sides will have the time necessary for their arguments we've given you more than usual and you're lucky that there's nothing else to miss this morning that and your i assure you will have time necessary for the fear arguments that said omf i have some threshold possibly not on record inquiries by which i mean that i speaking for myself only i would log them your description of the human context here and the general public as well as the court are entitled to understand how and why this prosecution was undertaken or any prosecutions i'm taking and this is an unusual and complicated case where the two defendants are u k nationals they're young and relatively low level employees and they worked in london for a dutch bank which may be a household name in them hog but not in broker american world the case is also brought by so called main justice not by a prosecutorial office that certainly regards itself as second to none in securities and financial prosecutions the whole of this is a puzzlement to me and interesting at least so maybe you can give us a description of what was going on here in a way that's comprehensible to non specialists well i know you get you get up with large questions of statutory construction and many unconstitutionally that all of which we will hear but i want we want to get a little context here is the courts this is a topic which i am very pleased to begin with and the answer to your honor's question is i have not the slightest idea when i was informed that the justice department intended to indict my clients i went to them and said why in god's name with the justice department need to prosecute these british citizens for conduct which occurred exclusively in london where the cooperating witnesses are not u s citizens where it is all about the alleged involvement of of a or it's responding to questions that are posed by a british banking trade organization about a rate which is set at eleven o'clock london time why is it necessary to drag this british citizen to stand trial here thousands of miles from home from his family he has young children it was a burden for his parents who are elderly and came to to stay in new york for the length of this trial and to what end so that we can incarcerate this british citizen thousands of miles from home where they would be a great burden for their family to visit them i said why now there may be a circumstance where i don't want to lose track of his question what were their prosecutions in in britain absolutely that and what i said was there to the justice department was there maybe circumstances where no other government is addressing this harm and it is a global harm we're the united states justice department feels that they need to step in but i noted that there were extremely active british prosecutions there were investigations being undertaken of exactly the same conduct in london in fact there were active investigations of of our clients the financial conduct authority their version of the situation exchange commission as is an issue which which is created by by what the government didn't the circumstance they they had an investigation that was active they knew they had an active investigation they were working very closely with the serious fraud office in the u k what is the possible reason why it was necessary for the united states to spend taxpayer resources to prosecute this british citizen and incarcerate him here in the united states live were related prosecutions brought in the united states subsequent to ours ours was the first and then subsequent to that there have been other charges and there are cases pending there are other cases in the u k which have been prosecuted some successfully some one successful and where they pending in the united states you know they are brought by the fraud section i believe that they were all i'm not positive but i believe they were all filed in the southern district of new york but all being prosecuted by main justice with no involvement from the southern district of new  york there were days when u s attorneys for the southern district of new york threatened to resign of things like that i understand that it isn't after all the sovereign district it is a branch of the justice department in its own little way a technical as a very technical matter i know former some former u s attorneys that would maybe disagree with that statement but but you know it was it was very it was very troubling and in fact one of the central issues in our in our case is that there is a critical witness the libel war secretary from the british bankers association john yoo and he absolutely would have been available to us to have testify if he if mr and mr conti were prosecuted in the united kingdom and in fact when he testified in some circumstances there have been acquittals that according to the news reports this is all outside the record but according to  news reports it is largely based on his testimony because his testimony which we quote from his testimony in the u k is that in the british bankers associations view you commit no falshood if you submit which is anywhere within the range of reasonable estimates of a bank's borrowing costs whether it's the highest or the lowest we think that if the jury here had the opportunity here mr humans testimony that that would have been a basis for them to acquit we think they certainly would have acquitted you would have had the the the entity which set out this construct which says this is ok with us we don't consider it to be a false hood if it as long as it is a reasonable people is mixed so for example the first conviction and the most well known in the u k is that of a man named thomas hayes mr hayes was bribing brokers through wash sales in order to get them to spread false  information in order to recommend that a trader submit false information to the british bankers association that's a horse of a different color it was within the reasonable rates is what you're saying correct and that's when it becomes false and  record that we have yes it was two one that we might have had it mr ewing had been allowed to testify is there not plentiful evidence including from one of your experts that what the purpose of libre was was to decide to set a benchmark for what is the best borrowing rate for the best customers well i think it is aside from the word best the purpose is to get banks to submit their reasonable estimates of where they can borrow they were if if i'm innocent what's the best rated which someone says to me you have a good credit rating i'd like to know for my purposes what a person with a good credit rating could borrow at and i know from experience that my bank would give me a loaded five percent i also know that the loan sharking operating out of the bar on the corner good would be happy to lend me money at twenty five percent for two weeks  i also know that there are other lending agencies that might charge six or seven i'm entitled say twelve because that's somewhere in the range and that would be a truthful answer to that question i don't know that it would be that's got they're asked for an honest estimate they're not asked pick a number in a range they're not asked the literal question that's asked is certainly not give us a number that falls somewhere in the ballpark of what you might be able to borrow at their rest what's your estimate what's the v number at which you could borrow and there's evidence that your clients calculated such a number and then were responsive to somebody who said you know it would be good for us to submit a different number than that now i don't understand why we're not to you now at the moment about the evidentiary issues but as a matter of what is false and fraudulent is there not plentiful evidence from which a reasonable jury could conclude that they were asked what is there are estimates and they did not give their estimate they gave something else not evidence that that occurred rather i think it's important to discuss a little bit the construct here the question and what rate could you borrow and this is the question posed by the b b a at what rate could you borrow funds for you to do so by asking for and then accepting interbank offers in a reasonable market size just prior to eleven o'clock it with a question was posed for eleven for i'm sorry fifteen different time periods from overnight to twelve months it is undisputed that banks did not borrow for a vast majority of those purposes there was no interbank borrowing it was undisputed that this is a