time in fifteen months but we are back here before this court because judge martini statements and his actions show that he will not allow the government to try the rico and by car constant this court so ever properly played in the indictment th  or directed the order of trial but he has said he is using his authority under rule four team to prevent us from trying the rico counts because they contain what he considers an element of questions to repeat that characterization in a case that has become as controversial as this one apparently has and where it's quite evident from the record the feelings between counsel in the court have become less and less amiable shall we say and it does cause me to question the government's position when you characterize let me let me address it this way just math and i i would rather quote directly from the record this is judge martini on december fourteenth right we've already had this court's reversal one severance and a motion for a second seventh it would have been inherently unfair to have convicted under rico the way it was framed for the murder case that's why i felt and that's how see and i still feel that way but i don't know if he feels that it's unfair for you to go forward with the rico count because it binds everything together and in the first instance he thinks you should he should separate out round but if if he views it that way and he leaves the rico intact he doesn't say i'm dismissing any just as we're going to go with the substantive count because i think risk of prejudice is so high how how can you square that ruling with the assertion that he's not letting you try the rico count he's saying i'm going to do this piece first and then we do the rico count as  sanders if you were arguing that it is apparent from the record the judge martini doesn't like rico i would be inclined to agree to agree with you speaking only for myself lots of people don't like rico chief justice rehnquist didn't like rico and made his feelings on that subject known in various writings but we were obviously going to be getting to various statements made by the district judge when we reached the question that you've been raised with respect to disqualification but it seems to me it's not helpful to be spending valuable time by arguing a point to us that is not explicitly demonstrated by the record when certain things are explicitly demonstrated by the record and that was by way of introduction let me say i'm framing the issue because i think the hostility to the rico statute as it's applied to this case in other words using the rico statute when there's a murder joined attempted murder and the judge's earnest and deep seated belief that that's somehow unfair inherently unfair it's the judge's where is there anything inherently wrong with a district judge directing the government to try certain counts for other counts of the it is if it's meant to undermine if it undermines the intent of congress and if it if it overrides the intent of congress in what respect congress that it is a crime to  control of his or her docket may order from time to time which cases should go first you disagree or agree with it i just took care of certainly has that discretion but when you exercise it in a way to say try these counts first because i don't want you to try these your counsel here because they contain an inherent feature of what he called spillover pettis that he can't you're right he's basically said i cannot there's nothing he can do to prevent and i would disagree with him on th it to prevent the spillover effect has he called it of the estimate as evidence on to the chemo because those are intrinsic to counts one through three and he so normally you use will fourteen because to if you want to split up  because one count is going to taint another that's not what he's doing with the second segment the second sentence is simply to delay or to put off a rico trial effectively hoping we will just sack up and go home stand there is no rationale for the second severance there is here but isn't it perfectly predictable if you you win on the chemo counts that all the assertions all the concern he's got revenants with respect to that is gone so he has satisfied his concerns and if you lose on the chemo counts you can fully expect that the other side will say i can't properly be in the case at all and they'll move to keep it out hasn't tried to justify the severances on the theory at least on the second half of your honor's statement in other words that there is going to be a motion to bar us but let's say that that that one hundred percent predictable i mean if you go to trial  and take it one step further but if in fact that's going to happen all the more reason why we should get to try our recounts because i'm not sure i follow the logic of that because it sounds like what you're saying is we're entitled to do the rico first because because we don't want the risk of losing the chemo and congress said we get to do it that way and i guess it's outlasts that implicit in your statement that i'd like to press you on that but what is it the statutes or the case law that says you're in titled to the rico count first and not substantive yes well your honor i have an easy answer if we if we hadn't charge me  rule fourteen to say i'm going with subsidy counts first even if you've got a rico count but my i mean it's it's the absence of precedent and we have not and it's not for lack of looking we have never not been able to find published unpublished report on reported is there any support for your position well i've cited the person go case in a couple of other cases in which similar segments motion for made even in multi defendant cases and district courts refused to sever because they said it would undermine the intent of the rico statute mr docket and i think you would agree with me that this is not the garden variety appellate jurisdiction question where we're talking about a severance is really a determination of which haste goes to trial which counts go to trial first and i have three answers and they're the ones my brief and are give them an order number one i ask for the best i write or the best the justice or judge said on november twenty third by granting another severance precisely to prevent you know of evidence to from tainting the team of evidence and counts one through three has