good morning good morning your honor to start the week off right i to begin with saying that the government did everything it could in its power to get the head of the shawn but on a platter in this case and  i say that because if you look at our view of the case the defense view of the case which is that a bargain for the primary witness mr lewis and who claims to have engaged in two million dollars of fraud with my  client the jury goes to deliberate thinking well he's going to be prosecuted that's what everybody's been told and they also go to go into their jury room thinking well the government must know that the defense is witness who said who has explain wrong how is claims of not dealing with with mr marvin peg non the person who's involvement we pointed to as being responsible where you can just disbelieve everything she said because we've come up with some biased testim bias speculation with regard to her and so i just think that those two things would not have influenced the jury i think requires more than the certainty that the court would would ordinarily want in conducting a harmless error analysis with regard to the attack on the defense witness the government has tried to move away from the justifications that the district court offered for admitting the testimony and there's a number reasons why they may have done that  this record said well we can have the surprise testimony in rebuttal of someone who will testify that well some at some point in the past the witness said something about the defendant offering or something to come in and testify that we didn't get any advance notice about it but even as the record as far as the record shows the government learns about this alleged bribe during the trial they they  do learn about what they alleged is hearsay about something that is vaguely in the area of what the government calls a bribe some time during trial and the circumstances are important because the witness is still on the stand the witness is on the stand the defense has not rested yet the government says nothing the government having the the prosecutor not the agent the prosecutor having engaged in a telephone call with this person and having obtained some kind of information the night before because they were very unhappy that the witness supported the defense that the two other witnesses that also supported the circumstances also supported both physical evidence and  chronological evidence everything supported the idea that marvin pac non was involved was doing this and could be responsible for for this and so we have a phone call last minute phone call while the witness while a defense witness is on the stand because the government come in the next day and say to judge martinez oh you know your honor before we go forward with this witness before mr david garvin the defense attorney goes forward with this witness we think we ought to know something we have some information about a potential impropriety here no no and yet the government on appeal argues the residual hearsay exception applies which recall calls for clearly calls for advance notice instead everything is just one thing it did not object to a lack of notice i writing he objected to the statement as hearsay he objected to it as not being not appropriately being admitted under the statement in syria but just made up present tense but doesn't raise an issue about notice or needing a continuance or surprise testimony comes out as as the part of the government's rebuttal it's so surprise that the government previously says we're not giving a rebuttal witness list they don't even ask any questions of of the witness that they're trying to rebut and going to the merits their whole case against the defense is this surprise quote unquote hearsay statement which we never actually hear we never hear what is it that this woman allegedly said to her brother what is it she said if you can scour the record i still can't find it that this is what we're supposed to ask a continuance about we're supposed to tell a court we need a continuance we need to say to the jury let's stop even though we told we've given you the idea we've arrested the defense has already been queried about not not testifying he's not going to testify stop will stop everything will go try to investigate we'll see if she can get a lawyer if she needs a lawyer will try to find out and go on a lark and frolic about it instead what they did was they preserved objections and they went forward i don't believe that the issue of continuance came up and i don't believe that that should be the governing standard for whether they were prejudiced by this this hearsay the hearsay again the government characterizes in the worst possible way as a bribe is this that and the other this is the most that comes out of the of the statement well i i got the i got the understanding that she was going to get a car out of this and it we still don't know what does that mean all we know is what we know from i took it to mean to infer that she had been offered a mercedes and exchange for favorable testimony which is clearly if that's what happened it's clearly hearsay because this is no such what is the theory under which that comes in it's simply doesn't that they've advanced one advance went to trial it doesn't hold up the witness was not available they didn't even try to make the witness unavailable they didn't make the slightest effort they didn't even question her about the facts not a single fact they questioned about because they had this in their pocket they wanted to spring this ambush so they ambush knocks out the residual hearsay argument i don't know what other