united states v kenneth jackson and case number one six days four two eight seven night states we dentist the child seal or arguments not to exceed thirty minutes to be shared by the defendants thirty minutes for the plaintiff supervising attorney for robert kendal good morning your honor this may please the court i'm melissa salinas i'm with the university of michigan law school and i am supervising robert kendall on and i have the honor of presenting him to the court today thank you thank you very much time here today dressing the issues surrounding the routine admission of kind of jackson's nine hundred ninety two securities fraud convictions in direct violation of rule for four b and co counsel if all intend to cover similar issues and some other issues subpoena your honour's in the united states most certainly in the circuit there is no duty to disclose far removed criminal convictions in the private sale of securities the district courts erroneous determination that these convictions were direct evidence or inextricably intertwined with the charge offenses incorrectly allowed thirteen admission of these nine hundred ninety two securities fraud and other criminal convictions throughout the trial these convictions are meant i would say you've done a really good job refocusing what you want the issue to be  giving short shrift to the elements of mail fraud and securities fraud that require the disclosure of something that would be material to a prospective investor and how can you say what happened here with jackson would not be material not reasonable and buffett sure so answer your honor's question first and say under the mail and wire fraud statutes this court is held in united states we daniel that reliance by an investor mission must pertain to the material material information that the defendant had a duty to disclose which this court described as to significant limitations on the general policy of disclosure in the supreme court under securities fraud certainly an element to the securities fraud statutes but also so is a duty to disclose the supreme court said this in footnote seventeen a decision basic which is one of the most important sentences in that decision as this court  honor there's no published decision of any court of appeals in the united states or the supreme court which have held that such convictions are direct evidence under the securities fraud statutes assume you're referring possibly to united states or united into has no presidential value even in the second circuit because it's a summary order the cases that are pertinent in this circuit from the supreme court are again this court sitting in the decision in city of monro which says that a jury just close circuit was finding a duty to disclose by virtue of the fact that the defendant had held themselves to be a legitimate business person isn't that what we have here we have people that are holding themselves out to be legitimate business people but in fact one of them had prior crimes that should have been disclosed so i say yes he is holding yourself out as a business person however if you look at the chance the defendant in but chance he was holding himself out as a licensed medical professional where the  prior convictions essentially barred him indefinitely from practicing medicine or there being any sort of medical expert so there was certainly a material connection in that case here we're dealing with convictions that were were from  the charge came occurred from two thousand and seven to two thousand and thirteen it involved a needle destruction device or sales of securities for a needle destruction device so we have at least a fifteen year gap up to a twenty year gap where there's no  have been a much better argument had been made unless you can point me to something i can't find that it was the argument you're making now it was actually made to the district court and if that's correct then this is simply a question of a clear standard of  other bad acts or other prior crimes evidence this court requires a district court to make a finding that the probative value of the evidence was not substantially outweighed by the prejudicial effect motion that you had some sort of argument that you can make that the judge should have anticipated how many times this would have been referred to during the course of the trial in advance of the trial even started so i think that's certainly a concern our argument is that this evidence was not offered for it a legitimate purpose i got that but that or your argument that you're making now is the fact that they've brought this up a lot of times so therefore it must of permeated the trial and result in a reversible error that you're right so are used to is there some sort of contention that that should have been addressed differently by the judge in advance of the trial and as much as i wasn't raised so i think a number of times it goes essentially towards harmless error and i think it also goes towards an error in being admitted for a legitimate purpose i think the number of times goes to the question of an objection that should have been made during the trial should and assuming that the evidence was admitted pursuant to the ruling then all of a sudden it's taking over the trial that's essentially your argument for at any point during the trial was that objection raised th are two minutes for a bottle right thank you may please the court my name is rachel frank and i represent kenneth jackson the government abused the very narrow ruling set forth by the district court as to how the prior convictions could come in the district court created this very small doorway stating that these convictions could come in to show the mr jackson i mean material misrepresentations the government drove a truck through that ruling they made a relentless dangerous and egregious references to mr jackson's convictions they called him a criminal a convict a liar and a felon the trial very hot and you know he is your honor but those words especially