its burden to prove that guillory agreed to a person antitrust violation the government had wiretaps photographs undercover officers this is a major investigation they infiltrated during the foreclosure auction process mr guillory engaged in non verbal signals to others and agreed and stopped bidding once one's nose non verbal signals were given no there are no such as as others gave winks and nods if you would in ones winks and nods were given everybody stopped bidding except the one person designated the government curtain correct me if i'm wrong but there is my of a witness for example i'll go into specifics mr rock he did not observe guillory reagan any beds he did not observe these sort of signals he did observe that i'm not asking about direct it when i'm asking as it was there evidence from what you reason of would your could infer that x the at the auction mr guillory engaged in conduct that showed that he did read with other people that bidding would stop no there were instances where guillory would maybe start betting and not continue a bit in and was that was that that's a that's consistent with independent kind of understand wasn't there also evidence that he stopped bidding after other people gave non verbal signals if that's the case that would also be consistent with independent conduct because mr gilley was a realtor represented a number of different clients and their call but there's any number of reasons why if you're drawing you see the end print in your favor or can the can the jury do all the opposite in front but you know that that be a reasonable inference that's that's actually a great point under substantive and i trust law now well counsel there and there is a basic principle that in reviewing the sufficiency of evidence we are required to consider all of the evidence in the light most favorable to the jury's verdict yes and so if they are and there also are venerable cases saying that circumstantial evidence is just as sufficient as direct evidence of someone saying you know this is what he said around have a photo of him doing that so if you take those two principles how is it that the this is well established when when there is let's talk about circumstantial evidence when there is circumstantial evidence the government when it's based on that the government must present evidence that excludes the possibility of lawful alternative explanations or independent conduct if the government doesn't do that and they didn't do it here then no reasonable fact finder can conclude that the defendant conspired to violate want lost take take even under that take judge groupers question if the jury believed that at the auction mr guillory responded to non verbal cues from his coconspirators to either keep betting or stop beating and then the round stuff is not is not contested he admits he participated in the subsequent rounds question why isn't that and if believed why isn't that enough to exclude the possibility of innocent conduct well i guess the first response is there's there's no such evidence if there were evidence and no the same people who participated in the rounds why it's believed why isn't that enough evidence to show that he had agreed to two it's hard to say these words i was going to get big i was worried about the same thing this morning ya know it in this case there was no witness no piece of evidence connected guillory to any of those signals and i was young very much however some there was at least one witness who said that only members of the conspiracy to rigby is were permitted to participate in the rounds wasn't there at least one witness who said that be mistaken about that and i hope their government well correct me if i'm wrong about that as well but if if someone said listen this is how it worked coconspirators decided this and had all the hand signals like you know  at only the people who were members of the conspiracy could come to these after parties would would that be sufficient well i think i think i might i think i might understand what you're referring to there were some witnesses that assumed presumed as maybe the court and prosecution did that because guillory participated in the rounds he must have been part of the overall scheme but in this case that i am asking  saying that the conspirators with them go and i may be mistaken about that i mean it there may have been a description of who started at the auction and then you know the same general group of people would be at the rounds but i don't think there was anything quite as affirmative and i can explain i think maybe some some context guillory as as he testified to started out you know at least in the two thousand to two thousand and three area he was one of the people showing up for these foreclosure auctions he was a realtor he was a real estate investor along with some of these other guys that were either admitted to or were convicted of participating in the primary auction then there was a housing crisis and went from a few foreclosures a day with the same general group of people to just mass chaos hundreds of them and a whole new group of people tons of people everybody was coming and trying to make money and it was chaotic guillory of course knew those same people and he used what i you know he's a real terry wanted to purchase properties and the rounds were a convenient way for him to do so there were information issues he could be in multiple places at once he could go in and purchase a piece of property that maybe he missed the initial auction or maybe the one of the purchasers of it had done some research one of the other investors