palance so you're not eating up the other two lawyers time ok ok information the government expanded the fraudulent scheme alleged in the indictment from specific misrepresentation made by fundraisers soliciting investments to include that gigapixel was a scam from the start because you cannot make money from independent media production the government argues that this in summation was simply illustration of a misrepresentation made by fundraisers but that's simply not what it argued instead and it cannot identify i would point out a single quote from it some ation to support that what it argued over and over again w alternative theory telling the jury that it could convict on one or the other either fraudulent scheme or misrepresentations this amounted to a constructive amendment of the allegations in the indictment i had identified where that the scheme the particular scheme to defraud was not defined in the jury instructions there was no instruction that i saw and maybe the court found something different that limited them to the allegations in the indictment instead at except the record five twenty six five twenty seven the judge instructed you're going to have the indictment with you so you can refer to it as only a reference document is not evidence  expressly set forth in the indictment so i'm trying to understand your variance argument because it seemed to me that the proof at trial focused heavily on what the sales  telemarketer said to end your defendant said to the potential investors and what they failed to tell them that might have caused the investor not to invest well i would point the court to cases like united states versus indictment that was a constructive amendment even though there was a sufficient evidence nothing suggested there wasn't sufficient evidence to can maybe i'm misunderstanding your variance argument i thought your argument was premised on this was a fraudulent scheme from the beginning as opposed to these were legitimately incorporated companies but then they raised capital through misrepresentations and securities fraud those are the two those are the the first one was not announced but the bases for the misrepresentation and the omissions are set forth in the indictment i'm trying to understand how your client would be prejudiced from the variance where the proof of the fraudulent scheme was at the heart of it were the misrepresentations and the omissions and the fact that counsel for the government in their zeal characterized this whole thing as a  scam or you know a fraud from the beginning does it really make much difference if the jury was asked to focus on what were the investors told or what was not told to the investors that should have been disc well i think that the first of all i've argued it's a constructive amendment as well as a material variance but but setting that aside the court has never suggested that this court has never found that simply because there a scheme an artifice to defraud that's the heart of both mail fraud and securities fraud is that that or well of course that the instruction is a scheme to defraud or to obtain money through mr approved false pretenses and then that's what i'm still struggling to understand the how your client was harmed by what you allege to be a variance in the indictment i'm just not seeing the variance i guess is what i'm trying to tell you well the variance is that nothing in the indictment announced that this was a fraudulent enterprise it announced that it claimed that gigapixel is a company designed to produce media and that the fraudulent scheme begins when you read the indictment from misrepresentations by fundraisers about potential for future success and of ways in which the money would be at the funds raised would be allocated but but i'm looking specifically at page two of the indictment where it's the introduction to the scheme to defraud and it simply tracks the mail and wire fraud indictment almost word for word take a look to take a look at the indictment he are seven thirteen it's page two  during the fund raising process the the harm the harm is this is in the opening we understand the harm we're just trying to get you to focus on that the government's theory and prove was included within the allegations of the indictment whereas in other cases they were not i mean right here in the indictment that's what it says i mean i appreciated my colleagues questions because i was going to ask you the same thing how do you get away from it when it's right there well but but nothing in the indictment says you can't make money off of these things that no one can these things are inherently unprofitable this was a false concept to begin with it actually recognizes a company that they're designed to produce various types of media and that's that's in the indictment but you just what you just said falls within the allegations that winds twenty two through twenty four to obtain money in property from such victims by means of material false and fraudulent pretenses representation and promises and the concealment of material facts and then as i read later  in the indictment those misrepresentations and concealment facts are laid out in great detail in the indictment and as i look at the transcript of the trial that's what the district judge was telling everybody to focus on what were the investors told or what were they not told well i believe what the government was doing was expanding on that that they were saying this thing even if you didn't tell any misrepresentations it would be a fraud because you can't make money off of these things period and so that goes to the risk of the investment does it not that basically as i understood the government's argument the investors were not told look if if you're going to invest in this thing this is a highly risky investment because independent film companies don't do very well and cross the board and as i pointed out that the harm here was that they were having the government was having difficulty connecting mr blofeld to representation is made by fundraise didn't want to understand your answer your question because even if and i and i truly appreciate my good calling judge tolman talking to you about what he did but even if you are right the district