for rebuttal i think the problem in this case started with the language in the indictment although i'm not sure anyone including the government realize that until the jury came back with its question during deliberations and the jury asked there's two defendants in this case they're both charged with conspiracy for count one can we find one guilty and the other not guilty so the parties discuss that and it is true that the court pointed out and the government pointed out that  been charged that mr tell me a mystery together and with other persons did conspire but the other persons of course were not named in the indictment and when judge rogers began to ask how could i loud the jury to come back with anyone else being guilty as the other person in this conspiracy the government suggested that it could be dealer at zero and judge rogers this is page three thirty eight of day eight of the trial transcripts i think got it right when she says that that's not what you charged you charge these two men a conspiracy the only evidence of dealer at zero was youth achievement league there's only one reference to y l in this indictment and that's on page two where it just states and she goes on to describe where it only referenced y l one time in the indictment of course the jury ultimately came back with a guilty verdict against my client for all eight zero eight counts including the conspiracy and they found the code if in a mystery not guilty of all eight counts including the conspiracy and notably the judge told them that if they were going to find one defendant guilty and the other finot not guilty the jury must specify on the verdict who the other people were that guilty defendant conspired with and the jury came back with a dealer at zero and mercer and bond now let me quickly address mercer and bond because i submit that that you can easily determine that there was no charge and no evidence of a conspiracy involving those two in this case simply by looking at the closing argument of the government in this case now and it's answer brief the government has gone to great lengths to try to put together a conspiracy between my client and those two individuals but during the government's closing argument not once but twice both an initial closing argument and  bond's name and mr mercer's name was not mentioned a single time so clearly if the government's theory in this case was that these two people actually witnesses who testified in the trial were involved in a conspiracy with my client you would expect the government in their closing argument when they're trying to explain and connect the dots for the jury as to all the evidence that supports the charges in this case would have mentioned those two individuals again two people that actually testified would have mentioned them at least wants but they're not mentioned a single time and again that judge rogers and her j away order also didn't find that there was any conspiracy regarding those two so i submit that the evidence regarding those two is not sufficient to support a conspiracy for count one regarding my client and i also submit that there would be a constructive amendment if if the court were to try to uphold a conviction based on that i think eeks is also easy to figure out the government's conceded in their answer brief and i appreciate their candor in this regard although this court in andrew's gob vacated or receded from the rule of consistency idea that if one defendant is acquitted  a conspiracy charge that means that the other defendant who's convicted the you must also set aside that conspiracy charge but this is different from the ender's case because anders did not involve specific verdict form where the jury listed who the conspiracy was with in this case the jury did specify three people none of which who were eeks and in that situation it would be a violation of my client's sixth amendment rights to still up hold my client's conspiracy conviction based on an alleged conspiracy with when the jury has pacifically found that there was no conspiracy with the so the whole case comes down to deal or at o and i've argued in the brief i've and that's the sense with a j argument i'm limited to the same things that defense counsel argue below that there is insufficient evidence in this record to support a conspiracy finding regarding dealer at all in my client but i think just as importantly if not maybe even more importantly i really want to focus on the construct of a minute issue the judge rogers began to hit on when this issue came up during during  defraud people the government's pointed to some documents that were submitted by the mississippi secretary of state i submit that there's and equally possible innocent explanation for mr d or at those response to the secretary of state mississippi that  he explained that they were in the process of potentially trying to open up an office in mississippi and that after i believe exactly after fundraising expenses the rest of the money went to charity again that could be construed as that you're paying the people that are attaining the fund the funds for the fund raising and that would be consistent with the idea in this case certainly i understand the theory wasn't there didn't that your client that testified that he had run the idea of keeping as part of the script that one hundred percent of the funds went to charity run that ideal rattus suggesting dealer and his knowledge and were to be doubling the same his knowledge that was not accurate to the charity i mean i guess i know we're missing words and that was the defense in this case that it's one thing to say that one hundred percent would go to charity it's different to say that one hundred percent would go to the charity because my client's explanation is that's true he is the charity or is that these two businesses c f s and c c s are the charity and therefore  they would pay their employees within the charity and the rest of it would go to the charitable cause so again i think that's a closer issue i'll stand by what defense counsel argued below but i do want to focus in on this constructive a minute issue because if you look at this indictment just as judge rogers indicated where is there any evidence that the government is arguing a theory of a conspiracy involving y a l in this indictment you beginner about the standard or if you agree it's a plain error standard nobody objected so that this issue that been delved into that the district court unfortunately i think defense counsel was caught off guard because it was brought up for the first time in jury deliberations but yes this is there is not an objection regarding the construct of amendment during the proceedings below so it is a plainer review for this court but nevertheless i think you can reach a plane or a finding based on the plain language of this indictment if you begin focusing on the manner and means of the indictment paragraph one specifically references the fact to my client created that the two charities c