[00:00:12] Speaker 02:
This court now resumes its session.

[00:00:14] Speaker 02:
Please be seated.

[00:00:18] Speaker 03:
Welcome back.

[00:00:20] Speaker 03:
The next case for argument this morning is United States versus Sassy Mizrahi.

[00:00:33] Speaker 04:
Morning, your honors.

[00:00:35] Speaker 04:
Thank you.

[00:00:36] Speaker 04:
May it please the court.

[00:00:37] Speaker 04:
Devin Burstein on behalf of Sassy Mizrahi.

[00:00:42] Speaker 04:
Your Honours, in this case, the investigation was incomplete, the evidence was insufficient, the jury instructions were inaccurate, and the guidelines were incorrect.

[00:00:54] Speaker 04:
For all of those reasons, and each of them, this Court should vacate Mr. Mizrahi's convictions, as well as the sentence.

[00:01:04] Speaker 04:
Turning to the sufficiency claims, to be clear, all of those claims

[00:01:10] Speaker 04:
are evaluated under the snapshot provision in Rule 29B.

[00:01:15] Speaker 04:
That is, they are all evaluated on the state of the evidence at the close of the government's case.

[00:01:24] Speaker 04:
At that point in the record,

[00:01:27] Speaker 01:
The evidence was insufficient as to each of the wires charged for counts one two three and four We believe yes, your honor Well, I mean didn't we had ten witnesses, but the only one who testified after rule 29 Was the brother and so before that we had six victim witnesses the FBI agent and the accounting witness, I mean wasn't there plenty of testimony from

[00:01:55] Speaker 01:
Rene Chitrat and her husband Tomer about, I'll use the word Sassy, I don't mean to be rude, but it's just easy, for the defendant, Mr. Mizrazi Sassy.

[00:02:06] Speaker 01:
Also, victim Dustar talked a lot about Sassy's involvement.

[00:02:11] Speaker 01:
Victim Yehaz Keeloff talked about

[00:02:15] Speaker 01:
Defendants involvement mr.. Moore did mr.. Ben egg be did right they all talked about him making Both both false statements as well as statements that he's their partner He supervises everything and there was an email that he sent or a text that he sent To his brother that said we're you know we've both been benefiting from it, and we're both in this together, right?

[00:02:39] Speaker 01:
Why isn't that plenty of evidence for sufficiency purposes?

[00:02:42] Speaker 04:
It is plenty of evidence for sufficiency purposes, but that's not the way this case was charged.

[00:02:47] Speaker 04:
So this case was charged with four specific counts of wire fraud.

[00:02:51] Speaker 04:
And we can decide this case, I think, Your Honors, as a matter of first principles.

[00:02:55] Speaker 04:
So we know, beyond dispute, that the government bears the burden of proving beyond a reasonable doubt every element for every count.

[00:03:03] Speaker 04:
So, hypothetically, if we have four criminal counts charged, the government must prove each element for each count.

[00:03:10] Speaker 04:
For wire fraud, what do we know?

[00:03:12] Speaker 04:
That an essential element of wire fraud is a material representation inducing the victim.

[00:03:19] Speaker 04:
As this court held in Miller to constitute wire fraud, the defendant must, quote, cheat someone out of something valuable.

[00:03:26] Speaker 04:
In the words of the Supreme Court in Kelly, the wire fraud statute prohibits only deceptive schemes to deprive the victim of money or property.

[00:03:35] Speaker 01:
And so why weren't the victims, the people that I've just named, and the wires that are identified in counts one through four sufficient to show that they were part of the scheme, they were in furtherance of the scheme, because they were infusions of funds

[00:03:52] Speaker 01:
to pay off earlier investors to keep the scheme going and I don't see any case law that said you have to necessarily have as the specific person identified an account.

[00:04:06] Speaker 01:
That doesn't have to be the victim as long as they provided money to keep the scheme going.