court gave a jury instruction and that jury instruction warned the jury there were sprays for respect to any of the defendant acts not charged in the indictment the jury could only consider those acts only as to the defendant's knowledge which would protect the defendants from the jury's convicting them for participation in a scheme not alleged that was the instruction but why doesn't that just and your argument because that was judge nelson's question and i don't know whether you didn't seize it or whether you could answer it because i couldn't understand your answer  what i had identified is a number of jury instructions that would have authorized the jury to convict simply on the government's argument that this enterprise this company was a fake company was a fraudulent lee unprofitable company they were allowed to find that the loss of money is evidence of a fraudulent scheme they were told that even good say now you're just yanking your argument again the jury instructions said they could consider x only as to the defendant's knowledge which in my view protects defendants from them being convicted for participation in a scheme that was not alleged why is that that that they were told this is just a reference document and they were i did the government argued it in summation quite repeatedly that this was a sufficient evidence ok oh it's cool there because it seems to me that's a big issue if you can guts of it if they don't have sufficient evidence i'd start their continuance is a matter of discretion sufficient evidence want i mean i'm on playing air review here in my not yes because nobody made the motion for an acquittal right so at that point what i've got to say is there any plain error in the evidence that there was sufficient evidence to convict your client yet why was there not sufficient evidence i'm going to give you why i could give you a lot of leading questions because i have a lot here i don't understand why you can say that  case here as to why the evidence is insufficient first of all he testifies right yes works with sean walker on prior projects before going to  he tells the f b i told the telemarketers what to say and he spoke with twelve to fifteen adventure potential investors that he met with two to three investors in minutes telling anderson that gigapixel was doing well zero three d was soon to be released then walker testifies that he told p you're the telemarketers making misrepresentations there was never a time when the misrepresentation stopped and instead the truth was being told that he did nothing about it i'm talking about your client or isapi that he that walker saw your client frequently speaking with the investors had meetings with him in his office he interacted with your client every day then anders comes up and he tells the same kind of stuff then goodman comes up and he says the case same god stuff now tell me that's not enough to convict and i think isn't that reason that we take this and that is insufficient is that if you look at the nature of converted guilty those were in fact false representation well right and again i don't know how that exactly varies from that the typical jackson standard which it is very deferential to the jury's verdict but in this case but  i guess what judge smith was and i know you are well aware this was trying to remind you at the start i'm plenty in error review you've got a pretty tough uphill battle to convince us that there's been a substantial miscarriage of justice  that's hard to say in the face of the evidence that just the judge smith just reciting would if the jury credited that evidence and discredited your client's testimony that he was appreciate my call again asking is straight question all i did was try to put together all the evidence to government would say and i'm trying to say to myself i know that good counsel she's going to come misrepresentations that they put on mr pritchard and from the letters and from his conversations had to do with the plan to go public but there was no evidence that that was not in fact true in fact we know had he been able to present the time frame was accurate second half of two thousand and eleven and in fact the letter of intent did indicate that time frame so now you complain that you couldn't introduce allegedly explained in his motion for new trial his counsel did not have adequate time preparing for the trial to review those exhibits or to present them well the problem i have with that argument is that look that like a lot of the documents were duplicat and essentially irrelevant even though they were included in the document dump so it sort of comes down to maybe a couple of thousand documents and there was what more than three almost four months between the indictment and early arraignment in the actual trial here which is yes which is really not a large amount of time and i case of this magnitude is not just a matter of the discovery but a matter of doing the investigation those documents another factor what i'm suggesting by my question is it would have taken that much time to go through that volume of documents i mean that's for bankers boxes full of documents i go through that double that in preparation for this calendar  and i have usually about a month or two to do it so how did the district court err in concluding that there was adequate time here but defense counsel was simply not diligent  appears on this record it may have been due to some health problems that he was having that though is not mr pritchard's fault and mr pritchard was not what we can always you can always do something after we get through with that you don't have to do it in this  when it be better for you to takes more time and do smaller discovery into that so you can make a better case because all you got here are the bold allegations and we generally don't hear those cases in this kind of proceeding anyway are and certainly we could better develop the record as to the illness issue for example on a twenty two fifty five but i do raise the issue in the direct appeal because i think it is important for the court to understand in evaluating the prejudice from the denial  receive a fair trial i also think on an effective assistance the court doesn't necessarily need to reach you