it please the court my name is malcolm siegel counsel for appellant i'd like to reserve two minutes for we bottle if it becomes necessary iran is as in many cases where brady versus maryland into rosario versus the united states the was fairly clear and this case is driven by the facts i mentioned some of them although i know you've read the briefs because i think they're essential to the outcome in two thousand and fourteen f b i agents in the intelligence division at the american embassy in romania were using a romanian citizen as an intelligence gathering informant to report on romanian citizens those citizens were involved in this nests and in politics as it applies to this case the informant was providing information about a family that he was very close to the martin family members of that family had held a public office in romania they've been elected positions and appointed to positions and the appellant himself had also held political office in romania even though he was living in the united states and had been living here for some time the remaining informant told the intelligence officers that george martin the brother who managed the family business called polaris in romania wanted to bribe somebody at the american base in romania in order to obtain a contract informant said that he had talked directly to george martin but what is it you think that the government withheld what they withheld your on it was approximately twenty plus reports of the briefings of the informant in which he laid out allegations against political figures and business figures throughout romania including the appellant and his family there's these materials that were supplied to you on august sixteenth two thousand sixteen if those were the materials that were supplied just a few days before trial in a format which was not at all useful to the appellant what format would have been useful if they were they were they were blacked out or redacted around the room i was there with two associates those reports were still partially redacted to eliminate case numbers and the number of the informant and worse yet the assistant united states attorney would not let us copy those documents or even make notes about those documents as you've seen the unredacted documents now you know i've seen partially and reductive documents  ok so what so what is what is exclusive to tori in these documents if one looks at the it wasn't it wasn't very it wasn't very many documents it wasn't it wasn't a long it wasn't a big packet these documents had an enormous amount of content to them they were difficult to read and each of them contained allegations that could have been verified with ample time to or contradicted with ample time to research the documents that is to say they made allegations about a number of cases in into vigils that were involved in romanian business activities what what what what what would have exonerated your client it's not the case of exonerate him out of what they would have done would have been is to show entrapping conduct by the informant the informant had geared his all his activities two words trying to entrap the martin family in various criminal activity and so what was in these knock him and would have helped the be the documents would have shown his dedicated effort presumably for kind of compensation over the period of two years to try to make a case against the martin family yes but that doesn't show entrapment by itself what i mean what what what part of it's going to show in trend the next then the next stage was even though the informant was supposed to be an intelligence gathering informant he traveled at the behest of the f b i to the united states although the agent was reluctant to permit him to travel this he was not available to testify and he met with my client dimitri martin here in the united states and the purpose of his meeting with him was the same purpose of meeting with other players employees and that was to provide comfort to him well with if you go to what the district court said maybe you could address that and that is that ackermann's were offered up you were also offered a chance to look at them again and you had by then i realize it  before but you had at least almost a week to do something right i think it was five days five days maybe after the seven minus one get down to five days so this record basically said that and its view there was adequate time and also the documents if i'm read actually would have had materials in them there are there are there are allegations about contacts about activities which could have been investigated in romania with this began it was impossible by the time the defense received those documents to subpoena witnesses from romania they couldn't subpoena the f b i agent who was back in romania because they couldn't satisfy the requirements for a subpoena they couldn't satisfy the informant because the informant was not identified the point of this is is that there's no excuse for the government to have supplied those documents late well the it i mean there's a question of whether they had to supply them at all well the the difficulty i have with that concept your honor is is that they didn't have to supply them at all why did they supply them the day after the district court warned them that well they may have to something sometimes they'll do it out of an abundance of caution they may dump the made up stuff i mean we could be lucky that they didn't dump hundreds of pages of other things that were absolutely irrelevant out of an abundance of caution so they don't get accused of brady violations and that's why i asked you count because i've looked at the documents that's why i asked you you know which one in particular is there to give me your best shot why what's the best document you've got here for knowing for showing what you could have done with it my best shot is that those documents taken as a whole and read in the clear which i was not able to do would show that there were at least forty allegations thirty to forty allegations about specific conduct in romania which the defense could have used to challenge the credibility of the informant and if i say nothing else i think it's important to recognize the informant played