number fifteen fifty seven twenty three and fifteen fifty eight fifty two united states versus richard and mark justice oral argument is to be ten minutes for the  that's been ongoing but when you look at it to a sample sample issue and that is under eighteen u s c section one hundred fifty six which is the page seven so if we don't have a crime then does the court have jurisdiction or can the government as it attempted in this particular case go it mr made mr justice who are reputable business people now sting and convicted of a felony and unfortunately for them are now serving time in the in federal custody so evidence we're talking about the failure to give a good faith instruction we're talking about the number one coconspirator jason chapman not being allowed to testify and also talking about the  experts that the government eased that we weren't able to see or be furnished with the discovery requests it we were made as a related to the expert testimony on how the government and then a fad the stone box then we had the jury prejudice involving a juror who we do not know as there was no hearing that over two whether or not there was any spillover effect as a related to justice over to me because we were both tried together although we filed motions to have it severed so when you look at the tot can tell the government look the government has all the resources that you can't short circuit may not like to call these witnesses from myrtle beach from florida wherever they may be anything but yet they were lined on the sheriff's office inspecting these bikes and then for the court not to give a good faith instruction because it's never been resubmitted a good thing to destruction and we did not get the opportunity to argue to the jury although the government got what it wanted a deliberate ignorance which is basically an well we couldn't argue we have faith because of the specify all the particulars of the elements of the predicate of fence and so based upon six circuit law anyway you really wouldn't be able to prevail on that issue this us vs cuming case and some of the other cases right and you know i mean it is what it is and i have three with the court and its interpretation right there but at the same time there's always exceptions and this case is more unique than the other cases because not only do we have a appreciate the opportunity to be able to discuss a few of the issues we've raised in our briefs without mine i really want to focus on two of the issues that i think are more perhaps have application beyond this case number one the disclosure of the confidential manufacturer identification information from harley davidson and the methodology that the government's experts use and number two the juror bias issue that mr curtis mention briefly first the manufacture innovation information i think before we discuss what happened in the case it's important to consider what it is that we're talking about and i think this got confused a bit in the lower court as the governor did in its brief harley davidson maintains a system of paint stickers and confidential markings to assist law enforcement in tracking and identifying particular motorcycles and their components it's important to note these identifiers are entirely obscure to a lay person no know person like mr curtis  myself or or your honour's would be able to look at a motorcycle and and determine based on these markings really would you be able to identify when you'd be able to figure out where they are much less interpret what they mean think that's an accident i don't believe it's an accident purposeful it's purposeful i agree and i think that the system that they've put in place was intended precisely for that reason to assist law enforcement it was created for that specific purpose to allow law enforcement to track stolen vehicles to prosecute defendants who are involved in that and if the layperson could find it then that would for the law enforcement at ricks correct not yes the to that point i'd understand the concern about the disclosure of this information i think that the government's points are well taken i believe in this case they they went to extremes to make sure that they didn't disclose let me just ask you this was back your defense that these were not wouldn't motorcycles i think well i didn't represent mr justice the trial i believe the defense was kind of a combination of we didn't steal them and you can't even establish that they were still really you think th well you can't establish that they're still on with all the police reports and the descriptions and though i did say it was great and so how could i believe that was the defense that was that was because you did get to cross examine the experts who knew where those it made it might be that that would have been a lot more cogent point than it actually came off of this was a knowing whether they knew these things were stolen not whether they were stolen to i don't know a lot of stake or work but i'm unfamiliar with familiar with that concept but more to the point the magistrate court whenever the defense actually requested this information was very thoughtful and considering whether or not it needed to be disclosed under the federal rules the magic were determined that it should be disclosed the concern about the dissemination of the information to other parties was addressed at that time the government asserted that this is confidential information we can't allow it out because then it'll be of no use but the match record i think correctly determined that protective orders that we employ in our in our district along with closed proceedings in court would have been sufficient to protect the integrity of that information and i think that's