associated with these convictions would very likely create within the minds of the jury that because he was guilty then he must be guilty now if a trial begins this argument in your group that you were yes your honor the trial very quickly became about mr jackson's past about crimes that he'd already been convicted of and sentenced for and not about what he was on trial now the government abused that ruling in its opening statement in every single direct examination every single cross examination was no objection to the only statement there was i believe there was an objection during the first direct exam your honor but the issue itself was argued v m motion in limine a prior trial during voir dire as well there were multiple objections made by his trial counsel during counsel overall the government referenced the convictions over one hundred times those references and that abuse affected mr government's right to a fair trial coupled with the district courts giving o flawed jury instruction regarding how those convictions could be interpreted that was the broad instruction that you require mr jackson's trial counsel did request that instruction however that was given almost verbatim to the instruction that was required that is correct your honor how at instruction was based on the six circuit patterns yes your honor but mr jackson's trial counsel first proposed a different structure proposed a standard for a four b instruction but was denied by the district court so he did not get the instruction that he first asked for and unfortunately was kind of had to take what he could get in terms of an instruction he couldn't get the one he wanted so he was had to give an imperfect one but moreover it is the district cour find relief however that is not the case here because mr jackson's counsel did propose a standard jury instruction these instructions did not fit this case because in the first sentence they state that the convictions can be used  determine whether or not he made material misrepresentations and the next sentence they state that they cannot be used to determine guilt these instructions contradict each other in the very next sentence they would have very likely confuse the jury to the point that they would have had no idea how to instruction was that instruction confusing that's what i was asking because i understand you say they wanted instruction a and they got instruction b but instruction b was drafted by his attorney and how can he now complain that that the instruction that he drafted had this confusing word usage when he proposed that instruction whether he wanted it or not because it is the district courts responsibility to give instructions whether or not their proposed by trial counsel to district court has to give instructions that will adequately instruct the jury and how to consider an issue but i think we all agree with that but but how do we deal with invited here if you if you propose an instruction particularly one that's consistent with a pattern structure you you invite the court to give it you don't complain about it and then and then on appeal you say geez that was that was unclear that's just classic invited  is not invited area honor because mr jackson's trial counsel tried to give it prior instruction this is he tried to give a typical pattern for for be instruction that is now he was given the district court did not allow that  are saying because he didn't get the instruction he wanted he gets a license to then offer a confusing instruction in its place and then he's not responsible for what he now contends to be the confusing nature of the instruction because it is the district court responsibility to give the instruction the trial counsel can propose instruction but it's up to the district court to accept the right one that will instruct the jury properly and was it consistent with with the pattern instruction it was consistent with a instruction it tends to be a forward b instruction and limit the way in which the jury could consider the convictions but saying two different things in its opening statement the government referenced the specific term of imprisonment that mr jackson faced for his prior convictions they said that he had gone to eight years because of what he had done not only is that prohibited argument but it creates a very dangerous propensity argument for the jury to consider that he did singular but combined with the multiple references to mr jackson's convictions throughout the case throughout the three week trial that reference to his specific term of imprisonment had no bearing on whether or not he had made material misrepresentations it's on the government's only purpose was to show the jury that because he committed a crime then he must have done it now for example wasn't sure whether the record contained humulin argument objection  you know whether there was one made during the trial objections to the idea that they kept bringing it up that seems to be to permeate the groups was there there are objections to this should have been able to use it to begin with  was there any objection during the trial to the manner in which it was being repeatedly same thing over and over again that's a cumulative was that made during the trial hard you know i do not know if objections to the cumulative nature were objected to but even if there wasn't an objection made to this specific agreed just number of references it doesn't change the fact that those references in the can and the convictions permeated the entire trial and create a situation where mr jackson did not receive a fair trial his substantial rights were affected in a negative way and i see my time has expired if i may briefly conclude in light of the government's  statute and assuming argue whether they are material and not conceding any argument that's made forth by mr kendall and mr frank in behalf of their clients but also assuming argue when doe that his prior convictions are inextricably intertwined with the charge conduct of the defendants