good morning more may please the court good morning your honour's a deal to share on behalf of mr nelson i'm joined here by co defendants turn him stanley slider at the heart of this case is the difference between a unsuccessful business venture and a scheme to defraud the government's theory of prosecution is that mr nelson intended to sell gold that did not exist but the evidence that are presented is that mr nelson's very job was to obtain gold and that he made continuous efforts to obtain that gold the evidence showing mr nelson's attempts to obtain and deliver gold to on gold customers is impossible to reconcile with an intent to fraud and that is really where we want to focus on the heart of this case because again the scheme to defraud has differentiated from an unsuccessful business venture is really the object of the scheme what was the purpose of the business venture or the scheme as the government theorizes as they argued at their closing statement and threw out their theory of the case is that mr nelson agreed with others to sell a non existent product they promised gold to own goals customers but at bottom there was no gold and they had no intent to ever deliver that gold but the irreconcilable fact is that their entire case is based upon mr nelson's missteps in obtaining that very gold and delivering that gold to own gold customers so can i ask you a quick question one of the more troubling facts to me and you can explain to me why i might have this wrong is that wasn't nelson who signed contracts telling people that if they showed up to the site they could have some or or some such and did the or exist well that's actually a critical point you touched upon because really that goes to what is the contract promises and goals customer contracts and bring us down to this i h s contract so i know it gets a little bit confusing so i'll try to use clear terms there are from the inception of owned gold owned gold customer contracts where as news and we just pointed out in this promise of you can if you want to come pick up here or you can come pick up your or within seven days now at that very same promise and in that own gold i contract is that same clause if a customer give seven days notice there's a seven day notice here now and the stand the trouble here is for understanding of the mining industry is  the prospect of coming to pick up your or is actually a rather curious prospect you would need something in the order of several dump trucks and several tons to be able to do so so that certainly is nelson's job he's hired and to manage this organization but he's really a subordinate his job is to be this facilitator and he's given what is infrastructure let me ask the question this way did not nelson make representations about own goals progress progress even after he knew that the assurances were false well i want to be technical and that answer because when the assurances of if your honor is talking about the assurances or the promises and what he represented to customers for example did he not in july of two thousand and twelve that own gold quote was successfully operating processing and producing and would be able to timely fulfill its contracts did he not make those representations yeah absolutely correct though they were then let me ask you having made those representations in july of twelve was he not aware from having gone to the mine in april of twelve that there was no detectable gold found there yes your honor but that's a critical period and it actually goes back to this again that what the government is  and they're trying to find a place where mr nelson has formed this intent to chief and what the government is theorizing i'm asking just a very specific granular question he made representations in july that this operation own gold was successfully operating processing and producing gold and that they would be able to finally fulfill the contracts yet he knew months before he made that representation that there was no mine gold being mined in nevada at that site or i would that is the technical difference because months before he had the f contract was responsible july comes and there is this default by but it's mr nelson's direction to shift efforts to mr spooner it's mr nelson's efforts to shift efforts to nevada and as he understand it and as he's being told by corporate counsel and he's been told by others how do we fulfill these contracts that is what the evidence shows in this case how do we get the gold we need to shift focus to montana we need to obtain the gold you're absolutely correct that the representations and there's no shying away there are misrepresentations made but to borrow from language earlier said those are a necessary but not sufficient basis alone because the question still is are those representations in furtherance of to cheat the customers i see my time as a i can just finish the point sure are those representations to cheat the customers or are asked to mr nelson are those misrepresentations as mr lewis is telling them to buy time in order to meet mandate that the mr skilling's conviction be reversed based on the court's district court's order that he not talk to me during an overnight recess the district court manifests order order first recess during his direct testimony not to speak to me he responds to a direct question by mr skilling may i speak to my attorney she said you may not my request to speak to mr skilling was in response to the court's earlier order and isn't it correct if when the court made that se asian that there was no objection by counsel to what the court told counsel well your honor i don't think i had to object when i made the request and said judge may i speak to my attorney my client and she said no actually she said yes you can speak to about the weather and but case law speaks to whether or not there was an objection made at that time zire my desire to speak to my attorney i will have to object to a court if i make a request to a district court judge saying may i do something the court says no  of held on review and not just one court but many courts have held on review and one of the things that you look for is whether or not an an objection was made at the time that the court gave the instruction or not and less assume