argument they have it's pure hearsay it was critical and again going back to my st point when you balance out the effect on a jury if they know multum or is getting a pass you want to talk about a mercedes he's getting one hundred mercedes because he's it ten to him one hundred and two million dollars a fraud he's an illegal alien and he's getting a pass he can stay in this country not multum or lucent and that's something the jury would like to have known and when we find out when when the witness is actually given an opportunity to respond and we find a document eighty nine dollars dash one she goes point by point she says the agent came to me basically to follow up to i would characterize it is to say hey we got this this guy who says this about you after the rest of it the government overexaggerated again calling it a bribe calling it false just and there was nothing about that statement that said false testimony nothing about that statement that said false testimony even the worst reading of it it was not false testimony the government never even cross examine her on the facts never had an inkling of that something about that her testimony that they could show was false and that's part of the problem with the obstruction enhanced but at the end the judge makes no findings as to what it is she supposedly said that was false matter or not as i read i guess it's called zia to gore whatever it sounds like findings might be required and as i read a follow on case called the campo it seems like findings not might not be required if there are other ind of the district relying on reliable hearsay that under the leak case i think it was sixty eight a rd something i can't remember the case cite exactly well that the case that i'm that i read initially which i'm guessing is pronounced zia to gore z a t o g u r reliable hearsay is fair game on sentencing so long as the evidence has sufficient additional reliability the court makes explicit findings as to credibility and the defendant has the opportunity to rebut the evidence now so i'm think i'm trying to figure out  the nd piece of that explicit findings as to credibility is that required sort of a threshold standalone basis or is it just sort of part of the gestalt and what we're really after here is an issue of reliability well i think it's you have to go at it enhanced  analysis i don't know that you can do a global answer to that question certainly for obstruction since the duncan case in the supreme court there's been a requirement of of greater specificity because perjury and obstruction those concepts themselves have a very narrow focus even in even in the conviction area so that you want to make sure that the judge is just saying i just didn't like the way this one testified i don't like i don't like i don't like the sound of her voice i would impose an instrument obstruction and that was all of the cases in that the obstruction area of that apply the fact that we've got this additional layer of hearsay which they don't bring in cherry they don't bring in the witness that they were that they had the st time that did never said what this person actually said in the st place they don't bring her in for sentencing we bring in the expansive sworn declaration of french as cherry are i know but there was absolutely no showing of any such people actually existing there was talk about them but you can't get a vulnerable victim unhandsome for talk thank you ronnie question thank you you've saved five minutes for r please the court jason we're in behalf of the united states with me to counsel table as michael berger who tried the case this morning mr baptist is claimed that a number of errors undermined his ability to present his defense blaming marvin packing and for his crime unavailable i think there is a marginal argument to be made candidly for her an availability based on yon assen which is where a witness takes the stand and essentially won't give answers that they've given for won't give the truth but there she is seeing repeatedly can't remember don't know and here the witness said no i agree with that your honor and that's why i say candidly it's a marginal argument let me turn to what i think is the best argument for our case is a jewel it's not residual either i think the clearest exception which they think that is your best card let's hear what you think the best argument is and then we'll go to what he thinks the best argument is so now i have been properly educated that's the residual exception but being said now i think there are two that clearly applied the st i would say is the agency exception in ada one d two d and the reason is that it fits within the plain text of that exception that exception covers a statement offered against an opposing party here we offer the statement against mr baptist the statement has to be made by the parties agent or employee where's the evidence of that so there is corroboration of that relationship well let me say st of all of course the statement itself must be considered right as a part of the evidence that the court uses to determine whether the agency relationship exists so here we have the statement of course it's admitted through sherry but he says his sister said to him i am going to receive a mercedes benz in exchange for holding up my end of the bargain that's what he says in his testimony on pages eighty two to eighty six documentary one hundred and twenty two an agent it makes you an agent given the context in which those remarks are made which is it's about a promise of testimony and of course you cannot it's not just simply to come in and give any testimony it has to be testimony that's