this court has always held that a four zero three analysis should never less still be done in one was not done your honor pointed is some interesting arguments i don't mean in any way diminish the arguments that you're making but on the balancing test question under four or three what what i'm confused by is what would that for all three would would this information of the material give them that's another irony in this case because obviously they're going to see that in hindsight had they had the judge gone through the road for all of three balance if the judge is right that it was race just evidence what could the judge then have done to somehow have limited the prejudicial impact of that i want you to assume for a second but you can address this she can't strike it because it's  there was other many proofs that the government had regards to e mails testimony letters that they could have proved fraud misrepresentations without the prior convictions your honor if the government of the legend do you have any cases that say under hundred three the nature of the fraud which is the central element of the crime and there the government can then be barred from presenting that to the jury that just intuitively doesn't seem to make any sense well or the court in regards to what i just stated the court could say you know what you're not going to use it in opening you're not going to use it in closing you're not going to use it so often that becomes propensity evidence i'm going to keep control of this and we never had that so what we had with these gentlemen were being tried convicted not on the crimes they may have committed but on what they became because of pernicious use of these convictions during the course of the trial might just said your honor you talked about three week trial maybe three weeks in a day that makes it all the more propensity evidence because they're hearing it day in and day out for lines of what you just said you can ask you could ask a couple witnesses but you can't put it in the opening can't put it in in the closing was any of that kind of proposal ever made to the judge i believe on the record right i don't know that it was cited in our brace but i do recall having judge i recall recorded in the case they were i don't know if the part of the record around i can't for my time i thank you thank you mr hastings mr goldberg are you on the telephone i am you may proceed you have four minutes for your argument thank you may please the court michael goldberg from the goldberg law firm and represent daryl donohue and i do appreciate the court's accommodation of allowing me to appear by phone we are asking on behalf of mr donohue to reverse to consider the enhancement that related directly to or in the context of mr donohue sentencing adding two points to his calculation under the victim enhanced meant for serious harm under to be one point one two c of the united states sentencing guidelines making his sentence procedurally unreasonable i also asked t shares that were retained by the victims in the case the court essentially making a finding that the shares were valueless where there was i do believe ample evidence on the record that they were not with regard to the four for b do think that mr donohue stands apart from the other defendants in this case mr donahue had no financial part of this company mr donohue dealt specifically with the preparation of materials for regulatory approval preparing notebooks and documents and and other filings to be able to market the product and he was working at the direction of mr mr jackson he had no control over and never took never took control over any bank accounts there was substantial evidence in this case of money being moved from account to account by other defendants he never received any type of undocumented compensation he received a salary of one thousand dollars per week for his full time work as this kid in this consultant's role so when you look at mr donahue he has to stand trial with his co defendants as a somebody who is charged in a conspiracy however with regard to the repeated the infusion of mr jackson's prior record into the trial record i think mr donahue stands apart in the degree of prejudice he sustained because there was very little evidence other than his association with this company and with mr jackson that ties him into the conspiracy he never spoke he spoke to his record shows that he spoke to maybe two investors out of the hundreds of investors prior to their investment in the company and other than that his his role with the company was to prepare documents and to do this internal workload mr goldberg did didn't isn't there some evidence that mr donahue made false statements about personally communicating to the external at the a consultant that's correct it was and i did i did disclaim that there were one or two instances there was a shareholder with the last name of boys who had made inquiries to mr jackson and eventually the evidence was that mr jackson instructed mr donahue  to to tell mr boies what the status of the f d a approval process was according to mr jackson and mr donahue did make representations the representations were made in the third party such as we have spoken to the f d a we are expecting an answer back he i know although it was characterized as he was making representations that he had personally spoken to the f a that wasn't in fact the representations that were in evidence at trial or in these e mails he did also sign a shareholder letter that was  sent out to members of our to the shareholders indicating that there were overseas sales of this of this product that probably did contain some misrepresentations from m jackson and did communicate with shareholders but that is your time your time is up thank you thank you very much argument good morning your honour's rebecca let's go on behalf of the united states your honor that is it's very clear that you're very familiar with the record in this case but i would like to point out that this case