lording i have three cases that are scheduled for argument this morning but st as united states of america versus ghosting and burke and this indictment the ones that were contained and the private placement memorandum the government argued in closing there's never quite a moment that a product has to be based on what someone says in the private placement memorandum there was also the confidential investor information that was given to the investors too and if you lie in that at the defendant's lie in that they're guilty that's a misrepresentation you can be guilty by lying orally in writing any kind of writing and that's what the defendants did in this case and can combination with the evidence that was admitted over objection at trial this constitutes a fatal material variance and assassinate necessitates a new trial for m closing argument but they were repeated objections to the evidence as it came in at trial and at one point counsel taint a continuing objection to this have been so i think  understanding it i've been involved in lots of fraud trials and you have an indictment that sets out false statements and then when you actually get to the evidence of what went on day to day turns out there's often false statements every day in a fraud situation and during the conspiracy and i've never been aware that it was appropriate to sanitize the trial presentation such that you just talk about the things in the indictment and indictment i think also says but not limited to the statements or the intrinsic evidence arrives just isn't the government allowed to present the whole story so that the jury can get a feel for what's going on day to day even if there may have been some additional false statements not contained in the indictment i think the problem of this case in particular like i think we accept that as a general matter that if there are statements in the indictment and there's no further additional litigation about it then potentially the government can introduce evidence  trial but in this case there was a motion for a bill of particulars where the defense sought clarification on exactly what misrepresentations would be presented and they rely on the government's representations and that commission amounted to twelve point five percent that people were paying one dollar per share and information statements about how that money was to be used and so they're not disagreeing the governor not proffered evidence to prove th things i think they offered evidence to prove those with the defense also put up evidence to combat that and so that's exactly the problem here because the government put up evidence of that the defendants were on notice that those were the misrepresentation that the government was going to be pursuing and then they prepared to defense to those and the government's response to the bill motion for a bill of particulars document one o nine the government repeatedly says it's only these three categories of information that we're going to pursue and then they specifically on page fourteen and fifteen disavowed reliance on part statements and the confidential investor and formation say meant so for example when they were referring they acknowledge that the defendants have asked what statements from that document will be used as misrepresentations at trial and then they say since these areas are not about the price of the offering the commissions being paid and the use of the proceeds they are not among the statement specifically charged in the indictment as being false so that gives the defense the clear indication that the only misrepresentations that will be presented at trial are those that were charge indictment and described in the response to the motion for a billet particulars so you're not disagreeing that could've offered evidence about all these additional misrepresentations you're saying that should not have been able to rely on those extra lines as a basis for a conviction you're not saying the record has to be so sanitized that we only hear about three things and no other things are you i don't think the evidence should come and i think the question of whether it's admissible as intrinsic evidence and the general certain is separate and distinct from what happened here where you have these prior misrepresentations are prior representations from the government about what they are going to introduce at trial and i want to know also in the motion for their response to the motion for the bill  struck explicitly said if we develop additional misrepresentations we will provide the defendants will be on notice of those and so here there was no notice ever given the defendants never had any idea that these representations were going to be introduced at trial or explicitly relied on in closing to urge the jury to convict and so they didn't have the chance to prepare a defense as to those charges and so that's the problem with this issue and that's why they do need a new trial is necessary you can look at closing argument and in the powerpoint presentation there's a slide that says other misrepresentations and then the five more slides the talking about the proof of those misrepresentations and they were explicitly urged to convict on that basis so that's the problem with that and i thought i was your argument to the jury that those additional misrepresentations were not included in the indictment why was that not sufficient to remedy any prejudice that might have occurred oh because they have already heard this evidence over pete objection right and we don't know because there is no unanimity instruction there is no special verdict form there is nothing to indicate to the jury that their request for him at the instruction there wasn't and so that's why we haven't raised that as a separate issue but i do think the absence of one helps as address prejudice here i see my i'd like to focus on two reasons for reversal one is initial wiretap affidavit was based on stale probable cause in the results of the wiretaps had been suppressed that statement should been suppressed each of those as harmful or as to the wire taps probable cause must be fresh for a wiretap affidavit and here there was a investment scheme in march and may of two thousand tin the wire initial wiretap affidavit was submitted june t thousand and eleven and well over a year later there were three grounds for