had done some research he could make use of that information  don't read it but you know like a good closing argument that you're like to make all the inference in your favor but the jury didn't buy it but if this were just a criminal case without the and i trust aspect to it it would be harder for me to make this argument this this case should have gone to the jury because of the lack of direct evidence because the prosecution the government was not the way you do there can be circumstantial it can be based on circumstantial evidence but some of that circumstantial evidence has to exclude the possibility of independent conduct and that could be a plus factors that could be a number of things that can and you know  was ineffective was because he failed at the close of all the evidence to seek a judgment of acquittal cracked that's one of the reasons ok therefore i haven't isn't that argument isn't the argument that the evidence is finish yes i was in that prevent you from raising on appeal the insufficiency the evidence i think it requires me to go into the plain air framework ok and i think we survive that it's such an obvious error it's an  that would change the result it affected substantial rights guillory received lack of due process for for not having that that request wait til we bought off this court permit now it's up to you you can use your time or save it you know we we make the arguments about the government statements rounds are illegal we make the argument about the jury instructions i think that's pretty clear from the brief i'm happy to answer questions on it but but there is the motion in limine and it's it's not a throw away argument and there are other cases where in fact the case came down and the government talk about it the choice case that says bid we're not trying to dispute that i'm not trying to change fifty years of an i trust law what we're arguing is that when you have a larger framework and this larger framework includes the rounds which are necessary to dragon which are which are necessary to bid rigging the primary auction when you have that larger framework there is a possibility that it isn't a naked bid rigging situation you might have could the bid rigging could be ancillary to a larger pro competitive purpose and my burden here is not to show that that's the case but but that the judge should have allowed guillory to show it and he had expert testimony that he was going to use and there are a number of ways which i won't get into now we get into in the briefing on ho that similarly joyce's argument no it's different joyce argues that because of the nature of real estate because of various other sort of reasons specific to the markets it shouldn't be a per se rule what we argue is that because our case centered so much on the rounds and the rounds because of the rounds it was a larger framework it wasn't just the straight naked bid rigging of the primary auction when there's a larger you have to determine are you have the right to determine whether they the bid rigging is ancillary to a larger pro competitive purpose and i believe hillary could have done that here he didn't have the opportunity my my burden is not to show that that's the case here process is sufficiently complicated if the conspirators are really clever it isn't really bad because it's bigger than that and therefore it isn't a person a violation but that doesn't really know the the the ancillary restraints doctrine is a more complicated inquiry that isn't just you have something else on there you get off scot free snow there are other things that need to be shown you've used up your time but i want to ask you a question about a very specific piece of evidence i'm reading  bartos testimony and it's on s c r two of four and the question is you ended up winning the round for and you won the public auction why would you agree to make a payoff when you public offered why not just keep the property after the public auction and not pay anyone and the answer is because we reached an agreement with glenn it's mr guillory that he would be part of the round if you stopped bidding at the public auction that's direct testimony that your client agreed to stop bidding at the public auction why isn't that sufficient to establish the crime here miss my understand i recall this part of says we reached an agreement it was glad that  part of the round we stopped beating at the public auction i think that the context of that and i know we're going to be on time so i'm not going to look it up is that this was based on the call with with mike and that he assumed that they had  good morning mary helen wimberly for the united states please the court this morning i'd like to discuss three issues the sufficiency of the evidence on the record the legal standard for the sufficiency of the evidence and the remaining issues raised by this appeal we disagree with the statements that mr bono made about the record in this case for one judge her wits to respond to the question you asked about wesley bardas testimony that was direct testimony concerning mr were just referred to why not just keep the property after the public auction and not pay anyone and he's asking because mr barton had won the property at the public auction then was also participating in the round answer because we reached an agreement with glen that he would be part of the round if you stop betting at the public auction now mr bonus said that was based on speculation based on mr guillory witnessing a call with a third party well he's actually referring to a conversation that took place at around it not a