of summary charts in criminal cases and approves the use of witnesses to explain those charts which generally consist of references to documentary evidence but this  there are functions that a number of witness cannot serve they cannot serve to organize and summarize the government's case at the end of the case they cannot supplement a closing argument or  prior evidence that has been been presented but not to present new evidence as the court said in the new ian case i think it's fair to say that any time a under certain is made that a particular exhibit not appropriate a subject for testimony ok also you didn't mention in your opening in your briefing united states versus armstrong you have seen that we have accepted the use of summary witnesses correct despite that i will say that we will doesn't quite seem to cover that but nonetheless we have agreed in us your mr ong that you can use such witnesses so it seems to be the issue here that you're presenting correctly so is whether this summary witness went too volume of evidence case and is that inec in this category you can tell it's not the dosing me is fair argument in that category is to help a jury understand when you have all these documents and these witnesses and whatever else here's a witness that can be cross examined how does this all fits together wife right you're going too far to do what you just described to show here's an exhibit to explain this other comment that was made and to try to tie things together where you are in this case count two is the most important count in this case and the reason for that is that count two is charged as in january eighteenth of two thousand and eight it's the first of nine charges of  and the government's theory is that mister baker has guilty knowledge as of january if they can prove that they can essentially run the table on the following nine counts exhibits and says they support that count he's asked questions during his testimony about what he understands to be the case he's asked questions about whether one exhibit relates to a piece of testimony and supports and is also related to a second exhibit on count two he really does as to count two the most important count and it's the focus of the government's testimony a closing argument much focus is to summarize and organize the government's case i'm count to the most critical count and far beyond and let me say this he constantly makes assertions that are not related to prior testimony nguyen talked about summary witnesses as as basically you know perhaps relating documents testimony that's been given already but when someone what their understanding of an exhibit is you're not you're not within the proper bounds of summary witness testimony would you object if the government had labeled all the exhibits that they said related to count two if they had label think that the court in order to prove this would have to go really in the face of forward and new and which the government actually relies on and any number of cases that talk about the limitations of this because it's a witness coming at the end you know you don't have a case that said this was improper how do you know you don't have a case do you that says it was it's improper to ask a witness what account exhibits relate to i think that's  honor and i think the reason for that is that i haven't seen anything to suggest that that has ever been done with the summary witness before what what i would like to do and subject of course to the courts for questions is bring out something very important which i think needs to be stressed about the instruction of plain dealing with fraud which is to say this that the trial court presented two different proms if you will to you have to obtain the probable from is the victim of the deception but what i want to know i have a question about that i mean i know you you wish the instruction and been different but what we want the victims here are giving money to the defendant because by paying an inflated stock price that that excess demand supported drove the stock higher and your client i believe received stock options that was part of his compensation so it seems to me that  what this court found in the person was that misrepresentations were made to the state of texas about tax credits but the tax credits were tax credits owned by the federal government not by the state government so there had not been a an intention or that effort to deprive property of the person why would this be harmed if there is any or why would it be harmful because i mean throughout your brief you say we're not there's no dispute there's a fraud yeah it's just we don't think you know we were defending compensation as c e o but they said he has twenty seven million reasons why you should convict in this case but that's an argument of financial benefit that they outbid on but the financial benefit is not enough there has to we say here is what you need to look to if you get him back on the jury room just i mean my concern in this case if we write a published opinion no matter which way we go is that we're not expanding the use of some witnesses beyond what is reasonable and what has already been marked out to the extent there's some opening we can certainly do it or so i'm worried about where the lines are what about that law and i don't think that would be crossing a line at all i think  did it but he did not summarize any testimony by a witness so i don't think his testimony even comes close to the line that this court or the admonitions of this court has given about summary had he did not for example significant portion of the government's case on rebuttal which is what happened in full on he did not again summarize witness testimony which was a flaw found him because he did not introduce hearsay as testimony or draw conclusions about the state of mind o the defendant which is what happened in the one case so we submit that that the district court properly exercised its discretion in allowing his limited testimony and i would just make one point about a couple of very quick points about harmless error to the extent this court disagrees and the area here was harmless agent calenders testimony on directly you strip out the the pages on it was a copy about the different subjects and it's about thirty six  one count that according to my opponent's opening brief count thirteen he claims that that was the subject of improper testimony by age and calendar but the fact of the jury but acquit on that shows that it was not prejudiced by any  right i don't know oh oh what would account for that certainly the government's and it's at the evidence proving that the scouts eight ten and thirteen were the jury acquitted that the government they separate in some way were they distinguishable in some way your honor well if you're not ready for that i'm just trying to understand to what extent is compromised back on the jury room without much logic to it or really there is a way to separate from produced by the are developed by the f c c and whether in fact they would be should be considered the same party or not having the same motive for introduction and we do have issues of independent statutory authority for conducting securities law investigations the department of justice does not have control over the litigating activities and i think that distinguishes this case from