we'll now hear argument on united states versus archer trial the district court both you search the jury's role which is a point i'd like to get back to in a moment but also unfairly assessed the evidence fairly viewed the evidence in this case showed that the devon archer was of the cases in which the judge of the the jury has reached credibility determinations because it really isn't a credibility issue here involving this particular defend it's all a question of the inferences and how you draw the inference i think that's exactly right your judge the judge found that there was sufficient evidence to draw any inference is in favor of the government to get to the jury room twenty nine where the inferences should be drawn that's that's one of our points on appeal your honor is that it was improper for the court to approach the case that way and that is because although the district court has discretion  x extraordinary circumstances it has discretion to use sparingly to revisit the evidence and reweigh the evidence it can only grant a new trial based on weight of the evidence when the evidence circuits and i think actually it it was applied in a sense in the argus and case is in a sense and let me let me explain that the district court in ferguson cited the standard in granting a new trial in that case and this court in affirming the district court's decision noted that the the the problem with the evidence that the motive there was for peculiar again was that there was an absolute absence of connecting evidence between the payment that was made and the motive for which it was made so absolute absence of connecting evidence that is not this case and also that is consistent with the heavily preponderance standard in this case the evidence you know a basic premise of the district court's opinion here was that the fraud charge that was jason galanos stealing the money stealing the proceeds for his own joint enterprise to misappropriate the money for their joint roll up plan to build their business empire and archer had not just circumstance there wasn't just circumstantial evidence of this there is your position i take it this is really for the benefit of the other side is that if archer didn't know that a lot of this was taking money from self you argue differently because of it because of the cops because of the apartment or house or whatever it was archer to know about that absolutely your honor i mean that the fraud here what the st part of the fraud was getting the bonds issued with a false promise of an annuity and the evidence was clear that archer knew about the false no there was there was no annuity and archer was aware of that from that the whole point of the bond issuance is was to fund and capitalize the roll up plan for these three men and he's on the e mail is your argument in one sense that didn't really have a grasp of what the fraud was right i think that she sort of misidentified the forest but then also missed the forest for the trees and not looking at the evidence as a whole and just just to close the loop a little bit on talking about that i'm talking about what the money was used for right and where it ended up it ended up in the business ventures which were you know involved a lot of legitimate companies as well as some some fake ones fund invest and to buy valer life and that's exactly what happens there is and i want to make one point here the district court but i've been consistent with an annuity i mean it's not you can't do both i think the closed you know you may want to reach out to the tribes lawyers at some point and talk to them make make sure they know you're associated with the wealth assurance and new itty and by the way  is a twenty year contract with an investment manager hercules has been appointed now this is not i think that the fair reading of this e mail in light of all of the evidence is this is the line is reminding archer how to keep their story str aware that the linus and he are the ones directing where these proceeds go and the proceeds do go to the roll up plan they as i said they buy fund invest they they fund validate life they go to payments for burning financial and v talking over email before the st issuance all about how they they're they want there to get their hands on discretionary liquidity honey liquid you know liquid cash this is what they're waiting for the st issuance and then two weeks after the st issuance closes archer is getting fifteen million dollars in cash from the law n'est through a circuitous route they both know is meant to hide the source of the funds and he's buying up more bonds with that money right generating the appearance of a market for these bonds some of those bonds he gets go and they are used to prop up the net capital for the roll up companies burnham securities on the way now in the midst of all this archer is telling lies about the source of these funds and he's doing that because he knows they are misappropriated bond proceeds if he didn't realize that these twenty million dollars that he and cooney were using to buy up the entire nd issu our money so i think the district court's conclusion with respect to the fifteen million is simply unsupported by the record schwartz thank you and may please the court in this case and experienced district judge presided over a complex six week long three defendant trial and in which there was absolutely no direct evidence of devon archer's guilt judge abrams reviewed all of the evidence that the government pointed to as guilt inducing as well as the record as a whole she cited all of the proper legal standards judge abrams repeatedly recognized that yes she said i have a serious concerns about whether he might be innocent now that's not evidence preponderating isn't i think read fairly it's lax in terms to me of a th juror somebody who doesn't agree with what the jury decided based upon her reading of the case not and not based upon an assessment of credibility witnesses but based upon her analysis of the circumstantial evidence and the inferences to be drawn from with