conversation that took place during the public auction mr barton is testifying to his direct experience with mr guillory at the public auction s e r one ninety eight for m for this property was there an agreement to stop betting at the public auction answer yes question would you have a round without an agreement to stop betting at the public auction answer no there would be no point to it i'll move on to mr powers another  who testified at trial this is s e r two fifty to two fifty one question were there people were there people you reach agreements with multiple times to stop betting answer yes question including the defendant answer yes and he gave an example at s c r two sixty one to two sixty two of twenty five forty three hamilton where he paid defendant over three thousand dollars in cash i want to emphasize that in cash and he said it was to stop bidding mr guillory makes a number of arguments about mr powers testimony that it wasn't reliable because it wasn't specific enough but those are jury arguments about credibility that as th recognized is not cognizable on a sufficiency challenge and there's still more mr bishop the third coconspirator and this is the transcript at page three thirty three question did glen guillory take any other actions consistent with an agreement to stop betting and just to give this in context this is one of the circumstances where mr guillory and mr bishop had agreed to bed rig through an intermediary might galloway at the public auction and mr bishop testified to what mr galloway said about his agreement with mr guillory so the answer to you did go and gallery take any other actions consistent with an agreement to stop betting answer i'm sure we made eye contact and you know a little nod but it was basically ok stop betting because up until that point he had done a few bits he gave an example of ninety pleasant valley where he had researched the property for personal use he reached the agreement as i said with mr guillory through an intermediary mr galloway at the public auction to stop it ing and this is discussed at s e r three three seven to three four five then he paid guillory over three thousand dollars in cash mr guillory said that was actually part of some partnership that they were going to go in and buy the property together but if you look at s t r three forty one question have you ever done a partnership with glen gallery answer no then if you look at s e r three four five question what were you paying the end gallery for answer that was part of our agreement was that as he stopped bidding there at the public auction and then we did our round so to follow through i owed him money from the round question did you have any other reason to pay clint gallery answer no i had i have earlier asked opposing counsel whether the was testimony that the participants in the rounds were coconspirators that it was the same group extra people at the rounds was i mistaken about that you were not mistaken judge graber that is correct bishop at s t r three one eight for example question who participated in the round answer just the people that were a part of the bid rigging group at the public  you a few more sites if you would like bishop also confirmed that s t r three twenty seven barda s e r one eighty one and powers at s c are two fifty three to two fifty fo the fourth coconspirator charles rock also testified that he participated in bed reading through an intermediary with mr gallery he paid guillory four thousand dollars by check when mr brock tried to give mr guillory a check he used an expletive and said are you crazy and it's made he didn't want to paper trail mr guillory argued below that this was again another partnership in the property t r one two three question was there any kind of partnership here with mr gallery mr galloway or mr detmer or were you taking title the property on your own answer i was taking it on my own s c r once you ith the government says rounds are illegal because that was the theory of the case based on the testimony that there was no reason for the round except for bed rigging barda powers and iraq testified to that all four co witnesses told you that that's why you have a round because you had an agreement to stop betting otherwise there is no reason to have a round if you look later in the rebuttal s c r one of two the defendant knew he knew the rounds were how people got paid for agreements to stop betting and then just to be clear s t r one of seven i want you to keep in mind that the agreement to stop bidding at the public auction that's the crime and then later the rounds of course there how people got paid for that agreement so the prosecutor accurately testify really summarized the evidence and addition the jury instructions were entirely sufficient in this case because they explained repeatedly that is the green meant to rig bids that is the crime they also further was made with clear follow up that the reason the rounds were illegal was they were the payouts for the bed rigging agreement so there was nothing to clarify and because the instruct the jury instructions stated clearly that for example in a conspiracy to rig bids is an agreement between two or more persons to eliminate reduce or interfere with competition for something that has to be awarded on the basis of it's the aim and result of every bed reading agreement is the limitation of a form competition and the agreement is the crime so over and over again the jury instructions reiterated what the crime was and as i read earlier from later in the rebuttal the prosecutors that i want you to keep in mind that the