afternoon the clerk informs me that everyone has signed in for the cases to be argued so dispense with the reading of the calendar and will turn to counsel and us to versus edward maurice protect both parties to the investment opportunity marketed by event star including potential buyers mr weaver added to a three page contract clear prominent and detailed disclosures for potential customers to review and acknowledge before committing their money to event star and purchasing vending machines the disclosures expressly and unambiguously described the limited nature of the bargain to potential customers among other things th did not guarantee earnings it did not secure locations for the machines the purchaser did it did not have any financial relationship with locators and the written contract constituted the entire agreement between the parties no representations beyond the agreement influenced a decision to purchase given these particular prominent disclosures in a three page contract no reasonable person could consider event stars contractual representations important to a decision to purchase vending machines let's suppose hypothetically i know that you disputed that mr weaver actually ferment of lee encouraged his sales people to make false salespeople that they should say as apparently the sales people here did say that that's all contractual mumbojumbo pay no attention to it and he would be exempt from criminal liability because those disclaimers are in the contract are there and a reasonable person would have read them and disregarded with the salespeople said i think that in the context of these particular disclosures which not only is this a yes coming or a no coming  it would be unreasonable and given that the that the disclosures here were of both a specific detail but also broad nature in the sense that not only did they sort of have a procedural element to them in the sense of do not regard anything you previously heard of that is outside of the contract like we see in thousands of contracts every day but also they provided the specific critical facts to potential customers before they committed money so i think the most critical fact of all being then star does not guarantee earnings and i think there would be no more critical fact for any potential customer regardless of what they might have heard and so when we're talking about who is the objective reasonable person looking at this again i think if we were looking at a fifty page contracts a contract of adhesion of sorts or you know something where you know you've got a fine print buried somewhere that if one roadster who specifically intended to  have it to make representative forget salespeople if somebody personally put these things in his contract and called people up and told them here's a whole bunch of and how you're going to make a lot of money a lot of misrepresentations and one of them said oh but it says in the contract i shouldn't pay it rely on that and he said go ahead you know that's just  in there from to satisfy the lawyers please trust me on this you're going to make a million dollars for sure he would not be that would not be a crime even though the person intended that th e customer would rely on what was said rather than what was written i think that if you look to what standard contract law would say in context beyond that that's not a context of civil fraud under not in the case of whether the person i described engaged in a scheme to defraud understood two responses to that your honor first of all i don't think that there should be or is a sort of parallel universe of contract law that does not apply kind of that's a yes yes again you're saying that that would not be a crime but but to answer your but to give my second response to your question it would be that when you this is not a situation where you've got some sort of government concedes and it's brief on two occasions on twenty six and again on twenty seven their argument is not that there was some sort of fraud or a scheme to defraud before there was a consummation of the contract and so i think that is another limiting factor here you know they say customers would not have done business with event star had they known the truth the truth being provided in the contract done business meaning actually committing twenty six would follow that the sales people also would not be guilty of a crime i know you don't represent them but your argument would exonerate them as well would it not i i you know i think that perhaps in this case it might in another case might not but i think that there are actually meaningful differences in some of the other issues we present between ourselves mr weaver and the salesman for example to talk about for example the improper closing arguments which i do want to touch on before my time is up you know i don't think there's i think that you can tell by looking at the government's response to this how they divide up this improper closing argument and i'll just read what the prosecution as you said in its rebuttal which was the last thing that was the jury heard before we're tired this is not a case that depends on one or two coconspirators you heard from eight of them to disregard their testimony you have to believe that the eight of them pulled this conspiracy off on their own by themselves without the knowledge and approval and involvement and assistance of weaver now you know i think it's very hard to come away from that you know with any impression other than using the coconspirators guilty pleas as evidence of mr salesman mr weaver is the c e o and i think it would be very impressionable upon a jury to think well yeah it actually would be very hard for these guys to pull off this conspiracy and fraud to which they have admitted without the head guy there now the government then pivots to saying that well there was a limiting instruction why is i'm sorry why isn't that good argument it would be hard for them to carry off this road that the admitted to not just in guilty pleas but in their testimony  without the help of the c e o that's an improper or well i know i think that what in the context of this particular arguments where they're using that the prosecution is using the guilty pleas to tie in to say that there's no way that they could have done this without mr weaver because you know their guilt implies his guilt and i think that again the fact that the government doesn't really confront that in its brief is telling and as far as the curative instruction i just want to point out that there's