reinforced his order so there's that that is there's no doubt about the should be back in the case i'd be happy to cheney issue in counts twelve and thirteen his what did what was mr green's intent when he passed the name of the informant from his client who was in jail to his client's drug associates who were on the street where he relayed the name  informant then he met with them a week later and made some statements where he didn't use the word dead i wanted dead he said get rid of them you know he don't let him testify problem is the reason that the district court gave for excluding the evidence seem pretty reasonable to the beach is that this incident happened four years ago after the chemo murder one of the words it was remote and he also said that if i remember correctly a statement is made after the end of said you couldn't use a statement that the holding of void is that the prosecutor there articulated only a propensity of inference in offering later acts to prove a conspiracy pretty strong statement though right that the relevance askey that or at least to members of it it is a strong statement but it's i mean judge smith's later opinion and so forth green acres made very clear that it's subject to the same test and the key issue is  jurisdiction you've said that the severance issue rests on the same reasoning as the evidence tree issue but is the task for this and meaningfully review it without talking about science could we i think you could i think that's a sad but i think judge becker's opinion maker applied even though its prior to slant but it applied the proper understanding  straight a couple quotes i know you've read my brief i mean i never thought these cases should have been joined from the day first i read that indictment before the judges read or heard that there's no other way to review these decisions except through mandamus if if there's no well if you have to exercise  it becomes to prove our rico case all right i think of it as one one clarification question did i understand you to argue the judge martini no he did not rule out her say subsequent acts as appropriate for a for b matter but isn't it also correct that what he did was hinge that ruling upon a determination of what the probative value of that evidence was and that he took into account the subsequent nature of the evidence in that probative value of valuation he did that but what he didn't do was look at the fact that with respect to esther vez has to progress as one hundred percent clear about his intent when he says i've done this before and no witness no case so we know that so that that's why we wanted to put that in because it sheds light on one of the critical factual disputes from what happened i know it's four years earlier but as i said there's it's not like it's one of vent and then the other  jurisdiction with respect to the evidentiary rulings to straight forward exclusion absolutely except for one thing which is the way in which the ruling took place that the statute requires that there be either a decision or an order and and there was no order well there was a there was a statement that was pretty in fact in fact i would say really about the district court judge that he was absolutely quote unquote going to adhere to his prior rulings now i know and read which you what you wrote you know you try to find some daylight around that but what is it in the history of this case particularly judge martini's handling of the evidentiary rulings that would cause us to think given that he said repeatedly i thought this was bad from the get go when he says i absolutely i'm going to hear that that he wasn't you know a statement that we should a ruling that we should look at as a ruling let me let me answer that as directly as i can because you asked a couple of questions in there the first is respectfully i don't think i was looking for daylight just read the end of the sentence but the end he sa absolutely i don't expect i would be changing this right don't expect i would be changing the rulings and let's go to judge jordan's question about the history what in the history of this matter would lead you to believe that he might not hear to that the history of this matter is one in which he made rulings he changed the rulings as the case went along and the engineer spur you try a lot of cases that's the nature of a trial abbie's us who tried cases know that a pretrial ruling is always implicitly subjects to being revised so if we accept your position that's the that completely eviscerates the finality the thirty seven thirty one would allow for appeal per if this rates that the finality that thirty seven thirty one requires your very point is one hundred percent correct which is and that's why the statute says a decision or an order there is no water here what should have no order no ruling would be appealable if we accept your position because every implicit every ruling implicit contains within it the possibility of revision were being overturned during trial no no no but there has to but it has to be way more final than what he says is absolutely a but i would expect i would expect that unless you says unless you can convince me otherwise and the history of this matter was that he could be convinced otherwise look let's talk about less than otherwise by the defense i mean if we look at the history of this he was and i don't mean to imply by that that some of the rulings than go the prosecution's way but just focusing on the evidentiary rulings they are they appear to be consistently narrowing what the prosecution is permitted to do there's a statement that the pozo evidence can come in and then there's a statement that no we can't there's a statement that esteve as this information can come in even if the tape recording can and then there's a ruling that no one can write there's a narrowing and narrowing a narrowing and in spite of repeated motions for reconsideration by the prosecution those aren't the night so when the district judge says after narrowing repeatedly what the government can rely on and denying repeatedly their motions for consideration when the time when the district judge says absolutely i'm sticking with my rulings i guess i'm puzzled by your by your assertion that that that that there's there's really a question mark about what he's going to do your honor let me say two things about that