we raised in our appeal for basic areas of litigation for main issues and i was going to address them in the order that they appear in the reply brief  certainly there's a lot of ground to cover if the court want direct me to any specific issue i'd be glad to take those on purpose but as far as that first issue was defense exhibit two thirteen which was a document an e mail that we had tried to bring into evidence through the government's witness and that we thought was a critical bit of evidence and the court disputing that she did that two thousand and six e p a letter she was saying or through our defense in and testify that she did not remember or would was less likely to remember having done it because it only took twenty two minutes of her life to respond to the requests for the letter and that the information the specifications for what it was put in the letter was given to her by jesse rodriguez an e mail exhibit one which are two thirteen lies to an end to thirteen we thought it was very critical to her defense because it actually in that missy is tells rodriguez what the letter should say and that was corroborative of our defense that she would remember this three years later when somebody shows up at her office shows of one letter not any other documentation and  asser she did this letter and then three weeks later she's before the grand jury same thing none of the other evidence that was brought in the trial was ever shown to her went through this question before the grand jury so our defense was that this was very important and also that it wasn't hearsay we offered three exceptions or three grounds for the court to consider one that it was not hearsay we were trying to prove the contents of the letter that the that the  challenge his credibility he testified as to all the documentation he knew how the e mails were preserved he laid the he was able to lay the foundation i believe for business record exception for this e mail through him  court staying the government's objection to that on authentication grounds but he was actually a witness with personal knowledge of the e mail and how it was prepared to dismiss a competitor to write so could you call rodriguez written promises that she wouldn't be prosecuted she was doing it on a promise implied or inferred from the government then calling her as a witness was was just too risky for the defense i had no idea what she would say we were never given an opportunity to interview her our opportunities were all turned down except on the day of trial and she showed up with her lawyer and the government prosecutors side by side so that was just not really a possibility so i'm interested in in the verdict form that's what i'm really interested in because you know i'm a trial judge ok so you get the verdict form it's got a blank on the blank the jury puts and guilty or not guilty right that's what the what the verdict form was well that unfortunately in this case it was different because it had a reasonable doubt to say you didn't pick it up when you saw it the first time well you didn't pick it up and the government didn't pick it up and the judge didn't pick it up what difference does it make to the case of the if the instruction is the same for it is right for the rest of the instructions well it's and that is your road and guilty right it's correct though that's the problem and it does fail under the standards of louis sullivan versus louisiana where a reasonable doubt and inaccurate or incorrect result the jury instruction was not wrong they gave the correct jury instructions on but the verdict was wrong on and the government concedes that the verdict was wrong for now want to talk about right but that's the only that form is the only place where the burden is shifted to the defense to show beyond a reasonable doubt that they're not guilty and that was verdict form was not sitting in the courtroom for hours before it was shown up at the very end of proceedings where i had requested a specifically different verdict form a direct i no case where somebody was fighting vigorously over the verdict form and then it was considered plain error and i think that's a big difference and i think you also have to look between the lines a little bit on this case and it might be going from the record i think you can read this from the minutes and things that are in the record is that governing council waged basically a war of attrition and it wore down the court and possibly myself by the time we saw that verdict for though and they didn't get to sleep on it and i've been doing this long enough that i don't think there's a juror in the world who doesn't think about the case after closing argument so that you waited you didn't read that verdict form between the time that was submitted in the time the jury verdict came in and you could have said to the judge wait a minute judge we've got a bad verdict form we should change it so the jury doesn't get confused i saw when the first time i saw that defect  d i didn't sit on it the first time i saw the defect on it was one after he came back after the third ok and the court had to had read it to the jury as it was and i don't think that harm i believe it is structural error because i think that the shifting the burden of proof to the defense to acquit themselves beyond the reasonable doubt is structural error but harmless beyond a reasonable doubt the court made rulings that you also have to look at the strength of the evidence but also the the the reliability of it the admissibility of it i think certainly when you look at the sufficiency of the evidence you have to look at the evidence that shouldn't have come  still consider that that's what the rule is but there's no rule that says harmless really beyond a reasonable doubt requires reviewing court to ignore errors the district court may have made in failing to admit or middling objectionable evidence such should not have been admitted and i think in this case there was evidence like that and i don't think we could go only by the amount of time that the jury deliberated the following issue but i think that to think that needs to be pointed out is that this was not a fraud trial was not a conspiracy