alan i are pleased and honored to be joined today by a judge known i'm sure to all of you judge mcmahon chief judge of the southern district thank you for joining us to delighted to be here thank you for i me the clerk informs me that all parties are present and accounted for so we will dispense with the calling of the calendar and begin with united states versus there's prejudice and we brace the plane or standard because the objection wasn't specifically to this language everybody made a mistake not only was there no objection but the court had a pretrial conference on the charge nobody was sandbagged or surprised nobody except the judge maybe was later sandbagged would judge there was no surprise you saw this you objected the defendant objected to the charge and requested that additional language be given and the judge gave that additional language and but now after the trial is all over the defendant comes and says oh but the judge should have included other language of course the judge should include other language but does the defendant have no obligation whatsoever to call a problem to the trial court absolutely we do the honor and as the did the government and that's what the plainer standard for and so we are here on the roof of the to be in which we have to show that the error is plain and that we instead of the government we bear the burden of showing prejudice and we embrace that there is certainly no you know there's no i don't think there's a basis for alleging that anybody intentionally did that the certainly no no intent on our part and we don't think there's any intent on the government's part was simply a mistake and maybe thirty years is a generation when for a while everybody understood this but at some point  this went you know when it went by the wayside nobody understood this and so that's why we're here on the plane overview and under plainer review this court said as recently as keyser in two thousand and ten that the question is whether there's a reasonable probability that the the air the legal air made a difference and we respect lee smith that it did in fact kaiser broke this down into two separate resolve probability components on the first is whether there's a reason or probability that the that the seizures of counterfeit merchandise addressed to them or west of call to his attention doesn't that make it extraordinarily improbable that he had a firm belief that he believed oh no this is all good stuff that i'm selling and on top of which on top of which there was the evidence of his of his conversations with the with customers in which he assured them that the people who think you about whether they have anything in the record that could could support the proposition that i understand that i can prove that yes yes i believe the stuff so the way i'd like to court to look at this is that this is unlike a typical conscious avoidance case where it's usually you know the either sort of obviously contraband or if it's not it's it's a it's in a sealed container or if it's just checks or cars where you can't there's no basis to think one reason one way or another whether the stuff is genuine this is a unique case here by all accounts the stuff looked genuine if it mr levy i'm not suggesting that your client needed to be an expert in the army scarves or whatever he was selling because the stuff looked genuine ind possibly not the second time but by the fourth or fifth time when he needed to make some inquiry in order to well that's what the conscious avoidance charge would allow the jury to convict on but again it's not whether a reason and this is where the actual belief or visa comes in it's not whether a reasonable person should believe this or whether you or i should we would understand this is whether this defendant in particular with his particular characteristics would in fact believe that one of his character all of his statements are entirely consistent with the belief that he is selling genuine goods derived improperly grey market good sometimes these are called refurbished goods second hand goods perhaps return goods imperfect  the fact that he's selling these at a severe discount in itself is certainly not a proof of anything as for the notices will confront the notices there are several several inferences that have to be made in order to sort of reach the point where we get get to the point that  actually should have known this first they're not addressed to him ok second we have to assume that he read them even though they're not addressed to him third we have to assume that he read them and understood that again we welcome the court to look at those notices full of legal lease citations to the statute and then finally i would ask the court to perhaps can accept that this immigrant from africa may have assumed that what he received so what he whatever when he received a seizure notice from the government that meant that they didn't deliver to him ok so that that was counterfeit so perhaps the stuff that he did receive perhaps the reason we believe that well they didn't seize these maybe these are the genuine and again really in the in the minute you have been focusing you on and that you've been responding to we don't take that into consideration or not i think that's that's part of the prejudice analysis if there's no prejudiced and there's there's certainly no reason to to make it to to correct anything thank you  swaddled i'm an assistant united states attorney in the southern district of new york i represent the government on appeal and i represented the government in the district court and if i may i'd like to turn right to the evidence in this case and that showed that the defendant would start with how come you submitted to the court a conscious avoidance george that didn't include language which has been said again and again and again and again should be included because i made a mistake your honor and we fully admit that we made a mistake we embrace the fact that we made a mistake it's right up front in our brief after thirty years i think you can change the form charges in your  after when you use it you never think you absolutely are honor but focusing on the evidence in this case because the evidence of the defendant's actual knowledge that the goods were counterfeit was overwhelming and it really does come in multiple different forms but the most prominent one and the most important one is the defendant's own statements because he told multiple people that he thought were customers that these goods would be missed and would be taken for the real thing out on the street people would think that you paid the full price for your thing and he is correct i think he's correct that the language he used  necessarily inconsistent with the belief that the goods being sold to that customer were genuine well actually your honor i think there's a lot why is that not correct because i think there is a very critical distinction in some of the statements that the defendant made to his purchasers about the quality of the goods because what he told his customers was that the if you feel the quality it feels natural sometimes the quality talks it has very nice quality so if you go outside people will think you paid this price if a good is if that demonstrates that he knew they were they were counterfeit yet to that this particular item was kind of yes your honor because if you have an item that was made by the manufacturer but had a small defect on it or came through some other distribution mechanism you wouldn't have to tell your customers that the quality feels like it's real and feels like it's natural and that the quality talks you can just said and this is in government exhibit four o two which is a recording he's talking to the undercover agent here and about the fact that she's buying the goods for her boyfriend and he says when you go quote when you go don't you know him just say this is official let him feel the quality it feels natural then he later says very nice quality you go outside people think you spend eight hundred for it right it is a guarantee granted that you can draw the inference the jury could have drawn the inference you wanted the jury to drug you argue for that you read enjoys it the only inference you can draw well your honor i think it is because these statements are not made in a vacuum because the defendant had received repeated warnings through multiple