f s and c c s no mention of y a l in that paragraph why it was mentioned the only time in this indictment and it's mentioned really in passing in paragraph two that there was other entities that were used and why i was one of the ones that mentioned but then when you go on from there paragraph three tomean eeks use the charity for that for these purposes for it specifies tomean east paragraph six same thing only mentioned c f s and c c s no why well and then you go down eighty nine again you only have c f s and c c s being mentioned no why a l and why is this a problem i submit you can also again look at the government's closing argument s and c c s so when might the client's attorney defense counsel during the trouble though is responding to the charges in this case based on this indictment is responding to the allegations made by the government in its closing argument the focus is on is there a conspiracy involving my client and anyone else whether eeks or anyone else involving c f s in c c s it's not fair for the government after the fact only when the jury brings up this issue for the first time in deliberations from her defense counsel to have to somehow respond to what i think it's not fair because defense counsel couldn't respond to the closing arguments were over there was no more evidence or argument to be presented and for the first time this idea has been brought up that there could be someone else and more of an uphill battle when it comes to a material variance argument based on the evidence but it's not that when it comes to the constructive amendment because a constructive amendment you focus on the language in this indictment and i submit that nobody reasonable attorney no reasonable defendant would be put on notice as is required of the fifth amendment to think that this is alleging a conspiracy between my client and activities regarding y l and dealer and oh it just doesn't allege that paragraph after paragraph after paragraph focuses on two entities c f s and c c s that's completely separate from why the government argued that these came about after you were at or had already formed y l in indiana in two thousand and six i see that i'm into my rebuttal by noting you know mr tony has emphasized over and over that the government didn't focus on bond and mercer in closing arguments what the government says in closing arguments is not evidence the jury's constantly instructed to that but i guess more to the point of the indictment he says there's no way the indictment could have put mr tommy on notice  court below i understand the stand and the government did in response to the initial motion for judgment of acquittal did make the argument the dealer rather was a one the conspiracy this is before the defendant had presented his case and the government argued in response to that the dealer rather was an unnamed coconspirator in the indictment and to that point in the language of the indictment does focus on  children family services and children terrible services but the date of the indictment august twelfth two thousand and eight predates the creation of both of those entities so looking into the nature of the scheme that's described in the indictment about the material misrepresentations that were made and furtherance of this conspiracy august twelfth two thousand and eight could only refer to the acts of youth achievement league second to that point which was alleged to be one of the organizations that was involved in this case it seems like that's an argument for the other side i mean i don't believe so your honor because if you're looking at the date of the  children's family services was not an entity that exit was in existence at the time it came into existence in december of two thousand and eight and then children charitable services came into existence and february of two thousand and ten so the scheme that's described in this indictment at least before december of two thousand and eight could only refer to the cheaply but there's another point that i would like to me made in that this case but there is another point that i would like to make and that is that ohio children services is also mentioned in this indictment page four section six the paragraph b what the united states postal service against mr tommy and that was an action brought against the united states postal there's been any dispute that children family services and children charitable services have been sufficiently alleged in this indictment and although bond and mercer are not mentioned by name there's no dispute in the trial evidence that they were board members of both those entities and someone reviewing this indictment would reasonably be on notice that those those corporate entities the board included would be implicated in this conspiracy and this scheme as described in the indictment so you know based upon that there is evidence in this record that mr tony conspired with amendment right so at the end of the day counsel decided against calling him to testify mr thomas defense so certainly mr told me in reviewing this indictment and you know i will say that the ratto came up multiple times during trial and there were no objections to any of that testimony is being outside the scope of the indictment what's the rado's interactions with the secretary of the mississippi secretary of state now she had reached she had reached out to mr dealer at all because mississippi children services had not properly registered trial beginning at page twenty seven is where this testimony appears because you've achieved mentally in mississippi children's services have not had not properly registered to operate in one hundred percent of the funds raised by mississippi children's services were going to charity that there were no administrative costs because his office was covering the administrative costs now we know that's not we know that  lorenzo knew that was not true or at least it's reasonable for a jury to infer he knew it wasn't true because he was president of you that you admit lead it's a reasonable inference that the president of used achievement league would know whether or not a subsidiary mississippi children's services had an office perpetuating through mississippi children services right it was the same narrative that that mr dealer read it well it was a consistent narrative that mississippi children's services had an office in the state that one hundred percent of the funds were going to  real evidence testimony that the two of them conspired i mean i understand it's consistent with your theory of the case but right well your best evidence is that the mississippi secretary of state spoke with mr ste trial his explanation was that that was to pay you the chief that are his subsidiary the children's services organizations operating underneath us that used to keep it lee that mr dealer do the right o paid that payroll so mr taylor right at the time you spoke with mississippi children's services certainly knew that his his agency wasn't covering