on a couple of days before the trial started on april nineteenth in this matter we received two letters one on dated the seventeenth and one day the eighteenth which provided us with information that two women  convinced her through what i would suggest were false representation that allow the use of her mailing address and it was determined that katrina checks passed without mailing address i received a letter the next day i believe the day before the answer my first question there's nothing that indicates that he told either of these women these are katrina relief checks oh right that's that's correct i think that i mean my the way i read the letters that you know that there were  it's my position that these were disclosed as essentially exculpatory materials and i think the government did its duty in disclosing them and so i think it's fair i think it's fair to say that there were misrepresentation well i would take the position that i should i had obviously i should have been allowed to do that because what you know what i suggested at the be at the oral argument is that these letters that not the letters but the testimony that would have you know that would have been d so to get back to your your question what my position is and i said at the oral argument in the motion is that these letters are demonstrative are proof of a opportunity intended cetera but it's a such as so it's not limited to those particular purposes but i think that it's very it's the the the proffer that i made at the time the or in the legal argument i think it's very much a correct that her room had the ability to pull the to tell tall tales so while the prosecution wants to say you know these guys were seen and from the from the get go you would say well but he does he does this and so he did this in the situation but how does that get you to get you all the way you know in terms of the prejudice here because you've got a problem with you know goes off you know and he is confession says you know i knew this was wrong don't you have a problem with you know the kind of the second prom because that jury could easily have found willful blindness if in the beginning they weren't right well i think one of the interesting things is that the in the prosecution summation here they call this a cover story and there was certainly argument an intimation that some time  after mr colley had contact with the agents when he when he made that statement they referred to that he had at some point after that made up this story and that it was a cover story and and that in the absence of that this known and so this is a situation where this evidence would stand as a very strong counterbalance and obviously the burden of a trial is merely you know that i have to demonstrate a reasonable doubt so the jury could have balanced that information with information that could have led them and certainly the government is free at any rate if there is a retrial to make though those arguments but i would just point out for example that these open swallow came to me as a government grand jury witness that the governor it's apparent from the letter that ms ogun sula was you know i mean just based on common practice that she was interviewed she was determined to be truthful that she and she testified in the grand jury that she unwittingly did these things on behalf of government in looking at her testimony credited her testimony and obviously that's not you know something that goes directly to this but i think that it's a it's a it's a balancing act and i think that  about well i think that that goes to something different what his initial letter it goes to writing it go against him and well i sort of the government is free to make that argument but i think it could also be said that his initial acquisition of the check was done innocently and what he if anything well i think that's it's certainly could be could you say or not his you know even if you acquired it innocently he didn't keep it innocently ok i think that what could be argued here and what i think the position that i would have to take here is that if there was a crime that was not one of the federal crimes that were part of the indictment and i think that it might actually be you know that it would be if anything ordinary thousand or something of that nature he tied by so i guess i understand that argument but i guess my my problem with your overall argument is let's assume for a minute the evidence should have commission with that it was relevant that there was a mistake of analysis here i'm struggling with why it would make a difference because callie seemed to be dissimilarly situated to those two ladies they'd allowed their addresses to be used where is this gentleman is taking checks and pocketing the money usually a few hundred dollars but then we've got the later incident of the seven thousand so how how could the evidence that  there is a lack of evidence about intent and so it you know in those cases the evidence that the evidence that was proffered the courts rule should have come in because it went directly to intent and i think it states that the court it's and then i think in vallejo they reference widmore talking about how even if even if the the defense the defense or the the proposition is speculative it is not the role of either the dis court or the court of appeals to substitute its judgment about the merits about the fence and that evidence should come in i think again i think that the it's a totally different trial if this evidence comes in the arguments that the prosecution can make are very different the report all that i can make towards those arguments and again part and parcel of the same scheme the same plan of tuffy corona except that the two women were pretty much passive kind of shrug your shoulders oh ok reference mailbox whatever it would be different if perhaps if you cash the checks and then gave all the money back to her room but some things a little bit funny when you cash checks and then you you keep part of the money  you know again i get to the kind of the light bulb has to go on at some point that with intent you know he's cash he's doing this it doesn't doesn't it's not in the blink of an eye you have to go do it that repeatedly kept the where he's acting and he has conduct that is a criminal and you'd have to believe that the jury would would find that the tall tale aspect somehow continued and you know took over his mind as he's going into the bank and then pocketing some money i just think a harmless error aspect is difficult how do you get past the fact that he actually committed some bad acts here and said in a confession that he knew he did as compared to the other woman ok well i wouldn't i think the record with respect to the confession i think needs to be delved into a little more because one of the things ok thank you isn't it true that was evident tree area here this should have come and you had a defendant testify in his own defense that he was duped and the testimony from these proffered witnesses would have  being argued pill was properly argued to the district court and i say that for two reasons in the end let me motion which by the way the only citation to a third circuit case from there is to stevens not to the subsequent case and williams which clarified that stevens doesn't allow propensity evans and when the defendant it's a proponent but in the written motion the defendant basically said because mr hoon allied to the few women it's more likely than not that he lied to me and less he said it wasn't relevant that's wrong well it's i don't you that was a very good read well i agree that it's it's relevant it's relevant if the purpose which is being offered is to show propensity propensity on is or is relevant but that's why rule for a for b keep it out because you're not supposed to make the argument that because someone acted like this on one occasion they acted in too formally with that that character trait on the present case why isn't it common scheme or plan  address as a reference right well judge was challenged if the defense counsel that's what is where is the lie there he said well he didn't he didn't tell her i need two years or dressed as a reference because i'm committing a fraud against the government so it's sort of hoping you'll concede here maybe you won't but is that really the battle is joined between both sides really