public defender appearing on behalf of thomas williams mr naylor who represents mr mitchell and i have divided our twenty minutes i'd like to hear two minutes to find me for rebuttal on my issue or issues or are separate i think the first  although they revive that now on appeal although it's relevant on any basis for it appears in the record of course we can offer arm i'm sorry if it were relevant and not unduly prejudicial on any basis  transcript on page one hundred thirteen after mr kennedy had made a prejudicial ph he says that all the evidence all the evidence is prejudicial to one side or the other it's got to be unduly prejudicial and i don't think it is he's talking it right here he's talking middle man recommended williams to mitchell and why williams when he took this fight didn't know and williams is not really an issue in the case they put on evidence from a letterman different boxers a leavened different boxers to say that this is what i was approached this was what i did i went into the ring this was all in order to show that mr mitchell was involved in a conspiracy and fixing fights when mr johnson the prosecutor was asked well why don't you have to show the waves why isn't there a gap in the evidence to show why they were approached he said well they're not on trial well i mean that's true enough but but but focus on on on on williams and why it's not the evidence wasn't relevant his position was look i took a bad part the first first punter's first good punch of th situation in which for instance he was someone would have handed us a money and he says well i didn't know that it was a bribe i thought it was for something else i mean this very issue in this case was whether or not it was a fixed fight whether one this is mr johnson's quote the fact that he threw other fights is not relevant the judge found that the denmark fight was of marginal relevance and then the judge went on to find that it was prejudicial saying that even up to the point of the sentencing hearing so even if this court were to find it despite the fact that the pastor said we're not offering it for that purpose despite the fact that the prosecutor said it's not relevant for that purpose if you even if  were to find all of those things in order to be you would have to go in and do an independent review of prejudice based upon what this judge found listening to all of the evidence that it was unduly prejudicial i think this judge believed circumstances for some reason it comes in to allow the prosecutor to complete the story which is the basis upon which mr johnson repeatedly said was the only reason he wanted media no instruction to protect against that particularly when in final shelby gross records i think you have to start first with the actual wording of the statute it basically title eighteen u s c section twenty five eleven two d says one party consent lets such communication is intercepted for the purpose of committing purpose was his his purpose was to was because of the contract not to get back as twenty five hundred dollars well that's true you are that's why we have the novo review to go through all the facts i've never heard of and looking at the primary purpose where the ninth circuit has as stated that he thought that there can be more than one purpose if you have an illegitimate purpose and a legitimate purpose the fact that there's two purposes policeman and so if we needed that conviction to impeach mohammad and also note that a conviction was in one thousand nine hundred three in the trial the indictment came down in two thousand and one and but for the fact that the case was not mo should reverse it this court adopt a ten year from the date of the indictment and not from the date of the trial that when you get rid of all the playmaking as to when the statute should run or not my last judge should make such a comment and from the jury the prosecutor makes the argument that was unnoticed it was noticed i was sitting directly across from the jury he was el courtroom and i had the courtroom the  i think that's a clear air you know leave the jury to believe that the defendant is guilty there was no objection that's correct your honor there was no object in the reason there is and we're going to make a motion the next day and we decided to take it up on clear air is that he didn't want he saw what happened in the court he didn't want to push the judging further he thought if we made such a record that he'd be taken out on stands and that's why no objection was there or motion gave the closing argument the judge made it very clear that initially after weighing the evidence and this is of course without the testimony of robert m fight in the recordings so once you have middle men coming into this case that changes the complection of it entirely and what the judge found is that intertwined evidence and that yes with middlemen and within the olson fight evidence now we had an explanation that the government had to make to the jury about how these people fit together and i didn't i was the problem is the thought could have been accomplished by allowing middle men to testify that he had previously managed williams into the fight itself into a previous fight it was your honor and here's why because of the inner relationship between these people and it was condensed in such a small time frame and the testimony of metal men and i did his testimony i presented that witness i tried to set it up in the way the record reads is that we have the contact by mitchell there's no other explanation for mitchell that would promote the boxing commit career of richie molina by taking a dive it shows his motives for doing so he was hungry he wanted money he was lazy he felt he was washed up that also explains the conduct of george peterson and williams toward him it also explained why mitchell was contacting middle men why mitchell was trying to get williams away from peterson even williams if you look to his recordings he even confuses them alito fight and then the olson fight it's all the same to him because