[00:04:11] Speaker 04:
Okay, so there's two responses to that and that is the crux of the matter and I think the briefs were somewhat talking past each other on this issue.

[00:04:19] Speaker 04:
So number one,

[00:04:21] Speaker 04:
The way this count this was charged they was charged with four specific victims right those are the victims that are charged in counts one through four It's not see I think this is a fundamental misunderstanding of something You can't just charge wire fraud as a count as just a wire.

[00:04:37] Speaker 04:
That's not the way things work It would be like charging 1326 and just saying alienage no for every count of

[00:04:43] Speaker 04:
You must prove all the elements.

[00:04:46] Speaker 04:
The government can put it in the indictment the way it wants, but due process prevails and requires every count to be proved on each element.

[00:04:54] Speaker 01:
Where do you get the statement that those four counts were charged with those people identified as victims?

[00:05:04] Speaker 01:
I suppose it's because

[00:05:06] Speaker 04:
say in count one it says victim JB victim investor BN right all right but exactly that's the victim of that wire fraud count you can't have a victim of a wire charge victim of a wire fraud count who's not a victim of fraud this is what this is becoming an overly complicated analysis of a very simple mischarging

[00:05:31] Speaker 04:
Situation you they charge as the court just read your honor.

[00:05:35] Speaker 04:
They charged count one victim JB count to Victim BN count three victim es count for victim KSV Though you can't be a victim of wire fraud if you are not defrauded

[00:05:52] Speaker 04:
So here's the second part of my answer to your Honour's question.

[00:05:56] Speaker 04:
Positive scenario in which we have a hundred investors.

[00:06:02] Speaker 04:
Fifty of them are legit.

[00:06:04] Speaker 04:
50 of them are fraud, okay?

[00:06:07] Speaker 04:
You can't just say, well, the 50 legit ones are fraudulent because there were 50 fraudulent ones.

[00:06:15] Speaker 04:
Those are legit ones.

[00:06:17] Speaker 04:
What if these people were told X, Y, or Z and they legitimately gave over the money?

[00:06:24] Speaker 04:
Let's just say we had affirmative proof that

[00:06:29] Speaker 01:
Victim in one JP knew exactly what he was getting into and signed up for it and said no problem Take that example though with the following twist If there was very little money left in the Mizrazi's bank account okay, and they had some real true victims as you've just described Climbering for their money where's the money right and so a defendant go the defendant goes to the victim and count one JB uh-huh and says

[00:06:58] Speaker 01:
I really need some money because I defrauded somebody else, and I can't pay him, and if I don't pay him, he's going to blow the whistle on me and then I'm going to be in big, big trouble.

[00:07:08] Speaker 01:
And JB says, all right, fine, here's some money.

[00:07:11] Speaker 01:
Under that example,

[00:07:13] Speaker 01:
J.B.

[00:07:14] Speaker 01:
has not been defrauded.

[00:07:17] Speaker 01:
However, his money is an integral part of the scheme continuum.

[00:07:20] Speaker 04:
I love this question.

[00:07:21] Speaker 04:
Right.

[00:07:21] Speaker 04:
And so I think a lot of it depends on what's charged.

[00:07:25] Speaker 04:
So if the government had charged that those true victims

[00:07:29] Speaker 04:
were the victims and not JB, then maybe they'd have an argument.

[00:07:34] Speaker 04:
But that's not what happened here.

[00:07:36] Speaker 04:
The government charged JB as a victim.

[00:07:39] Speaker 04:
You can't put in an indictment, you're a victim, and then not prove you're a victim.

[00:07:44] Speaker 01:
This is such a simple... You wouldn't have this argument if they just deleted the word victim right before the name JB?

[00:07:50] Speaker 04:
I think that's a stretch that doesn't quite reach, Your Honor.

[00:07:53] Speaker 04:
But I think the point is, this is the way this was charged.