know go beyond hine the record in this case because mr emic in fact said to the court himself that he could not adequately represent m united source states for scott is our case that we had it's a two thousand and eleven case with the same judge and they looked at a lot of the things the same judge did and where after they got through dealing with all of that then they said no it was got it nonetheless a fair trial well and i'm not trying i mean he in there the court was really big on there were corrective instructions given as which should have been given by the judge the plaintiffs were not convicted of every count and there was fissioned evidence well if i look at this case judge devkit did give corrective instructions the plaintiffs were not convicted of every count and if i don't agree with the on the sufficiency of evidence seems to me like u s b scott is dead on and i not going to be with the on a fair trial case there are a number of cases with similar issues that have i mean it have this judge we know this judge we're not we don't sit here not aware of what this judge is like and who he is frankly you got a lot more out of him than i ever thought you would you got it it was continued until october i was surprised about that i mean to be fair and so i'm what i'm trying to do is i'm just trying to say given my standard review on continuance given my standard or review on there's not enough evidence here to convict now i get to fair trial you got a better standard maybe but i'm having a tough time with  testify given the government's theory of this is a this is a sam operation that he be able to testify to his legitimate efforts but those were shut down repeatedly the effort to take the company public which would have directly refuted one of the government misrepresentations but that was you know the judge would repeatedly say that's not relevant that's let's get to this lawsuit the efforts that mr pritchard made to deal with the aisle at disaster as it was became known were also shut down this case is about significant efforts to get to iowa to respect and what he did with to try to make a lawsuit against iowa in the hope it was going to is going to get fourteen million dollars out of the state there were many efforts he was making repeated efforts to to negotiate with with the state and you know it's all of that went to his honest belief that he was going to turn that situation around what do you do with the admission that he made to the f b i agent at the very end of the interview that basically he totally screwed up  and well the very end he basically said i mean it's up for the jury to determine but one way you could interpret that answer is that he finally broke down at the end and said i did it well but he  think i mean the jury's going to have to decide what i meant by that but that is one plausible interpretation right of the statement what he what he actually said he meant by that was that he did not get out of the situation earlier and he said no he said well that's the defense  justice and your honor said that we make a call based on this particular case i want to make it clear that miss brown is not in the same situation as mr pritchard mr blofeld she was tried in a separate proceeding she's accused of different conduct i want to go right into judge smith's question about united states versus scott nicely for scott was a prison murder case involving the arion brotherhood where they this court found there was overwhelming evidence and for people who've done prison pritchard that wasn't on bank robbery with d n a evidence or my client was connected to the gun and this court reversed back and conviction based upon the same sort of conduct that occurred in this case i think that it's important that just last year this court in the united states versus lloyd found that there was a harmful error based upon restrictions on the defendant's ability to present his defense or restrictions on cross examination in a similar movie based fraud prosecution so i think the question is can i asked i wish that there was air and i think that i can and the reason i think i can is judge smith you're totally correct in saying that we give  of discretion in setting up trials that i don't think there's really any reversals out there for failures to grant continuances but it does give the context for this kind of trial asking someone like sherry brown to go to trial in one hundred forty days no other court in this district or in my district the southern district would require that you'd normally employed it was eleven points for the ten thousand pages we usually give people time to prepare for their trial and as your case you did go to trial after those yes defendants right yes he did she got an extra month basically yes although in effect just i mean they moved to go to december she got about december she originally asked but then she came back and said december and then i would say that getting the severance granted on the morning of trial isn't quite as useful as knowing that you're going to be going to trial in november because you have to prepare for the trial you don't do right your opening statement in october i mentioned i put a shirt in that argument i think that argument actually cuts the other way because if you thought you were going to have to go to trial that morning then presumably you were working really hard just before to prepare for it and now you've got an extra thirty days yet so that you didn't have before thought through i did not sure i'm another thousand pages of transit there you go yeah exactly you know you it is but i'm more mean i looked at the table that was prepared you know the we made this many objections in the old yeah exactly but then i look at the transcript and i see that actually there were reasons for the court to sustain the objections that were made and a lot of that testimony came in by counsel rephrasing the question or the testimony came in the evidence came in through the testimony a later on or from a different witness or from a different source and so i was sort of left at the end wondering ok even if there were some improper or sustaining of government objections the defense basically got in a lot of what they wanted the jury to hear in considering