only one role in this case and it's the role that role verio versus the united states supplies and that is the informant came to the united states to meet with clara's employees and to meet with appellant who he knew was going to be in california for the meeting i'm a little confused this is the confidential source didn't testify at trial he was not permitted to testify so how could you how could the documents have gone to his credibility because because had the defense known that he had made those allegations they would have tried to subpoena him to testify but they may complete the other thought your honor which is us rivera says that someone who was present at the commission of the crime serving is an informant to provide comfort or sustenance to the participants not because he's doing the deal himself but to provide comfort comfort requires that his identity be disclosed in a timely way and here under brady a timely disclosure would have been required months before the agents knew for months before these documents were disclosed that the case was going to trial the government attorneys knew the case was going to trial the defendant had opposed a prior continuance nonetheless the district court continued the case for four months they had ample time to produce those documents the the weak explanation they used makes no sense the agent prepared those documents to type them over a two year period of time but how your residency before you run out of time i do want to ask you about the sentencing issue and i understand the textual argument for actual authority versus either apparent or perceived but i would appreciate your comments on how you square your position with the commentary which then talks about an individual involved in the offense acting in an undercover capacity and that seems to me that it would suggest that a belief would be sufficient if you're looking at what the real public official who is dealing in a sensitive position the u s attorney could have dressed up a police officer to pretend to be a colonel they they could have used anyone to be a colonel they chose someone who didn't have authority to do anything  by way of contracting with with a third party i can't imagine that the guidelines intended to add another thirty five months because the defendant interacted with a pretend person that's not what the intent of the guidelines is it's to add enhanced means for specific activities involving public officials otherwise it makes no sense reserve my dish and time thank you very much you're out of time but i'll give you a go so what's the motivation for providing an object fact you are there may i think it's a get out of an abundance of caution the witness at issue here was never called by the government to testify he was a non testifying witness and because the government's calling a number of other witnesses they don't talk about the issue generally we provide that information out of an abundance of caution we don't believe that it was subject to a statutory or other requirement in this case but we do provide those out of an abundance of caution and as the district court found when it reviewed those documents there was nothing in them that was  with regard to unless the court has other questions about the the brady allegations which this which the government does take very seriously all shifts to the sentencing issue now mr mr s disagree with i guess with that assessment in that one there was no obligation for us to turn over these documents and documents that were similar to and in some cases more compelling than these documents were provided to the deep brief reports from the league at c h s which were much more detailed about his involvement with your game martin and also on his trip to the the united states while we were not obligated to provide those documents we none  produce them and the defendant here has failed to show in kind of this brady slasher vireo context that they were all helpful because he isn't failed to show that they are all helpful the government had no obligation all he had to do was proffer that mr moran at some point engaged with the defendant this case and despite requests to do so they failed before trial during trial and after trial to present any proffer that mr unless there are other questions about this i'll move on to the sentencing with regard to sentencing your honor the conduct in this case falls squarely within the guidelines and also this court's interpretation of those guidelines specifically we have a number of meetings in which the defendant in this case said that  that he wanted to touch target the major because of his power it was the major power that he was focused on and the courts had a chance to look at those and review those tapes in this instance the guidelines address that when every instance of the guidelines addressed different people differently and here we have a defendant who wants to engage in a seven figure bribe to obtain a ten plus million dollar contract the severity of this crime  significant the defendant's intent in this crime was clear as as made manifest in the recordings and it was specifically the major that he focused on even when rashawn said why don't we cut him out mr martin came back to said no no if he has the power to do this of course we would do this and that i think is what would your answer be the same if the major had  actually send in basically a flunky or his next door neighbor to pose as the target if the major had it if we're talking about someone that would be a full into i think as we mentioned our briefer d m v official or if  the focus was a lower level brian the person came in and represented themselves acting on behalf of the major for example no i think our position would be the same because because what's at issue here is a million dollar bribe in a ten million dollar contract and if that person had the ability to influence the major and influence the commander of that contracting squadron then yes that would be what i said then it really depends on who's kind of whose ox is gored here in other words if you look at the  defendants believe or do you look at the targets already i think it would be both or are in this case i think it would be both in the guidelines