was not simply about the immaterial omission that defendants made in connection with mr jackson's prior convictions but there was significant evidence starting from the opening statement throughout the entire trial and through to the close focusing on the multiple lies immaterial affirmative misrepresentations as well as multiple omissions that the defendants made that were material to investors chief among those were the misrepresentations about the status of this a filing this device that the defendants used as the product for the scam this sharp terminator required f d a pre market approval and beginning in two thousand and seven the defendants told investor after investor after investor that they had filed that application with the f d a and that approval was imminent any day now coming next week and that the record is replete with the witnesses explaining those representations by the various all four different defendants in this case and also it is of the government's position that it's harmless error if  if we find that all of this evidence regarding the park in fiction has proper improperly admitted would be the government's position that it's harmless error because there's so much evidence of other misrepresentation honor yes but i don't think you have to go you in fact not even i don't think you don't have to go there because the admissions of this prior conviction were tied specifically to the material this case poses an interesting question of if if there isn't a specific statutory a regulatory rule that pertains to prior convictions that i think that is the case is that right  e promoter of a product like this to know what might be material in the minds of a reasonable investor before the fact in the absence of any statutory or regulatory d honor this one is not this is not even a close call because and if the daniels case that the circuit set forth made very clear that a scheme to defraud is not defined according to a technical standard  this court noted it's a reflection of moral uprightness a fundamental honesty fair play and right dealing in the general and business life of members of society and what you have here is a person  jackson who was convicted of a very extensive securities fraud scheme that involved millions of dollars and sent him to jail for eight years then you have him turning around getting out of jails and seven years later he is promoting another securities fraud which ultimately securities transactions which ultimately were proved to be fraudulent in nature and it is  an order and so that's a lot of words and it was so what are you saying that he should have known this one was required to be disclosed as opposed to some other crime because it was all the securities crime well determining whether he or she has to the well that the promoter here has a standard to cause closing to a reasonable investor information that would affect the reasonable investors decision to invest and determined that and how they determined that here when you know i mean it is a factual determination but when you know that the primary person who's controlling all the money here is a has these in his background combined with these affirmative misrepresentations about the f d a the affirmative misrepresentations when somebody is this deciding whether to disclose something you know advance pretty we whether you put something in perspective say or perspective you can then combine that with the subsequent misrepresentations that they make about the status of f d a approval over the course of the next several years their their temporally distinct ok so your honor i guess to answer your question hopefully more directly is that you have the principle person this convictions involved the principle person in charge of this company and the i would i would tend to agree with you there in the johnson context your honor certainly however when you have a the officer was essentially the president of the company or but not in name he's disguised as the r and d director but the person who's controlling the money who's calling the shots here and has this prior conviction for securities fraud extensive securit reason and common sense tells you that something that these investors would want to know and when we ask these investors i mean they didn't know it for a very very long time and there's testimony at trial once they once they found that out after years of being told the stuff is coming it's coming in the f d a approval they realized right that their money was gone they would not have given their money to this company knowing that the person calling the shots was  this prior conviction not only for securities fraud but also for perjury for lying for theft for really things that they should have known as material because you know trial five years later when somebody lost their money they're going to say it would have been birdsong invested three hundred i think three hundred thousand dollars it may have been six hundred that he put in by the end of the day but regardless a significant amount of money before you do that you reasonably want to know and that's something that all the facts the total mix of information about whether these people are honest so important particularly in the securities context are you surprised there isn't a duty to the school that spelled out but your honor i think that duty disclosed is spelled somebody and you prepare a prospectus for him you look at the right what the regulations are to it tells you lots of things that you have to disclose you have to put them in the prospectus it's right there in black and white but if this is so important i'm just curious why isn't that there why doesn't it say you have to disclose what the income is for example for the people involved in the company so if you have to put what they're making why don't you have to put in there whether they're criminals or just i think that's implicit in what you would in the broader requirements of what you have to disclose whether it's not whether it's spelled