subjective estimate and not more than that there is not transaction based nobody is required to look to your ashes for their subjective estimate it's not a case where they're asked what is the scientific fact and alas there is no such thing so there can't be a false a good they're asked for their estimate and the question is did they give their honest estimate or did they give that was convenient to them rather then their best guess that if you ask me what's your estimate of how many points the patriots are going to score in the super bowl i would only let a man through the question as opposed to going to compound paragraph there  is there is no evidence that the estimates were not honest in that they were accurate they were believe there is no evidence that either repellent believed that they were submitting a rate which they did not believe to be an accurate answer a fair and reasonable estimate there is no evidence now that that supports that and in fact the evidence was that there was an effect part of the government summation that there was a range of accurate estimates when asked for a fair  the asked for their opinion that the question that your honor poses suggests that there is only one answer to the question and the evidence was to the contrary and in fact the government's cooperating witness mr yoo garman his testimony is a page two sixty of the joint appendix he testifies there is no one correct number mr robson at the beginning of his direct testimony is asked by the prosecutor to basically to describe the scheme and he says and i'm quoting this is page two hundred twenty five of the appendix so there would be kind of a range of two or three numbers were libel or could possibly be the question by the way is first explain again what you did that's the question posed by the prosecutor so here is mr robson the principal cooperating witnesses opportunity to explain the scheme and he says so what i would do is i would ask the interbank broker where he felt the libraries would be there would be kind of a range of two or three numbers were libel or could possibly be this is quoted to page one thousand of our brief so for example if the break the government were in government witness direct examination at the outset of mr robson's testimony he says there would be kind of a range of two or three numbers are libel or could possible be so for example if the broker came on and said three months i think i'm hearing might be eighty might be eighty five might be ninety but probably seventy five he says i would go down the middle and then the government asks now let's say you in fact had a trader request where a trader wanted you to submit it live or to favor their position so what would you do answer so given those circumstances if one of the traders had contacted me and said three months if i needed a higher three months i would have moved it higher at his request i would have moved it towards the ninety level or set ninety so in other words the moving he's moving his estimate he is submitting he is selecting he selected an estimate and then he moved that estimate he had guttering no question he got a range of information he took that information into account he said well  best i can do is average it and then somebody says don't average it give me a high end of the range because that's what we want and then he in his words bumps right he moves the estimate he selects in the range of accurate estimates that he could provide and but but but you see that i mean we're just talking cross purposes as to what is an estimate i mean there are lots of things that one could be asked to estimate and it wouldn't be something else because that's better for you because you've got a number in a pool or something that's a lie if i say my estimate is forty points when my estimate is really twenty eight respectfully i disagree and here's the here's why  estimate and there may be there an estimate is inherent in generally in estimates and it certainly is the evidence in this case that there was no one right answer you could choose three assume you could choose three answers you could use seventy five eighty eighty five they're all of the same they're all equally accurate and you select one accurate answer as opposed to another accurate answer because it will help your employer which is as an employer what you have a fiduciary obligation to do if you simply are selecting one accurate answer as opposed to another accurate answer that is not wire fraud no answer that's accurate in your in the sense you're saying is if i honestly thought this no one could quarrel me when i'm asked for what i honestly think and if i don't give the answer that i honestly think i mean that says standard that's fraud hundred percent i agree there was no evidence of that had the government presented any evidence that the that the appellant disbelieved the opinion that they were providing and the statement of opinion in answering the b b s query is i believe that rabobank can borrow a three point one zero percent for six months that's my estimate that's what i believe had the government presented any evidence that that the appellant in fact didn't believe they thought no way three point zero in fact three or four if there had been evidence of that then i would agree with your honor however there was no evidence that that's that's our argument that's our point there was no evidence that they disbelieved and in fact in the way the offense was described to the jury by both the prosecutor's n and n judge rakoff the jury wasn't asked to determine that they were only asked they were asked to determine for us it would just look if i may just to quote from the prosecutor summation if you find that the defendants took part in the scheme to base rabobank sly bore submissions at least in part on trading positions you should convict regardless of whether the submission was inside or outside of some so called range you should convict it's quarter to page three thirty nine of our appendix so the government is telling the jury look all you need to find is that one of the considerations in their mind when they selected a perhaps accurate estimate was what would benefit their employer if they did it that's wire fraud submitted a bid that was outside the range of numbers that they had accumulated from talking to their brokers with that on the basis of a request from a trader would that be fraud that very well may be because then the circumstance would be that there would be evidence that the defendant disbelieved the opinion he that he was providing the and there was no such evidence in this trial there was no such evidence and even more importantly the jury wasn't asked to consider that because they were told that the wire fraud offense here was submitting a rate which may be within the range it may be believed by the defendant to be an honest answer or an accurate estimate but if they took into account what would benefit their employer then they were told that's the crime that they are charged with the government the judge rake off over our vigorous objection that's how judge rakoff described the offense to the jury which we believe was a constructive amendment because that's not in the indictment that is not the theory that articulate in the indictment the indictment articulate a form of theory they say they say that they chose a rate that was not what they perceived to be what rob a bank could borrow money and that would be fraud if you could you elaborate on what m and would have testified can you give me like you know two or three of the best quotes for what he would have said about what the question meant ordered at page six ninety one you just maybe can be as you threshold to your question which he should of course answer tell us what exactly happened as to his testimony who wanted what and why was he not permitted he was he was not permitted because  court ruled that his testimony was not relevant here's what happens if i can lay out the timeline acts at mr allen's arraignment on march twentieth of two thousand and fifteen we alerted the district court that we anticipated to move for rule fifteen depositions we thought that was going to be a real possibility given the fact that all of the witnesses and all the conduct occurred outside of the united states on april twenty first two thousand and fifteen so just one month after the defendant's arraignment we reminded judge rake off that we believe that we would need to move for rule fifteen depositions but if it's a difficult position to necessarily identify