on the harmless error question not on the question of whether there was or i'm only to say that yes and let me step to the homeless argument because what mr carter said in his argument essentially it's not for either district judges or even court of appeals judges to assess the weight and credibility of potential defense evidence and perform a harmless error analysis that were true we would never have a harmless error inquiry where marginally probative evidence is excluded under that there you would always have toward a new trial because we can't know what the jury would have done with it but in this case for reasons that the panels already started we have a very strong harness argument for a number of reasons and the seven thousand dollars check is one of the main ones and it's not just because he kept that entire amount of money but what does it say that he kept that money and then have subsequent interaction with mr hoon and went remember after six thousand dollars of money he wasn't supposed to that was most to go to a legitimate taxpayer who is expecting iris response right there's nothing like that there he asked him for a reference mr colley does for a job lack of application and mr  obliges so the fact that he kept keep the entire seven thousand dollars and then have subsequent interaction with mr and there's no talk about that strongly suggest that they both knew that this was a fraudulent check that this is necessary for that have any problem value and i put this in my break the sort of knowledge by proxy argument right they were duped therefore i was duped to the number of steps you have to go through to get to that point where you first have to show that there is misrepresentation right well i think they said they weren't charged but we don't know how that i mean certainly the working assumption of the end of our discovery letter in producing it under under brady was that they they said argument is that even if you had called them and they testified exactly as the letters represent and they had denied knowledge let's assume that they do that the fact that they deny knowledge of a fraud based on what mr her said to them or didn't say to that doesn't just move the ball in any way toward a conclusion number one that mr her and that mr colley didn't know that because colleagues profited from the scheme and the ladies didn't or that's one of the reasons he had far more extensive interaction right and we can look at that i've listed in my heart harmless error section library the details of how this scheme was executed but that is the alternating banks monitor cashing the checks one of the time which suggests that they're worried that you know they're going to get caught making you know made him blind to what was going on why not have mr hu want to just lend him the money why do we have to create this additional layer of involvement where mr hu in us as you can make some money by taking this check cashing it and giving the the take you know taking three hundred giving the two thousand dollars back to me and i'll give it back to the intermediary who will then give it to the suppose it is i mean everything about this scheme cries out that it's just you know that no one who is participating it could absolutely this would have would have relevance and and we would maybe have a different harmless error argument or even a different outcome here because there be symmetry let me ask you to assume something that i surely disagree with assume for a minute that th e so called katrina checks don't support your harmless their argument do you still only on the strength of the i r s check and if so why in particularly would you dress mr carter's argument that that may have been some separate state crime but not a federal crime  it was a legitimate iris track that was for a good legitimate taxpayer who was expecting a refund but for some reason couldn't didn't have access to a bank account again that seems implausible but that's the argument and the fact that i stole the proceeds of the check afterwards and didn't re deem the evidence sharee error not to be harmless with respect to katrina checks but it still had been harmless reserve be the iris and does the commission stand or would you lose and that is well i think there's a there's certainly a way into the evidence that the that the i r s check stands and on a different footing only because it's the last in time now we did charge it but it was charged under the same theory as the katrina checks and so but but because it's the last in time and by the way mr mr colleague drove all the way up from delaware to get this checked and drove all the way back to cash which is another fact that weighs heavily against an arab in prejudicial here and supports a conscious avoidance theory but putting out to one side i think because that check is the last time one could still conclude that even if he reasonably believed or  supported i'll just make sure the points less a panel has any other question i mean the i've listed in the break the facts that support the conscious avoidance theory the fact that mr colley could have introduced this evidence and said that this my story is slightly more plausible because there's a pattern of deception and lies here it doesn't change the fact our summation our cross examination everything would have been the same it still doesn't explain why he didn't say to the agents right i believe that these were legitimate checks from hurricane katrina victims this is what mr her going to told me he didn't say that that's the linchpin of his claim of good faith and yet he doesn't tell the agency and that fact is true regardless of whether the testimony of these two women comes that comes in or not and that was what we stressed on cross in a summation and the arguments would have been exactly the same what was the phrase in his in his confession he knew you knew it was wrong was no attempt to distinguish the four for be evidence from the katrina checks on the one hand and the the tried the i r s treasury check on the other hand and one of the problems that the court faces here and one of the reasons why you could look at this as a legal error rather than a piece of discretion is because the government took the erroneous position that it was irrelevant and judge and judge was adopted opposition has some of these issues weren't as you know fleshed out as well as they could have been because that's how i well the because we spent our time talking about the relevance rather than the propensity you know of the evidence or beyond that i think we're starting from the sumption that it should have come in but i think it least speaking only for myself the mound you need to climb is the harmless area well let's look at ms ogun swallow's potential testimony and i think it goes directly to harm error her potential testimony is that what if you flesh out what her testimony would have then basically what happened is that checks letters nail were coming to address at some point  a one of those awful of contains and certainly if if she was cross examined at some point you know there are certain things about her testimony that could have been you know or you to be implausible that she knew or should have known but the government that then now you're getting to ask that it's irrelevant whether she was duped is not relevant to whether he was duped i mean there may be six gullible people in the world and three not so gullible the fact that she did or didn't believe that's not i don't think that is relevant what's relevant is that due to the the the end of her room that as your colleague said it made his colleagues stor that they accepted her statement that it was on waiting on balance in spite of what might be some countervailing facts so i'm saying here is that there are some facts of the government has raised and i think you know the court is right to look at the seven thousand dollars check as you know as countervailing evidence and all the other factors but on the other hand there's this very strong countervailing evidence that this now and gauged in part in a pattern of deception and his interactions with my client were part and parcel of that interaction and so when the standard obviously is reasonable doubt if the jury could have latched onto that and said you know what that's enough it's that's what was going on here there was this part of the sachin we can't