in this case that there was error let's just assume that it was there or the standard by which this court should review the era is not well settled well i disagree your honor and that we regard in the in the in bond decision in roy chief just caren's wrote heater's was one of the line of kate decisions presuming prejudice were a defense attorney was was prevented from or impeded in rendering assistance of coun to his client because of an unconscious constitutional statute or court order that didn't hear i mean did you get what you asked for you said can i speak to my client about something other than his testimony in the court's a fine that's what you want but if you look at  the district court's opinion that the d c circuit opinion in the united states versus much talking about procedure talking about limitation any limitation on the right to consent consult with an attorney about scheduling is not a subset of issue the supreme court has made clear that when you impede talking about substantive issues what we were talking about talking about scheduling is not a subset of issues this is impacted the very heart of our case because you don't deny just the premise of my question that you asked to speak to him about something other than his testimony you want to first ask to speak to him the district court said about whether what about and i said how about scheduling of witnesses and she said fine you can talk about scheduling the witnesses but nothing that impacts his testimony or his future or she put a limitation and what i could talk to client i thought let me finish untrammelled in any way by any order from you i've got a right to consult i did and i want to speak to them i do not i do not further pursue it after the court gave me the firm instruction at any point did you ever say to the judge in words of substance this is affected me this is hurt me i can't i have to provide an appropriate defense i really have got to speak to him and i've got an absolute right to counsel with my client no i did not you know and i the only reason i'm asking it is they suggest that you actually invited the era maybe that's true maybe it isn't but it sure would have been a whole lot more helpful if you flagged the issue for the court you said i want to speak about x court said ok but not about why you said nothing and there it went and then the next day the issue came up again  and the court probably realizing that it really order not to be interfering with your discussion with your client left you free to talk about anything judge the do i have that recitation inaccurate every witness in this case when every recess every every over night recess was instructed not to talk to counsel word not talk to anyone about their testimony and write but never not to talk to counsel i mean that would not talk to not talk to the state governments when this is or defense counsel about their testimony or their impending testimony those were the instructions that every recess and  at the end of the day the court had made his position very clear throughout the trial the next day when the government wants to speak about the cross examination of ed lewis which was the heart of the defense in this case was the to his mr skilling's attorney and the court one instructed mr skilling not to talk to me during that recess and excused him from the courtroom again manifest the court manifests the zire that nothing interfere with mr skilling's testimony and then the court recognized that night that the next day mr skilling his lawyer was going to be testifying and that night i had documents this was a document intensive trial i don't think i've ever inch introduced into evidence hundreds of e mails describing the relationship between head lois and mike skilling and how that impacted the business and that the situation in the order of the court as if you look at speak manifest a desire of an attorney to speak just by asking the question may i speak i understand and that's what i was doing and the supreme court and perry and gaiters says that is presumed air during an overnight recess and that's what we have here an overnight recess where the heart of the defense of mr skilling was his testimony and  importantly his lawyers testimony that was coming on the end at the end of the trial this show that he was wrong on the vice of counsel i think we have it thank you very much question this way was it not would it not be error for a judge to prevent a defendant from speaking to his lawyer on an overnight break about the case that would unambiguous he's got a right to speak with his lawyer his lawyer has got a right to speak with him and the court has no business interfering or impeding that isn't that right that restriction would be err yes the that  there's that didn't that happen in some measure in this case three reasons first the government's contention is this was invited to air if the court studies the transcript his documentary for thirty one deschanel and starting at page two hundred six mr skillern finishes his testimony for the day he steps off the witness stand and there is no instruction adm continues and says that may come up for the court you can talk about the weather what do you mean all the than may come up not his testimony or isn't pending does the money defense counsel right here on are but maybe witness problems with things like that the court yes anything about the proceeding and so forth was coming who was not coming that's fine but just not his testimony or is impending testimony skilling about matters other than his testimony this evening that may come up that's the critical point because counsel is asking for permission to speak about everything else other than the testimony and then the statements or the response from the district court yes anything about the proceeding who's coming who's not coming but just not his testimony or impending testimony defense counsel proposed the framework the district court accepted the framework the judge impeded him from speaking about his testimony or impending testimony the judge could not unilaterally impose that instruction that restriction in no way could a judge say lawyer can't speak to his client about what he's going to say the next day i think that that's clear from the getters