what we're defectively doing is identifying trial witnesses  one month into into the case and we needed time to review the hundreds of thousands of documents which were going to be provided to us in discovery in june of two thousand and fifteen mr ewing testified in the united kingdom  and then two weeks later the justice department filed a superseding indictment that's june twenty fifth we received documents from the government relating to the british bankers association and mr ewing on june the twenty six and within a matter of weeks after that so that's june twenty sixth on july fourteenth we told the court that we intended to request mr ewan's deposition and the district court ordered us to file our motions by july twenty fourth we filed our motions on july twenty fourth and judge raycroft denied the motion in august the eighteenth we thought this was a critical witness and and the reason what one of the reasons was his testimony and i'm quoting and this is page six ninety one of the joint appendix this was his test sworn testimony the united kingdom a panelist who can borrow in reasonable market size at any one of a wide range of offered rates commits no falshood if she bases her response to the daily libel or survey upon the lowest of these or the highest or any arbitrary selection from among them if mr allen and mr conti were prosecuted in the united kingdom the jury would have heard that testimony but because main justice decided to prosecute them here in the united states the jury never heard that testimony we think that that would have that the government decided to prosecute because even though they could pick a number within the reasonable range they were influenced by the request from traders to pick a certain number i like that high on on the three months right and that is the nature that's the intent part of the fraud correct correct and so why isn't it a complete fraud you need a false representation or a misleading half truth or an omission and it was conceded below that this case was not based on omissions you need the actus reus not simply the state of mind you meant in as they had im but there was no fraudulent act is that your argument well i guess i would say i would put it somewhat differently certainly there was no impure act but i would even quarrel to some extent with the impure thoughts the thought that they had was that this will benefit their employer look this was extremely these prosecutions we detailed this is at sentencing but there are more than one hundred twenty five people that were engaged in identical conduct in fact the of england are called barclays and told them that they should put their submission low because they were worried about the general economy so what the what the thoughts were of these people were there an employee and they're helping their employer i think that the thought process was something along the lines of as long as i'm answering the question accurately in other words i'm providing there is no one answer for your during the financial crisis there is no interbank would during that that's most of our relevant time periods of financial crisis there is no interbank borrowing at all banks do not borrow from one another and yet they are called upon to submit a libel rate which is what rate can you borrow it is a very wide range mr human mr ewan's testimony seems to go directly to the question what is it that they are being asked right i mean the testimony in the record on that from the government's expert witness at least is somewhat to the contrary in terms of what he thinks they were supposed to do which is as i was trying to suggest to give their best estimate not to pick a number in a range but mr human seems to say the opposite and he was unwilling to come to the united states to give that  testimony that is that is certainly correct and we end the time and you ask to do what you do when a witness is unavailable which is to do rule fifteen deposition and the government opposed and the judge didn't let you do it that's that's absolutely correct and with all due respect to this business school professor from california that the justice department flew him to testify his knowledge of how to interpret the b b s question is no greater then then then then any of ours there there i book of rules from the british bankers association we assume that and there is need to be a book of rules necessarily if there is a reasonable way of interpreting this question based on what the purpose of this is and the jury had certain information from an expert that goes to that but at least do it you've got this whether or not you're right about the the argument that there is no possibility of a crime here you've also got the argument that the jury was not permitted to hear all of the evidence that there is on the question of how the how the the the question should be interpreted that is absolutely correct and even mr harris the government's expert testified that this is an estimate it's subjective and during most of these time period there is no interbank borrowing whatsoever from which these traders are to draw on to come up with a number to submit each day do we know from the record or do we care why mr ewing couldn't come to testify well as a matter of me just didn't want to get on a plane which is fine but i'm just wondering whether the something in the record that we should know i don't think so what was your argument in behalf of the roof fifteen deposition which was denied but it was it was because we want to come these available in london we were informed by his counsel that he would not come so the only way to have this testimony presented before the jury is that  is to is to take his rule fifteen depositions out of the united states if you're anywhere in your life where we enough motion i think i have trouble articulating the basis for why his testimony would would not meet the relevance standard i think for will fifteen depositions to be highly relevant not just simply for one but nonetheless i have trouble articulating the court's decision he said it wasn't relevant to whether a fraud had occurred or when object the government certainly did object i was surprised that the government objected to what's a request to take testimony and have it presented to the jury of what seems to be a central witness particularly when the one of the government's theory is that that the at the defendants were acting dishonestly in not following the british bankers associations expectations how could and in fact that's much of the government's some ation the government talks about that how how could then the witness from the british bankers association that runs libel or how could that testimony be denied to this jury i guess the government objected and we'll hear from them on that for sure and there want to be thinking about it but where it is ever happened that a witness a government witness has been exposed to a defendant's compel testimony really never this never happens never should have but it has on national television under an immunity granted  circumstance where and i was i was present by the way at mr allen's u k testimony and i said i just want to make perfectly clear that this man has a fifth amendment rights in the united states and so if god forbid he's ever prosecuted in the united states that no user derivative use can be made of this testimony there can be no exposure any exposure by anyone associated with this prosecution any witness would would effect y make him unprosecutable here and there as i just want to make that clear and here you have a circumstance where the government's main cooperating witness paul robson he testifies one way before the financial conduct authority he testifies effectively in think he was doing anything wrong to one bit during that proceeding in britain was anybody from the united states government privy know although they were well aware of the testimony i believe because i had i believe that i had notified the justice department of the of the testimony and i believe that they speak in their papers of their efforts to wall themselves off from the testimony so that the prosecutors themselves did not and did not hear of the testimony even though they were speaking to the s f o i understand on an a he reads that testimony and he he has obviously read it carefully we attach his markup of the testimony in the appendix he circles he stars throughout the testimony and it's not surprising that he would pay attention because mr allen was mr robson's supervisor so this is