their culpability well i would or remind them again we're here to do justice and those items that got in got in with commentary from the district court it comes in when we're trying to cross examine tiffany ryan about her personal beef with jerry brown coming from a judge says no that's  ut the jury heard that there was animosity as between ms brown and ms ryan as a result of their relationship developed at a previous brown yes but that's my point i mean  we would this is not a davis versus alaska case where the trial judge shuts down the defense proffer of evidence and the jury never hears it here the jury heard it eventually the question is should the district judge have allowed you to go even further but then you were permitted to go and when jerry brown's on the stand and she's testifying the jury's evaluating her credibility tiffany ryan is on the stand and you want to examine her about the personal beef that's when the jury has a chance to evaluate how she reacts why can't the jury credit what ms brown says about ms ryan's bias and factor that in to their evaluation of ms you just can't do that and it gets worse with the zucker lawsuit i don't see how it's possible that she is that mr brown is disallowed from examining a witness about a lawsuit that regards the particular matter what that was no it was you were not permitted to cross examine based on an unverified civil complaint drafted by zucker's lawyer the the judge didn't say that you couldn't use the document to form and impeach in question but you just weren't allowed to introduce the actual civil complaint itself and it looked to me like under the rules of evidence that's a proper  sustaining of the objection and my misunderstanding the rule of evidence in united states versus kovi in sand of all your honor held that a statement of a lawyer was a statement of a client for purposes of federal sentencing here there's no question that mr zucker agreed that this was his lawsuit that this was filed in his name and mr brown wanted to ask him plus sions about that lawsuit and when the district court denied the right to ask questions the district court despair marriage lawsuit said no but you wanted to bring you offered the civil complaint as an exhibit did you not we did government objected court sustains that i guess so that the document itself didn't come in but were you permitted to elicit from is from mr zucker that at some point or cross examination that he thought that ms brown genuinely believed in the truth of the representation she was making about the company and that the real bad actor here were the other folks and of course this gets to the question the jury hear that in a different context yes they did it so again it goes back to my question at what point do we say ms brown didn't get a fair trial because the trial judge didn't let her introduce that evidence in the way that she wanted to introduce it which was through an inadmissible civil complain which would then be used by using the words of the civil complaint to impeach the witness when they're not his words if your honor holds that this panel holds it's inadmissible you'll be creating a split with the tenth and the gambler case that i cited to your honor's as well as the d m s helicopter case i don't see how the rules of evidence say that this is inadmissible if it's found that this is a statement of mr zucker and mr he hired a lawyer to write the complaint i see my time's getting short i wonder what you're trying to you're trying to use the complaint to impeach him on the grounds of a prior inconsistent statement and that is not a statement that the witness has made under oath which is at least one of the bases that would have to be met here to lay a foundation for the admission of that document is it not we attempted to give an offer of proof and we were denied even that was that complaint verified now now so it is the statement of the lawyer who drafted it but statement in a sentencing that we hold lawyer clients to the statements of their lawyers as h i n n a sentencing context yes which doesn't have anything to do we don't have sentencing concepts are i mean eviden concepts in the sentencing context we don't really keep them to any kind of an evidentiary standard in a sentencing context i that's that's the big part i mean i listen to his questions and i  this it doesn't seem to me that that case has any effect on what i'm going to do in this particular matter than me and move on to you agree with me i don't agree with you don't agree you think that just because you can use it in sentencing it as something to do with whether you get it in a trial i believe that because it's the statement come on you get a lot of stuff in that sentence saying that you don't get in a trial because of they can get it all right your honor quickly with respect to you there were several witnesses that miss brown wanted to call it was disallowed specifically and named the victim in the indictment dr felt sure who was going to come in and say that sherry brown didn't make she told him vestment was risky this is really a case about what she said to the people who were investing if she told the truth she committed no crime these were investor witnesses right correct named in the indictment but were declared has sufficient time sure to go sit on the witness stand and say this is what sherry said to me and the case is about did she lie to him so this is really like this is the actus rates did i commit the crime so good morning your honour's may please the court my name is don mclean here on behalf of the united states of america i was going to focus my comments on the three specific areas but i've got be guided by the  why shouldn't we be a man in this case for this week or to explain the six million dollar disparity between his in mr pritchard restitution amount particularly after the government that decision as well because we thought they were both responsible for the full twenty million dollar amount on but in researching the issue it's my understanding that specifically based on the walk nine two thousand case that the court doesn't need to make explicit factual findings on the record to justify it restitution order and ask give some explanation i mean really he's got to give