probable cause for the wiretap the st was the march and may two thousand  conduct and we contend that that is too far removed from the date of the of the affidavit for fresh probable cause secondly the f b i agent admitted it trial that you know one of the primary reasons for the wiretap was to try to do a not can talking get into you know a good sound bite from the defendants and so there's obviously an attempt two thousand and eleven ok and on its face the affidavit does not show probable cause that that occurred it says that based on increased trading activity based on a report from a bulgarian website of unknown reliability that a new market manipulation took place and then the agent says the following that this shows that there was either an internet promotion a market manipulation or both and as that was agent taylor who was the fine and mr adams and more than normal interactions with burke during that period and the securities and exchange commission trading dating shows a dramatic increase in m an internet promotion is lawful a market manipulation is unlawful that shows a mere possibility not a probability that there was illegal conduct at that time aren't you asking us to affidavit in a hyper to hyper technical manner which is exactly what the supreme court counseled again i'm asking this court to read in a commonsense matter to say if there is a mere possibility one of two options is this was illegal conduct or this was legal conduct that's a mere possibility and that's not good enough for probable cause probably causes more than a mere possibility the nd basis for refreshing probable government could still create an entrance that the scheme was ongoing based on that conversation right but setting that aside when you look at the language itself from a commonsense perspective it doesn't show wrongful conduct or a continuation of the conspiracy ok the agent for regulated do you recognize that we're not the court that issued the warrant understand that and so the probable cause has already been determined and we are we must show great deference to that court so how do you how do you get us past that standard of this court can read it was based on an affidavit and this court can read the affidavit just like the district court can read the affidavit on its face because on its face there's a lack of fresh probable cause well i'm happy you're assuming all that to be so we still have the leon good faith doctrine b if there is something technically a mess or whatever how can how can you get past that obstacle because on its face there is a lack of fresh probable that just that just  induced mr goldstein to make an incriminating statement under a promise of confidentiality and there were no warnings to mr golding goldstein that would overcome that promise it please the court my name is steve maclean our present the united states and along with a lot of black here and we tried the case as well in the district court i wanted to take the two issues in the order of my colleagues on the other side and start with the variance issue but there are a couple of problems with that argument that they've raised you know st of all these additional misrepresentations as they framed them are fairly included mentions and cites to the confidential and investor information document it also cites to the private placement memorandum document which are both the documents where these statements were made the that  they refer to as the additional misrepresentations and so those documents are actually and those explicitly referred to in the indictment and so these this evidence is in support of proving a single scheme to defraud from the th circuit which explicitly holds that even if the government approves additional misrepresentations than are not alleged in an indictment that's not a variance the th and th circuit said both held the same thing the th circuit the bailey case that we cite  bry have explicitly held the same thing the case involves a situation where the main fraud that was alleged in the indictment was a investors had been lied to about how their funds were going to be used and then the government introduced evidence that quarterly the defendants sent out false quarterly statements to the investors and the th circuit said that's not a variance because it's still a single scheme to him but to defraud the investors these are just additional misrepresentations and further it's of that same scheme and that's not a variance what about your pretrial statements that the only misrepresentations that the government was relying on where the three alleged in the indictment and yes i think judge branch are referring berenstein they're the ones who testified as to these other misrepresentations but importantly what we said the bill of particulars is that the government quote may discover other misrepresentations before  trial and should not be limited only to proving those misrepresentations known to it at this time and so we did forecast that there was going to be additional work done as trial preparation occurred and said there could be additional minute misrepresentations and we should be foreclosed what about the fact that you filed the rd superseding indictment two months prior to trial and did not add these additional misrepresentations to the indictment well i think that's that mean one thing we is trying not to change the indictment very much because we were getting close to trial but again i think it gets back to the idea that they are fairly included within the allegations of the indictment there is no requirement as the judge to detail exactly every single misrepresentation that could come up at the trial and as judge carnes points out you know frequently in fraud cases there is a lot of things that the defendant did that are fraudulent or shady or things like that the evidence comes out at trial and there is no requirement that each and every misrepresentation or a mystery that a defendant has done any evidentiary detail that would support the scheme be out outlined in the indictment but the decision that was made on the indictment was to try to hew it as closely as possible to the original indictment in language and we were correcting there was a citation or an a statute at one point and that sort of thing and so that it was really the same in time it was being returned without without you know changing