different channels that the goods that he was selling were counterfeit so he received the customs and border protection notices he received an in person visit from an investigator who told him you're selling counterfeit goods you have to stock here's a cease and desist letter that made it very clear the word counterfeit was bold underlined and in all capital letters he the investigator testified that because he's just a private investigator he doesn't have a seizure power and so mr di actually voluntarily surrendered five counterfeit belts to the investigator on that day he signed the bottom of the cease and desist letter that said that he had read it and understood it and noted that he was voluntarily turning over five counterfeit belts then eight days later the investigator went back again because he had seen some goods that were there that suggested that there was another manufacture where there were counterfeit goods and he needed to get a cease and desist letter from that company what was the object about which he said it feels natural he was talking about true i believe he was talking about true religion jeans and t shirts because the undercover officer started by purchasing items for her boys for her alleged boyfriend that were true religion jeans and t shirts and hats they then move to a conversation about his ability to get counterfeit or not kind of but to get handbags that she was looking for that he didn't have in the store and that's when he made further promises about the quality fuels natural fuels natural gas not s evidently mean it feels like genuine as opposed to counterfeit goods and you're talking about genes and say they feel natural can mean a lot of different things that could mean that they fit comfortably that they have a nice look at that in isolation because the full statement is when you go don't tell him just say this is official let him feel the quality it feels natural so there the reading of natural what he's saying is he's talking about the goods being real versus not real not that they fit your focus is really on the word official tell him it's official you're and i think you can take i think you can take all of the words he says and read them together he's talking about it being official he's talking about the quality he's saying the quality talks and again these statements especially at this point in time why would that not be something that might be said of the salesman at the store that sells things like like seconds because again you're things that are the that are that are genuine but that have been rejected by the manufacturer for so there was first line goods of stuff that i don't know stuff that sold at the century twenty one well again your honor by the time that the defendant was making this statement on july twentieth he had already received every single warning that he was going to get in this case this wasn't something that happened early on in the investigation he had received the to him he had received letters from the company in the mail saying that your goods are counterfeit he had received in person warnings from an investigator you voluntarily turned over counterfeit goods he had received the customs and border protection notices some of which were opened and so by others you have very strong case against him but but on this issue could how how clear must it be that there is no rule that there was no prejudice how clear must it be that he cannot possibly have believed that the goods that he was selling the goods covered by the  again you're on to the standard is whether there was a reasonable probability and here it's not a reasonable probability because the argument that that the defendant makes and that he made at the trial was the goods are hard to tell whether they're real or whether they're fake and he was not an expert the government had called customs and border protection import specialists they had called individuals from the companies to talk about why these goods were counterfeit as opposed to real and so his argument was you see you  need a trained expert to be able to tell but that is that works for somebody who is coming to it in a vacuum a customer who's coming upon these goods for the first time and not knowing whether or not these goods are real or fake he was running the store he was getting he was the one getting all the warnings he was the one who was setting the prices who was who was running it out of the front of a hair salon who wasn't giving receipts who what who had nothing about his operation to suggest that any of these good actually came from the manufacturer and again i really would point to the fact that all of these warnings started in march of two thousand and fifteen with things that were in writing and this was another argument that defense counsel made at the trial was read the language it's very difficult to tell what it says there's some legal ease there is references to statutes but it made very clear that he was breaking the law that these were counterfeit goods and then the subsequent letters that he got from the companies were in much plainer english words counterfeit were bolded and then he had people in person explaining it to him and critically the the lady who ran the store or who ran the hair salon in the back and rented it out to the front run to the front of the store out to him  she was there the day that one of the investigators came and he testified to telling her about why he was there and what was going on at the front of the store and then she even told the defendant and they speak the same language they both spoke french in addition to the fact that the defendant also spoke english she told him you have to stop selling these belts because she knew she understood from talking to the investigator and then reiterated to him that the goods that he were selling or selling was counterfeit and so again while we agree concede that there was ever it was our mistake for not introducing a correct charge judgment or arrow because we're here on the plane or standard do you cannot demonstrate prejudice to his substantial rights because and again the conscious avoidance  piece of it in closing arguments the government asked talk to the jury about conscious avoidance as a fallback argument for one specific piece of evidence because the overwhelming amount of evidence all of the other categories that the government claimed went to actual knowledge were not susceptible to conscious of words and i see i'm about to run out of time and there was a charge given on action and there was a charge given on actual knowledge and there's no contention that it was in an act in accurate charge the theory that the judge the judge there sort of suicide bomb to charge that and that that was that was enough on the facts of access and then most centrally this idea of you know whether there's a reasonable probability that mr d a company believed that these were were genuine  government these were high quality fakes apparently and the government had to literally call the government's witnesses or literally seven o two experts to be able to discern one from the other the very hard to tell and there is this a you know misadventure with these thirteen hundred dollars pair of bell main jeans that they seized the government experts even themselves couldn't tell that these were fake they had to call maine and paris and i don't know whether they sent the pictures or eat a copy of the jeans over in order to be able to tell mr de is not an expert and he is not an insider i understand this government's argument he's not a customer he's the person someone fair enough at some point in the chain of distribution right somebody knows they're fake obviously the manufacturer knows he's making fakes maybe his partner does maybe this the person he's he's giving it to knows but at some point along the line the knowledge is lost and given that the substandard that these goods are substantially industry indistinguishable from the genuine item on that that the differences are so strictly subtle that you need literally a seven to two expert to tell the difference that that we submit means that there's at least a reasonable probability which is not a very high standard but i think resolved i don't know we can assign a number to a reasonable probability is something like that it's certainly less than fifty percent it's some basis to believe that of not that a reasonable