important because protective orders are used regularly in our district in cases where we have witnesses or informants whose lives are in danger and i think that if a protective order is sufficient to protect those interests the life of an individual the proprietary information of a corporation can be protected in the same way and of course in a way that the magic words determination is what makes this case different another the government decided cases from other circuits i believe short from the seventh circuit was somewhat on point but the difference the distinction in this case is that the magic court did determine that this information should be disclosed that gets us over the initial threshold that the government notes that we have to demonstrate a necessity for the information before it could be disclosed and i think that's a that's an important think in here well that might have been important at the magazine judges stage of this thing when the defense wasn't exactly clear or when the defense could have gone this way that way or right down the middle but the question i guess was raised again in entitled to this information the the defense requested a continuance because the government had not disclosed that auburn proceeded without the contents then the report actually upheld the matter court's ruling i think that's important as well confirming confirming them as the court's rationale for allowing the disclosure of information and then the government despite the fact the magic word it already addressed this issue said that they didn't have possession of these materials master core determined look if you're get your expert utilize these materials to reach their conclusions and they have already admitted in that overhearing in their testimony that they have manuals that explain their methodology then you do government have constructive possession interest therefore you have to disclose in the end what happened the government acted as if they didn't have them subpoenaed harley davidson allowing them to intervene in the case and then the magic court determine i think there was some confusion about what we were requesting that the information harley davidson had in its database was the only information they were going it was going to disclose and i think it's important to note that that in doing so the court actually recognized that we didn't have an expert at that time that would be able to analyze this information i thought that was an important point because i think the federal rules invision the idea that a defendant would be permitted to employ its own expert to review information that's provided in discovery by the government that would have happened but we didn't have the information to be able to do so but if you think about it what questioning would have would you have employed based having had that information i mean that goes to the heart of the conviction i mean really it's difficult for me to yeah i am well of course it is but well my concern is i don't even know what the markings look like i have no idea it could be that they're also you know want you to know right it's possible that you could confuse a market it's possible that some of the motorcycles that were taken in this case all the other evidence of the chop shop business right goes away you see the point that it would be harmless in light of the it's very important to them more so than the other clients did what did they convicted of they are convicted of having laundered it's these motorcycles after they were still transferring the thing the title correct yes to to make it appear as if they're legitimate but because our clients are so far downstream from the actual theft of the motorcycles i believe this information was much more important to them i understand your point with the other information that's available and we there were witnesses who testified about other defendants who had stolen the motorcycles themselves are your clients are on the hook for all of that even though they were participants right we agree about that correct i mean i mean they're they're saddled with that all the evidence based on the theft and in the breaking down of the bikes and pulling around with the numbers securing them right there in law's m problem in this case because our clients this is the problem with the confidential markings our clients never would have been able to determine based on just looking at a bike that someone took them took to them that they were stolen they proceeded in a way that i mean my client owned a a a junket a genuine junk company that purchased parts from different vehicles and assembled motorcycles and i mean it's difficult without having access to this kind of information to be able to establish that our at the indictment i see a forfeiture order when i read the transcript of the trial like your discussion about forfeiture the money judgment my concern with that procedure that the government recommended is that there is a possibility somewhere down the line even though i agree the judgment is not reflect that forfeiture find that at some point there could be some type of correction to the judgment because it was a part of the trial and then mock lionel be forced to pay in a money judgment monies that are really under the mandatory victim's restitution act intended to be paid by other defendants to victims so that their in laws mock concern with the process i'm just concerned that in the end my client's going to be required to future and i'm not even sure that the rules that allow this of at some point in the future the judgment were altered to include a forfeiture i believe rule thirty two point two of the federal rules of criminal procedure actually has an appellate provision in there and