good morning may it please the court becky james on behalf of the appellant william why can't i like to reserve approximately five minutes for about the primary issue in this case is the sufficiency of the evidence and mr wygant was convicted is an unusual unusual case was convicted a single count of conspiracy to commit fraud in connection with aircraft parts but in this case there was no evidence of an agreement between anyone to falsify the forms that issues the eighty one thirty forms and certainly no evidence that mr wygant knowingly participated in a such conspiracy or such agreement i should say nor was there any evidence that mr wygant ever directed any employee to falsify forms or skip tests in fact the witnesses expected a night they were given any such instruction so the government's theory and stat is that mr wygant is guilty of this conspiracy charge because he did nothing and while the government may try to back away from that now the truth is during closing argument they made that point at least eight times the defendant is guilty because he did nothing this is a very novel theory of criminal liability i'm not aware of any other case really of that on which a defendant has been found guilty of a conspiracy refuses to do it and the employees sign off on the forms the things are done properly and he knows full well what's going on as the government's theory right and so let me let me try to run through each of those steps because there's there  operations on the shop floor earlier in his career he was actually himself a bench technician i mean he knows the business well i think we haven't actually was that he was generally from i had a long background in history in the in the end astri but as far as his management style he  he was involved in meetings but the production meetings did not make clear to him despite the government's you know insistence to the contrary that they did not tell him we were in violation of the c m ams there were many discussions about equipment and we need this equipment or we want this equipment but there's a complete absence of evidence that he was told we if we don't have this equipment we're in violation to see a man's certainly no evidence anyone said were false they started firing that we are no evidence that he was ever told were in violation aviation regulations can the jury consider the conclusion that he he is the captain of the ship and he started the company and if i'm not mistaken was about thirty forty years before this event happened and he of all the persons involved in the company should be aware of the cmin component maintenance man that's part of the business he is in this business of aviation components and if anyone knows that you have to comply with certain requirements it's him why can't the jury come to that conclusion based on all the evidence that was presented in this case you are the company official and employees went to him and said look we need to get this tested and he and the vibration table and if you look at that testimony of the testimony about the response about mr white in response in several instances it was just that it's just he just didn't respond or you know said you haven't had any problems right and there were two instances that mr martin testified to where he said well we've been going along fine so let me address that because this was not this was not a refusal to purchase equipment his was his i reflect his honest understanding that we didn't need this equipment because it's fine we don't disagreement to comply with as i did the jury have to make that inference that that his response indicated that he thought that they didn't need the equipment or could the jury have made an inference that he was making is not to get the equipment even though it was needed well i think on that point that it was the government's burden of proof and there is no evidence that he in fact did to be indirect evidence it doesn't have to be smoking gun evidence or an explicit mission or an explicit statement so based on the testimony why isn't that sufficient for the jury to make the inference  based on indirect testimony well there wasn't even any indirect testimony that he ever conspired with anyone or agreed or directed anyone to falsify the one dirty forms at most you have evidence that he knew that there were some needs for equipment to do perform certain tests and even at the outside even if he knew that well geez you know we've really got to fix this there's no evidence why he didn't that it was a refusal or that he was trying to commit fraud there's just an absence of any intent he would have certified that the repairs have been done and the repairs can't be done properly without the equipment why doesn't that support an inference that he knew that the comply with this him and i mean from my view here the record is that the employees went to him with this form eighty one thirty five were to certify and he wouldn't go employees to syria to certify it but the employees told him that we didn't have the to properly inspect the poem and in compliance with the met you know actually know what is testified that they they went to him with the eighty one thirty nobody said we can't file you know we can't sign this but in a court of that's just it issues with their concerns they had we know we don't have a very drive that can run over fourteen thousand actually audits showed that they did have a very traffic had run over fourteen thousand and mr wygant received numerous numerous audits internal external f a a audits everyone saying that they were fine your argument is that he did not know that eighty one thirty forms i'd be signed you know they that those forms i did were designed to make sure that  compliance with man you know knew this no he not that he didn't know the one thirty's had two and there isn't a lot of evidence on the eighty one thirty's but i think you know that you even assuming he knew that eighty one thirty has had to be signed there no evidence that he knew that they were actually in violation there were many many instances where you know employees would come to him