respect to the jury was able to do because all these virtually all of these arguments were made to the jury with respect i disagree with that j j abrams recognized repeatedly the deference that was due to the jury's verdict she said she did not overturn its verdict lightly she felt something about this case that gave her made her uneasy standard in this circuit in cases based on the weight of the evidence the court to my reading has used the preponderance heavily language in cases in which on the rule thirty three analysis essentially something is being added to or taken away from the trial record and says in that instance does the remaining evidence preponderate heavily in in favor of innocence in a case like this as in ferguson as in another case this court decided called burden the court has not  those standards where it's simply about the weight of the evidence and i agree there where does it go i'm just curious i mean she denied the rule twenty nine motion to grants the rule thirty three so we'll just keep doing this over and over and we'll see that it meets rule thirty three but it won't rule twenty nine i mean because presumably there's not more evidence to be hand and so this seems like a catch twenty two dollars well i mean this is exactly the issue that this court addressed in and literally the st paragraph of ferguson where it said sometimes denying the rule twenty nine dollars granting rule thirty three dollars is going to seem like a waste of resources but it's never a waste of resources to have a trial that's not tainted with metaphor we should just ask the jury to keep doing it until they get it right i don't think so i don't think so i think in the instance one of two things will happen on soon at the court affirms one is that the government will change their case and inevitably the case is going to change it's no longer a three defendant case you know they'll tailor their case to what they believe the best evidence of mr archer's guilt is or different evidence i don't know whether they have the same evidence or not will decide that the interest of justice don't weigh in favor of retrying the case with respect i don't if they tried the same way then it seems to me we just keep doing it right i think in the hypothetical in which retry was literally identical to the st trial we would get into a feedback loop but that is practically impossible it is  recognized over and over again that rule thirty three exist precisely for a situation like this suddenly exists when something happens witnesses change their story with cancer you know something something or there's some evidence that's you know or a legal question comes up and and it seems to me that where we're witnesses i kept wondering one ring whether because there had been a trial and she was there and she heard all the evidence that that should be she she sh get deference in the rule thirty three context for her views but this isn't that kind of a case where she could have heard the witnesses and come to her and recognize that the case is vastly different from the way it was argued to the jury and why the jury reached the conclusion they did that's this isn't that kind of a case it's a case of a way of looking at these inferences and and saying i think i can reach the better better outcome by looking at these inferences and the jury did so let me say two things in response to that one is a legal matter in footnote one of ferguson the court rejected precisely the idea that in a situation like that a different standard or less discretion the less deference should be given to the district court's determination so as a legal matter i don't think that's correct you rejected a different standard on appellate review for this for a sufficiency of the evidence rule thirty three thank you that's exactly right and and held to that in that case great deference broad deference is still due to that district court's germination and i think that makes sense and makes sense because even if the district court is not making credibility determinations there is a tangible advantage to living through trial and in this case again it was a six week long trial four thousand transcript pages tens of thousands of pages of exhibits this court could read three standard was met were arguments made to the jury right that's always the case that wasn't always the case but that's certainly the case here if i hadn't made these arguments the government would argue that they were on preserved it is always the case i think in a rule thirty three  sufficiency of the evidence that the jury comes out one way and the district court says notwithstanding the jury's verdict a manifest injustice has occurred and that's why the standard justices because judge reach different conclusions with respect to the meaning of certain exhibits right judge abrams drew different inferences or in some cases rejected the government's urged inferences as unduly speculative but not just that because in this case there was a plus factor it wasn't just that the government's evidence of guilt was a very very very weak but that there was a tremendous amount of countervailing evidence that pointed affirmatively to mr urges innocence and i'd suggest to you on the rule twenty nine analysis that sort of doesn't matter as long as there is one piece of evidence that a rational jerk can look at and draw an inference of guilt beyond a reasonable doubt she's got to deny the rule twenty nine dollars but if there is an avalanche of evidence the other that the investors were going to they're going to be there's going to be a conflict of interest as far as some of the purchases were concerned of of some of these bonds and that it was going to go into a roll up other needs for him to get to get to get flush with cash so i agree with my colleague that the gist of the fraud here was that misappropriation of bond money and misappropriation creation and part of th was going to be invested into these businesses judge able to discuss business it's what page twenty six of the opinion the bonds documents are crystal clear