[00:07:57] Speaker 04:
The point is they were charged as victims.

[00:07:59] Speaker 04:
Do you want me to posit another scenario?

[00:08:01] Speaker 04:
I think I just did, where it would be legitimate if they had charged, okay, well, you know, not to involve you too much, but let's just say Judge Simon is charged at the victim.

[00:08:13] Speaker 04:
And then they go to Judge Simon.

[00:08:15] Speaker 04:
And they go to Judge Sung and they say, look, Judge, you know, sorry, Judge, but you know, Judge Simon is the victim here, and I need you to give me some money, wire it over, because I need to pay back Judge Simon.

[00:08:27] Speaker 04:
And you said, you know what, we've been friends for a long time, Mr. Burstein, I'm going to go ahead and do that.

[00:08:33] Speaker 04:
OK, maybe in that situation they'd have a case.

[00:08:37] Speaker 04:
But if they charge, Judge Sung is the victim.

[00:08:41] Speaker 04:
And she knows exactly what's going on.

[00:08:44] Speaker 04:
How is she a victim of fraud?

[00:08:47] Speaker 04:
I mean, the Supreme Court keeps telling us the same thing.

[00:08:50] Speaker 04:
And we keep trying to minimize what they're telling us.

[00:08:55] Speaker 01:
Why isn't it circumstantial evidence that if the defendant were

[00:09:01] Speaker 01:
committing all this fraud against these other victims, the ones I've just described, that it's also reasonable to conclude, and at least the jury could decide whether the government has proven it beyond a reasonable doubt, but by circumstantial evidence, he did it to those folks, he did it to the others who gave him money.

[00:09:19] Speaker 04:
That is the exact thing that propents the evidence purports to say.

[00:09:23] Speaker 01:
Wasn't that allowed in several other cases out of circuit, the Lewis case from the 10th Circuit, the Freeman case from the 5th Circuit?

[00:09:30] Speaker 04:
No.

[00:09:30] Speaker 04:
And I'll get to those.

[00:09:32] Speaker 04:
Let me answer the first part of your question first and the second part of your question second.

[00:09:35] Speaker 04:
So no.

[00:09:36] Speaker 04:
I mean, that's basic 101 propensity evidence.

[00:09:40] Speaker 04:
He shot somebody before, so therefore we're going to infer he shot somebody again.

[00:09:43] Speaker 04:
No, that's not how it works.

[00:09:45] Speaker 04:
You can't do that.

[00:09:46] Speaker 04:
And so I would give you the quote from Durham, the Seventh Circuit case.

[00:09:51] Speaker 04:
At bottom, the government introduced no evidence from which a jury could reasonably conclude that these particular wire transfers were made

[00:10:00] Speaker 04:
the fraud scheme.

[00:10:01] Speaker 04:
And this court has said in Lopez, quote, suspicion or speculation does not rise to the level of sufficient evidence.

[00:10:09] Speaker 04:
Okay, so that's our binding precedent.

[00:10:12] Speaker 04:
But then if we want to go to non-binding, unpublished, out-of-circuit precedent, we still win.

[00:10:18] Speaker 04:
So let's talk about diamond.

[00:10:19] Speaker 04:
So diamond is the case, the first one they cite.

[00:10:22] Speaker 04:
It's an unpublished decision from this court.

[00:10:24] Speaker 04:
So what did we do?

[00:10:25] Speaker 04:
We went and actually looked at the brief from diamond.

[00:10:28] Speaker 04:
What did the government do in diamond?

[00:10:29] Speaker 04:
They did the exact right thing.

[00:10:31] Speaker 04:
The defendant's office manager testified against him and provided clear evidence that the non-testifying victims had been defrauded by the defendant's false promises to eliminate their mortgages.

[00:10:44] Speaker 04:
So there was clear, direct evidence of a material misrepresentation against the non-testifying victim.

[00:10:51] Speaker 04:
That's exactly what we're missing here.

