if it pleases the court it was a bad joke well it was a worse answer i apologize we've been a lot of twenty minutes and i have two clients here who have really completely different appeals and mr hansen who is an outstanding who represents ramirez we've agreed to try to divide our twenty minutes ten minutes each i'm going to sit with the court's reach and i'm going to address the contempt appeal first briefly then go to reserve you know time for questions and then turn to the criminal appeal  willfulness there's no question here of the actor that is of the lawyer wasn't where he was ordered to be on time the trial court was obviously angry with that with this regard lee said things that indicated that anger sort of throughout intentionally saying i'm going to go to state court in a federal court for you have here a lawyer who had to know he was in a bind and my back he knew he was in a bind when he put the trials back to back two weeks in advance particular witness your honor what was what was delayed was some of the prosecutor witnesses didn't arrive in time and the witnesses actually on the record here the witnesses in the superior court didn't start testifying until after the start as soon as you realized that they weren't going to be able to finish the case in time for him to be in federal court on october first he applied to the severe court either just recess the trial for one day so we could go to the federal court because september it's a two week trial estimate and some problems are developing and i'm not sure this case is going to be over on time i don't know yet because i don't i can't tell how it's going to go but i want to ask you now to continue october first date with all these twenty seven witnesses that you've potential problem if that thing's truly forecast for two two weeks he knows he has a real problem because you know it really really can't help that was the way several days this courting the trial was over really just one day late and then the state judge was dark  and you know this case was to be done a couple of days ago and i'm sometimes when i'm running late park illegally are get a ticket price of doing business well you are getting a being held in contempt of state court is a little higher price of doing business it's particularly when the lawyer didn't set these matters on the same day for two different can contact you know for a conflict in calendar the lawyer simply thought it was going to be close and i submit that the lawyer has a busy schedule and when as soon as he's aware of the actual conflict court at eight o'clock in the trial up until then to make sure that he didn't lose his lawyer and i understand the state courts thinking it's a court trial it's done ready to argue and he's got yours and he's and he said look we have to finish this case if i lose you finished as they trial and then proceeded with the case in other words it wasn't getting in but i think it was because he he was doing his own trial just the other of course he said you know i'm not going to continue this case for you because you what do you think would have been more expedient to have for him to have done it when he knew he was in this pickle i believe that if and i think early state in my view as soon as he was aware that the september fourteenth trial was that it would have been and this judge is a judge that is well known for having a busy schedule she's also the chairman of the rules commission the rules committee and in fact this judge has been reversed for trying the case piecemeal and united states versus hey i don't have a site here and i really don't think it's an issue here but worked out informally mr heartly did make a of written application of the federal court a few days before he was supposed to appear when he knew we had a conflict and he didn't stay in touch with the clerk in fact it was a call to the clerk and ultimately result in just not recalling the federal court second grade i've had problems and what i'd like to do is start with a couple of questions the court asked first of all regarding how long the evidentiary portion of mr harley stay course the court case was delayed and this is according to mr harley's declaration that case was supposed to start on september sixteenth after they swore in the jury he said there became a witness problem which meant that the testimony wouldn't start until september twenty third the following monday so clearly fairly soon after the start of that trial on september sixteenth with its two week time estimate he knew he wasn't going to be taken testimony until september twenty third but that entire week from september sixteenth on there was no contact me to the federal court it's unclear what if any contact was made to we are well that's true but they had selected a jury on september sixteenth which makes it less likely substantially that the guys over the following week and the suddenly police he's seen a jury panel he sees who he's looking at and more and more time goes on decisions they wanted to make maybe the guy would plea maybe not but i think both judges would have liked to have known that this issue was out there and the fact that there was a continuance motion on september tenth i think demonstrates how important this trial date was to the district court but bear in mind that continuous motion was to continue the trial by four months as opposed to a week or a day or at a minimum allow the state federal judge to monitor the situation thirteen of the record as previously scheduled the superior court was dark on friday september twenty seventh and monday afternoon on september thirtieth so this was not a finish up on thursday hey guys we're going to be dark friday and or perhaps he could have had testimony go forward on friday or done some of the ministerial things like working from jury instructions making sure they were ready to finish up monday morning where where they weren't dark but instead the whole thing was put over until tuesday and that's the point where it's contended that mr harley realized that the potential high conflict became an actual conflict but the point is on the one side it's not will contempt to just not show up that's not willful as you have to see life but the flip side of it is it's not not willful to sit to come in and say hey i've got two competing things going on i'm supposed to be in two different courts therefore if i don't show up in one i cannot as a matter of law be held to have willfully violated that court order what you look at is how did we get in this situation and that's what this fifth circuit case you know no in the sixth  circuit in baldwin talk about the key is how did the conflict arise and how quickly and how diligent were you the attorney and officer of the court in trying to resolve the conflict