some explanation you've got the government your arguing as well as my good colle said twenty million on everybody and then all of a sudden they come up with six million more and there's no one even any basis so the objection by mr pritchard that he made was that assert the six million amount related to institutional understanding is that based on eighteen u s c these thirty six sixty four h the court made up portion liability to reflect the contribution the develop ability of the defendant and clearly this court found that mr pritchard was less  we do think that the court got the overall total amount correct the twenty million dollar amount but i don't think there's a well i guess there is an argument made by the defense as to that but assuming that we we find that twenty one million is reasonably supported by the record i guess is twenty point nine million but i'm still trying to understand the justification for the six million dollar credit for pritchard and i'll be it's hard for me to justify the courts i mean the argument made as to ms brown was was she should only be ordered to make up for the investors that she had direct contact with and that came out to two million and change right and the budget what's the justification for fourteen million on pritchard as opposed to twenty point nine million and quite honest i would be speculating as to what the district court was thinking on my belief is that he felt that mr pritchard he gave  reason he did not explicitly explain why he came and gave a six million dollars difference and my understanding based on reading what nine walk nine two thousand and eight was that the court was allowed to do that but well i don't think there's any question that court has the authority to apportion as opposed to holding everybody jointly and severally liable but i think our case law says that there has to be enough in the record so that on appellate review we can at least understand what informed the trial judge's decision on restitution and based on your answers i'm having a hard time finding that that standard has been met on this record and it's hard for me to defend the district cour concerning a construct of a minute or material variance to the indictment and one of the things that counsel for mr blah mentioned was that the government cannot identify a single quote in the in the closing so in that it's  missions by deceit and basically when they got the money from the investors they misused that money for their own personal benefit and didn't use it as they had described to the to the investors and there are various quotes throughout starting with the opening which i did in this particular case on in that opening i said quote this case is about that of money through lies and deceit that set volume two of six g e r three fifty four then also was mentioned in that same opening the investors relied on the miss river on the representations and on the statements that were made to them by the salespeople but even in particular by these two defendants mr crisp blah about mr david pritchard that's it g e r three fifty eight three fifty nine and then in the closing my colleague mentioned in the closing that quote almost no money at all was used to make movies you'll remember forty percent administration over twenty five percent for the sales room and only if you were giving them the benefit the doubt twenty percent ever going to anything that could ever make an investor a dime that's in volume six of six g e r twelve twenty four in her closing arguments and was repeated at g e r twelve eighty three and rebuttal argument the quote that the counselor mentions about my concert my colleagues and beating a dead horse he actually doesn't finish off the rest of the sentence she said and i quote beat enough of a dead horse that you cannot make money through independent movies but in the of six of six so going to government's theory throughout was that look we don't tell the truth investors and you misters their money you're not going to be a have a successful business specifically when you're focused on companies like these that it's already tough for them to make money and mr pritchard admitted in his testimony that this was quote an eight percent dismiss meaning only eight percent of these type of ventures are successful you mentioned that at g e are nine seventy three he said it was struggling financially and the specific represent misrepresentation that was mentioned in the indictment that only nineteen point six percent of the money in good picks and five percent of the money that was raise for us to eat was actually going toward anything relating to that changed after the district court severed the case on october fourteenth twenty fourteen i'm going to interrupt you because i kind of understand the government's argument in where you're gone i would like you to focus in on why the district court didn't abuse on that because it seems to me that that is a big part of counsel's argument and frankly after i go through here that i'd like to hear with the government about so for tiffany ryan the government culture has its witness she gave testimony then the defense counsel cross examined her on and cross examine her concerning this bias that the talking about the hostility between mrs brown about her bias but the court cut it off pretty quick the court cut off the second time around that's what i was getting at so there was a direct there was a cross there was a redirect and then on the recross they tried to bring it up again i believe that's at g r five forty one of the transcripts and at that point the court was like look this isn't a case about alcoholics anonymous like you need it actually chastised both parties afterward outside of the presence of the jury to stick to the issues in this case that this is not about alcoholics anonymous had a responsibility also had the right to kind of control his courtroom and cut it off at that point so you're saying the cross in the first cross was fish and i am and i'm also saying that the cross in the second cross actually really went beyond the scope of the second direct examination can you can be those two records right so you know i would like you to give me those again of the last five forty one what is the first cross