mississippi children services administrative costs right because he was paying the payroll and he was being reimbursed by the defendant mr tell me through mr tony's accounts for mississippi children's services he also knew that there was an office at least the office that ran mississippi children's services was in mississippi because he was sending payroll checks to employees in florida so based on that evidence the evidence the defendant test provided when he said that the idea for this charity model you know  fundraise directly for came from mr dealer rado both of whom had annexed a long background in the telemarketing industry in the the in profit sector but there's also evidence that the defendant mr told me discuss his charity model with mr tudor loreto and so taking all those facts together in addition to mr dealer i doze false statements the to the mississippi secretary of state's office which arguably you know if were made in further conspiracy right it was consistent with how that conspiracy was being conducted in mississippi was consistent with how the conspiracy was being conducted everywhere else and it was consistent with important what was on the  that the defendant had been sending out on behalf of mississippi children services so based on the totality of all of that evidence the government's position is a jury could reasonably infer that mr dealer  aware of this scheme and willfully participated in an act in furtherance of the scheme it doesn't have to be that he was constantly involved and during everything along along the way one act in furtherance to conspiracy knowledge of the conspiracy is sufficient to sustain the jury's verdict in this case but again the government's position is that this court is not limited to the evidence a soul of mr dealer out of this court can look to the evidence of bond who were both  board members of children's family services and children charitable services shute testified that the where ness of the entities many regulatory hurdles right all witness mercer and bod were aware that the organization had encountered problems in arkansas so as well as other board members and the board including mercer in bonn testified consistently that mr told me was open with this information that it was provided to the board although they couldn't recall a lot of specifics so certainly the board was on notice of the administrative issues and problems and arguably reason was abuse of the fraud that was being alleged to end this scheme that the representations made by the solicitors  were were misleading and intentionally unknowingly so let me ask you about a housekeeping matter before you sit down governments exhibit thirty four is under seal it's a timeline of events are you familiar with th conspiracy charge stick against my client for something that my client was put up never put on notice on or for and for something that the government has an alleged if you read this indictment the only fair reading is that the government thought that there was a conspiracy between my client and mr eeks or anyone else involved with c f s m c c s time and time again almost every paragraph in this indictment references those two entities and now after the fact that you would agree and it's been standard practice for decades that and documents always say and other conspirators not knowing and and that that is something that happens from time to time were where the jury may reach out and focus on one of the unnamed conspirators as a basis for the conviction you don't disagree with that as long as that scheme is consistent with what's alleged in the indictment and any scheme involving mr dealer eto is not what's alleged in this indictment it's just judge rogers had it right she said it on page three thirty eight there's only one reference to youth achievement league in this indictment and that's on page two where it just states kerry tomie also incorporated other entities as part of the scheme including you to cheat in league that's the only reference to it there's no reference to mr dealer at all whatsoever and youth achievement league is never mentioned again and as you know you've achieved in league was incorporated i guess well in two thousand and six and mr tony was gone from that business i don't know i submit that the reason the government was putting that on is because they were trying to just as they are getting closing here's the genesis of this back in two thousand and six mr dealer adam had already started y a l in indiana and that's mr my client was working zero at that time and that's where he got the idea the idea that's the focus of what we're charging in this case is a conspiracy which is then mr tell me goes on to form the two charities at issue c f s and c c s that's the basis for it that's the way the evidence came in the record in this case that's the way the government argued it they were providing this background regarding dealer at zero because that's where mr tommy got the idea and now but we're really focused on what happened and again if you read indictment the allegation is there's a conspiracy involving these two charities not y l there's a slight reference to it and buried in paragraph two when there's reference after reference to the other two charities that are the focus of this case so again the government got its convictions for the substantive counts but after the fact when the jury comes back and says we don't think that there's a conspiracy as your last alleging between eeks and mr tell me but can we find that someone else may have been involved in a conspiracy well otherwise i guess they could but you know just because the government missed mention dealer at zero in the judgment of acquittal argument which was actually after my client already testified that doesn't change the indictment doesn't allege like you are you then morphing to an argument that there was insufficient evidence to support leave aside a variance or insufficient evidence to support a funny conspiracy between the loretta on your client i think i don't think there's very strong evidence in this record to support that conspiracy and i stick by defense counsel's argument below  so i think there is a argument on appeal that there is insufficient evidence between the lawyer at zero and my client but beyond that i think that's actually stronger argument is there is a constructive amendment if the government after the fact is trying to create a conspiracy between i would do i think if you agree and i think i hope you do that this there's no proper charge and potentially no evidence that supports a conspiracy the conspiracy conviction should be reversed and the case should be remanded for recency on the remaining counts why would that mark you were on that panel and ultimately it was sent back in that case when one of the counts was overturned for recent seen on the remaining counts and i submit that that's what should happen in this case as well thank you thank you the presentation now i'll call the case of john pen