first candidly i think that that position is a better one with respect to rest of as than it is with respect to pozo and if you look at what the government cites for the proposition that that judge martini was unmovable with respect to these issues he they really are focusing on the rest of his piece in fact they go through a litany of why there was no chance that he could it would have changed his mind same thing with those who know what he did with  the point is that he reversed and self in both instances he did there's no question there's no question that as the case developed and as judge martini saw the evidence developed he changed his view with respect to this and some of this goes directly to the some of the points about the admissibility of the for a for b evidence the government thought it was going to be that he said no chemo no case but didn't mean anything by that the defense as it evolved very quickly was that he never actually said that that is unlikely in i you know a hair on that man's head i i revealed the name of chemo yes i did but i was obligated to do it was my only purpose to faithfully and zealously represent my client there was never a moment's thought that different things there's two different sets of statements that mr berger and one is alleged to have made in this case one he admits the other even is the one he admits is he admits that from the jail cell on the day of the arrest he ca these other people he reveals who the identity of the informant with respect to that information there's no question but that his intent is very much at issue and the government had every right to one prove intense that intent is in play  let's let's do let's take them separately that the fact that he denies saying no chemo no case you know that's an evidentiary issues one would have thought was for the jury not for the judge to decide on the front but setting that aside for a second once you acknowledge intent is in the case based on what he did is mit's is the fences and what it frankly can't and i use the just because he says it in opening the uses it in cross he says that in his closing once that's in play the four or four be in tent and motive stuff is clearly in play and that that leads us to vote for me at least why i ask you specifically about pozo how can i mean wasn't what the judge did in reversing himself directly in opposition to what huddleston says which is you don't get to wave the evidence you just have to make a sort of a one zero four decision and then leave it to the jury how can you defend the judge to take too much time time pulling out those statements because those are not the statements that i would defend as well as statistics showing that judge martini properly exercised his discretion and this discretionary ruling in keeping out this highly prejudicial evidence that is highly prejudicial to the extent that we're talking about something that is clearly collateral read if i would respectfully suggest all of judge martini's ruling with respect to pozo for sure he opined on poses potential credibility and that he should not have done but if you look carefully well not even that once he does that though once he does that hasn't he crossed a line i mean that's that's all a little like saying the foods only sort of poi once once that improper thing is in the air is that not an abuse of discretion to base a ruling even partly on a weighing of evidence which the supreme court has forbidden you know i really wish it were but many many times i peer in this court and i make just those arguments and within the court confronts me with the other reasons that a court gave for exercising its discretion against me in evidence or rulings and here there were other reasons that judge martini set forth and those are the reasons upon which we rely judge martini says this would engender a mini trial it would be confusing because this that wasn't the same formulation of the language it wasn't like this would explain what no chemo no case  a that's going that's an assertion about the probably value which he's obligated to look at right but how how is it the case that saying in the po instance if this witness disappears your head it goes away to is not probative of the meaning of no chemo no case how can how can it rationally be asserted that an ambiguous statement milky mono case is not put in a much starker light by a witness who judge martini pointed out in his earlier ruling was hearing this stuff roughly contemporaneously if this witness argument that the government made and they just made it again today that you have to look at how close how how much of an identity how idiosyncratic is the word that they use in their brief a statement is to determine whether one saying something one time elucidates w somebody said another time so that what they say is that the rest of us comment to to mr bergman comment so as of as which isn't if there are no witnesses there will be no hey incredibly parallel in esteve as they are that does not elicit that it what judge martini held in examining the evidence was that it's not going to help help a jury understand weather no chemo no case means go kill the witness why because i don't know what why don't you leave it to the lawyers argue before the jury he the why did he leave the argument that it doesn't make any sense it doesn't really answer to the question is does this is what he meant the real answer to the question was that that was not ever inadmissible the that if there's anything that's clear from old chief it's that the probative value of a statement in the for a for b context in particular where you're allowing evidence of other crimes collateral evidence to an extent the pen's on whether it actually addresses an issue in dispute and then issue that was not in dispute by mr bergrin was what he meant by no chemo no case and that's  hard time understand that i have say that was not in dispute if it was it was certainly at the heart of the case that he was saying i never intended for this man to be hurt so if no chemo no case means is the government asserts you intended to have the witness a tilde certainly he was disputing that you're right we were right he disputed that he said it yeah so which is which can so it is the defense was not is is sort of beside the point for our discussion here right that that that's like that doesn't mean anything