trial it was not a trial about whether this is you know it two thousand and six letter to see thousand and seven letter therefore had less provocative value to the district court's analysis and in fact the court even in its own ruling prior to trial and we cite this in our excerpts for a corby ruling and that's what the site i just gave was it said that it was that it was for all corby that two thousand and seven letter unless and possibly inextricably intertwined which it was not and i think the the jury findings as to which false statement the government objected that issue was first raised at the very outset of trial i'm not sure that we didn't agree with it and then that start your five fifty how did this verdict form come to be given to the jury so starting at five fifty nine that the parties returned to the courtroom and the judge has essentially two versions of the verdict form both of them have the problematic language in there about beyond a reasonable doubt applying to the not guilty one of them apparently has the listing of the two false statements admitted that the defendant submitted it wanted to make sure because there were two statements right yes and the defendant wanted to make sure that we knew that all of the jurors are great beyond a reasonable doubt as to at least one statement right correct because it could be one or two but let's say some thought one was then another thought the other wise and i think they were trying to break that out and the court said no we're not doing that yes the court said there's a separate instruction that neither of these trigger any sort of mandatory minimums it's not the type discussion of the two forms there and both have this problem but then nobody picked up on that correct the only discussion and dispute was as to the second half was whether it includes the two or or not  alternately the court came around to the government's position and said we're not going to break that out at the end but that issue of the problematic language was there all along and no one said a word about it and if you look at even at the objection after the jury returned its verdict the defense counsel says i wish i would have thought of this sooner and the court says yes it's too late at this point so how far back does that go with there was some discussion at the beginning of the trial about this issue wasn't there how is harmless error applied what are the factors that would make it harmless there yes your honor i think to answer the first question it's this case is let's say let's just say if that jury instruction said the defendant must prove himself not guilty beyond a reasonable doubt would that be structural error if the jury instruction had said that if that's all the jury instructions that's all they said i think  people must prove the defendant guilty beyond a reasonable doubt before he can time but the defendant must prove himself not guilty beyond a reasonable doubt before you can find him not guilty but that's a structural error that would be close to the facts and s still think at that point what the court the supreme court and sullivan said well i don't but we don't have and that's not what happened here i know that they gave the right jury instructions but i'm asking you if they had given said that before you find the defendant not guilty you must be convinced beyond a reasonable doubt and agree to that unanimously with that the structural error in the case and possibly not your honor and i think if the other half also said the jury has to find beyond a reasonable doubt that the defendant is guilty what the issue and so i hope you never get that instruction i mean i hope you never proper that instruction because what the court said in sullivan was the reason that it becomes structural error to have a faulty reasonable doubt instruction is because it takes away the role of the jury all together the supreme courts of that they can view what the verdict even if the verdict this not have to be beyond a reasonable doubt a not guilty verdict means the prosecutor has not  yes or and so if twelve people say i don't know whether you're guilty or not but i do know that the prosecutor didn't meet the burden of proof so it's clearly erroneous you just say you can only vote not guilty if you all agree that he is not guilty beyond a reasonable doubt absolutely let's review that here on a verdict form right in this is different and the instructions were correct and that was the point i was to make on her all throughout the trial starting at the initial instructions continuing on the elements instruction on the final instruction and even in the government's closing argument again and again the court stressed that it is the government's burden there's two main ones your honor first what i just described the fact that all of the other jury instructions uniformly gave this the correct burden of proof so the idea that the jury's still somehow flipped it and came out the exact opposite way when they were instructed three separate times about the problem or in the strength of the case matter yes and that's the second point that the weight of the evidence in this case was overwhelming your honor and the jury returned a verdict in essentially one hour of deliberation so that that also goes to there's no suggestion that the court was or that the jury was somehow divided or couldn't agree on a verdict and maybe this idea that some of them wanted to vote not guilty but thought they had to reach beyond reasonable doubt to have to find him not guilty or find her not guilty none of that it's but a very unlikely that they likely would it be harder to prove harmlessness if the jury had asked questions about the verdict form and the court gave around advice on that yes absolutely if the jury came back and said we're split six six and half of us want to vote to acquit can you explain what the burden are the first they couldn't tell us the number three days went by and they asked for a further explanation about what the burden of proof was for a not guilty verdict in the court continued with us around his language then absolutely that that then you'd be in a potentially harmful realm but in this case given the strength of