records right so it would be right before g r five forty one m i believe it was around  e r five twenty three you moving on to the topic of whether or not the defense in this case received a fair trial there was any type of a judicial misconduct from behind on in this courtroom you know in addition to being before him and hearing of stories of you know government cases that have been dismissed i understand that that is not this case this was a case where this court was within the bounds of what was permissible and he was trying to control his courtroom in order to make sure that they're both parties focused on the issues at hand and i'd like to actually focus on a few specific examples of that from both trials first on the on the one of the ways in which we know that this district court did not have any type of advocate appearance of advocacy or partiality your bias toward miss brown is because at the end of the government's case in chief it acquitted her on the security accounts even though the the government to get it approved up that evidence against this plan and can look at g e r five ninety four five ninety five ninety six and we're trying to argue that in front of the district court he said the government down then if you look at the fact that after  convicted of the twenty two counts in the indictment that she was that worried to go to the jury she was facing a guideline range of fourteen years to seventeen point five years yet she was sentenced to probation that doesn't seem to be an example of a judge that showing any type of biased or or is partial against the defendant then if you look at i actually had the privilege of of cross examining miss brown when she was on the stand and it was a little contentious mr brown  wasn't answering my questions directly or completely and after outside of the presence of the jury the judge actually advised miss brown and said quote miss brown you're not helping yourself by not be answering the question that's put to you you're not helping yourself at all actually trying to help miss brown in my estimation to get her to focus on answering the questions that were being asked her own defense counsel in closing actually said you know what my client was being evasive she wasn't you know answering the questions that were being lawyer this is how i would i would have answered them in the court obviously said no no you can't do that you can't say as a lawyer how you're going to introduce you to the question but the point being is that miss brown wasn't helping herself even as a witness and the judge tried to intervene outside of the parts of the jury to help her again not an example of this judge being biased toward her as was alluded to the judge gave curative instruction to both the beginning and end of the trial mentioning to the jury that iterates any reason i have to interrupt the attorneys because of their zeal for the cause there are going outside the bounds of the federal rules of evidence and procedure don't take that as if i'm supporting one side or the other he gave it cured of instruction both at the beginning in the in which i think is informative and then finally the problem for miss brown was not that the judge was biased in any way or partial against her anyway it's that the facts just did not support her facts can be stubborn things and we the government put on witnesses former investors that said that they spoke directly with this brown and that she made misrepresentations to them we put on former employees at gigapixel that said that it was clear to everyone at the company this company was failing as of september of two thousand and nine and that miss brown knew it but yet she continued to solicit money from investors based on false representations and then the kicker specifically for the jury was the fact that miss brown herself meet a thirty thousand dollar loan to this company this company that she claims it didn't know that was failing and then solicit it in additional between april two thousand lead into august two thousand and seven additional half a million dollars to a million dollars from investors and end up on the multitude of statements that they gave to the f b i agents before beforehand admitting their culpability that did not help them and their defense was not a legal defense the defense that they were trying to make was that sure although this company was failing you know we try to we try to make it right we thought that we could still make this into a successful company but the problem is and that and it's based off of the be cropped case from one nine hundred seventy nine before the circuit and the binney case in one thousand and six is that a good faith believe in the ultimate success of a venture is not a defense to lying to your investors it's clear black letter law from this court and that's with these defense we're trying to that was what the defense was and that's why you know that the government actually gave them actually disagree with w counsel mentioned that the government didn't give them any leeway in presenting their defense he actually gave them substantially way in talking about iowa in talking about all the things that they did to try to help the company you can look at if you look at  company his own witnesses mr quorn wiser from g e our eight forty eight to eight fifty two also talked about the i would disaster and how that affected the company but that was clear the government doesn't dispute that i was asked to hurt the company but the question was how did you respond to that disaster in the court even said that i believe that g r nine twenty nine when he interrupted the prince come said look it's not about i what we it's not it's not about it's about the fact the money that i was supposed to give didn't give but it has nothing to do with the false statements that your clients were making that's the issue in this case and if you look at all of the testimony again from the investors that spoke that said this book specifically to mr blob out mr pritchard to the employe march of twenty twelve another time i believe it was april of two thousand and thirteen obviously thirteen in the march of twenty fourteen there are multiple quotes recorded conversations that were played in the court room where mr