favorable to him it has to be testimony to fits within his defense theory and what he intends to present at trial so i read a case in response to your agency theory called friends of versus royal caribbean where we said citing i think the restatement there are that agency requires among other things controlled by the principle of the actions of the agent which i think squares with my intuitive notions of what agency is how is that now controlled so again this is why is that in context it makes sense that he would only put on a witness that he could control right because he can't just have her give any testimony in the world he needs to explain to her what his defense theory is and what he intends to present at trial which is why she presented this targeted testimony placing the blame for his offenses on marvin's pagnac it's exactly what he wanted her to say and that wouldn't come about by mere coincidence and we know this because when he spoke to mr drawl as evidence by her just performing i would think so when in the same way that for instance when you hire a lawyer and you see the lawyer perform in the courtroom and they seem to be advocating the client's precise position you would understand that that was done in consultation with the client it's that sort of agency relationship it's implied by her action and it's implied by her statement and significantly it's corroborated by mr louis st who says that he spoke to baptist after or in around the time when batty's was being charged and that he specifically told him st i'm going to blame everything on marvin agnon and nd i want you to come in and serve as a witness for me so he was actively seeking people willing to give this favorable or perjured testimony and moreover he said i don't want you to be an open book with my lawyer when we talk about this we need to square ourselves essentially he was implying we need to agree on a version of the facts st before you ever reach my lawyer so and then with this argument of agency that you're advancing any time anybody bribes a witness when they necessarily become the agent with the yes your honor but again there's corroboration that he's actively out there looking for witnesses willing to fill this role and moreover there's corroboration of the fact that the exchange the consideration mentioned is a mercedes benz automobile that's very close to the model and make that brought back to actually owns and bear in mind this is a rule one of four initial preliminary determination of admissibility and this is something where it's going to go on from the jury the jury has to decide whether it's credible or not whether it's worth weighing you know in light of other factors that might make it slightly less persuasive and they ultimately have to determine whether to credit these witnesses that's the only hurdle we have to get over is that initial rule one hundred and four rule eight hundred and one hurdle of admissibility and for that reason we see that there is significant cooperation the would answer a question just the mere fact that we think there might be a bribe is not enough we do have to come forward with some corroboration for the nd exception that applies here is the residual hearsay exception and i say this because these are truly extraordinary and unusual circumstances this does not often happen we had a witness who took the stand and in fact although you had the notice problem i agree with that but as you mentioned your honor st of all baptist did not object on any sort of notice ground to this issue and secondly given the circumstances that we had there was very little opportunity is essentially no opportunity to provide more notice than we gave when and when he did hear say did you say don't worry eight hundred and seven no we answered with the statement against interest declarant unavailable exception i'll note on that he never replied or he never objected and said wait a minute the witness is available and the and the court never raised it so in some sense the parties mutually overlook that requirement when discussing the residual when discussing the declare unavailable statement against interest exception and they focused on whether it was genuinely against interest again the reason i ask is that in fairness you know had you said eight o seven he might have scrambled to get his book out and seen today no seven has a notice requirement wait a minute your honor they haven't given the proper notice at eight o seven lives right but if you're saying eight hundred and one he gets his book out sees something else there is no requirement sort of notice like there is a nato seven so maybe he doesn't know teresa's hand and say notice now i agree it's not directly tied to that rule the other exception but of course he also might have wanted to raise this problem of lack of notice in the context of asking for a continuance or something to that effect and he didn't seem to have any problem with it in that sense he'd nor did he ask to you know for special discretion the court in its discretion allow him to bring friends the sherry back to explain the remark or any sort of additional bottle on that front so first well i think those two hearsay exceptions apply but let me explain also why the error was harmless and let me try to tackle that in a few ways the st is this normally w talking about the admission of evidence that the defendant think should have been excluded the but for world we're looking at is a world where that evidence doesn't come in front of the jury at all right but we can imagine a retrial where that evidence will never be presented to the jury here it's not quite the same and i think