the principle case relied upon by my opponent the screen a case out of the seventh circuit where the second circuit did find that the c get to see and the d o j were the same party but that was based on the statutory provision giving the d o j oversight over the c f motive or or same party but what i'm asking and why i presented the question is why that way it seems to me would give me a definition of what it means to be the same priority isn't sufficient that they're operating for the same purposes and this particular investigation i think from tiriel so my opponent i guess i'm going back to judge southwards question what's the standard if there is a you seem to concede at some level of involvement they could be the same already so how do you figure out what's enough i think some at the absence of that type of direction from the d o j yes you see i mean that was one factor the court considered in finding that they were not same party but even if you know separate from the same party determination is the question of whether or not  there was a similar motive an opportunity to by the f c c to question the deponent brian simmons in the same manner that the department would have cross examined simmons had he testified on at trial on me doesn't press simmonds when he denies knowledge of certain pond and that's that's a really very different context than what the government faces at a criminal trial where it's proceeding on an indictment returned by a grand jury it has to prove guilt beyond a reason when a witness and that's setting testifies in a way that's inconsistent with the guilt gets charged in the indictment the government's motive is to impeach that testimony and multiple courts of health and i think these cases are on page thirty eight thirty nine of the government's  multiple courts have held that an agency like the f c c does not have a similar motive in questioning a witness of the department of the government has had a criminal trial and there's also the question of whether there's a similar the f c c to question brian simmons in the same manner that the government would have done at a criminal trial on cross examination precludes any disability under the hearsay exception and it all forty one governing prior testimony the district court also  made a determination that we think goes to rule for us three as to the unreliability of this testimony if it were to be admitted without the government having an opportunity to cross examine the witness will rest on our brief for that argument but that would be a separate basis  with rows and rows and of course holes that there has been advance knowledge instruction in a nine twenty four to twenty four seated facts with respect to the accomplices knowledge of of the gun being used by one of his confederates during the offense well that knowledge requirement is embedded in a couple of elements of the compas liability that the jury was instructed on the first first would be the jury had to find if it's going to rely on accomplice liability it had to find that baker associated with the criminal venture or at least try to go a long way toward satisfying the knowledge required for rosemary but that's more because the jury also had to find as an element of accomplice liability that defend a bigger sought to make the criminal venture success how can he the defendant seek to make the printer successful without knowing what that criminal venture is so he would submit that the instructions that were given on accomplice liability on the lease in the context of the wire fraud and securities fraud which is the the individual had advance knowledge of the gun laws and the court was concerned that the complex has to have enough notice ahead of time to make the decision to walk away if the cop accomplice wants to because if notice of the gun use arises during the course of the offense that  might be too dangerous for the individual to walk away since a roast was flying the settled requirements of accomplice liability to that circumstance ultimately i don't think it matters because for the reasons i've stated the advance goes to the elements of wire and securities fraud the government's admits that the indictment properly charged the jury was properly instructed on those elements most of the focus in my opponent's brief had been on this mirror morning focus on this language this alternative language that the scheme must be intended to deprive another of money or property or bring about some financial gain to the person engaged in the scheme but in this case the only number points the government referred to the demonstrative chart and actually this is a very good way of drawing the dividing line between what's permissible and what is not those demonstrative charts are in the record for instance exhibit ten sixty eight it were submitted to the jury but these are the ones used in the examination take count to which as i say is the most important count in the case the chart  has count to the date of the alleged offense known as the call and then it has six or seven exhibits all listed as five nineteen because there were different clips of this tape recording that were paid played ok hard to argue there's anything terribly prejudicial about that ok but what what doesn't occur on the chart is that then calendar goes on to list twelve other exhibits and says they support conviction on count two and as to those twelve it's not simply like here's a list of twelve exhibits that also relate to that he gets questions like ok the jury has heard some testimony about mr dacre leaving the care and coming back now let's look at an exhibit here quote are you able to tell from this employee file what letter appointment letter this relates to does it relate to his initial employment or when he came back to arthur care no this relates to him coming back to arthur that is that is an opinion that is an inference ok that's very different than just relating exhibits and saying they support count two when a summary witness is asked whether there are no and further and in that regard at one point he's asked is something consistent or inconsistent with the organizational charts of arctic air that is consistent well that's is a perfectly appropriate statement to make in closing but saying that something is consistent one with a another is obviously the kind of influence drawing that you do in closing quickly the consing around going on to the defraud issue the government just said that there is that was that it's not the same party and we submit i think the court's questions have gone to this that the level of cooperation in this case it's not some blanket rule that if you're in the federal government two agencies of the same party and we just admit that and we have to rely on what the government gave us at the second trial didn't produce and the first that that's an extraordinary level of cooperation and when you come to the mode of question of course subsequently  h the same mode of requirement and finally just on the roseman issue let me say again that the key defense in this case was ok there was fraud there but a baker did not learn of it until later after all of the wire fraud charges here that was the defense the notion of needing advance knowledge which is what roseman holds was key to that notion of a defense the language we requested under roseman was correct we're