and the standard but what's reckless is it goes from september sixteenth a two week trial estimate to taking testimony of temperature twenty third being dark friday and monday afternoon that means he had four and a half days for have court days to finish this trial they had to retry a last of it and you know that after the jury was picked on september sixteenth and yet mr harley did nothing that week did nothing the following week until the friday before trial when he filed a written motion with the district court merely said i've been ordered to appear in state court on october first in state which department didn't say life should take that back didn't say which judge i don't recall if he said wished apartment but didn't give the district or any information to try and work resolve this out and by the same token apparently didn't give the state court judge the information that he would want to know to resolve the issue with the federal court such as the fact that in federal court unlike state court they only bring a journey jury panel in one day a week so you can't just bump a trial by  day and have a jury panel that's always there five days we are ready to jump that this was a three defendant fraud case with a two three week trial estimate that it had been set back in february and that the jury panel would be sitting there that the court gave him fifteen minutes notice to bring it on for hearing and not a little thing has been furious there from your experience if that's all it was yes if that's all there was yes but that was a week after she had initially identified for him why she was citing him for  contempt the grounds for it gave him three days to file a written response and advised him that there would be further proceedings on this and then actually gave him fifteen minutes notice for when the further proceedings were which was the first opportunity that i guess if there are no further question a motion to continue the case for several months and cited the fact that he had he was not prepared i think that this court is in the identical position as the trial court in terms of whether or not these remarks were disparaging of the lawyer or this version of his argument the trial judge that seems to say i recall you know what happened this court actually can read it when they're being disparaged but this is a case where i don't objection if this is misconduct you know we have a very high trap and standard to apply and the question then is can you say that this would be harmless we're under is a little doubt in the context of a case where we have a well i guess this this just means the prosecutor these they're guilty but the way the prosecutor was making the argument he said you know this is a slice of a smokescreen and here's the type of person that does that and he described you know magicians and salesmen or whatever people he referred to as people who are dishonest who are trying to like you and that's that's disparaging of the lawyer not just saying these arguments are wrong and they don't they're not supportive of the record think the type of person that uses psychos and smokescreens are people that are try to deceive you  didn't affect the verdict since it was designed to persuade the jury that the defense case was full of lies and the prosecution's case was true and the reason was because the type of person that makes this argument is trying to like you is trying to deceive you the only other issue that i'd like to  there's no there's no violation there's a will because these letters were often for the truth of the matter and then says well the reason these things are reliable is because they fit with an exception so there's no requirement for reliability versus a lever says virginia but it seems to me that if you if you look at this record if you to the to the lack of ability to cross examine the writers of the letters in other words these people the letters were not present in the trial and that's that i think is significant about this notwithstanding the technical arguments that the government has made for why it would be trying to million mountaineers wealth in terms of setting a level and therefore the period of incarceration and also in terms you send in the amount of restitution yet the amount they're actually personally responsible for in terms of sales  by the appropriate standards now you might find it's harmless if there's a will gesture people stipulate that a fact is true i can understand why the standard becomes less significant but i still think that the law of the circuit is that a trial judge must articulate the they found  i think there is no question there is no limiting statement by the judge as to what you can consider it for and when supplant the guilt of these people and i think that it's impossible to say that  well i don't know of course i went there and each room you know somebody's life somebody said something i think that's probably quite perfect all of this time i can't put my hand on that particular thing rather it is quite clear that if i can move to one other point here that approved this thing is not being any violation and so they went ahead and use the text now admittedly i believe and intellectual honesty before the court mentally i was troubled with the fact that say somebody called from the state of kentucky and they said i would like to buy this program them the parent lee they were putting on hold so to speak and let me second steve there's very little space in kentucky for you course that was not a concern of the company they were taking on all comer it's proper they never your client never consulted an attorney and got that if i said well and we didn't but he after a couple months my client was only there for three and a half months your honor and about the third month he kind of thought there was something going on here and so he did consult a lawyer and the lawyers as you know this looks a little bad to me he said you better quit and so he resign and so i think that gets to the issue of this is a huge amount of money that was assessed against him as well which i'll get to a little bit but the government witnesses and which gets to my point with the judge says as to their testimony you should deal with caution well possibly some of it ought to be viewed with caution but not that because that removed from the defense a defen out and say take a look at the script and tell me if you think this valley or not ok but he was represented by several other people in the in the group including the proprietors but your client while there was privy to the letters that were sent in of vivid memory of that why so be it but there's other problems with this thing i think and that is basically all the things that were used by the government here with was quite hard fall i