blathered explicitly admitted concerning unregistered securities he mr blodgett made a comment to the effect of selling unregistered securities was not the worst thing he had done in his life another question that relevant one march seventh twenty fourteen in that was recording that was played in the courtroom question who does mr blodgett say was responsible for the mismanagement of the three funds the agents or responded that he mr blago himself was responsible that's at g e r twelve o two and the same thing to seventy eighty one believe it's very informative on and it was the june fifth twenty fourteen interview vying for six i think that that the entire direct examination of mr put a check a seven eight eight twenty and the question this is a very telling question and answer portion question did you ask mr pritchard whether the letters he wrote contained new misrepresentations or missions isn't bullshit responded i did quite and what did he say tex response he told me that in twenty ten twenty eleven he probably didn't include all of the bleak blunt stuff that was occurring at the company question and was that a quote quote was quote did not get all of the ble how far along they got with us three d he told me that i asked if he made it to the preproduction stage but physical production had never actually started meaning that when they said in those letters that after he was in production that was a lie one other quote did you ask approaches i did and what did he said he he told me that he should have told that information to the os to the shareholders but he did not that's at g r eight fifteen if i could again i understand what you're going to there and what issues you want to focus on why it wasn't abused discretion to allow more of a continuance to the first two mind that it it cannot go on july twenty second twenty forty we have knowledge that the defendants are saying they want to go into april twenty fifteen honestly oftentimes it's our view we're not going to oppose that type of or go against that type of stipulations that we were fine with that the judge didn't feel as if enough information was given in that stipulation so a second was followed which gave more detail from the defense point of us to why they needed more time again mr blah about did not stipulate to that continuing to the judge hope it rightly so that the judge read the stipulations and that in the stipulation mr blah about who was in custody at the time wanted to go immediately on and he's not and he's not willing to waive speedy trial time right he say i want to stand on my speedy trial rights i want to trial as soon as the law says i'm entitled to it which isn't it seventy days from day to arraignment yes ok and he's saying i'm not waiving any more time so now he's faced with a conflict between which would have been within the speedy trial time for blofeld well i mean that there were pretrial motions filed that would have stopped the clock and what that quite honestly there were any any any motions that have been found at that point in time but ended at the beginning of august would have been two weeks after the first trial date so the court on its own volition ended up saying mr blodgett you even though you want to go on july twenty second you have to did the court enter a thirty one sixty one eighty eight order problem and the court determined that look i have these two men can turn concern if you're going to go in october plying the factors that i have to apply to these particular situations how do i come out that this is an buse well the most important factor is whether or not there was any prejudice to the pardons and i think based on the record you have before you that there was not one in is that well if there's evidence that was in the ten  because they didn't have enough time to find it that's pretty much prejudice well it's the view of the government that that i mean that that evidence was given three to four months before probably started we gave them you know the document all the discovery at the very beginning and then as we obviously have an ongoing responsibility as we get more information to continue to provide discovery so anything we've got ongoing we provide are you just saying they should have been able to get through absolutely why well first of all because half of the a those documents were questionnaires that were sent out twenty two you know twenty page questionnaires that were filled out by the investors and they were providing the materials that these defendants gave them when they invested in india in the company so a lot of these  were duplicative they were the p p m so that the investors are sitting back saying this is what was given to each of those p p m is was forty to fifty pages long so although you know we can say it was ten thousand pages of discovery i think when you look at it it was not as  there were ten thousand documents plus there was a disk of bank account records from was it twenty or forty different bank account it was forty two different bank accounts and we used half of those for our far from each other but that's financial strength right that's that if it if it's relevant at all it's relevant to sentencing and restitution well true and also the only person who said they were going to put a financial analyst on the stand with mr blofeld who wanted to go july twenty second twenty fourteen and he did he'd got his weekend continuance but didn't call that of and and have been put on the stand with the the court and they they could have put on mr phelps or if they if they wanted to what the court was saying though is that you can't put on a witness on the stand in order to simply have them says you can't get into evidence someone's beliefs or memory or that sort of thing so it would have been inadmissible and i think that the court was correct in that so that was that was the reason why dr felter stethem on it was well that's wh this is this was one of mr who's a terry was also put on an investor witness and that's not in the in the record before this court because mr patel was mr put the charge was not appealing but he also put on an investor witness and his testimony was limited based on the same rules of evidence all right i will give each of you two minutes in  