agreement to stop betting at the public auction that's the crime so it actually doesn't matter what happened after you reach their agreement what matters is that you reach the remit to stop eating at the public auction and then contextualizing the rounds further and these rounds of course there how people got for that agreement now turning just briefly hopefully to you the legal standard for sufficient the it is no different and criminal and i trust cases than it is in regular criminal cases the in of acid litigation case that counsel referred to significantly and his reply brief stands for a foreigner proposition and i'm quoting that opinion at one one zero two a section one violation cannot however be inferred from parallel pricing alone that's just like this court case law saying for example mere presence near contraband cannot alone support an inference of knowing possession of contraband or mere association with conspira it's a narrow rule of what permissible and francis may be drawn and it certainly doesn't apply here which is not a parallel pricing case now to turn briefly to the third point i was going to raise which is the last set of arguments for an effective assistance because anyone would be reached that it is very rare that our court will reach ineffective assistance claim on direct appeal because ordinarily it's important to hear from the lawyer as to why decisions were made or not made why why would we reach that in this case because the plane air arguments fail its phase one step one will but if we know that we just don't need to get to th arguments right mr hilary may have all sorts of ineffective assistance of counsel arguments you should raise them in a twenty to fifty five and that is certainly one avenue the court could take the court to see avenue we always take it well most commonly asked the court i wouldn't we do that here well i think the simplest way for it would be to say because there was no error there can be no prejudice for any of the arguments of ineffective us that we don't know what the problem is that error then there necessarily would be no prejudice from the end effect of assistance so defectively would be and i guess what i'm saying is that if if counsel then filed a twenty to fifty five saying well he was ineffective because he didn't move for twenty nine twenty nine motion of acquittal at the end of the evidence that would probably be barred by or direct appeal opinion that's correct it said there was sufficient evidence but i'm not sure why so much or why we should take up an effective well i'm not going to press you to take it out for sure i'm just going to say  your position if we were to reach this specific you know effective assistance claim here which does relate to alleged errors in handling what already happened at the trial would that preclude a later claim of ineffective assistance other issues that would require further development let's say you know in complete investigation or failure to find an expert or something my i don't think it would be a success of petition but again that's the risk defendants take and person asking you to preserve an ineffective assistance claim on direct for you but if i could turn briefly to the motion and lemonade issue that counsel raised at the end of his argument judge to me you're exactly right that he's trying to turn this into a rule of reason case he's as we discussed earlier joyce the court said that rigging is a per se violation and then this is the opinion at five in that was released this morning and we gave opposing counsel a copy and he business justification for that attendance conduct is neither relevant nor miscible and what counsel is saying was excluded was expert testimony that would have said the price is fixed through better reading were reasonable which is what our catalog among other decisions something that is flatly not allowed and per se cases and as the ancillary restraints doctrine it's still theory of ancillary restraints he can't be said to the district court cannot be of such a erred from the excluding the evidence which in our primary argument on that issue of course is that the district court did not exclude any such evidence thank you counsel thank i guess i better be quick on ineffective assistance one of the issues besides the fact i think about the standard is that it's an eighteen month sentence so the feasibility of being able to accomplish that within that time is pretty low the as  your honor pointed out the record sufficiently developed on these very narrow areas when there was understand it's already been served yes by the time we by the time we don't know what's the difference whether we take it up now you take it up in twenty to fifty five but if you take it up later then he may already be done completed actually completed by the i'm waiting carse rated you know he's not incarcerated right now and given that we've met the standards even though it's rare we met the standards for ineffective assistance of counsel in this specific instance the mistakes were big enough and what's your what's your best ineffective assistance of counsel argue the best ineffective assistance of counsel argument is that he failed to object to obvious legal misstatements by the prosecution rounds are illegal that he failed to request  clarifying instruction on rounds that the judge gave in the prosecution agreed to in other cases the whole case was about rounds and most that the vast majority of evidence was about rounds and there was nothing in the in the jury instruction clarifying that a ten minute break before hearing the final set of cases