and there was nothing to show for the judge up in you're correct the only payment ever made for the land was fifteen thousand dollars and one hundred and eighty five thousand dollars that was owed was never known another penny was ever paid after this started to crumble there was two payments totaling twenty thousand dollars major contractor then they need another eight hundred and one thousand dollars for a building permit that was never a but those things happened after the salesman and the bookkeeper confronted the other are mr rights was also pled guilty to fraud they were blowing the whistle but the problem is they glue the west all to someone who is also the defendant burns was always terrorised with wire fraud in tomsk three through seven in the indictment he was never charged with conspiracy so the fact that his codefendant pled obviously changed our focus at trial but it did not change the c equity and then mr burns made additional representations about the contracts in place and how that money was going to be spent and we've already bought the equipment we've already bought the structure and use that to the fraud all the investors and all the money and then disappeared except for the money that went to pay salaries of the salesman the fifteen thousand dollars that went to try to purchase land and then these kind of after the fact contracts with a subcontractor after he'd been confronted by the salesman and the bookkeeper that there's no money we we brought in five hundred thousand dollars for this project we believe then they invested in it too and the money's gone zero what happened he took it it's gone so i think the jury there was the charge never changed than it made a very good finding on this issue and her selling of the instructions the jury was properly instructed it was probably actual fraud but this court is clear that even if there's evidence of actual knowledge the willful blindness instruction is proper if there's sufficient evidence to support an inference of deliberate ignorance that's the highland case and there was because he testified i didn't know but i still created these lives for you to tell the  either no which i think he dead or he didn't want to know and so he he lied based on not wanting to find out the truth so this is a sad case a lot of people were hurt empathy for the defendant but he committed wire fraud and a lot of people lost a lot of money jury that all the evidence mr marson is argument seems to be a jury argument the jury heard everything he said and they found him guilty the court's presentation just now highlights just how important it was for the court not to give the will for why this instruction and how wrong the or it was to do so the government charged my client on an actual fraud theory they proceeded to try a lot of the actual fraud theory and they continued to believe my client was in gauged in actual fraud he knew that that e mail he sent was alive and yet they countenance a will blindness instruction to allow the jury to impose a compromised verdict based on an area of law that is incredibly confusing and difficult to understand and based on a theory of liability for which juries can easily confuse negligence or recklessness with the requisite ments right so the insufficiency of the evidence argument is certainly a jury question but that improper willful blindness instruction the question for the corps and i just and i'm incredibly troubled that the government still believes that the fact that this is an actual fraud case but they're happy with giving the jury an instruction that they don't believe is is reflects the facts and the jury was able to find my client blindness when all he might have been was reckless and economically distressed and frankly in this case not a very good businessman but all of that is not fraud the government says that mr byrd says failure to investigate amounts to well of blackness got sense out of this that this is just smith i have a question for you the last he she raised had to do with issue that i spotted that certainly perhaps is way that is subject to peer review but i want to preserve it for the supreme court and hear why was this clear error it was clearly a pleasure i'm sorry planner it was plain error for all of the reasons the government just imply they think it's actual fraud but what the heck let's allow a jury to impose liability on a willful blindness theory but that's not what justices the government should go to trial with this theory prove its case and stick with that theory and in a case like this where a jury could easily decision and create a record that we can analyze that the district court didn't do that which i think results in our conversation we're having today which is one of not a little bit of