[00:10:54] Speaker 04:
I mean, Diamond supports us so wholeheartedly that I'm grateful to my colleague for citing it.

[00:11:00] Speaker 04:
Lewis, which is the next case, Judge Simon, you raised.

[00:11:03] Speaker 04:
The government there used the non-testifying Vicknib's entire investment file to show that she was received, deceived, excuse me, regarding her investment.

[00:11:14] Speaker 04:
Nothing of the sort here.

[00:11:16] Speaker 04:
Freeman, not only was there extensive, these are the three cases, so now I'm on the third.

[00:11:21] Speaker 04:
Freeman, not only was there extensive documentary evidence, but a government, this is a direct quote, a government expert traced a $10,500 personal expenditure made by the defendant, excuse me, from the non-testifying victim's funds.

[00:11:38] Speaker 04:
I mean, that's as clear evidence as you could possibly have.

[00:11:41] Speaker 04:
That's not even circumstantial, that's just direct.

[00:11:44] Speaker 04:
I mean, that's the person seeing it raining outside, not the umbrella.

[00:11:47] Speaker 04:
So none of those cases hold here.

[00:11:49] Speaker 04:
This is a very simple thing, what has happened.

[00:11:52] Speaker 04:
And what has happened is, honestly, this is my friend here, but this is a different trial counsel for the government.

[00:12:00] Speaker 04:
They didn't even bother to interview three of the witnesses they charged.

[00:12:05] Speaker 04:
They didn't bother to get on the phone and call them and say, were you defrauded?

[00:12:12] Speaker 04:
We don't even have hearsay as to three of the four of them.

[00:12:16] Speaker 04:
This is honestly and respectfully nobody's fault but the government.

[00:12:23] Speaker 04:
They could have called them.

[00:12:25] Speaker 04:
They could have at least interviewed them.

[00:12:27] Speaker 04:
They could have charged all the wires that your honor just mentioned.

[00:12:31] Speaker 04:
Your honor started this with a list of victims the government called.

[00:12:34] Speaker 04:
They didn't charge a single one.

[00:12:38] Speaker 04:
Sometimes the government makes mistakes.

[00:12:41] Speaker 04:
And when the government makes mistakes, there are massive consequences.

[00:12:45] Speaker 04:
In this case, there are massive consequences for a person who has no criminal history, who has been serving 87 months in jail.

[00:12:53] Speaker 04:
The court should vacate his convictions and remand.

[00:12:56] Speaker 04:
We have many other issues.

[00:12:58] Speaker 04:
I'm happy to answer any other questions.

[00:13:00] Speaker 04:
But I know this court has a long calendar, and I'm almost at my rebuttal time.

[00:13:04] Speaker 04:
So I will sit down unless there is anything else.

[00:13:07] Speaker 02:
Thank you.

[00:13:08] Speaker 04:
Thank you.

[00:13:14] Speaker 00:
may please the court, William Glasser for the United States.

[00:13:16] Speaker 00:
I think there are two reasons why Mr. Mizrahi's argument fails.

[00:13:20] Speaker 00:
One is sort of the legal one with respect to what we have to charge in wire fraud, and another is a factual one.

[00:13:26] Speaker 00:
We think that we have adequately proved and a jury could infer

[00:13:30] Speaker 00:
that all four of the victims charged in counts one through four were themselves defrauded.

[00:13:35] Speaker 00:
If I can look first at the legal one, though.

[00:13:37] Speaker 00:
Judge Simon, as you pointed out, the government's understanding from Supreme Court cases that go back a long time is that in order to charge wire fraud or mail fraud similarly, we have to prove a scheme to defraud.

[00:13:50] Speaker 00:
We have to prove a few things like material misrepresentations.

[00:13:53] Speaker 00:
And then we have to prove the use of the mails, or in this case, a wire.