pretty important testimony in fact mr robson had testified that he thought he was supposed to be speaking to traders in other countries about so that he could estimate borrowing costs and mr allen says no they really shouldn't when he reads the is testimony for the f c is no he shouldn't be looking to other traders in order to in order to this testimony is is about things that happened years ago and these are close coworkers of mr robson so of course he pays close attention to the test and the compel testimony and then he tells a completely different story we detail certain portions that in our in our brief tells a completely different story now the government has what the courts have referred to as an extremely heavy burden and the reason why it's a heavy burden is they have to prove a negative they have to prove that he that the government knew there was no use made that he made no use whatsoever he was not affected his recollection was not refresh it is according to the c circuit doesn't even matter if that witness had personal knowledge of these events because you still don't know what can affect him but he's didn't even matter that the witness had given one substantive terms the same testimony to a grand jury before being exposed to has been reduced has moved well and i mean the normal way that this would be done with the government tries to meet this burden and in these cases it is to look back at it if they are fortunate enough to have such a thing or they took the trouble to have to make it at what exactly what you're doing look at robson's testimony before he was exposed to the immunized testimony and you compare it with ryan paired with after and demonstrate that it's the same thing but here you're telling us it is significant which is not the same thing the can testimony is completely what it was the d c circuit referred to as the can testimony which you could look to to  theoretically that their witness was not in any way affected by his review of this testimony in the d c circuit as memories are very difficult thing when you're asking witnesses to talk about their memories what can affect a memory of things that happened years ago is that it's hard but if you had the d c circuit to rise if you had can testimony and you're able to show the testimony is identical to the testimony provided from before exposure to after then then perhaps you could show that this witness was circuit said was the test that mr robson was not in any way not in any way in these are their words shaped altered or affect it that the government must prove they must negate the possibility that his testimony was refresh or influenced  and that is a heavy burden and it is a burden the judge rakoff released the government from in the circumstance that that's not the test that he's going to apply and we believe that that was as it was is a rear circumstances you say and the d c circuit is not suggestive identification test is a situation which is to say since mr robson says he had a good opportunity to learn this information on his own since he was there presumably for the think most things anyways that's and this court has said on numerous occasions that we're not going to rely on a prop on a prosecutor an officer of the court's denials as to exposure that the government needs to prove more than that and we suggest we argue that certainly if the prosecutor you did not get away from what is the extra thing the men who are so it's also the government also assembled a chart which compared mr robson's testimony to other evidence that was presented to the jury so in other words would actually address the issue which is was mr robson's was mr robson's testimony in any way shape altered or affected the fact that mr you got me testified at trial something that's consistent with mr robson well that's not the hypothetically we agreed with you that if the s e c or the u s justice department had given mr robson and this transcript and then with bronson testified government under the foreign governments rules that a they could if they had done this prosecution they could have done centrally what the government did here i take it that's the belief without consequence yes that's i believe simply wrong and the reason for that for most of all i will note that taken to its logically then the government would say well sure mr allen was compelled under penalty of imprisonment in the u k to testify but we didn't do it so there is no fifth memo doesn't apply nothing would prevent them from using it any way they see fit in fact they could introduce it according to the government's theory but in theory they could introduce it to the jury sure let's have allen's compelled testimony presented before the jury under their argument there might be some due process limit that is right there could be for example if it was compelled by torture the case might be different or if it foreign government has done something that could compromise american prosecutions if they're doing what they do under their own law they give this witness testimony look at because there's no problem for them to do that and now it's happened and now an important witness is just on available to the united states it's difficult to rest look at it beyond this one but here we have the fifth amendment and the fifth amendment prohibits the it the reason why the fifth a man up lies here is the act which violates the fifth amendment is the use of the compel testimony it's not the compulsion supreme court has made that clear it is the use of the compel testimony that is when the violation has occurred it doesn't matter which is the fourth amendment cases that's correct that's correct but under the fifth amendment it is the use of the compel testimony in n the way director riveted of that is the fifth amendment violation it doesn't matter who did the compelling because that is not the threshold issue no court has suggested that the fifth amendment does not apply to taking compel testimony of of of a witness who is subsequently prosecuted in the united in the united states and in fact the supreme court in bram you know it's a versus bram they don't with this exact circumstance this was testimony that was taken in canada of someone who then is prosecutor in the united states and the supreme court's i'm a long time ago it's late eighteen hundred eighty ninety that's correct that's correct and many courts including this court some directly but have said that it's well settled in in re terrorist bombings this court said foreign nationals interrogated overseas but tried in the civilian courts of the united states are protected by the fifth amendment and use of this court said the law is settled that statements taken by foreign police in the absence of miranda warnings are admissible if voluntary the ninth circuit  brul addressed this case the circumstance head on because it was it was statements that had been compelled by mexican law enforcement and the ninth circuit says the fifth amendment applies there is no case which has ever held that the fifth amendment does not apply to the justice department's use of compel testimony because the compelling was outside of the united states and unlike the fourth amendment this is not a restriction on government action it's not a restriction on on government it's not it's not miranda it's not a prophylactic rule all the rule is against the use of the testimony regardless so it doesn't ask anyone to find fault in the compulsion it's not a question of whether or not the justice department is to blame for this for this libel or is devised by the was devised by the british bankers association to be an impartial market tool for use in financial transactions throughout the world that it was that it is used in financial transactions throughout the world  including many in the united states and in new york now the defendants here also manipulated the us dollar libeler and in fact they did it with individuals located in new york in a bed in a bank branch located in new york and they also and so turning and main justice large as a general matter has been investigating and prosecuting alive or cases and has been handling those and taking the lead on that so that's generally why the background here the case is pending on live or there are other prosecutions pending issues changed in the southern russia i believe in the southern district i'm not positive off the top of my head really but this is the first this was the first to go to a jury and lead to a conviction but there have been deferred prosecution