wanting equipment and his response was not to say no i'm not going to buy his equipment will look into it you know i'll look into it put it on the list you know or in a couple of instances i don't think we need it you know we been fine and there were reasons for that to with respect to the vibration for example there was a discussion among the technical managers that in fact their quit was satisfactory  wygant was privy to that so there's there's a real absence of evidence that that in these employees ever made clear to mr wygant hey you know we can't comply with the c n n and you know therefore we're good morning your honor is may it please the court my name is michelle beckwith and i represent the united states your honor so the jury in this case convicted mr wygant of conspiracy to commit fraud involving aircraft parts after hearing from multiple sources that proved his knowledge and participation in the endemic fraud it weak oh the evidence at trial supported that verdict and the government argued reasonable and francis from that evidence the government's allowed to argue such inferences the jury's allowed to base a verdict on those and princes i may have i may have mistaken the record i thought i'd read in the record that employees did approach is to watch you pronounce his name c dear with forms and he did sign the forms but they didn't form him that we needed equipment to to test the components that were repaired and he did not sign the forms or told them to sign the forms you correct that yes here i am probably mistaken but you can make the evidence is that he was authorized to sign forms but there's no evidence that he in fact signed forms other people were authorized to sign the forms and did sign  forms the evidence at trial showing his knowledge of the problems comes to in the evidence that you just mentioned which was multiple employees coming to him and saying we don't have the equipment to do the required tests and i'd like to expand on that a little bit and just explain what the business is for a moment that's all that we coded all they did was aircraft parts repair and that business is entirely dependent upon the certification that the parts  repaired in accordance with manufacturer specs or c m m's to request a murder trial who testified about that that said if a bridge pair wasn't done in accordance with the c m m it was worthless and that's corroborated by the fact that the f a a when it came to light that all of this it happened for decades that we go they issued a notice to all the customers and said listen all of these parts are suspect they should be quarantined and they're taken off the shelves or taken out of aircraft and customers testified that's what they did so in essence what the business is is certifying eighty one thirty s if you don't have an eighty one thirty that says we did this repair in compliance with the c m ims you don't have a s no customer is going to accept that so him saying that he needed someone to spell it out for him as if he were a layman off the street is just absurd and the jury rejected it as such it's like saying  reset starbucks tells their manager our coffee makers are broken and she has to take the extra step of saying and that means we can't sell coffee today it's that basic it's that fundamental so what happened was the employees came to him and said we don't have the equipment that can perform the required tests and the inference from that is that they require test is the test that's called out for in the manufacturer specification in the sea and now you're paraphrasing of course is the employees came to him and said we don't have the equipment to perform the required tests can you help me with this precise language the terms of what they testified to absolutely your  honor one of the most specific examples of that is when mr mop and who was a quality assurance manager who'd worked there for about twenty years started as a bench tech and was promoted up came to mr wygant when they were getting ready to accept this new business of the honeywell converter and they needed to get their shop in shape to do that and so what do you testified was that he opened up the c m m highlighted it and went to the defendant and said here is the equipment we have here is the equipment we can build and here's the equipment we don't have that's called for in the c m m and he testified that one of those items of equipment was a vibration test and the testimony was unequivocal that we never had a vibration table capable of doing the requirement in the c m until after all of this came to light and gulfstream tried to remedy measures another  example of this again comes from mr mock and when he said that he was in regular contact with mr zito and mr mortimer in burbank and that they regularly came to him with  with request their concerns about the equipment and at one point mr muffin did testify that he was concerned or that they expressed concerns that they were in jeopardy of violating the fars the federal aviation regulations and mr mop and testify that he brought those concerns to the defendant and that's a direct reference to not being in compliance of the cmin is if you're if you're certifying that you're doing the work the way it says and you're not doing the work that's a that's a violation of the fars that's another example and then there's the testimony of mr mortimer who did say that he repeatedly requested and you can see this too in his e mail right toward the end of mr like against tenure when he about two weeks after gulfstream fired him mr mortimer wrote an e mail to mr mop and saying why but i could yes it's the government's position that that is direct evidence of his knowledge the latest mr mop and testified that mr wygant made that statement after he announced to his employees that the company was going to be sold to gulfstream and i don't know if he said it just to mr moffat or to other people but mr mop and heard him say now we can finally get some of that equipment we need because we've got to quote deeper pockets and then that's in fact what happened after the sale went through mr