[00:13:58] Speaker 00:
The Supreme Court has never held, and has in fact held the opposite, has never held that we have to show that the specific wires were sent to or sent from victims.

[00:14:08] Speaker 01:
If you did not use the word victim in counts one through four and simply said, this money was used in furtherance of the fraud, I think your argument would be very, very strong.

[00:14:18] Speaker 00:
Sure.

[00:14:19] Speaker 01:
Why isn't it a problem that you used the word victim in counts one through four?

[00:14:23] Speaker 00:
Your honor, I think it's not a problem for two reasons.

[00:14:25] Speaker 00:
First of all, that would be a question of whether there was a variance from the indictment.

[00:14:32] Speaker 00:
And we think that if we were to look at this from a variance perspective, it would be an immaterial variance that doesn't matter and doesn't prejudice the defense.

[00:14:41] Speaker 00:
But secondly, he hasn't raised a variance claim here.

[00:14:44] Speaker 00:
This is the first time that I've heard this argument that it was really the problem was that they were charged as victims.

[00:14:52] Speaker 00:
If the claim is the government charged additional things beyond the elements of the offense in the indictment and then failed to prove them, then you would analyze that to determine whether there was a variance from the indictment.

[00:15:03] Speaker 01:
Your argument is that the complaint alleges a scheme to defraud that

[00:15:09] Speaker 01:
the various wires one through counts one through four were all used to further that scheme because they provided money when there was very very little cash left in the defendant's bank account

[00:15:19] Speaker 01:
And if they also alleged that these four wire-ers were also victims and they didn't prove that, it doesn't matter.

[00:15:28] Speaker 00:
That's absolutely correct, Your Honor, and that's our first sort of legal argument.

[00:15:31] Speaker 00:
Turning then to the factual argument, the reason that we named these people as victims is we think that the evidence showed that they were in fact defrauded.

[00:15:40] Speaker 00:
Although this wasn't elicited at trial, obviously, we did prove at sentencing that all four of them suffered losses.

[00:15:46] Speaker 00:
But as it relates to the facts here, in trial, we actually did have the FBI agent interviewed one of these victims, Eli Shalom.

[00:15:56] Speaker 00:
He subsequently moved to Virginia.

[00:15:58] Speaker 00:
And the reason that we didn't call all four of these victims to testify is that they were all in different jurisdictions.

[00:16:04] Speaker 00:
Three of them were in Israel.

[00:16:05] Speaker 00:
This is all found in the record.

[00:16:06] Speaker 00:
One of them was in Virginia.

[00:16:08] Speaker 00:
And the witnesses that we did call here who were local to the LA area, they all used cash or checks to give their money to the Mizrahis because they were all members of the same synagogue.

[00:16:17] Speaker 00:
So that's the reason that we didn't call them, but we do have evidence in the record, this is at 4ER-903, that Agent Schneider interviewed Shalom and reviewed documents with him.

[00:16:28] Speaker 00:
Agent Schneider testified that each of these persons were an identified investor.

[00:16:36] Speaker 00:
So the FBI agent testified these were investors, these weren't people who were just giving loans to the Mizrahi brothers to repay prior investors.

[00:16:45] Speaker 00:
And on the computer that was found in the office shared by both brothers, there were signed investor agreements for two of these victims that followed the same exact pattern as the investor agreements that

[00:17:00] Speaker 00:
were introduced for other victims that purported that they were getting these extremely high interest rates of two and a half percent or more over the course of a single month.

[00:17:09] Speaker 00:
And there was also a 2018 email introduced from Mati, the younger brother, saying that the goal was to maximize profits while managing your investment in a reliable and responsible manner.

[00:17:22] Speaker 00:
And we think that

[00:17:23] Speaker 00:
there was overwhelming evidence that this whole thing was a Ponzi scheme and in fact there was no there was no reliable and responsible investment taking place at all.

[00:17:32] Speaker 00:
So we think that the jury could infer from the evidence here that all four of these victims were in fact defrauded.