we're not dealing with character or propensity evidence here yes it's a bad act but the relevant the president purpose other is to show why these parties in this very short time frame we're dealing with each other was never prosecuted because the only evidence that the government had with respect to dad was mohammed and i don't think that we could have convicted just based upon muhammad and that would certainly that senior was part of this scheme enough to convict him and i honestly and this is my personal opinion your honor i don't think that junior knew and that maybe he should have but i think th you you watch tape after tape of him boxing i think he just wanted to be a winner and his dad was going to make sure that that happened using these managers and promoters  got everything the judge got everything wrong you have nothing to review and i know you can affirm on a separate races but the problem is this and i would refer you to page three to excerpt of record five forty eight as of the end of the trial that hearing the judge is explaining again the reason why he let the evidence stand and he said i find it was more prejudicial than probative but i let it in under to george if the judge had just done what happened or did george then i think you might be in a better position senior well that's why it was important to get them in peace would have been steady had a prior felony conviction for just he didn't and that's why it was such an abuse of discretion not to allow that again that would have shown the jury not to trust him at all right i think i think this is advertised as an opportunity for us for questions and would be happy to talk to you that anything you're not having to do with any of the cases that were ar before coming to oral argument then as you saw they the three of us convene for all argument we hear oral argument and maybe sixty percent of the cases that are normally on the argument existing circuit law or whether we believe it or a large human would be helpful we have oral argument as you just heard today with a sometimes robust exchange with counsel i think every judge approaches argument differently and perhaps expect something different out of it and after argument we we do and we will today retire to have a conference in the three of us will talk about someone and then in due course a proposed opinion or disposition will be circulated and we will subject that to rather rigorous scrutiny normally by email and arrive at look at an appeal before it by somebody who didn't try the case is when you do try it i know as a trial lawyer i couldn't get rid of my own impressions is easily you know i remember the witness twitching are i remember how what a terrible ruling i thought the judge many in it's harder to separate yourself out from those impressions if you are independent appellate counsel looking at it you're looking at the same pair of glasses that we do which is a very cold record it's all in black and white so there is some some merit to that on the other hand it is the practice in this circuit really to expect  criminal cases at least that the appellate lawyer has been the trial lawyer because it's often the case that court has questions that are very record intensive and that's been our practice for some time is it's a mixed bag as i watch the lawyers before us sometimes it's the advantage of the lawyer appearing before us to be able to say your honor i was not the trial attorney because the answer from the trial attorney was going to be awkward but in the if you can say i wasn't a trial attorney and it's not in the record that's a that's actually you know that's a legitimate answer on the other hand and so sometimes it's an advantage not to have the trial lawyer there other it's particularly to as judge reimer just said that in terms of a criminal case where lots of stuff went on to have the lawyers there who can say well you know you've got all the pieces but here's how they fit together that's very there are different skills so some people are better at trial work some people are better at appellate work i think it's useful to happen out of one more capacity or it's useful sometimes i have people who really know if you don't have people who really know the appellate specialist need to really know as best you can from the record because the worst situation to be as when we know what went on better than he or she knows what went on that's not a good place to be and it's also helpful to have a sense of what happens in the trial court room i've dealt with cases where people are arguing on tavia scorpios for so forth and are trying to talk about what the potential effect on the jury is and just cover that none of them of ever been in a trial much of the trial of this case a trial and that's it's very hard to project unless you've been in a courtroom it's hard to understand how some of these things happened so breadth of experience is useful even if it's not that particular case and i think the reverse is probably true too if you're a trial lawyer  preserve the record you probably really don't understand what that's all about unless you've been standing here and try to deal with what's it mean to have something in the record or something not in the record and as i watch people try to say well we had a chambers conference and somebody  this but where is it in the record it's not there once you've gone through that experience go into the trial court room go understand better what it means to preserve so i think there's some value in the breadth of experience even to the particular case before  question most vigorously the side that you think you're going to disagree with and there are a couple reasons for that one is you may want to make sure that you've understood properly and the other links reason is you want to make sure that other side has had a chance to persuade you and sometimes maybe even often the case you do not question as vigorously so when you do agree with sometimes it also happened that you're just trying to get the argument over with again independently