it which basically says if the judgment is modified to include laundering question i want to be clear at the outset that the specified unlawful activity here was interstate transportation of still motorcycles that's a violation of eighteen u s c twenty three twelve and mr curtis is correct that that statute is not listed directly in the money laundering statute but the money laundering statute does in its first definitional section is incorporated by reference the entire list of racketeering predicates in federal law it's a separate statute and in that list twenty three twelve section twenty three twelve interstate transportation of motor vehicles is included so there's no doubt here and the district court addressed this matter in its post trial ruling a document eight seventy seven is no doubt that the specify a lawful activity at issue here is one that is defined as such under federal law and so the way the theory work from there is that the specified unlawful activity of interstate transportation of stolen motor motorcycles produced proceeds the motorcycles themselves they were then title to those motorcycles was then transferred and that is a money laundering financial transaction under federal law because the money laundering statute in its definitional provisions defines a financial transaction to include transferring title to motor vehicle so that is that is the theory of money laundering and not just the indictment was not challenged till after conviction it was not your honor and i think to this site that gives us a different test as it's us and it gives you a much more deferential test the district court applied that's hast and again i do want to emphasize that no defect has been alleged to minor standing in the substance of money laundering counts that neighbor the conspiracy count so what we're really talking about here is the use of an incorrect phrase that the government admitted below the district court found was basically just a scrivener type error in the conspiracy count there was no doubt and no lack of notice and judge cook's i think point is well taken here which is that no defendant objected before trial and said we don't know what the charges are here it was quite plain from the substance of counts with this is for the charges were so for thinking about the purposes of the indictment of putting a defendant on notice how he's going to defend himself the indictment here amply serve that purpose in the district court having presided over the trial so found in its post trial orders mr curtis also address the issue of the police reports and the district court issued a trial order it's a document five ninety seven over when this objection is well a written order explaining that the court was admitting those police reports not for the truth of the matter asserted but basically to trace the government's investigative chain and i think a really important point here is the government just didn't didn't just dump these police reports and they were really a bike by bike explanation of how they got to the experts got to the conclusion that each bike was stolen and for the government tried to trace twenty six bikes that it's tied to mr justice or through me to the ashland kentucky based title washers here and for twenty of those twenty six bikes the government called in the victim of the theft so we did to undertake the expense of calling in these victims and subjecting them to cross examination and i think that's important as well we get to the issue of confidential information so again i think there's no there's no hearsay violation no confrontation clause violation and because the victims were called in many of those cases even word there is some kind of violation here it would be harmless error because the defendants had the chance to cross examine the victims who made those reports of stolen vehicles to the police in the first instance mr mr curtis raise the good faith instruction and deliberate ignorance instruction and judge clay was right on point here in the defendant's proposed instructions they actually included a reference to six or construction two point zero nine which is the deliberate ignorance destruction so we think in the first instance when you want to dis gives an instruction that you requested that's a waiver it's invited error if not it would be plain error and there's no play in error when both this court and the plurality of the supreme court in santos has said that deliberate ignorance instructions are appropriate in money laundering cases when the defendant knowledge is placed in issue on the flip side to good faith instruction under this court's pattern instructions is not something that's given in every case it's given in fraud cases were intended it was mr curtis did request it and why did the court reject the court said the court thought long and hard about it and said on the record at the charge conference i reviewed the case law i don't find any authority for giving the good faith instruction and in money laundering case where what's at issue because the sheriff's office had passed on these titles we relied on that that's it almost like an advice of counsel defense the court thought that was not appropriate and that defense had not made out the legal prerequisites that one i did i do believe the court thought it would be confusing to the jury to give a good faith evidence he did which would speak to his reliance on actions by the sheriff's office and by other actors in the chain here and it gives a correct structure on knowledge unless the defendant argue that to the jury again that the instruction and adequately covers what  defended also would get under a good faith instruction so we think the same is true here turning then to the