that the annuity is supposed to invest in private equity just like this they're cooperated you don't really agreed archer but was in fact giving him talking points even though that never happened before the problem is that wasn't the only time mr gone is told mr archer the law i that there was a genuine annuity here being purchased that goes back to before there ever were bonds and it goes all the way through i point you to pop appendix government appendix seven hundred and eighty six which is an earlier email where go on is tells mr archer that the proceeds from the bonds are being invested in an annuity but we also have the e mail that that judge abrams pointed to as exculpatory where mr klein is explaining what happened to the bond proceeds and he says it's five million dollars to go into his winery investment and fifteen million dollars is going to be a discretionary as part of the role plan over and over and over again the government has argued that mr archer knew that this money was being misappropriated but he didn't and there's no evidence that he did mr alone out of everyone in this case did not take a penny of this money put in his pocket every single person who understand that keep it paid money until he did meant but the question i have is why the district judge didn't view the fraud the same way you are in the same way is that he is in the same way that that it appears to be the case that you can have a misappropriation where money is taken for a purpose and used for purpose b and no money goes into the losses pocket because she can't prefer and threw out her her opinion that the money that there was no evidence of that arjun knew that money was going into the last his pocket argument to the jury it was the government's argument to judge abrams that mr archer knew the money was being out now stolen and pocket by mr goh honest there was no evidence of that but also did recognise this alternative theory of the government which is that money was being misappropriated by being reinvested into the row up and again she had rejected that precisely because even if mr archer knew the money was being used to acquire these companies he had no idea it was a misappropriation because the bond documents permitted precisely that investment again that's at page twenty six dollars of judge abrams opinion this case you're honor might be right that this is a close case but in close cases this court is supposed to if this court would come to a different conclusion it's not appropriate to overturn the grant of a rule thirty three dollars decision unless it cannot be located within the range of permissible decisions judge abrams opinion was careful it was thoughtful and it was correct it was certainly archer knows there's no interest in earning a new lady account here he helps fake the interest payment for the st issuance bonds he knows that an annuity put he's a sophisticated investor mr archer as he is a self described expert in asset management he describes himself as that in front of the bit board now he knows that in a new had a provider an annuity account manager does not take his clients money and it back into the bonds that the client is issuing secretly without telling the client he's doing this that's what happens with the fifteen million the evidence i really don't think this was a close case particularly when one identifies the gist on juries factual findings right i mean i mean the court this court and others have made it very clear that even under rule thirty three this is the bell case for example in two thousand and nine from this court even under rule thirty three the court owes deference to the jury's credibility determination and resolution of competing inferences would you identify which of judge abrams inference is contrary to the inferences presumably drawn by the jury or without her field of discretion i think the the inference that archer did not know the annuity promise was false is one another big one and this is the other part of the fraud right is that archer did not did not know that the hughes in atlanta clients were being deceived in their purchase of the bonds now i think any any reason to be deceived as to as to the conflicts of interest that were at issue here i mean no reasonable sort of straight thinking pension fund manager would agree to buy these a liquid tribal bonds knowing that the placement agent the party the supposed to pay the interest on the bonds and his own advisor are all controlled by the same people i mean that's absurd  so that is i think a nd inference that was simply not supported by the record and another one is the inference that archer's lives were meant for either fed by the linus or were meant to simply cover up the involvement of columbus now with respect to the st one the two lies he tells at different points in time about the provenance of these on proceeds is they come from real estate sales now he says they come from his own real estate sales but putting even that aside they come from real estate sales and later that calvert actually this fictional company calvert from and just to address the nd of those inferences the the nd theory that judge abrams embraced which was archer was just hiding the involvement of colonus i spoke about this earlier there was a lot more to hide here his involvement these bonds these proceeds are obviously coming from the st issue and given all of the circumstances surrounding him if the court would allow me i would like to briefly address that heavily promp preponderan great standard once more i think we need to mail down the standard so that i agree with that has to be the standard under these circumstance or something approaching it something akin to it because otherwise the district court is simply sitting as the jury was and the jury becomes superfluous that is not our system of criminal justice it also makes no sense to suggest that it's easier to throw out the verdict when it's just a matter of competing inferences as in this case that it is when there's perjury right and it doesn't it doesn't make sense u