that should inform your analysis because this would be admissible as an impeachment statement under six hundred and thirteen dollars b and i acknowledge then it would not be for the truth of the matter so the slightly different but bear in mind this witness is credibility would still be heavily damaged in front of a jury because in a retrial if she emerges of the witness again she can be as my friend has mentioned she can be more directly asked about the statement she can be given a chance to explain it and then the government will still be able to mitt on al shehri testimony under six  be so i would ask you when you weigh the harmlessness of the error st of all consider the fact that the but for world that you should compare it to is one in which the statement comes in nearly as impeachment but nonetheless still effectively damages this witness's credibility and  wipes out her value to the jury but moreover as i started this argument the pagnac defense simply did not fit the facts and let me explain why so the documentary evidence in the case comprehensively rebutted the notion that paganini was the one responsible all of the bank accounts into which these checks flowed baptist was the sole signer on them moreover all of the checks that he was depositing there are many checks with ten every single one of them had the exact same street address for their purported party receiving the check nine of those eleven checks had the exact same amount one thousand three hundred and thirty eight dollars two cents of them varied by thirty dollars two  eleven have one thousand three hundred and eight dollars moreover own admissions were that he ran the business by himself when he was inspected by the i r s before realizing of course that he was under criminal investigation he told i r s agent  that he was the only one who cashed the checks docket entry one hundred and sixteen page one hundred and seventy five similarly when the florida inspectors came to visit him and asked him how he got customers he did not say i have a friend matt marvin paglen who refers me people who have had their taxes prepared he course there are the some of the strongest evidence against him are the other documents including the fact that he filed an application for a new check cashing processing service government's exhibit forty six dollars a through he does that after marvin paglen is dead and significantly you would expect that a person who's innocent who doesn't realize that his business has been used for fraud would file a legitimate application for such a service instead he files an application that contains false and fraudulent tax returns that greatly increase th reported earnings from this business compared to the actual returns that he filed in twenty million ninety two thousand and ten finally there is even more but let me mention as an aside the strongest intuitive point that they had in favor of their defense however that's not the reason for the absence of checks the reason for that absence is the seasonality of the tax business the last tax refunds in the year are filed on october th the late filing deadline the st day the i r s accepts  a nd which he's going to be pointing obviously is pointing to packing on as sort of the mastermind of the scheme and let me talk for for one moment about the reverse for four be that he wanted to get in information that pagnell on had participated in this scheme and prior circumstances but that the trial court judge did not allow that in how do you deal with our case of us cohen where we said it was error to exclude evidence of witnesses prior participation in a similar scheme yes so the trial judge here essentially honored the dictates of cohen by allowing mr baptist to admit a substantial amount of evidence enough to make that argument that mr paglen had been responsible for an independent scheme so let me explain there were three witnesses who are pertinent to this matter there is francis sherry who we've discussed extensively a woman named collette caesar and a man named abner claude and collectively what they testified to so what was allowed in from the jury and what they heard was that paglen operated a different check cashing business name caribbean capital that he did so using strong nominal onerous fees or and then claude were always listed as the owner of the business when in fact peg and operate it and there were independently through the government's case there were checks admitted indicating that there might have been fraud at capitol caribbean as well that was government's exhibit ten so he had all the ingredients he needed to make the exact argument that was foreclosed  cohen which is paglen did not need me to tag and had the capability the independent capability to operate the scheme without me because he's done it before because he had a preexisting business or scheme that looked a lot like this so they got all of that in what was not admitted was a very minor piece which was that paglen purportedly told lie to caesar and claude that were similar in nature to the lies that he purportedly told mr about concerning his reasons for wanting to open the business and mr  that's it and that's why we fit within cohen and i'm going to ask you to help me quickly with the sentencing question that i was asking your adversary i can't quite tell frankly from our precedent whether to use reliable hearsay in sentencing the district court must make explicit findings regarding reliability credibility or whether that's just part of the overall indicia of reliability analysis and if there are explicit findings required that the district here make any  honor i have to confess i'm