no case that the government sites in which a standard jury instruction was found to have cured an improper or improper prosecution argument of this points the guilty plea from the testimony yes your honor it we do not have a quarrel with the introduction of the guilty pleas and that is permitted under human and be permissible based on the testimony alone that says we i did it no argument is that it's impermissible based on the use of those guilty pleas t time standing that's why i'm asking you are you distinguishing between an argument based on admission from the witness stand as against an argument based on a guilty plea to the same activity i don't think that we would i don't think that we would distinguish between the two i mean once the witness says on the stand i did you think it's improper for a prosecutor to say he wouldn't have said yesterday a trial that he did it with unless he impropriety because i think that you're taking the that particular guilty plea and you're implying i mean that when you say you know they had they all had to have come in there eight of them not just one of them but eight of them came in here because you know they couldn't have pulled this conspiracy off on their own and i think that when you take that in can in conjunction with and then saying without the knowledge and approval and involvement and assistance i think you're you're taking the the  cooperators but various witnesses say these sales people told me this and the prosecutors and the government says you know there's absolute evidence in controversial evidence that the sales people did this and there's no way they could have done it without the boss knowing about it given what the operation was otherwise like that would be improper to i think that i think it would be a different case but i think it would be close to improper as well but i think that's a it's even easier to use than we have right here are you doubting the logic of the argument or you just saying in effect it proves too much in the way you're not saying it's illogical t to to argue that the boss who would not have been unaware of what all these people were doing you're not saying there's a logical flaw there are you well what i'm saying is that there are many ways to this particular argument come up in the context of trying to diffuse the guilty pleas by these coconspirators and there are many other ways of doing so besides this particular means of doing so i  i hear what you're saying but i don't think you're quite you can with what i'm asking you i'm asking you do you think it's illogical or to put it another way is it an impermissible inference as a matter of inference drawing to make the argument is that your point no i don't think i don't think it's illogical ok so it's way it's a lot but your point is it sort of proves too much that you're asking the jury to find the boss guilty because they're guilty that's correct court actually on all the points in the opinion by judge the district judge the trial judge judge as rack because in a very thorough ruling forty eight pages denying motion to for a new trial in a quick she thoroughly dealt with all of the arguments that are being made by mr weaver and in particular for instance on this last point there are various reasons why mr hicks his argument is incorrect but if you look at the final the end of judge asterix opinion she she makes clear this is at most this was just an isolated remark during closing argument it mattered not at all because the judge issued a very clear instruction and she said quote moreover given the abundance and variety of evidence arrayed against defendants at trial there is a strong certainty that the defendants would have been found guilty in the absence of this single remark and in addition discord in the  and others has made clear that this type of remark a single remark a closing argument will almost never be sufficient to overturn a jury verdicts in a case like this but in any cooperators and he was merely pointing out want to the jury why these people were credible perhaps i should have started out by saying as as i know the judges know but i'd like to remind  your credibility or you get the objection to was that is is that their testimony was used to show the boss was guilty not not to shore up the credibility of the testifying witness you're saying it's relevant to credibility right he's arguing what's the improper is the inference from they're credible as the right and instead remember these are people who testified that they had weaver knew all about what was going on and again parroting judge as right there's massive evidence in the record that the jury obviously found convincing show no no they are actually credible and part of that is really do you think these people would have pled guilty all of them and all of them would have been testifying about everything that was going on in this small office and all of them are lying so he was he was rebutting the attacks on their credibility saying this is a lot for the jury to have to swallow that all of these people would have been lying about how involved mr weaver was so that's why it was bringing back their credibility but in addition again it's just as heart found this is all irrelevant anyway because this is just nowhere near the type of showing you would have to be made in a record like this to overturn a jury verdict and you know that brings me to maybe where i should have started which is again is this court knows you view the evidence in the light most favorable favorable to the government overturn jury finding including findings as a materiality defendant's intent to defraud falsity of defense events only if no rational jury could make that finding and again just as rack who presided over this six week trial just agree completely with the jury on the various arguments that were made that that there was nothing wrong here  hicks started out by saying well they they they tried to cover themselves by putting in this contract at the at the end and thereby overcoming all of the many many did to fool these these victims these people who are the customers who bought these machines so the crime was done when the lies we're told as part of this massive fraud s so what happens after that doesn't undermine the fact that that the crime had occurred in addition as is just as right pointed out you're saying the the opponents argument has to be essentially a factual one th presence of these disclaimers totally refutes any inference or argument that he intended to defraud anyone