think within the meaning of which elevated it over the one point five million and plus twelve augmentation of u s cents and guidelines have that not been augmented they would been down where they could have been in the zero to six month range and could have gotten probation ostensibly from the government did in fact i guess introduced evidence so so it was without an effort to offset some of the money that was returned because some of these people that complain did in fact get their money back i don't know what us we don't have the french attorney's proud testimony as to why he did not object we don't have the prosecutor's testimony or greece think as to why he thinks the figure was correct in other words let me just move on to one other thing that i wanted to mention i think the court erred in not attempting to have the jury specifically find what active any falseness occurred here because there was for example the issue that i talked to you about where they were put on hold so to speak to check and see if there was available spots in the state of kentucky for example that  you again i think i'd like to begin just briefly with the very first issue that mr kilkenny raised regarding the continuance i don't want to go in any great detail but i do want to point out mr copeland he suggested or or made the point that there had been two years of continuances leading up to this last continuance but i don't want the pressure to be that there was one giant two year continuance because the case was so complex initial continuance going they were a defendants was four months that was the one that everybody agreed w final trial continuous three of them had been appointed in that very year two of the other defense attorneys who declared ready for trial as of october first had been appointed less than a month before mr travers lawyer the one who said that he needed the benefit of all the other time that the other attorneys had in fact two other attorneys had been appointed just the previous month which was the trial date that had been set as january eighth of two thousand and two and that's the one where one of the attorneys passed away  that you're not attacking the evidence that is put in the giving if you near expression that you know what you just heard that the show that the defense attorney just put on is a big a side show smoke and mirrors you know subtle but it's just it's obvious that you're talking about the attorney who's driving this and presenting the evidence he's putting on a side show he's like a magician or he's like whatever you know well you and smokescreen was an argument that was made by the defense where all the other telemarketers why aren't they here what happened to them that's not anything that's in the record there's no evidence of that how do you respond to an argument outside fraudulent intent that was the testimony and my argument was well that's a smokescreen you can read a lot i but if you have the intent to defraud someone while you're reading the lie that's still an intent to defraud whether you're reading it or whether  that i understand but i do like to explain and that was what all i was really doing here was explaining your vision of these terms and and as the district court found and in the district court the argument is the district court and this court are to look at the same record the district court was there the district court could hear the tone and the manner in which it was said and she made a specific finding that it was not denigration of counsel and that she took such a an objection and claim seriously if she had heard it that way she would have reasons and that's that's one i'll be honest with you i didn't argue these letters in an argument so here's why they we always expect you to be honest with you that's a good point here here's how they came in the defense these letters were maintained in the ordinary course of the of this business relied upon by this business for a determination of whether a customer should get a refund and whether they should charge be given to the owner of the company and he would look at the letter and determine based on what was in the letter and in the file whether this person should get a refund that is the classic definition of a business record a business record is the court knows does not have to be prepared by the business itself as long as it is received and maintained and most importantly relied upon by the business in the ordinary course of its business and that's what this business did and that's what this records historian authenticated that these letters legitimate business that was just in the business of selling software and these were offered to show her regular business records of the of the business intelligence likely different story i mean the defendant offered the letter to the government offered them made by any of these defendants yes they all did these rallies particularly the ticker and others well all the letters related to these particular defendants all the letters would say i talked to this person and i talked to this person some of the people in the letters were necessarily you know the defendants what was that statement you disagree a lot of times people would call and talk to three or four different telemarketers at various points of time in the letters to reflect on this day  spoke with this person on that day they spoke to this person so there were some people other that that it's referenced in the letters but the events where the sales he's letters were credited to sales credited to the defendants so to the extent any letters convincing evidence and find lost after each defendant separately either stipulated or expressly agreed in their position paper that the last that the court used was the actual last with respect to mr travesty ask for a correction restitution and the court used his lower restitution amount that's thing number drove the loss amount it just had no impact he reduced the restitution by three hundred thousand it had no impact on the guidelines he was still in the court adopted and he's defining exactly that this was a jointly undertaken criminal operation therefore each defendant is jointly responsible for all the sales that were made going on while they were there so if they were there for for ten months they'd be responsible for the sales that took place in those ten months yes but the but but there are you're not responsible if you withdraw from the conspiracy and of course i guess the evidence is in dispute as to whether there was a really w those two weeks the time when our independent lawyers told boy there are some problems here the point being they're only charged for the time that they were there and the evidence was ripped the evidence was replete with the fact that no one who worked there