the wording of that indictment very much the note that you mentioned precedent from other circuits  with the indictment that events occurs when the governor proves things different from what's in the indictment and lander is a great example of that because what occurred in lander is the government alleged a specific misrepresentation in the indictment and then  disproved the actual indictment allegation and what the government then that there is they introduced evidence of additional misrepresentations are not specified in the indictment and then the jury convicted and so this cour because something in the night was actually disproved and to obtain a conviction the government came up with new misrepresentations to obtain a conviction and so again that's consistent with champion which talks about variances are whenever the evidence is different from not in addition to what's alleged the indictment consistent with the scheme alleged but merely in addition to and that's not a very i want to the one thing judge branch that you would asked about closing i wanted to pick up on that it's true that mr goldstein's attorney in closing told the jury they could not consider these additional misrepresentations because they want to lessen the indictment and as we've argued here today in our brief we think that's incorrect as a matter of law but what the government argued in the it's reply is out of abundance of caution to go ahead and say that's the one thing that's not that's not a true statement because those misrepresentations can be considered for state of mind and intent to defraud and so under cases like williford the intrinsic evidence cases that this court issued that is long is the additional criminal activity is part of a series of criminal in part of the case you know the series of criminal activity that the defendants in gauging in is inextricably intertwined with the criminal activity alleged the indictment and even in those cases where it's not in the indictment this court held that it can be considered for state of mind and intent to defraud and that sort of thing and that's exactly what the government argued in its reply rebuttal argument is that even if they're not in diamond you consider for those issues and that's exactly what the law is the last thing i did want to point out in terms of the notice issue the defendants did have the f b i three o two interview reports of the witnesses prior to trial so people knew what the witnesses were going to testify to before they testified and there was a question about whether this was objected to a trial and it was there was continuing objections to the variance issue as the trial went on and keep that against you gave others jokes material three had some of this information is presented by witnesses and those witnesses three ids were given to the defendant before the witness testified that's correct on it well look well before trial like well before what does that mean how long seven and nobody was surprised by any of this that's correct we did have it and i looked in the record to find something that would sort of that this court could rely on for that there was a telephone conference the week before trial where the parties were discussing the fact that you know three a tuesday had been produced and there was an argument from defense counsel that time about some of the e mails that have been produced as being variances in so there is some discussion in a pretrial conference about that and i gather you  allies back in the day when i was doing things actually as a lawyer is always a big deal whether or not the government had to turn over three ots and the legal answer was no you down but sometimes it's a good idea you all went beyond what you had to do and seventeen and some of this is detailed and there are some e mails attached that briefs that the parties had these agreements and of course they changed some because the trial was continued but we did have that sort of relationship and we did exchange that the one thing i think you can look at  record that really shows that two is that when each of these three misrepresentations were st introduced at the trial there was no objection so when alan weiner st said that the defendants did not have anti spyware there was no objection when  white st testified that the description of c n to go was wrong and confidential and for an investor information there was no objection there was then a series of jackson's and frequent objections after that so i don't want to leave the back different topics or know about that exact there was an appearance and that sort of thing but i make the point to point out there was no motion of lemony in so even though this information was provided there was no pretrial motions eliminated no complaints about notice no well there was complacent as a telephone call up call but there fact the objection was that st raised at the time the witnesses initially testified to it so when this brunson from the s e c had that initial conversation with mr goldstein and she told him that our conversation is nonpublic and confidential and then the statements that he made were used against him at the trial at the time that they had that conversation was he a target of an the title three affidavits and in the in the district courts really the magistrate judges report recommendation which was later adopted by the district court and so absolutely not for the u s attorney's office i think the f c c would say they don't use phrases like targets i believe what about person of interest what what miss bronson testified to is that it was very plame and it was a early interview she had called mr goldstein because his name was listed in some of the press releases in that it was very plain mary that time and i don't know if she sort of explicitly said he's not a target or a person of interest but i think the import of her testimony is that it was a play mary fact finding type of interview that she had learned about i read press releases was calling some of the people listed he was one of the persons and she didn't really view him well what is your argument what is your besides the chronology of events what is your argument in response to their argument that this was raw what happened that she should she said with him was not sufficient your position to mean that has stayed much to be suppressed what's