in the context of whether he said it or not that's something for the jury to decide doesn't matter if there's a dispute that he says it for august and courts but whether the court was correct or incorrect in judging the credibility of that witness at the time of course i agree with you but with of course i agree with you but with but and that was not that's not our argument what our argument is is that with respect to that statement no chemo no case the government they have every right to put on evidence of intent that's duran and they don't want a ton of i'm trying to figure out what the value we're importance of mr brewer grins cross examine on or otherwise take the position was that by saying no chemo no case he didn't mean kill somebody he did not take that position that was not a disputed issue at the trial and it's very clear that in from all the case law that in deciding think is very important which was a long time anderson we were arguing about evidence recent right for the very reason that the judge said we're doing the subset of counts first and right and that and the government's phatic assertion is that we're entitled to try this rico count first and if we have and if the judge had not improperly interfered with our ability to do that none of these evidentiary issues would even matter because it would all be evidence coming in i would ask you to respond that there are certain that it is beyond the district judges authority in fact it's an abuse of authority and fighting of congress to take the position that was taken here  i believe that the government's contention is completely and totally unprecedented there is no authority whatsoever for the proposition that a district judge a does not have the discretion which can be appealed to with respect to the status exclusion if if the the if the court were to disagree with the district court's decision with respect to esteve as first of all i would we haven't really argued that much about as of as but if you disagree your only way to reverse respectfully would be to find to find mandamus and to for it to be for this to be appropriate subject of mandamus it would have to be so far beyond the judges can that is that the judge usurped the powers of the executive branch or expects ceded his discretionary powers making his granting it do that if it is simply a matter of abuse of discretion can we respectfully on a no you cannot i would judge never like this rico count thought it was fundamentally unfair said so from the start we took him up you third circuit reversed them and said like it or not this is what congress says they're entitled to plead and prove this it goes back down and the judge undertakes a series of procedural and evidentiary maneuvers calculated to prevent the rico case from ever coming to trial and he is candid in saying i think it's fundamentally unfair it cannot fairly be tried now if if if it's true the way they are characterizing the record and he has said over and over and over that if and when the time comes he will try that case there is no nothing in this record to support the government's contention that judge martini will not try that case in fact he in the questions earlier were some sort of problem is that he seems to be trying the cases in the order of his preference or dislike for rico your honor he's committing to be to be a totally inappropriate with respect to the chemo case in particular not only did the government not appeal that but the government didn't even argue with him about the notion that that should come first they certainly opposed that severance but judge martini believes that and and it is within his discretion to believe that certain counts ought to be tried separately because if they're not tried separately then there won't be fair trials if you read the supreme court's decision in the fear oh that's when severance is appropriate however how how do you answer the government's response that we could have chosen to only charge rico we're entitled to do that so his his assertion that this is fundamentally unfair if i don't try these first really an assertion that rico is fundamentally unfair and he's not entitled to make that judgment run or if if the government had only charge rico we would have had a rico trial once this court reversed and sent  matter back to to the judge martini there would have been a trial and rico just as he says now i want to i'm going to try these other cases we can have fair trials on these other counts he's not saying that the only way we can have fair trials in these other is because i hate rico he's pointing to specific evidentiary concerns matters that would come before would be in a joint trial that would not be in a trial of the county alone exactly what severance is for and having done that he's he's he's now saying if we resolve the case that could change the contours of a future rico case it might or might not he's saying that maybe the government will look at it and say we've gotten enough out of this we don't need to try the r judge jordan's last question about why it should be why under those circumstances why should it be sent back to a different judge i've fully briefed the standards for reassignment i'm not going to talk about how extraordinary it is but i would respectfully request that you examine the record carefully with respect to the government's particular reasons that they give as to why judge martini could not be fair a lot of them simply don't hold up in the face of the record i've given a lot of examples on my time's up so i won't give them now but i would jury instructions that were actually given statements that that they attribute to him that were not actually made what about in this district judges discussion with a member of the media and what seemed to me at least in that discussion to be a criticism of the prosecutor's extra judicial action that the the facts of that as they're in this record a question by the media and just a short short cut here i'm not interested in my question to you in the fact of his receipt of an eighteen year old campaign contribution whatever i'm asking you about the fact of an interview with a newspaper reporter and in the course of that interview a suggestion that necessarily is going out there to the public not to  allotments that the prosecutors somehow shouldn't be doing what they were doing or asking about