decision that this court had a similar case recently could all you but the he the point here is had counsel not interjected mr skilling would have stepped off the stand with no restriction it is defense counsel offering up the offer can i speak to him well something must have motivated him to feel that he had to bring it to the attention of the judge so that experience council sets the court may i speak to skilling about matters other than his testimony admittedly he did want to speak he said i'm not talking about the testimony so went off on a different curve but he was troubled enough to want to flag the issue for the district court you know i don't i don't i don't  why defense counsel flag that issue but the way that counsel flagged it it was can i speak about anything other than to the testimony that was the offer the district court said yes so the district court's comment was gratuitous not his testimony because he wasn't seeking to speak to him about his case and that's i think that is simple is that i think the district court was responding yes that's fine with me and that is invited error and appellate review is waived now if the court is disagrees or is unsure this claim fails under the because a majority of this court in the decision in crutchfield said that in this circumstance the defendant cannot demonstrate a deprivation of this right to counsel during a trial recess absent one of two things an on the record desire to consult about the prohibited subject matter or alternatively an objection on the record and there's no dispute there was no objection and there's nothing in that  mr skillern or defense counsel is saying i would i want to speak about this matter that's off limits it was actually quite the opposite for the reasons that i just stated counsel said i i don't took that off the table and the crutchfield rule as we pointed out in our brief this is not novel it's been adopted by multiple other circuits it was applied in the exact same circumstance by this court in the case that's an overnight recess to belle's an unpublished decision so it's persuasive only but we think it's correct and in getters and all the other cases opposing counsel site there was an appeal there was an objection on the record or the defendant or counsel makes an express statement to the district court conveying the message i want to speak to my client about this disputed subject matter and that and that was not the case here and so yes to your original question just marcus there was a clear right the question or was there a deprivation of that right and to show a deprivation mr skilling has to show that he wanted to meet with his counsel about this disputed subject matter his impending testimony and he was prevented to doing so by the admonition and that's just not here in this record are tell us about now do you contend that assuming that there was an error or that the arrow was a structural erro yes this so this court has treated this type of error as a structural error but that doesn't mean that plain error review doesn't apply it's still walk through the floor will you agree with me that if it is a structural error the government's role lying on the invited era doctrine can can not preclude this court from reviewing that issue i disagree with that that question i'm not aware of any case where if the defense invites a particular error that the invited error doctrine doesn't apply i'm not aware of the case that says that even if it is a structural error correct i'm not aware of it we are relying on invited the invited error doctrine is one of our arguments in this case i'm not aware of any case or decision from this court that takes that doctrine off the table just name whether it's a trial error structural or and for the same reason as we have the government has advanced a plain air argument prying to even if our interpretation of crutchfield is unsettled we think based on how this court has applied and bell and how other circuits have applied it again in this overnight recess circumstance involving materially identical circumstances any error here was not plain or obvious and then also on plain error we've advanced a prong for argument which is view still available that the error here did not in fact impact the fairness integrity or rep public reputation of these proceedings and i'll i just want to step into the sequence a little bit this restriction came at the end of day one at the end of day two mr skilling are still on the stand the district court relaxes the restriction and at this point client and counts can talk now on the stand on director of the already moved over to cross i think he's moved over to cross but there was an opportunity on the net third day he's still on the stand come back on redirect and provide any more fulsome answers explore any line of answers that he felt was not sufficiently developed or was not adequately answered on cross examination and so even if we get to prison for him the government doesn't think we even get close to there the court should deny relief but for any of those three reasons this claim fails thank you for the other issue thank you your honor there is a mple evidence that supports the defendant's convictions arising from their scheme to induce over seven million dollars in fortune gold purchases and going to mr nelson and has divided up the universe into a fraud at the inception which he disputes and and twelve and i'll follow that order the jury could had ample evidence to conclude that there was fraud at the excess inception mr nelson was involved in marketing the company as a gold producer and the marking materials proclaim the country becoming as having mining claims across one hundred sixty five at acres that were under active development mr nelson was citing all the contracts that had the clause in it that allowed any customer to pick up the or upon notice at the mining site mr nelson's name he was signing that all of the certificates of ownership that the would be sent to the customers after they signed the contract this is two thousand and eleven as of that point the company had no active mining claims no facilities no quit no gold or to sell any way to sell so mr nelson is actively involved in marketing and selling gold and gold or that he does not