issues that mr ellis the course for the questions and as those topics i would turn to the issues that mr back raised on behalf of mr justice the confidential manufacturing information issue i want to make one global point here which is that it's at the time some of these motions were filed it is quite possible the defendants didn't know everything they wanted to know about the confidential manufacturer's information but by filing those motions and by having a three day dabur hearing a hearing on the motion to quash they learned tremendous cases where all those numbers were obscured the confidential ones the public one davidson and the government resorted to a third set of numbers paint in date codes that they were able then to input into her davidson's computer to narrow down possible public  numbers cross reference those with a list of stolen vehicles that law enforcement gets a national database and then again didn't just stop there tracked on the bike tracked on the motorcycle and how did the victim of the theft identify the bike twenty of those victims so if you they have to put it into harley's computer harley's computer itself has proprietary information of the of the company and of suppliers and so the magistrate judge heard all this and that's also one of the size that this issue was thoroughly air at the same magistrate who initially ordered disclosure h separate hearing on this and in document four sixty one basically said look i granted you supplemental discovery and a very narrow category of information because the government had given you much of this you learned more of a daubert i'm giving you dish and supplemental discovery into a very narrow class of information called tools used to identify these motorcycles her measure her additional evidence on that including evidence about these law enforcement manuals which are not part of the record their confidential law enforcement manuals well  ultimately was there some kind of strenuous defense that these were not stolen vehicles there was not i think your honor had i made exactly the point and mr justice is opening brief makes the same point the primary defense was lack of knowledge of the point your hon made we didn't know we were not the by fees we didn't know and the jury heard a lot of information about that that was the main pitch from the defense that perhaps credited that that that's offense as to mr ferguson who was acquitted but they did not as to post trial orders in this case it's of the court as any doubt who wants details on those matters the district court's orders are the best place to look i think the last issue mentioned was the rammer hearing the lack of a hearing when there were a couple  and the second incident was at the district court called de minimus an intentional contact which happened in the parking lot outside the courthouse there was no verbal or nonverbal communication the jurors didn't say they felt intimidated or scared they said they felt uncomfortable the court found that normal for jurors to run into defendants feel uncomfortable especially in a parking lot at night and when they've been instructed to have no contact with the parties and the court and the courts have addressed that matter by having the jurors leave ahead of the defendants after that decision by the court no further key to the case was the lack of knowledge and the reliance on the tiling process that the commonwealth of kentucky had in price for rebuilt or  custom bikes and it is what the whole defense was and that's why we thought it was extremely important as to our theory being the rock of knowledge documents also indicated that the present sheriff at that time gave him also personally inspected the box do understand the government's concern about trying to create or not trying to but creating a precedent where a defendant would be incentivized to try to create a mistrial by intimidating a juror staring at them in the jury box but this is the scenario that actually occurred in this case i think is easily distinguishable from that immediately when this juror actually reported first and said and all of the parties agreed that mr justice and done anything intentionally or no evidence whatsoever that actually even after the second report there was no indication whatsoever the mr justice had tried to appeal to to engage any of the jurors and we think that's the difference there's no intentional conduct there ok and also we have two incidents not just one two incidents one in court one out of court we also have of evidence apparently that other jurors were made aware of and actually had their own concerns on the second occasion i think in that kind of a situation and its due process really just requires that the court enquire of the juror that particular juror and in the other jurors potentially that expressed these types of concerns to ensure that they're still impartial and that the verdict that they're that they reach we can  trust that and that's that's the distinction i see i don't believe this cases like the cases that have been cited thus far i think this is this is a distinct situation where the defendant didn't do anything intentional and i think the judge really needed to conduct a hearing especially when you consider that earlier during the proceedings he'd indicated he allowed the parties to make the decision about how to how to handle course he still retains the discretion to decide what he wants to do but eventually the government actually agreed that yes we probably do need to discuss this with the jury to make sure things are ok but at that point the judge didn't follow up didn't conduct the hearing and so for that for those reasons i really do believe we really can't trust this verdict and thank you