[00:17:38] Speaker 00:
So those are two reasons to affirm with respect to counts one through four.

[00:17:42] Speaker 01:
So what's the direct response then to the argument that says, no, that's just a propensity argument?

[00:17:46] Speaker 00:
Your honor, it's not a propensity argument.

[00:17:48] Speaker 00:
A propensity argument would say someone has done a bad thing in the past, and therefore that person continues to act on that same way in the future.

[00:17:56] Speaker 00:
It's a very different thing to prove up a scheme to defraud.

[00:18:00] Speaker 00:
Say there was rampant fraud going on here in Big.

[00:18:03] Speaker 00:
This was a Ponzi scheme.

[00:18:05] Speaker 00:
And then to say, by the way, here are additional people who engaged in exactly the same kinds of transactions, feeding money into MBIG.

[00:18:13] Speaker 00:
And for the jury to conclude that was all part of the scheme.

[00:18:16] Speaker 00:
That's not a propensity inference.

[00:18:19] Speaker 00:
If the court has questions on any of the other issues raised in the brief, I'm happy to address them at this point.

[00:18:26] Speaker 03:
Thank you.

[00:18:27] Speaker 00:
Thank you.

[00:18:27] Speaker 00:
We ask the court to affirm.

[00:18:36] Speaker 04:
Thank you, Your Honors.

[00:18:37] Speaker 04:
Just briefly, scheme to defraud who?

[00:18:42] Speaker 04:
It's not just... This is what's been bothering me, I think, this whole time in this case.

[00:18:47] Speaker 04:
Scheme to defraud who?

[00:18:50] Speaker 04:
Who are the alleged victims of this scheme to defraud?

[00:18:54] Speaker 04:
We can't just talk about this scheme to defraud in the air as if it's in the ether.

[00:18:59] Speaker 02:
No, you... Fraud... Can you adjust your opposing counsel's argument that you do not make this argument below?

[00:19:05] Speaker 04:
Of course we...

[00:19:07] Speaker 04:
Of course, we make the argument below.

[00:19:08] Speaker 04:
I mean, we make it all through our briefs that this is the whole problem, that they didn't prove the victims.

[00:19:14] Speaker 04:
I mean, if we do a control F for victims in the briefing, we'll find it again and again.

[00:19:20] Speaker 02:
And to the idea that... That's specifically the issue with the naming of the victims in the counts.

[00:19:28] Speaker 02:
Can you point me to where?

[00:19:30] Speaker 04:
All throughout our brief, that's the whole premise of our brief, is that they didn't prove the victims in count 1 through 4.

[00:19:38] Speaker 04:
And to the extent he's claiming it wasn't raised below, that's also false.

[00:19:42] Speaker 04:
I mean, I wasn't the lawyer below, but I can give you all the quotes because I... Was the variance argument raised below?

[00:19:47] Speaker 04:
That's not the... That's a red herring.

[00:19:52] Speaker 01:
Why?

[00:19:53] Speaker 04:
Because we're raising an insufficiency of the four counts charged.

[00:19:57] Speaker 01:
But if we think the four counts really were used, their money was used to further the scheme to defraud and that there's sufficient evidence of a scheme to defraud and the victims were the six people that I've identified, the five investors, one was a married couple, then we've got sufficient to the evidence.

[00:20:17] Speaker 01:
Government is arguing that at most we've got here is a variance because the word victim was used in counts one through four when it probably should have

[00:20:25] Speaker 04:
It's a distraction, and I hope the court doesn't follow down this path.

[00:20:29] Speaker 04:
It's a distraction because, again, going back to first principles, don't follow this line.

[00:20:38] Speaker 04:
You have to prove what you have charged.

[00:20:41] Speaker 04:
You have to prove what you have charged.

[00:20:44] Speaker 02:
There's no ever possibility of a variance?