what they're asking but know that the specific statement he made judge smith was that it would be petty for the prosecutor to a motion to have him recuse exect lee the prosecutor did not make a motion to have a q so far from criticizing something that the government had done he was preemptively saying they shouldn't do that that's not a suggestion to the public made as it was to the news media or through the news media that the government shouldn't do this because it would be petty to do so if even if it were i think that's not an unreasonable reading even if it were though it's not a criticism of the of  prosecution of this case it's not a cop it's not a criticism of rico it's not a criticism of any of the way the government had proceeded with respect to the rest of the matter when he did i mean it's not something that does appear and  it seems that there was some criticism of the government for taking this appeal and and i i guess i'm wondering if that's something we should be troubled about if the if the district judge is saying to the prosecutors you shouldn't be appealing my decision that problematic that that didn't happen judge jordan i mean if you look at that at the transcript of that proceeding judge martini had before a motion to stay the proceedings he had to ascertain whether he still had jurisdiction or whether jurisdiction have gone to this court's we have every right to request those briefs and the government can see that the question is how he responded that the fairly acrimonious exchange that came about was had to do i had to do with judge martini being peeved that the government was reporting of about comments that have been made off the record in chambers conferences there was never ever in any of that and you can read it line by line any criticism of the government taking this appeal absolutely not there was a criticism of the government rip discussing off the record conversations and for good reason because because in fact there misquoted and not having brought it up on a more timely basis having waited i think there was some discussion or some suggestion that the attorney for the government might have i'd like to go in reverse order if i may and starting with the the reassignment request mr last word has pointed to i think he's looking at many of the bullet point items if you look at the back of our opening br think we have simon is justified by everything under twenty one of the six that came before the bullet points you don't need any you know was never a motion under four fifty five for recuse yes that's correct but as i think this court said in the taking of this court district court has recognized it has no question that it's extraordinary it is extraordinary and we don't make that request lightly and we didn't you've you've like in this case the prince and prince and we were dealing dealing with it and circumstance where the judge wouldn't instruct the jury on mandamus hook right but you also have the judge in that case doing the exact same thing that happened here where he in fact to a spontaneous separate seven robbery that were a part of a single scheme and ordered them to trial seriatim brushed off the prosecutor's argument the same one we made here that he's just complaining about generic spillover prejudice and then allow the defendant to exploit those willing to fund the jury listen to the oral argument of bronson a couple of times and most of that was occupied by the the concern over the severance and how it was going to you know this this looks like a world where if the government can't win price unfair and that really kills the table or the government too much it's on their own practically their opening yes well here and frankly we've we've found that assertion offensive and we think it's wrong because we've taken numerous appeals i mean we think many affirmative appeals where we don't ask for reassignment we've  we've looked back in there in the history of our office and even across the justice department and found you know a handful going back to the seventy's where we've sought that relief so it's not a request we make we make lightly and we didn't make it lightly here but if you're just joining you're asking not between judge martini and counsel yes it did in any case about why was that a subject of discussion because the kennedy case is another case in which we had successfully appealed a decision of judge martini's to this court who sent back judge martini with a mandate  impose the mandatory minimum sentence and instead of doing so he violated the mandate by a coming up with other reasons to reach the same result he had that prompted the first appeal and made comments there on the record by it because he has stated a strong dislike for rico or is it because he's hampering the prosecution's ability to present its case those two are bound up in each other he believes that we abused our charging discretion even by joining a murder in a rico indictment with an attempted murder how are they bound up in each other why i would ask you is judge martini's apparent dislike statute a fair basis at all for disqualification i was a district judge for fourteen years and i disliked then as i continue to dislike mandatory minimum sentences i didn't like the sentencing guidelines either to a great extent said it frequently but i did what i had to do i certainly never had even an objection from prosecutors let alone a disqualification motion i mean these are policy issues that judges ought to be entitled to have as i indicated earlier former chief justice rehnquist had with the but if they do the jobs why should it matter and why should it more importantly be a factor we consider when considering a quote request so extraordinary is disqualification of a district judge and i see my time's up because it's one thing to hold those views it's another thing to allow them i mean as sincere as they are and to to have the drive rolling which is what's happening here his belief that the rico statute is unfair and that it's unfair to use one crime to prove another one the charge of murder he said that the rico counts as played violate will violate mr rennes right to a fair trial and that we purposely joining together to do that and if he believes that then he should enter an appealable order saying that and we could appeal but when i suggest that he do that what was his response