not familiar with the exact passages of those two cases cited i personally have not seen all was that there is a need for express findings concerning reliability and i would also point out those said there's not a requirement well st of all let me know under my argument of the agency exception it's not hearsay at all that would pull it out of this line of cases but in terms of its reliability as i mentioned i think one of the substantial piece of crop aeration is that i al shehri identified the automobile mak model in question being severely close to the model that after he's actually out it in fact it's off by one letter it's a mercedes benz c l a instead of a mercedes benz c l s but given the closeness of that it is hard to believe that he would have completely fabricated that claim and gotten that close and moreover as i mentioned louis st said the baptists had been actively searching for these witnesses he'd been doing it for a year since he began to fear that he was being charged and i think that brings it within the scope of sufficiently reliable hearsay  particularly given the reasons and time between the statement in the trial it was made just a few weeks before the trial let me briefly touch my opponent did mention the idea that louis st received an undisclosed benefit from the government and i want to rebut that and i have a few responses but the bottom line is that the government did not promise prosecution to louis st so there was nothing to disclose and st of all no we have an incomplete record here because he did not raise this in the context of a new trial motion or in any forum in which the district court would have had an opportunity to make findings and take evidence on this matter so for that reason alone you can reject it as pure speculation there's not enough in the record to make that claim but nd even on the record we have we can understand the reasons why ultimately he was you're over it an even heightened requirement of specific findings on obstruction the government has made no argument even about that issue in their brief and has not made an argument today about the district court you're bringing up an issue that was not really raised an opening it was let's try it let's try to obstruction was not he i think is responding to my questions about the obstruction and handsome and whether findings are required under our precedent ok judge pryor has said and i've been often your response to this that the camp makes pretty clear that findings might not be required where there are where it is apparent from the record that the hearsay if we read the reason is even as we stand here today we do not know what part of the testimony the district court finds to be incredible is he talking about something she said about pagg non issue is he talking about something she said about caribbean check cashing is she talking about something about her relationship on she was his fiance when at the time he died she talking about the meetings with the license or she talking about her the quest the matter she wasn't cross examined about didn't have an opportunity to actually address the new matter raised with by her brother at the end th affidavit about he made no findings about her affidavit so it really is a very incomplete record on the obstruction and and i think is no question under donnegan that it should be remanded on that basis the the governor did not address the vulnerable victim so i blames or he's going to blame on ok that is not in and of itself contradictory that's actually sort of a it's halfway a prior can consistent statement what's important for the corroboration is once  overthe four years pass even though every document that the government's talked about has been obtained from my client he never in the government never alleges he does anything wrong from the moment padding on dies and they never prosecute him it's only when louie son walks in again and walks out the door without prosecution and gives this statement that our witness says is completely untrue he had of he had a working relationship with bag none but our witness is shot to pieces by the surprise in complete hearsay so the notion that this is an agency applies because you have an undefined statement about somebody you it's not even clear what they're talking about whether he think we're trying to close the evidence we're trying to get out we're trying to we think we won the case the other it's to put a burden on that there's nothing in the hearsay rule that says you're supposed to ask for a continuance it's what about mr wood argument that even if we assume th is harmless and what about the six hundred and thirteen dollars be peace well well i think you have to go count by count certainly and again it goes part to their evidence of what their evidence is evidence against him there was no dispute that he ran the check cashing store of it was completely ridiculous he's paying him a one million dollars on two million dollars in checks because he doesn't want to get his own adobe program so that's that's the context of how that's why he's not prosecuted for four years how could it not be harmless physical evidence that my client is making and what physical evidence is there of actual i d s in that building it's a bag in a corner that belonged to marvin padna on again further corroboration not of their story but of our defense but again it's all wiped out by it's not a reliable statement we don't even know what the statement was it's simply not a case where you can say with the reliability that we could win i would take odds from anybody here today that given the facts as we know them now with luis on walking the