of the argument that had been offered up by one side than it did on the other and so there was just a lot more for him to discuss that a lot more for us to inquire about because of what happened after the priests were written and read all of the pertinent authority and i had the benefit of a lot of help from my last clerks on the case i have a point of view about it and i've always believed that the helpful and the three or thing to do is to share that point of view with counsel for is going against for the reasons that judge watcher mentioned a minute ago because i want to know whether i've got it right or whether i've got it wrong and i have been absolutely safe from making bad the stakes by that kind of approach when somebody does say wait a minute that's just not correct or gives an opportunity to make a policy argument or some other point that can be persua communicate to you the extreme importance of writing oral argument can be useful it's helpful and it can make a difference but you can't count on it it's not even right to have it so you've got to take your best shot you're both thoughtful shot in your best shot and in the written work that you do should like to emphasize that that emphasize that last piece of the answer even though that really wasn't the question the answer the part of the answer would that were driver says emphasize the importance of the briefs most cases almost all cases in truth are decided on the briefs and on the record rather than that are all argument five percent sounds about right to me too and brief writing not only has to be clear and persuasive those are obvious things make it easy on the judge judges are terribly busy they've got too many things to do and if you write a brief that's got everything in it analytically but it's hard to read or you don't have your references to the record in a way that's easy to manage or your excerpts of record aren't properly indexed all those things are obstacles for the judge and therefore obstacles for your client even and clarity above  all other things you know this sounds like a plan progression it's not but what this means is what many of you are going to be doing in a fairly short period of time has a lot more to do with the outcome of the appeal than what the people that you're reporting to or going to do remember being surprised as a young attorney and why exactly is it that we're the ones doing all of this the brief writing and so forth and sorting out the case and and some of the senior partners are essentially editing our writing but not not getting into deep as i thought they should've because in fact the tail generally told through the brave it's very very difficult to rescue a losing brief by a great oral argument because we already have in mind what the issues are about i can think of one total case in my now close to four years in the court where i came in convinced day and the oral argument made me convinced the other ran more cases where it was more gray in between but basically the story's going to be told in the very so you have to take what you're going to be called upon to do very seriously and what judge lester said make it as user friendly as you possibly can make it clear insights don't make it look like that law review notes that you've written because we don't want to read all those details footnotes and we don't want to  did you say the most common or the worst having reviewed the record and having reviewed the briefs in the authorities that are pertinent to the bench knows more about the discrete case then then then counsel and that she never should be definitely the opposite so i would say you know i mean being totally prepared and on top of the game is very very important people sometimes who are predominant primarily trial lawyers you  mean i know other sort of common weakness of oral advocacy is not answering the question that's been they ask maybe the question is  crazy or maybe unclear and it's perfectly ok to say you know i don't understand the question or could you reframe it or something but but people sometimes just figure that it's best to play ostrich and ignore it and go on to cases where people are continuing the fight they had before particularly when it's the same sort of lawyers and i've had the gracious were some he suddenly starts beating about what happened during the sky reduce feet and so forth you gotta keep your eye on the ball and here the a court of appeals is only go be able to do is only going to be interested in certain things and we don't really care what happened in some of those digressions before one of the advantages in the pilot specialist has is being able to focus on that at the cost of not not knowing as much but  the idea of taking a fresh look at this stage or getting a fresh pair of eyes at least offer comments and suggestions is a good one keep in mind what you're trying to do here as opposed to what could have been done differently or you might have like a different result last year the trial court it didn't happen one additional thing and i think it's usually although not always a mistake i would like to tell you it's always a mistake to mistake the record if i catch or any judge catches somebody's misstating the record that's a major sign of trouble and i would like to say it's always a mistake because i'll always catch it if you missed it the record but there's a high enough risk of it that you don't want to do it even to the point of sort of a serious exaggeration because all of a sudden we start listening to you very differently short answer is you do the best you can this is coming to us in different ways and again this is not specifically commenting on the cases we had in front of us or any suggestion at all about the merits case of the come up to us from prisoners on and civil rights cases are often fragmented records because of the procedural ways that these things show up to us others and when you've had a full sort of discovery a normal civil trial there's going to be a full record and the art probably at that point is not so much