your argument on that the prior argument that she was she was told that this could be used by other law enforcement agencies or other agencies to tell him that she told him that by reading the privacy act script and so there was a factual finding in the district court she could remember it but she testified as to her practice in this what she always would have said is that information could be shared with other agencies to prosecute investigate crimes she always would have said that there was no objection at the suppression hearing to that testimony there was a factual finding by the magistrate judge which was adopted by the district court that that is what she said and now on appeal  that's not we submit your honor that's not clearly your own is that factual finding is not clearly erroneous there is evidence in the record to support that finding as far as the nonpublic incompetence or really that phrase just in a form letter that was sent to the defendant after the fact bronson testified if that was discussed she would have said to mr goldstein please don't discuss with others what i'm discussing with you so there was no promise not to use the statement against her there was no promise not to prosecute and we believe in the case law that would required to guess about what's going to happen at trial or whether the government whether the defense can rely on the explicit promises made by the government and the holding that we're asking the court to make is a narrow one we're not asking the court to say in all cases everything must be included in the indictment or anything like that all we are asking the court to find are to hold is that the defense is entitled to rely on the promises that the government makes prior to trial and so the case is that the government that out of circuit cases and bailey none of those cases involve a situation in which there's this tour of pretrial litigation about what is going to be presented at trial and so the only fairly specific including the part that i was describing earlier where they say repeatedly these are the three areas of misrepresentations and if it's not about those it's not coming in the guy the defense doesn't have to be worried about is the message this response sentence that there are the money is every fraud trial that never same every fraud trial you have you're specific things that were alleged to be lies but in a fraud scheme fraudsters typically every day of the scheme  saying many things that aren't true and documents would be about a one thousand pages long and you had to recite every one of those things i've never understood there to be any problem in terms of it being in the intrinsic evidence cont particulars and so on that issue and i would point the court to the absent decision from the th circuit it's the two thousand and two decision and it says two things that i that are to back to just the facts of this case so you're saying that they should have ignored anything some of these other areas arguably did bear on their state of mind their knowledge to defraud did they not so if the government had provided notice of them we wouldn't be here but the government didn't provide any notice and so the point of an indictment is so the defendant can be on notice as to what they have to defend against and with out any sort of notice they have no ability to do that and that's what this adamson case talks about it says was there a rule was there a motion in limine to keep the government from talking about anything but these three things in the indictment now i believe that's the expectation as a result from the motion for the bill d of particular and that litigation and those promises that the government made in those pleadings is what they are in are the matter judge and the district court relied on and denying the motion for appeal a particular show i believe that the defendants were absolutely entitled to rely on it so my time is up thank you that she recited the script and then at trial she was summarized the script we don't know what she said but the key point is even if she had recited the privacy act script it says nothing about criminal prosecution criminal authorities or anything of that why did she have to say any i know that certainly better for the government is there a requirement she picks up the funds as i'd like to talk to you about what's going on with your company is there requirement he's not in custody not in handcuffs and tell him tell him that she might she she's the government he's a savvy fraudster he might not think hey there's a problem there is no requirement your honor but she told him this was confidential nonpublic or you're saying she deviated from the script to eat think to the extent that she did not tell him she might tell a law enforcement but now you're saying you don't think she deviated from the script because the only thing she said to him was this is confident no no what i'm saying your honor is we know she said this is confidential and nonpublic we don't know how she qualified that promise by saying we can give it to other authorities or that sort of thing and what i'm saying is even if she had read the script and said we can share with other authorities he still believed it was confidential she never said this could be used to criminally prosecute you so sure but justified a promise doesn't the privacy act script say even though you're not under oath if you choose to answer questions you must answer truthfully it can be a criminal offense deliberately to provide false information to the staffer that's margerie that has nothing to do with prosecuting him based on his statement about his co the it's the government's burden to prove that this statement was voluntary it's not goldstein's burden to prove it was involved voluntary involuntary is i'm under the influence of drugs i'm mentally ill that's a very very high standard and i think your arguments that it's not voluntary the cases i've seen it's really typically mel obligation pick up the phone it's america you call somebody who wants to talk they're not custody and have to give any warnings at all it's only when you deceive the person with some explicit promise which is exactly what happened here the u s v walton case from the rd circuit is a very instructive case for why this was involuntary this statement should have been suppressed and as we pointed