for more than a few hours couldn't see that this was a fraud they were reading a script that was rife with lies that you couldn't possibly read without seeing it was a lie add that to that routinely passing around a complaint letters receiving proper complaint calls on the phone the testimony from the individual victims that these two that spoke to the evidence was clear from day one that they knew it was a fraud until the day they walked out the door which point they were charged with last anymore i don't know if there's any other questions the court may have won last time we live it's here or there but the explanation the explanation of it is with respect to mr traverse the evidence was mr travers was the one who brought this idea to the owner mr travers got for bringing the idea to the owner and writing the script got a five dollar overage on every sale that the that anybody in the company made mr travers got five bucks he wasn't technically an owner of a company but he was the the guy who germinated the idea wrote the script got money for other people sales and helped many people as they came in was in at the very beginning and ultimately left to go to work at a similar business mr ramirez came in later he was there for a short period of time but sky you know the he had fewer sales then did traffic defined in traffic he was there for a third of them out of time if you prorate them out mr ramirez was was going gangbusters he was selling this he was one of the top three sales people while he was there and he listened to the victims and the types of representations he made they were as egregious as anyone else whether he was there for a short time or a long time his conduct justified being charged was taking notes the actual letters that were introduced were there was no testimony that those letters were either circulated or that the defendants laughed that the testimony was that letters of complaints hundreds of them which least two hundred came in and that they were such letters such letters were frequently circulated and that the telemarketers were laughing at the letters of complaint there was no direct testimony that that was true of the letters that we're talking about in this appeal which is the i think it's five letters or four letters of which who was who was like to listen to the argument but what happens when you're l on this record he has not and cannot make those showings it's interesting to note that the translation issue was never raised before the immigration courts and was not raised in the notices p l it appeared for the first time in the filed by petitioners counsel to the board in fact in front of the immigration court because there was no contemporaneous objection to any form of improper translation you'll see clearly in the record that the immigration judge took explicit pains to make sure that the translations and the translator provided was a competent translator and who was interpreting in a language that the alien there were three substantive hearings in the case there were several other continuances or illness of the alien but on all three occasions of these subset of hearings the immigration judge inquired of the alien himself  language and whether he understood and could communicate with the interpreter in all three occasions he said that yes he did speak armenian the vast now this is a multi lingual petitioner he speaks apparently russian armenian some georgian and perhaps a little bit of english but it's important for the judge to make sure and he did so in this case and all the occasions that the in the it in the second marriage hearing which was the cross examination and redirect of the alien the interpreter did not understand the word that the alien used and the english translation came out to be the word hooligan which is perhaps not most commonly used and i was dismissed and probably some english speaking people would not understand what is meant by hooligan that was clarified on the record no objections are made and the case for theater the second time an issue came up was later in that same hearing towards the end where he only an apparently used a russian term and his explanation the interpreter noted that he used a russian term and that did then the judge again repeated his questioning do you understand how many languages do you speak of the alien responded and then the judge said he reminded him that the armenian interpreter w divided nature that he understood armenian and i reminded him to speak in armenian it's not uncommon for multilingual people to go back and forth so i don't think that there was any problem there  interpretation of the answer and the judge and i did kearney also to go there so there translations problem there are translation problems in the second part of the hearing the attorney would have been picking them up that's correct and then there were no objections at all made to the quality of the interpretation of the objections in the briefs to the board and continuing to this court are that the you know i'm different question here and this is this gentleman is now either eighty three or eighty four years old well the law requires that you prove a valid asylum claim under the standards for bided in order to succeed in deeper minutes remaining the united states whether the department of homeland security would decide as a matter of its  long time again no contemporaneous objection ever to that length of time or even on appeal there was no objection to the length of time it really only enters in to the benefit of the alien to is allowed to remain in the united states hon france where they come from but their attorney seems to know understood enough to be able to ask a question prior to the full interpretation and in english at some point certainly an armenian speaking process here it would be i think my duty to send this case back and ask this court to do that but i frankly don't see the point in this case the alien and the elderly his entire families in the united states he clearly want to remain and i don't working with my amongst them all the time my friends the georgian people they weren't talking to me no one was speaking to me  a lot of confusion when you read this i agree my mind you know i agree that there's some confusion but i don't believe that was related to incompetent translation and i don't think the record shows that it was in any way related t incompetent translation it may have been related to confusion on the alien part the desire of the alien to say things and answer certain questions that were an afterthought i don't think that there's any high to incompetent translation here and as such  and they carried sinew to from there but i don't think in any way that his non response and this can be attributed to incompetence translation