have the defense at trial was well i was acting in good faith sees me because the company had entered a contract with a subcontractor i have and they were going to mine they were going to mine gold and produce the gold and that there are multiple avenues by which the jury easily could have rejected that explanation of the evidence the contracting relationship not disclosed to the customers everything disclosed to the customers paints this company as as the as quote having a strong record of delivering quality subcontractor h f did not register its first mining claim in this case until three months later in december of two thousand and eleven so we go back to september of two thousand and one no mining claims no money equipment no gold from either the company or its sub and that's how the jury could easily find fraud at the inception in this case the discrepancies between how mr nelson was portrayed helping to pray the company to the customers in the contracts in the marketing advice of counsel as we pointed out in our brief there's a timeline problem the mr lewis attorney lewis started representing mr skillern in his course personal capacity in may of two thousand and twelve did not start representing the company until september and twelve and large chunks of the offense conduct including some of the instances the judge marcus was representing articulated opposing counsel that occurs before ed lewis ever enters the scene as general counsel of the company so i governance you it's hard to see how someone can raise an advice of counsel defense before counsel comes onto the scene but in any event this court has said that questions of good faith and reliance on advice of counsel that's something that we give to the jury that's a question of fact and in this case it's even more so because the if the good faith advice of counsel defense relatively less rested on the testimony of defendant skillern it rests on the testimony attorney lewis and as the district court simply stated below the jury had a right to reject those witness accounts the jury had a right to disbelieve those two witnesses and for that reason the jury here acted reasonably in finding fraud throughout the entire fraud period so i know there are couple other claims that have been mentioned the briefs by the defense counsel i'm happy to address them or any other concerns that the court has at this time difference between what was represented in the marketing materials and what's in the contracts because again you're not hearing any dispute about the validity of the i h s contract and it to a key fact in this case that mr nelson's direction when things do go awry accuses i h f of fraud for not fulfilling its end of the bargain so in this business context the representations that are made in marketing there's no dispute that what the promises that are made in the contracts itself and gold customers and as the government has represented them in its brief there are safeguards you either receive your gold or your money and there is a one year delivery date from the inception of those first original contracts so the on the re on reasonableness of the assumption is that mr nelson knows i have is going to default and if i can just briefly make the second point about the advice of counsel because this is one area where i think it's might be two ships passing in the night where it is the government's burden to prove intent to defraud so under it's theory and the only logical way that this works is mr nelson in a sort mr lewis is an unindicted coconspirator and mr nelson knows that the advice and the direction that he's saying to grow your way out of trouble don't stop selling you need to keep going forward is actually legally dubious advice there's no evidence of that being true it is not the case that mr nelson as a board member is real and necessarily needs to disclose and rely on advice the question here is what is the agreement and all of the evidence is when mr lewis comes on board and when i h f defaults how do we fulfill these contracts and mr lewis as a corporate counsel and as an attorney as representing to mr nelson through e mails and otherwise by the government's own case that the only way in which to fulfill these contracts is to grow your way out of trouble and by the way i see absolutely nothing legally dubious about this as well the issue here and why this is insufficient evidence is because the assumption the jury would have to draw as mr nelson knows that that is somehow legally dubious advice and i think i think we've got i think you've got your case thank you mike skillern at the first recess and the district court tells mr skilling during the break in response to mr skilling a specific request to speak to me that he's  not at liberty to discuss your testimony pippen pending case why would anyone including your lawyer my question to the court at the end of the day that same day is a response to the court's district court's previous order and i know knew what the court instructions were and how the court after weeks in trial was handling wins in what the court had said earlier and so i had to respect the court and i was trying to ask the question in line with the court but but but if you thought the court's earlier injunction was ever as even the government concedes it would have been that wasn't your obligation not to just go along but say your honor no no no you can't do that i thought at that point the supreme court and perry had said you can keep a client from speaking to his attorney during a short recess that was the law at the time of trial but if you know at that time and you think at that time that the court is committing an arrow in it your responsibility to tell the court you are now respectfully disagree at that point at that point i was asking for permission from the court to speak to the court to my client and the court said no i did not object at that point i made the ric a specific request demand as my client says i or to speak to me and the next day was crucial based upon this being structural error the court's instructions and the exclusion of mr skilling during trial from the courtroom i believe requires reversal of this conviction thank thank you counsel thank you all for your efforts and we'll proceed to the third