i think that's right your challenge and and that that argument just won't fly here at all because victims testified number of victims testified that they were totally misled that they relied on these representing these misrepresentations and more important as judge lynch mentioned in think it was your opening question they said they relied on the fact that the sales people said to them oh that's just legal mumbo jumbo don't don't pay attention to that so surely we can't allow the mail fraud and wire fraud statutes to be totally undermined by people who fool a whole batch of of retirees and then at the end say and the retirees who testified they they believe those representations are percentages were key to them and then at the end say oh don't pay any attention now again even with that remember that weaver and the people who were all part of this were saying dispassionate pay attention it's just that stuff for the lawyers but there's even more than that remember that the evidence here showed that weaver had the salespeople tear off rip off the front page of the contract that the front page was a required warning to these customers saying check with a lawyer know look into this don't just accept it well obviously weaver and the salespeople didn't want anybody to do that they wanted to move very very fast get these potential customers talking to the the duplicitous locators etc and didn't want anybody talking to a lawyer they didn't want anybody thinking and so the i think the testimony was the wastebaskets in the sales room were overflowing with these front pages that had from grace of the government i don't think there is an anomaly on it i'll point out the obvious first point which is mr hicks has not raised this but i don't think there is an anomaly because remember this this is a criminal case which you know as has been to point out again by judge as rack that the what needs to be shown for civil liability fraud in this kind of circumstance is very different from criminal and this is a recitation order as part of the criminal case so the first part would go only to with a properly convicted and then the judge issued i think us six point one million dollars restitution order which obviously would come nowhere near making the victims whole the you have a higher burden to establish the fraud but a lesser but since you don't have to prove reliance it's a little easier so on for one element is tough the other is more lenient the result is you get you move the money without proving rely that's correct your honor and you do it via a criminal process the criminal prosecution and then the the rest you know the restitution order which as we know  about sixty two million i think was taken from them and the judge was ordering restitution of six point one the case was brought by the civil division of the just very proudly your honor the despite your honor it does happen in the eastern district i don't think it i think your honor is well aware i don't think it happens very often in the southern district if ever i eastern eastern lets you in once in a while you may not remember but you and i had a conversation about this once a number of years ago it was a long time ago yes the main justice department sometimes handles things from the southern district but it's not very often the very last point i'm sorry i wanted to make i'm a big confused mr hicks that we conceded some of the pages twenty six and twenty seven of our brief i just looked at them again and i think maybe he misspoke we did not concede any of the points in this case  i think it's very notable that he only talked about half of the argument he did not talk about and that's actually exactly what happened in the government's brief they divided it up where as there are actually two components the component that i was talking about earlier is by far the more problematic mr letter stopped at the earlier part and then he talks about the sort of harmless error aspect of the of the closing argument and frankly i think a fire up here representing one of the salesperson's i think th there may be a point to that but when it comes to mr weaver the record is replete with written contemporaneous document evidence that is exculpatory and on the other side of the ledger we've got sort of post hoc cooperating witness testimony from ten years later and i think that when you put the two of them together it's simply not a case for harmless error like mr letter says and i think frankly the example he gives is a good point  this this allegation about tearing off disclosures comes from literally one sentence of testimony by a cooperating witness now counterbalance that with a contemporaneous written e mail by mr weaver wherein he says that i have told all regulators to calm and inspect us and look at us and make sure that we are doing things properly on the last point mr letter refers to the crime occurring earlier again i can only refer you to the pages of their brief pages twenty six and twenty seven where the arguments they're making are inconsistent with that particular proposition but what if that isn't true though that is to say if there is a scheme to defraud and misrepresentations are made in  it says if you conceive a scheme to defraud an inverter ince of that scheme you mail a letter or make an interested phone call you are guilty of a crime that is what the text of the statute says and i think that brings me to my last point which is if you take the government's that the disclosures like these various other statements that mr weaver made and apparently i think this is conceded factually by the government the statements that he made to the sales people from time to time show that he did not act which is to go to judge newman's point at the sentencing context you do have a reliance component and to the extent that these all these contracts i mean the government's entire argument on the culpability point is premised on the lack of reliance whereas in the culpability statutory context whereas when you're looking at the last sentence the loss enhanced meant for sentencing there is a reliance component and when you have customers who have then disclaimed reliance i think that you can't ignore that when you're looking at the sentencing which brings the guidelines down to twenty why is that very hard to say that a defendant who intentionally purposely puts these in for the express purpose of protecting customers is purposely intending to inflict that and i would note that the government does not really spend any time on much time on