out in black and white your honor i'm not aware of such a regulation that's let's go it is spelled out for the registration statement that if it's ten or more years i as i understand it at that s k regulation that if it's if it's older than ten years you don't have to disclose it in a registration statement for a publicly traded company a product in which is isn't that what the the regulations and your honor i would i would have to confirm that however in this case although you have a conviction also that's in one nine hundred ninety two that conviction  did i would be within ten years well the one thousand nine hundred two wasn't the end of the conviction that when he was released from prison was within ten years ok because that was within he was released at the tail end of ninety nine or the beginning of two thousand and the scheme began in two file a motion to sever the trials no i do not believe so my recollection is they did not ok but i would have to double check the docket my recollection is that there was a motion in lemony which exposed the whole thing in the record absolutely your honor and as just as judge me judge advocate pointed out that motion in limine i was focused on four zero four b and in particular i would note that a case that i don't believe we did cite in our brief but i would also bring to the court's attention it's the case it's five thirty f third one thirty seven out of the third circuit c part of this disclosure and specifically in that case they note that they're referring to that is intrinsic to the crime it's the same thing it's a material mission a failure to disclose i believe in a prospectus in that case and they know that even if the evidence is extremely prejudicial to the defendant the court would have no discretion accept to exclude i'm sorry no discretion to exclude it and that goes to just igs question to one of the appellant's counsel that the there were no objections about the scope of how this could come in and so would not actions were or were an all or nothing objection that that's how they were made they were made up front and they were made on the basis of it should that it was for a for b and that it shouldn't come in and the government briefed and what we're arguing here is really all three of the balance of questions on the on the four hundred three arguments where they all premised as all or nothing as well i believe yes your honor that's my recollection and i would have again i would defer to  the motion in limine day itself but my recollection is that it was all premised on this should not come in period end of story not about scope not about limitation not about cumulative whether you can raise it in the opening or not counsel argues now on appeal i think i think pretty effectively that i can only find one sentence in the motion that deals with the duty to school you then come back and you say well there was a due to disclose under the cases that we've been talking about today and there's no reply brief correct your honor and that is that is correct and defense counsel were any of the cases that are being presented to us presented to the district you know have been so effectively argued by mr kendall that no basic inc and daniels and all of those cases setting forth the standard in a wire fraud context as well as the securities fraud context in particular and those rulings in all those various courts that this is a relevant issue for the jury to decide and there was not a reply and i don't believe any of the cases that defense counsel is now are that appellant's counsel now cite were ever brought to the attention of the court nor was there o request that the district court somehow limit the scope or the manner in which this information came in are correct that that is it's actually a combination of two pattern six circuit jury instructions that were proposed by the defendant it is specifically the form of for be instruction with other extra sentence i believe from the impeachment instructions which are a pattern instruction seven o five seven point zero five and seven point thirteen and that language is verbatim from that so the government would submit that's not confusing certainly not in the context of this case and it was to the extent it was it was invited error but i go back to ask you a much much more broader question the just sort of problem me in reading all of this and we see a lot of conviction a lot of prosecutions by the government where something appears as if it started out to be a scam right from the very beginning it was just a device to raise money and nobody ever intended to use the money for the purpose for which they said they were going to use it that doesn't seem to be the case here looks like these guys correctly or incorrectly thought they had a good product and they and they they could make a success of this they could make a lot of money so it just looks like they started out with  largely proper motives and what really happened here is is as it went to law the the fraud started by telling people we're almost there we're going to get it tomorrow we're almost there and that lasted for five or six years when at some point during that period not the first day but at some point it became evident that what they were saying was no law was no longer true m i generally correct about that your hon taps in the years prior to where the the scheme is actually to get charged prior to two thousand and seven maybe in the early two thousand when ken jackson and his cohorts were tinkering with this problem putting something together that they may have thought they could make a go of it but right off the bat in this perspective this isn't right off the bat of the representations they started telling people that the f d a application was filed and imminent when they hadn't even prepared the thing much less submitted anything to the f d a and it was kind of a nice day right from the time they started t thing i when i last checked it still is not on the market however you're out in my