wygant stayed on for i think a year or he was supposed to stay on for two years and he was basically running the shop so in gulfstream wasn't really that involved in the day to day operation and so when he made his capital expenditures request lo and behold he made the very same equipment request that his employees had been asking him to buy over and over for decades and again i'd like to reiterate that he was the only person at over who was allowed to make those purchases and multiple witnesses testified to that fact they couldn't just go out and buy this on their own you know what i found the fear that there was a lot of testimony about his economic status and it seemed to me that that was poor training and very negative picture in the eyes of the jury was not really misses your honor that i believe the point of the evidence was to show that there was money available to buy this equipment yes it was expensive equipment your honor it wasn't admitted for that purpose if there was any what was the purpose as i said to show that there was money available and that mr white him was just an willing to spend it on his business that's decades and if there is some if the court does believe that that was the purpose which again i submit it was not i would submit that that would be harmless error in light of the overwhelming testimony both in light of the employee's evidence and the defendant's own words that just that show his knowledge and intent and participation in the scheme if the court has no further questions i would submit and ask for the court to and i will press pick up on the last point first agreed evidence i think is the court has expressed a serious concern about that evidence because it really didn't have any relevance and i think what it did in this case was appeal to the jury's emotions and i mean not even really true his his salary was not even unreasonable but to the jury it sounded like you know he was he was wealthy and greedy  did not follow logically from that that he committed fraud in this case he actually in death that did spend millions of dollars in buying equipment for the company so he was not that he wouldn't buy necessary equipment he in fact spent two million dollars in the course  three years this equipment was about two hundred thousand dollars or so they didn't even follow that his greed was what was motivating him not to buy this equipment and it's not harmless error in this case not even close because the  very problem in this case is that the jury was led to convict mr wygant based on his position as the president of the company and added to that he was wealthy he was that we should hold him responsible and that's really the problem here that is not the law he cannot be held responsible we might feel uncomfortable about that in the jury probably felt very uncomfortable about that wants to hold him responsible but that's not criminal law we do hold you know we can hold people responsible and in the civil context in the regulatory context but for criminal law there has to be criminal intent and criminal participation and even for a conspiracy the law is even if he knows so it's even just assume he knows that people are committing wrongdoing acquiesce a proof of it in the absence of evidence of an agreement which we just don't have here that he actually agreed and knowingly participated in a conspiracy to falsify any one thirty's he's not guilty of the crime chars going back to some of the  they had access to gulf stream to deeper pockets and i would say that that doesn't that doesn't prove that he knew that the equipment was necessary to be in compliance or that you know prior to that he had been agreeing with anyone to falsify the forms i mean the evidence again really shows that he was never advised that they needed this equipment he got requests for equipment all the time as a as a specialized statements just that he i don't know who testified i was just reading the  he didn't say no he said well we'll look into it in several cases i think he determined i mean the evidence shows he determined it wasn't necessary in other cases it's not clear why but again governments berta not clear why he didn't purchase ultimately he says you know when he has the deeper pockets that means you know hey now we can you know maybe now we can get some of the things that we wanted all along but haven't been able to purchase so that doesn't show that he knows they're in violation of federal aviation regulations doesn't show that he knows that they need these tests for the c m m's doesn't show that he knew anyone was falsifying form certifying that they were complying with c m s the only reference to the c the just conspiracy question did you ever make the argument that well this wasn't a conspiracy because while he knew exactly what was going on he wasn't conspiring as the police because employees didn't want to do it did you ever make that argument you didn't want to do it well well there's a say in order to have a conspiracy you need to have at least two people who are trying jointly to accomplish something did you ever make the argument that mr wygant couldn't have conspired because while he wanted these things to be asking you did you make the argument that he knew darn well what was going on the evidence shows that he was going to but the evidence also shows that the employees didn't want to do it so there could be a conspiracy need to make that argument well your honor i think that it is in compassing argument that they insufficient under a conspiracy theory and that's because there was no evidence of an agreement of a common and a common purpose concert of action common purpose there is no evidence of that that anyone was trying to do and yet it doesn't quote this very moment i've never heard you say anything like the argument that i just made you well i beg to differ i do believe that's covered in our in our briefing and in the legal analysis that we've provided and because i'm focusing on factual certain arguments here does not mean of course that i'm waving any others thank you are both sides thank you very much united states