i did have an opportunity to look at the jury instructions i believe that you were talking about judge smith there is an instruction that refers to others not charged here as a for a for b instruction standard for afford the language that given to these telemarketers and they were never able to do that but so what i mean if the evidence came in as to what the representation is word that were made and there was testimony from the telemarketers that they were they were using scripts at some point there was no there was no testimony from telemarketers that he gave them scripts that contained anything falls ok but the tech but didn't wasn't there testimony as to what the representation were that were made to the investors yes there was there so i'm still trying to understand how were you prejudiced by by the government's claim that we have scripts but no scripts came in the question was how do you attribute telemarketers misrepresentation to mr wagner he was not someone who made these calls the so was the representation made in opening that these were scripts that he had written given to them that was the implication and they were unable to do it did without you did you argue  closing where the scripts the government promised you that i had this smoking gun here but there's no gun i wasn't trial counsel well i'm when i say you i mean mr blofeld i'm not sure if that was ever mentioned in the fence  nation but i mean it seems to me if it's that important that you would seize on it what i'm doing is i'm giving context to the reason for the change the reason for the change is that there were some issues with the case proving connecting mr blah to particular misrepresentations made to investors we don't need to deal with that problem i think the government realized if we just say this entire thing was a scam from the start the jury get the judge gave other instruction bob actually meet with some of the investors or talk to them there were testimony from two investors who testified that they spoke with mr blog mr pritchard and then both he and mr pritchard made incriminating admissions to i agents about those statements and their truth or falsity i don't believe that's correct i think what i think what the government pointed to is he said something to the effect of this isn't the worst thing i've done ok which is not a basis ok your time is to here is the appearance of partiality in the questioning and if that were the only issue we had we might be controlled by scott but we have numerous other issues in this case including evidentiary issues as well as the continuance so on cumulative error this case  is definitely different from scott more similar i would say to the lloyd case which we discussed in our brief in which there was a reversal on the lay opinion testimony among other things and cumulative error and that case is instructive particularly as to shawn walker's testimony and ironically the prichard case which has no relation to our case but happens to involve the same same judge in the same last name it was also a reversal and particularly a similar issue where the judge made a comment as he made here that the government is not on trial in this case shutting down the cross examination of the federal agent and that is exactly the comment that was made here among many other that there was a move to change  which would have been dispelled if we had a verbatim recording yeah exactly that so so then as to how the government's point that it not being a legal defense that the  mean this is the central district of california and we understand the docket of that chord and part of the problem even when the parties come in to stipulate is that the judge has a docket to manage you know we can quarrel with whether or not this this judge appropriately manages his document but that is certainly a factor that trial judges have to consider when continuances are requested well and courts of course have to have discretion to manage their calendar but that can't opposing counsel that was a fine closing argument he gave to your honor's but it belonged to a jury of the whole point is we have this lloyd case that sense that if i can show that there's an error i should get a chance to try this case to a jury i wan pick up on judge smith's question with respect to the alcoholics anonymous is correct to say that the question of hostility between mr brown and ms ryan did come out during the first cross but the alcoholics anonymous the source of the bias that came out during the second cross and that's what the judge immediately well let me ask you that question a different way what additional testimony did you expect to elicit from ms ryan with regard to  that you were prevented from crossing i think that alcoholics anonymous is a very personal and important organization of people who participated and i think that the fact that mr brown and mr ryan have this problem that originates in that intimate area is something the jury should use to evaluate miss ryan's credibility but the jury in the jury heard that the two women met at alcoholics anonymous and was it ms brown the sponsor of ms ryan correct for some time in the jury heard that she later became very disenchanted with ms ryan because for whatever reason at a meetings but also because she did her work questions i think that's how a jury of valuate some things are not answering my question i want facts here what what were you going to cross examine her on other than to talk to her about intimate and personal issues regarding a well we were going to ask ryan about how her relationship with ms brown affected her standing within a day and i think that would have been important to miss ryan because i do think it's for some folks is more important to them than their church so  i want to quickly get to the point of the fact that mr that miss brown was sentenced to probation and was given the lower numbers i got a pretty good break both on the sentence and on restitution i was actually she's in her mid sixty's this is the it wasn't what was her range one sixty eight to ten and she got pro five years probation and she is well aware that if she goes back to trial she's risking that and still she comes to this court because she wants her fair trial and that's what she was