agreements with with comp with the banks a number of them and we've and so those prosecutions have been resolved with they they they they admitted liability they admitted guilt and there's a different prosecution agreement yes and we also went into and also prosecuted individuals as well  turning back to the purpose of live war and its function as i mentioned the british bankers association intended it to be an impartial market tool and for that reason they selected a panel of banks based on the reputation the scale of activity and the perceived expertise of them and then they requested they require that those banks provide an estimate of the bank's borrowing costs on the interbank market every day around eleven am london time  rob a bank required the defendants here who were cash traders to provide that estimate because they had the expertise and they so they were able to evaluate and mr allen's testimony at trial went into this he described as at eleven sixty five to eleven sixty nine in the trial transcript how he was able to evaluate market information every day he had the expertise as a cash trader evaluate market information and get a picture of the market get a picture of where cash was trading and as that pic as time went on that picture narrowed down to a single number that he could provide a range of numbers no he said he said was a straightforward process and i could estimate i could provide an estimate every day that of what the bank's borrowing costs were he didn't mention arranger say i couldn't figure out between a one of a number his testimony was that i had the expertise and i could do it and i did do it and he said yes i received request from traders they asked me it was number one improper for them to even ask me but i just didn't act on those i kind of pushed them off and i gave my honest estimate every day that was his testimony the jury was entitled to reject that testimony and in fact in the jury on that testimony alone was could've convicted mr and and but there was ample evidence supporting that the that there was a single number an estimate th defenders were able to come to every day and that instead of providing that estimate they provided something different they bump to the number they biased the number and provided that biased number with the purpose of benefiting rob abate traders the positions they held in interest rates was that these interest rate swaps i mean i may tend to agree with you that would be really jury could have found on the evidence in the record but it seems to me there is some possibility that the question is ambiguous lou could be read the way mr schacter wants it to be read and he had a witness who he says would have testified that a witness from the who would have testified that that's not what the question meant that the b v a would have been satisfied with any estimate high or low or in the middle plucked from a range of reasonable guesses that's that wasn't mystery once testimony at that you have to look at the actual transcript which is at docket one o six three page eight and if you look at the what actually the appendix and i don't i believe in it it contained the test the statement that as quoted in the briefs and has been quoted to the court today where it said this is stern saying fred stern saying a contributor panelist who can bargain reasonable market size in any one of a wide asked is that is that what you know do you agree and he said well that's that's that's fine as far as what fred stern is saying it's consistent with the definition then he says but then you have to then he says but and he goes into a whole other explanation he says but there's a final component of the definition which is a bank can submit a range it has to submit one number and so that's why the libre question isn't where did you last borrow money in order to arrive at that one that one number of the questions where you think you would be lent money and there can only be one answer to that and it should be where you think in a name counterparty would offer you money and he said you should be using all the information available available to you to get to that one figure and he said well was that a finally process he's asked me says i don't know if it's a family process but it's yes there should be a process at the bank that lays out how you arrive at your number and whether it's a falling down or an integration or whatever it's however you want to describe it but there should be a process for doing it so he says yes there's a process and it's consistent downs testimony alan said yes it was a process every morning i got down to one number one contradictory answer at least if he starts by saying yes mr stern is correct because what mr stern apparently says is that any would do and then initially i agree that somewhere it's somewhat meant but then he comes back and says something else produce he ever say it would be a fight we say it would be wrong it would be a false mood to give an answer to that is influenced  by a traitor yes he absolutely said that he said that it was against the letter and the spirit of the definition to take into account a trader's interest in see in providing a lever smidgen absolutely said that he said i didn't know about it until two thousand and twelve and he says i manipulation he was called to testify that that it was not proper it was not part of a definition to take traitor interests into account i didn't know about it if i had known about it i would have approved of it and there was a conviction in that case so did not abuse it's his discretion at all in concluding that mr humans testimony when viewed in its totality was not material and again there's a different standard it's not relevance it's materiality and in addition to materiality there also has to be a showing that there w be it would be a deprivation of justice if the deposition were not taken so depositions are the exception not the rule and materiality is different the relevance that it has to you know there has to be something that would show that in a reasonable likelihood they would actually change the outcome of the trial or affect the outcome of the trial in light of every tuesday you would testify to the fact that it absolutely was not proper to take into account trainer interest in setting alive or he didn't know about it and that it has to be one number that correct cash brokers who were still alive or submitters had their own expertise just by trading cash and then they also collected market information and among the market information they collected was information from brokers and different brokers may have given different information and so there was perhaps on any given day different numbers and of and the the responsibility of the libeler scimitar was to take all that information and provide an estimate and the evidence establish that they were able to do it they were able to get to that number were able to get to an estimate but they gave a different number and by giving a different number that's that's deceit that's deceptive because it's not every every estimate provided by the defendants carries with it an assertion that this is actually my estimate this is not something else in the nature of the fraud is describe the fraud to me what is the fraud that was perpetrated by a scheme to defraud is a scheme to deprive another of money or property through deceit and here the defendants deceptively provided estimates that were not actually their estimate so those were misleading and false in order to deprive their counter parties in these interest rates wops of their money because remember these interest counterparty automatically has to pay more money to rob a bank and so by by scheming in deceptively changing that number that and marginally and even marginally because many of these were many of these were billions of dollars many hundreds of millions of dollars even marginally effects and deprives the counterparty of money or property so that was the scheme and that the pope purpose of the scheme was to to was profit to to decisions of that bag would have been different if the bank had known of the fraud now that's not anywhere in the statute as far as i can tell that was made up may be correct but it was made up  i believe the defendants objected strenuously to that watch and yet it was delivered to the jury can you speak to that a few points so this statute used the word affect alternative ground and there was no special verdict so we don't know which ground the jury decided are that the investment decisions