understanding was that they had manufactured a demo units for people who are still true believers or have come some you know the investors they're still hoping somehow that this will come to fruition but certainly by the date of sentencing in this case no completely negligible a number of  the government provided evidence to the district court to establish that the shares were had no value of that date in particular i would point out that the lack of complete absence of sales further  that in reference to the healey case that any to the extent that we had a product that potentially was viable at that point it was largely through the efforts of third parties to primarily evolutions and then later but the buckley group but at the time of that sentencing not only had there been no sales but when the buckley group took this over they gave them the patent they gave them the product and in return the buckley group to agree to and gave them the f application that was finally filed five years later and then the buckley group in return agreed to try to develop that product but in return the m s s shareholders would receive fifty  one third interest in fifty percent of them take effect a fifty percent interest in one third of the net profits after all the buckley's cost so at that point there really there was no value in all of that information was submitted to the court you're right that they're actually two groups of stocks here stockholders yes the court order these four guys to surrender their stock correct the government holds that it was actually went back to the company and therefore then would be part of anything that the shareholders might get so they basically gave up their stock the government doesn't physically possess those it would back to  s to the to the m m s that still exists as an entity what i'm trying to get at is let's assume that this stuff does hit the market and generates profits and flows back to the original will will that money somehow because the company they sold the product to starts to so a lot of these things and the royalties flow back those that money that then ends up in the hands of investors presumably through dividends or whatever those that  do these defendants get credit against against their restitution obligations that it does the probation officer basically i think is the way it works have the authority to then give them credit for your honor i would say to the extent it was discord shares yes to the extent that they were shares that the shareholders but while it was you who gets to correct the shares of these guys if their shares that they surrender back produce something down the road that will be credited against their restitution of the correct your honor and as to the shares that the investors hold they simply reap the benefit of that and it doesn't redound to the benefit of these four guys correct your honor and it is all but at this point continues to be tired of the speculative speculative yes your honor and you realize that even though i don't think this isn't the judgment these guys are going to be able to use your representation to us as an up through the court down the road to get credit if you're your honor i would tell you that i would be delighted for the investors if they would get a penny back from this horrific scheme that developed that caused them to lose collectively over nine million dollars absolutely they can use that representation and i think that the investors themselves would be delighted  first question is whether or not the comment was improper that's the first thing that you need to decide and it was tied specifically it when if you go through the opening statement it was tied specifically to the direct evidence of the fraud the material omission made in this case and therefore i would submit that it was not an improper comment further as judge mckeague you did i believe point out that then even if it was deemed to be improper then you do an analysis of whether it was flagrant and it was less than a page of forty six pages of transcript even dealt with the issues of convictions and it certainly would be considered isolated it wouldn't be tending to mislead the diff the jury or prejudice the defender because again it was tied specifically to the to the material omissions made in this case and tied again also to the witness testimony that would be heard and was in fact then heard throughout the case  your honor and also there was a number of questions about the number of times that this was mentioned i would point out that again as you identified i don't believe there was ever a objection or request and cumulative n in any event the witnesses there were twenty one investors that testified and so it was asked of the twenty one investors both it was a disclosed and wasn't material so that accounts for a large number of those hundred  l claim hundred references and i would further point out that there were here and there are some objections to the form of the question which caused then the government to have to rephrase the question again so when you start talking about the counting of those he was referred to in closing state and closing argument as well as one of many different material misrepresentations or omissions that the  investors regarding the issue of restitution in particular as the government pointed out under the man reek case the that has not been properly preserved by the defendants because they failed to file an appeal after the restitution was ordered mandrake is very very similar facts where you have a deferred restitution order and it specifically holds that the court must or that an appellant must file a second rested i'm sorry a second notice of appeal if they wish to challenge the restitution issues and i would also note for the court under griffith versus kentucky for seventy nine us three fourteen at three twenty eight which is in one nine hundred eighty seven case and from the supreme court that court noted that a new role for conduct of criminal prosecution applies