the evidence given the brief amount of time that the jury deliberated appellant simply hasn't met their burden of showing arms there so is there any place in the instructions that the judge gave that says that uses the word reasonable doubt except the defendant's guilt no you and so if you look at this verdict form it says reasonable doubt blank so isn't the jury going to think they have to put guilt if it's going to be reasonable doubt no i don't i mean i think what i'm saying is it seems to me that this verdict form might be ambiguous at best and if the only place in the entire jury instruction that talks about reasonable doubt doubt has to do with guilt as opposed to proving beyond a reasonable doubt innocence the only way you can really you could read this instruction is saying if you're going to find beyond a reasonable doubt something that has to be guilt well your honor of it i would i don't think that that's a clear interpretation of the language and i think when you view all of the the court's instructions in totality along with the verdict form we can't say that the jury that the defense hasn't shown that number of reasons why the court should have allowed it into evidence the problem was this was coming in while the government's case agent was on the stand sort of through cross examination of the government witness the initial argument was that under the rule of complete s that this e mail should have come in because the other e mails were around the same time and involved the same party but there's nothing about this second e mail that in any way distorted or made unfair the e mails that the united states brought in  and to the extent the defendant tried to get these and as a business record through the case agent the relevant transcript at your fifty fourth or fifty five shows that this case agent it's clear he wasn't even aware that he was serving as a custodian in response to these questions of sort of a confusing exchange as to what these e mails were and what the practices of the company were and he earlier testified that he got this e mail through a search warrant on the yahoo account so he was not a custodian of records that the court even told the defense afterwards you can bring this in and your case called this missy is she was there in the courtroom there was a lot of discussion about her taking the stand ultimately they decided they presented it might recall and be eaten in the defen case and bringing the rest of the e mails with the government if checked into that he still wouldn't have been custodian of records for the terror of finance companies so at maybe if they develop the even a certificate from a custodian of records what about enough to get it in or miss missy as yourself to talk about what was in the e mails so that there are a lot of avenues this specific one cross examining the case agent to get it in under rule of completeness or as a business record was just not consistent the follow up on that the last discussion on the e mail the the rule eight zero three six says that the conditions of the foundation have to be shown by the testimony of a custodian or another qualified witness the fact that i was able to commandeer agent court tariff of five minutes of his entire testimony doesn't mean he's not qualified he laid the foundation for everything he investigated the case  well at that point in time i'd be honest with you the business record exception came up then hit my head and that's when i went for it there was no other witness the government had been called there any any of the other people custodians to testify they relied on on the certificate in fact they relied on it i think to their detriment because we're arguing that this is novo review on this issue because the court excluded necessary defense evidence for want and also it's it's choice of what rule to apply the government objected they said it wasn't authenticated with a certificate that's the self authenticating record this was authentic aided by a witness who is better than a custodian of records because he actually knows what was going on in those records and he was the one that dug them all out and put them in order so i think that that is a critical and he was qualified to do it more qualified than anybody else it just came about a unusual way as far as the verdict form is concerned the court did drafted the v party's viewing it came up at the very last minute looking at the strength of the evidence i think the court should  course should consider the two thousand and seven letter c p a letter as something that shouldn't have come in and that does weigh on the strength of the evidence and also on this exhibit d two thirteen we don't know what the trial jury decided on which statement because there was no direct the verdict if they found her guilty because of the first allegation that she had heard of jesse rodriguez the record is insufficient because when she was questioned she was asked do you know r s k which is a company named jesse rodriguez trying peterson in succession and she said no no no then she was that  you heard of either of those names before and she said no well which two of the three were they asking that they any time there's been any appellate decisions on perjury and false statements the onus is always on the person asking the question to be crystal clear in what they're asking for and in this case they were not crystal clear they asked have you heard of those names and we don't know which one she was saying no to and  also the context had to be looked at that up until the moment she testified before the grand jury the name jesse rodriguez had never been mentioned to mrs spinosa since two thousand and six when she did that letter so when the agents came to her office in two thousand and nine days didn't mention it they didn't show any of these other documents and when they put our understanding before the grand jury that was the first time jesse rodriguez's name was ever mentioned so i think that narrow focus of what was going on in her mind whether she knowingly made a false statement about hearing the name writes i'm allowed you to come over so thank you if you would wrap it up that would be excellent thank you