of that bank would have been different if the bank had known of the fraud and that's not in the statu and neither is loss or risk of loss the it gives it gives explanation for the word effect and in our view it that that that is an influence on a bank's investment decision is in effect on the bank it does affect the bank and in fact there's very little difference between effecting a bank's investment decision and affecting the banks and exposing the bank to risk of loss because investment decisions are intended to maximize profit and  risk of loss and submit this language either no we did not submit it we didn't rely on it and our argument all but a few points of number one is the the this is not a jury question under this court that where the defendant is a fugitive from justice it is the district court that finds by a preponderance of the evidence whether the defendant was a fugitive and tolls that period there's no doubt we don't see any just way of distinguishing that determination from the determination of whether a fraud affects a bank you needed the fraud to effect the bank to get the ten year statute you made all these cases within the statute of limitations is that correct for the wire fraud for the substantive wire fraud not for the conspiracy counts we had a because an object of the conspiracy counts was bank fraud that carried a ten year statute of limitations already the conventions were based on all the overt acts of the wire fraud would have been hard to prove conspiracy without the over an hour it's in there correct well the a statute of limitations is an affirmative defense needs to be pressed by the defendants at the trial there was never any assertion of a statute of limitations the conspiracy counts here so it's wait that's the misaki case in the supreme court just recently decided you know we and the reason for that is because perhaps we would have presented different evidence to show whatever are but assume if they were the court would then determine whether it's harmless error in our view is harmless error because of the overwhelming evidence of a risk of loss to these banks to these f b i unstrung banks these banks were the object of the fraud they were the counter parties in these swaps and the purpose of the fraud was to deprive those counter parties of money so so you have no problem with risk of loss absolutely no problem with us all of us in fact i mean it's clear that as this court has said that if a bank is the object of the fraud it clearly was affected and we prove that these banks were the object of the fraud and by being an object were exposed to a risk of loss you really didn't need the second phrase in that charge which says or that the investment decisions of that bank would have been different if the bank had known of the fraud you really don't need that all you need is the risk of loss fracturing we don't need it it was surpluses and yet there was no bank's investment decision elaborates on effect solid trouble that neither party asked for that language and the defendants objected and yet it was given to the jury that was my concern  well in our view it was consistent with the length of the statute the jury didn't even have to make that determination because it was a judge at a determination of the judge and any error in the instructions was harmless because there was ample evidence of risk of loss to the banks and i go back to the the jury instructions on the theory of mail fraud for a moment it is clear from my questions i tend to agree with you that if there was not an honest answer given that's clearly a mail fraud the defense actually requested an instruction that seems to me to be entirely consistent with your theory and and believe i'm inclined to think they asked for instruction that a statement of opinion or estimate may constitute a false statement or misrepresentation only if the government can prove beyond a reasonable doubt it was not honestly held by the person making it at the time that it was made isn't that an exact accurate statement of law and indeed a statement of what your theory was that they didn't give an honest estimate at the time it was made i think the only word we would quibble with is only but yes to begin with the broader instruction where the court said that the government had to prove a plan or design to obtain money or property by means of false or for others on pretenses represented representations or promises which can take the form of outright lies but can also take consistently interest so that it encompasses the general framework and as we discussed when someone gives an estimate that is not their actual estimate that's a lie so as a broad matter that is in there but then very specific in a case where the whole  point according to the government is that the defendants did not at least maybe i misunderstand you that i thought your theory was precisely that this was a fraud because the defendants did not give their honest estimate they did not believe that this was transcript and at sixteen there are sixteen thirty one to sixteen thirty three i believe or sixteen thirty four are the elements of of wire fraud so that's where that that that's where that is and if you also so again the general instruction about falsehoods allies things of that sort then that has to be understood also together with the good faith instruction which says a statement made with a good faith belief in its accuracy does not amount to an intentional false or misleading statement and is not a crime even if the statement itself is accurate or misleading so that encompasses the idea that if they felt their estimate was somehow accurate if they if they believe that they wouldn't be convicted now the court also to go further the court also explained the government's allegations and when he explained the government's allegations he said the defendants the government alleges that the defendants submitted a libel rate estimates that were not at the levels the defendants would have honestly submitted otherwise but were instead at levels reflecting at least in part an intent to benefit rob a bank stretching positions so if the defendants gave under that theory if that event is gave their honest estimate that that's that's different than their you know that so that that encompasses the idea of if they thought all three were perfectly appropriate then they would have been guilty now fourth there's another component of the good faith instruction within the judge says if the defendant believed in good faith that he was acting properly in making such a statement or causing it to be made even if you was mistaken in that belief and even if others were injured by his conduct their o b no crime so this was a very defense friendly good faith instruction and if they mr conti made this this pitch about a range mr allen did but he made this pitch in closing our is about he said look my client thought every day there are maybe a few numbers that he thought accurately described rob a bank borrowing costs and he didn't think there's anything wrong with providing one number based on trade or interest now if the if the if the jury accepted that the jury would have acquitted under these instructions coun fact that i guess everyone was a crock and doing these investigations and prosecutions continue yes your honor and now just turning to the sum of the strength of the evidence  of this range and the fact that they they didn't believe in others i mean there's two issues here one is sufficiency of the evidence and one is the jury instructions i just described how the jury instructions allowed or required acquittal if the jury found the facts as described in mr conti's closing statement but the facts didn't establish that far from it the facts established the opposite we provided really very substantial evidence that showed that the defendant were able to did in fact collect market information come to an a figure that represented their estimate and then changed their figure and provided that figure instead of their actual estimate in order to bump up or bump down  the live or and and and benefit the traders and i think that some of the best evidence is is for the collection of e mails between g s a for the government supplement a supplemental appendix fourteen through through seventeen that in that exchange christian shoop from new york asks county where do you see the six month library tomorrow and then condi says would you like to see it is more the question and then it later on my plate right now so tomorrow obliges and