retroactively to all cases pending on directv review with no exceptions  for a new rule that constitutes a clear break with the past and so the cases cited by the men of the memory question is clear given that it came out after must so that you must file a judgment i'm sorry if i don't notice of appeal after the judgment that you're appealing from and further as a man read kind of a low blow frankly for the government to be nonetheless stepped back to the government submitted evidence demonstrating the amount of loss and that the the various losses that the investors were suffered and  further that these shares had no value the defendants under the elson case have the obligation to demonstrate and healy have the obligation to demonstrate that they're entitled to an offset and they did not do that so not only did the government provide evidence that there was no entitle meant to an op separate the defendants didn't do anything to counter that and it is their burden under the law the circuit your honor i'm regarding the issues of sufficiency i believe we have to tell those extensively that provided numerous citations in the brief i would raise simply because it was discussed defendant donohue that  i defended donahue's counsel that defended donahue was an insider he held himself out as the f d a counsel the evidence showed he held himself out as an executive vice president of this company he sent letters to investors sent a slew of e mails and made a slew of represents a representations to terry boys in particular his there were all those e mails were introduced at trial and while the defense counsel is correct that some of them refer to we there also are representations that i mr donahue and contacting the f d a or contacting and meeting with the f d a consultant which were completely you have two senior judges on the panel been doing this for a log but what is new one observation that i would make which i just making it for your benefit i don't think that it matters to the outcome of this case but this is an example where the government seems to have very clear proof of misrepresentations and connection with the status of the f d a approval and then you add on this other stuff which is questionable and almost could be described as piling on and you just create real problems not only for the lower court in the jury but you create problems for us and i'm just suggesting that you're the government you have a higher standard that applies to you if there's something that you don't need that's of the legal question about whether you should be putting that in evidence it would just encourage you to revisit that strategy in your next case point point tak your honor i will say that the government did not enter into this lightly it was a combination of the research in the all the various circuits that have held that this is a material omission the second circuit the third circuit the fifth circuit i believe the fourth circuit as well  and combined with this standard set forth in the daniel case and further in speaking with these investors and we interviewed these investors at nauseum when they i mean they identified this over and over again had we known this and they they last thing defendant donahue makes an objection regarding the victim and handsome of the two level enhancement regarding steps i think he is basis was substantial harm and i would note that that provision has three different disjun reasons to add the two level enhanced meant one of which is ten or more victims in this case thank you miss let's go thank you your honors kendall your honors as you just heard the government's argument the government failed to cite a single case from this court the supreme court a single federal statute or a single federal federal regulation that would give proper notice to jackson or any of his co defendants that they had to disclose these therefore it isn't an overreach it's clear how can you hold that if you judge responsible for not following the cases that you're now citing if nobody ever gives them to the district judge if i'm right about all that then we go to manifest injustice and it doesn't seem like there's manifest injustice here when the what appears to be almost overwhelming evidence of the other so your response to that would be helpful sure you first i'd say that this was objected to was specifically objected to that there is no duty to disclose this in the motion eliminate also a trial in the motion eliminate in the context of oral for b is that right correct not a single case cited got to say that point not a single case cited right direct no reply brief after the government response to that one sentence by saying there is there are other cases which there are the talk about this gen general materiality and there's no reply brief to that right so how can that be clearer on the part of the court so that i'd say that it was i think i think that the motional name was sufficient evidence it was also was objected to at trial referred the court to the discourse this is in the united states be clay which says that when prior acts evidence is introduced regardless of the stated purpose the likelihood is very great the jurors will use this evidence precisely for the purpose it was not it may not evidence whether the defendant could be convicted without the evidence complained of it's whether or not there's a reasonable possibility of the jury's verdict was affected through the illicit evidence assume my time is up may continue or  i think we've heard enough thank you your honour's once the government rang the bell for mr jackson's convictions and continuously used them throughout their case the other evidence against mr jackson didn't matter at a certain point the jury decided his verdict based on his past and not he was not what he was on trial for because we can't be sure whether or not the jury found him guilty based on those prior convictions and the way they dominated the government's entire case or on any evidence presented is precisely why he has to