[00:20:47] Speaker 04:
Oh, I mean, there is always a possibility of a variance.

[00:20:51] Speaker 04:
But here, we don't need to get to variance, because we have a fundamental failure to prove that the charge counts.

[00:20:57] Speaker 01:
Well, I'm looking at the first superseding indictment.

[00:21:00] Speaker 01:
Okay.

[00:21:02] Speaker 01:
Beginning at section C, the misrepresentations, paragraph 9, they talk about misrepresentations to various victim investors.

[00:21:09] Speaker 01:
Okay.

[00:21:10] Speaker 01:
They just don't name the victim investors, but they charge that there was a scheme to defraud,

[00:21:15] Speaker 01:
scheme to defraud victim investors at trial we see evidence from the six victim investors that I've already named and

[00:21:24] Speaker 01:
Okay, why isn't that enough?

[00:21:25] Speaker 01:
Because you have to have a victim.

[00:21:27] Speaker 04:
Fraud doesn't exist without a victim.

[00:21:28] Speaker 04:
Yes, the six people that I've named.

[00:21:30] Speaker 04:
But that's not what was charged, Your Honor.

[00:21:32] Speaker 04:
I mean, we can go back.

[00:21:32] Speaker 04:
I mean, I think we're going to come at an impasse here.

[00:21:36] Speaker 04:
Our position is that the government has to prove the charges it's laid.

[00:21:42] Speaker 01:
But if the government charges that there was a scheme to defraud and there was an investment of a number of victims and they don't name who the victims were,

[00:21:52] Speaker 01:
They go to trial, they present the victims, the victims testify, and the jury finds the evidence sufficient.

[00:21:58] Speaker 01:
What's wrong with that?

[00:21:59] Speaker 01:
If a defendant wanted to say, hey, we can't adequately defend this.

[00:22:03] Speaker 01:
We don't know who the victims are.

[00:22:04] Speaker 01:
Well, fine.

[00:22:05] Speaker 01:
That's what a bill of particulars is for.

[00:22:07] Speaker 01:
If the court could look at ER 1385.

[00:22:09] Speaker 01:
What will we find there?

[00:22:14] Speaker 01:
You will find the verdict form.

[00:22:16] Speaker 01:
OK.

[00:22:16] Speaker 01:
I've got that in front of me.

[00:22:27] Speaker 04:
verdict form.

[00:22:30] Speaker 04:
What did the jury find on the verdict form?

[00:22:34] Speaker 04:
We the jury in the above captioned case unanimously find defendant guilty of wire fraud as charged in count one of the indictment with what?

[00:22:42] Speaker 04:
With respect to the wire clearing a check of approximately a hundred thousand dollars on the victim JB's JP Morgan.

[00:22:50] Speaker 04:
What do we find in count two?

[00:22:53] Speaker 04:
We, the jury, find the defendant guilty as charged with respect to the wire of victim investor BN.

[00:23:00] Speaker 04:
Count three.

[00:23:02] Speaker 04:
We, the jury, find the defendant guilty of victim investor ES.

[00:23:07] Speaker 04:
And count four.

[00:23:08] Speaker 04:
You know where I'm going.

[00:23:10] Speaker 04:
You can't prove that's what they had to prove.

[00:23:12] Speaker 04:
This is not a matter of a variance.

[00:23:14] Speaker 04:
This is a matter of insufficient evidence as a first principle.

[00:23:18] Speaker 04:
That's why you can't do what my friend just argued to do.

[00:23:22] Speaker 04:
That's not what was charged, and that's not what the jury found.

[00:23:25] Speaker 04:
If this court can find evidence in this record to support that verdict form, I lose.

[00:23:31] Speaker 04:
It can't.

[00:23:32] Speaker 04:
I should win.

[00:23:33] Speaker 04:
The count should be vacated.

[00:23:38] Speaker 04:
Thank you.

[00:23:40] Speaker 03:
This case is submitted.