says don't want to print your price yourself out of the market a forty one forty two level would be great though then then there's another exchange two three months or fifty nine fifty six fifty three point five and he says six months forty two i think it's six months forty two i think that's what christian needs so christian show up made the request for five point four two to condi allen was aware of it they provided five point four two because that's what christian means not because it was some reasonable number we thought it was it was the actual number and we changed what we actually would have given there's another exchange with a column in which he specifically correct it was too high and he says well you know i gave five point two zero as well just because lee had affixing that's lee stewart the trader who trades who sits across the desk from conti so all this evidence  legal question there both of which support and require and support that this request determination legally a fifth amendment claim requires both compulsion and change their testimony that you use well the if if the if the exposure to the to the to be compelled testimony is the reason for the change in the testimony under that that is the use but here we established that the changes in robson's testimony to the f c a in the u k and his trial testimony in the united states had nothing to do with his exposure to these transcripts he he plainly described he said you know i was i was fabricating things in the u k i was just trying to i was trying to prevent market color because i was just trying to exculpate myself and i was lying right and then he comes and he decides now i'm going to come clean and i'm going to testify in united states truthfully and the first time he was lying yes and he looked at the transcripts and now lo and behold he's telling the truth well they're looking at the transcripts what did not in any way prove that result in his actual truthful testimony testimony and that's what the court in the d c circuit in point dexter said was missing there if you have credible testimony from an witness that his actual testimony was not influenced by exposure to tainted testimony that can that can set that can satisfy the government's cast  govern but we didn't only have that here we had more we had number one we had we had we looked at the law the overlap between the subject matter and the district the d c circuit or recently in this last case recently said applying its own standards in the north point extra cases is that if there's no antecedent if a person's testimony if it of person is exposed to tainted testimony if their current testimony has no antecedent in that compels testimony and that generally that's not going to show that's not enough to show us there's not going to be used there and that was the slav case so if you compare so if you have a witness who gives an account before he's exposed to tainted immunize testimony that leaves out some significant details he's exposed to the testimony contains those details and then he testifies at a trial including those details it's just a question of his credibility for the arms are you know what we're saying is mr allen mr conti's testimony said x one one additional but the question is the ex yes the question is this is not a case where there's canned testimony that you can go back to and say essentially told the same story on every material point in the pre exposure testimony to the post exposure testimony instead am i wrong about this there are at least some significant issues on which either robson testified as to something that he had never talked about before but that is in the immunised testimony in which he actually said something different for whatever reason before seeing the immunised testimony and that there is no influence of the testimony i mean in north has in familiarity with the north case in north the d c circuit said you know even if they said the same factual thing before that they said after the possibility that they testified more forcefully because they now knew that north wasn't going to contradict them or more emphatically because they thought that north was going to call them a liar that is enough to change the to be use of the testimony i think in north actually there wasn't a dispute whether it was refreshing it had refresh their recollection and the court held that yet and the issue was a legal issue whether refreshing recollection was actually use and the court determined that it was actually is and here there's no they haven't they didn't try and they didn't prove show we and we proved to the contrary there was no refreshing about collection it was nothing and for a few different reasons as well i mean this seems to me to be really going against opens an enormous door for the government to make use of immunized testimony might be a risk but it seems to me you're saying there's nothing that really prevents a prosecutor from giving a witness the transcript because afterwards if you say oh well my recollection was independently refreshed by something else every every case is going to turn the facts i mean in this last case in the d c circuit those witnesses were opportunity to cross examine robson with any kind of inconsistency and the court observed him the court listened to all those arguments the court the district court was in a the best position to evaluate the but we're not only relying on robson say so as i mentioned there's also government in exchange for a benefit you bring in another cooperate or who's been exposed to immunize testimony and you say oh there's no problem because you matches up with the first cooperator the reason not the reason the district court took that into account is to corroborate robson's testimony that he actually saw and that was the basis for his his testimony because there were other witnesses but actually he may have actually seen it but we've got a record in which he didn't testified to it until after he had been exposed to the immunized testimony we have robson system we have the corroboration we also have the fact that much of the testimony from allen county consisted of kind of vague denials a lack of recollection and really nothing to use nothing to provide would it not for you to introduce the transcript of conti's testimony at this trial you didn't do that under the fifth amendment but we were being cautious you know or i'm sure you're being cautious but you may not be cautious the next time because you're asking us to hold that it would be permissible for you to do that because since you aren't the ones who held the testimony in the first place there's no bar to your use of that immunized foreign testimony at the trial an going to use that's all kastigar hearing was a waste of time on that theory because even of robson had been refreshed by the testimony that wouldn't be a problem even if you had given him the transcript in order to refresh his recollection that wouldn't be a problem and even if you introduced the testimony at the trial itself that would be a problem when you look at the fifth amendment and this court has held that when a private employer now if the government if the government has as an employer tells a witness tells an employee information you got to testify or we're going to fire you if the government does that that's compulsion under the fifth amendment we can't use that at a trial now if a private employer does the same and it says well we're going to fire you unless you provide information that support of the proposition that a british government is on the same footing as a private employer well judge friendly rather that a private employer like the new york stock exchange there if they require they compel testimony that doesn't trigger the fifth amendment and out and what's that got to do with friends well because if they if the united states compels testimony that that is what triggers the fifth as an employer that triggers it and if you make that distinction between private employer and a public employer there's no reason in it the reason is because the private employer is not bound by the fifth amendment just as the u k government isn't us and you are earlier response to judge lynch suggested that that foreign entity and then he was put into a united states custody and provided statements and this court held that because of the course of activity was perpetrated allegedly perpetrated by a foreign sovereign that didn't coercion by a foreign government that resulted in testimony used in the united states that just wasn't an issue there as far as i read those cases and the court did hold that the miranda rights the court would have carried on  issue there could be something you don't beat somebody but they simply compel him by force of legal compulsion that's legal in that country to do in that event as soon that wouldn't shock anybody's conscience to all of you i would like to begin with something that the government says here and said in the indictment but did not say to the jury the government here said that they the evidence showed that their estimates were not their estimates they also said that they came up with one number and gave a different number that would fall within what is a stablish law with respect to fraud based on statements of opinions or estimates they have to prove beyond a reasonable doubt that it was not honestly held by the person making it at the time it was disbelieved bar the speaker lute says to condi you know what do you think the number is going to be and condi says the real question is what do you want it to be how can it why couldn't a reasonable jury draw the inference beyond a reasonable doubt that co wasn't interested in making an honest as the movie was interested in doing whatever shrewd wanted or at least whatever she wanted that wasn't so ridiculous that they'd be laughed at and people would start to suspect there was something wrong why statute because the government has an obligation to prove that the ultimate statement that the speaker made was disbelieved by him at the time like can be a matter of inference we're always trying to draw inferences about what's in somebod head and it seems to me if somebody says to another person what i'm interested in is just what do you want that's all i want to know that's what i care about many gives the estimate that she would ask for and there's no other evidence suggesting that there was some calculation that reach that number why can't it is a matter of inference whether the the mr conti in this case didn't believe what he said here it would be based entirely on speculation because that's not what the government told the jury they needed to determine they didn't tell the jury both judge raycroft that again that was the theory articulated in the indictment it said that they submitted rates that were inconsistent with what they perceived to be the right comes time for the charge conference and judge records says that the court's going to describe the charges in this other way that doesn't speak to it being inconsistent with the opinion that the speaker actually had and instead comes up with the formula n that they submitted a libel rate that was different than they otherwise would have to help their employer difference however does not equal false and we said your honor if you're going to describe the indictment why not use the language of the indictment and we asked the court to include just that language might have been better for the judge to do but still he does give the good faith instruction right that if the person believed in good faith that what he was doing where a statement may not amount to a false or misleading statement the problem was it was academic to the determination that the jury was told by the court and by the prosecutors in summation that they needed to make because they didn't need to consider whether a statement was false then good faith instruction would have been a useful tool for them but that's not what they were asked to determine judge rake of said that the crime the issue that you need to determine jury is was it different was it influenced in part by what would help their employer the prosecutor and these words are really important to the prosecutors and some missions that if you find that the defendants took part in the scheme to base rob a bank slide or submissions at least in part on trading positions you can get regardless of whether they're inside or outside of the range you should convict so in other words the jury is still within the range whether or not it's what they honestly believed yes yes whether or not it's what they exactly that's the problem words whether or not they honestly believe they're not there well there seems to me that with mr ewan's testimony as at least as the part that mr kerik was says he would have thought that that was not what they're supposed to do they're supposed to give their honest estimate not what the what they wish it would be for their own trading positions a man so the question to two ways first perhaps one could say that's an ethical that is a sharp practice wire fraud does not embrace everything that one wishes to consider to be a sharp practice but i said two ways there's two ways and that is that it was not clear even to the government's own cooperating witnesses that there was anything inappropriate with this long as you are submitting a rate that is within the range that it's a fair and reasonable estimate it was not clear to them that that was unlawful and it's really important and it's it's actually i found it somewhat shocking mr stewart i don't i'm not sure how how his plea was taken but mr stewart testified and this is the appendix of page two fourteen that in his view it was and i'm quoting not considered inappropriate for swap traders to ask the people submitting libeler for a higher or lower rate he said this is the government's cooperating testimony actually i'll testifies that when he left the bank a year later he had quote no inkling that libel or submissions at rabobank or an issue or a problem that's the government's own cooperating witness who ultimately pled guilty pursuant to a cooperation agreement the other cooperating witness says the same thing mr you've got me testified page two sixty five of the joint appendix this is the government cooperating witnesses testimony  practice of adjusting submissions by a few basis points based on a trader's request was a gray area but quote agreeable and quote ok to do he even testified about a conversation that he had with mr robson a contemporaneous conversation before he was threatened with indictment and ultimately plead guilty mr you got me testified the same page of the appendix that mr robson said that he that it was ok because a lot of your moves in a range and there were multiple correct libeler rates he could submit but excuse me because opposing counsel said there was only one r a range there was only one rate that was correct that's when he just sat on the podium that's absolutely there is nothing that supports that i think what i think what counsel from the government said is there was he was quoting language from contradicted by the evidence at trial there is no there is nothing in the record which suggests that there was one rate to prove in part because there are fifteen plus banks which are making their own estimates of what the current r and there is no interbank borrowing during most of this time period and certainly for most of the time periods they have to submit libeler for how much can they i would have to pay to borrow for eight months there can't be one number it never happens there is it's it's a it's  best a rough estimate the contemporaneous testimony from the communications is oh it's between you know three point one and three point two i could i could if i could put in anywhere and in fact when the government points to just to address the the  robert mr conti submission that day five point two zero was exactly the same as the middle average of the middle eight banks that's can't be fraud unless absent absent unless mr cont thought it was five point one eight and if you put that in it might have come out at five point one minus the total average i agree with your honor one hundred percent and had the jury been instructed that that's what they need to find that that had they been instructed as we asked on on how they should assess an opinion or estimate and they have to find that the opinion or estimate provided was disbelieved by the speaker had had judge rakoff in the government told them that's the test maybe it would be an issue had they but that's not and the reason why the courts and the government instructed the jury in this fashion was because it was the end of the trial and the government had not presented any evidence they didn't have any financial solutions settled cases with the government for all sorts of reasons and what was the role of any of our bank in incorporating with the government we know that the we care about them i don't think it is of any moment i think they responded to the government's