recognize that we look at the guidelines and they focus on different sense based on the conduct in the severity of the crime and whether it's part of that equation is going to be the defendant's intent and what he or she is willing to do that's going to speak to this very the crime and obviously the person that they're targeting also would speak to the severity the crime if it's a d m v employee that's different than if a congressman if the person is engaged in an attempt to bribe offer a bribe in exchange for a multimillion dollar contract that's more significant than trying to get a driver's license and so i think it's both in this instance in the guidelines the guidelines and this court's case law recognize that specifically the guidelines want to in chapter one the guidelines want to  sentence people fairly and appropriately and they differentiate the sentences based on the severity of those those crimes at issue and specifically with regard to guidelines to see one point two and as i think you pointed out the commentary there is we think compelling in that that an attempt even an attempt where they either they could not do it or they failed to do it and attempt is treated as equivalent to the underlying offense and so that's i'm that's the guidelines commentary in the background i've got trouble getting past the actual wording of the wording of the guideline in the text is if the offense involved if the offense involved an elected public official any public official high level decision making or percentage position increase before levels it doesn't say anything about someone pretending to be or masquerading as the commentary of the very end talked about people acting under cover but that's with respect to the entire guideline and that can apply to other parts of the guideline without any difficulty so i'm having trouble reading that last bit of the commentary as telling us that the words of the three don't mean what they say well i think when we read them together i think they do they are helpful and that is that that so you're reading be three and you're reading offenses involving bribery frequently not completed because those are the two things you're meeting crime and so and so they were talking about in the commentary is an attempt something that wasn't committed and that could be because either the official didn't actually have the power that he or she said she had or that th an actual official or someone pretending to be an official so i have trouble seeing that this last paragraph which is quite general is intended to apply specifically to be three rather than generally to the entire guideline where it obviously does apply how do you how do you respond to that i think that's fair and it's it is a general it is a general is a general analysis or it is a general commentary but it but if we look at the heart of the crime the heart of the conduct what are we talking about here what is the severity what is it that makes this crime so serious it's the defendant's intent and his targeting of a position lauren of which no no i get that and i don't get to write the guideline that that's fair we i think our position is that this general commentary does apply to the entire guideline it does acknowledge entirely crimes it doesn't knowledge attempts and i think the what what this with this commentary  getting at is the fact that the thing that makes the crime serious is one of the things that makes the crime serious is the defendant's intent and here the defendant intended to offer a million dollar bribe o back then here they did that he's negotiating with this guy o'neill actually right mr who is not innocent it's not williamson but would it matter that in your view the argument here is well annealed didn't have any contracting at the already it had been suspended so at one point he did but now it doesn't but would it matter if it was just anybody not own neal but the defendant perceived the individual authority i mean literally you could send in the grocery store take out person right sure under your scenario sure so in this in this case a new way of sort of the same person right he is in fact official he's the commander of th him let's say he doesn't have any present at the already is that correct or is that well sort of i mean this is this is a tad this is very much a technicality because he is technically the commander of the squadron his contract and warrant is removed to avoid conflict of interests under the regulation governing contracting but he still is the commander of that's water and could influence other members of that squad and he had he actually had authority in its row sean who was chris who had been who got in trouble and was and was assisting willi there's you know it's one thing to build a contract to issue the contracts it's another thing to provide information and so in either in even though he could not issue a contract because he was technically the commander he still could provide information or influence others within  so in his in his scenario in this case we think it certainly applies if we were to take that hypothetical that you're suggesting and talking about let's say the commander said rather than airmen yeah and said go you know you go do this and you pretend to be the there and do that yes we believe because the guidelines and the miller case we believe that because the guidelines focus on the severity of the crime in chapter one one of the balancing factors that they're looking at is proportional sentence and what is what you know and matching that's a pretty high level of generality when we're dealing with us with a rule here that's fair so i'll then i of course i would take it right to the commentary for the for the specific guidelines and they're still looking have found a defendant who is willing to travel across an ocean it who's willing to come across the country and offer a million dollar bribe and exchange for a government contract in romania value i think we have your argument in mind and i said in  martin was convicted of attempted attempt abroad as though he was it will he know he paid one hundred thousand dollars he made the initial payment and promised to make and then another nine hundred thousand dollars payment over time using a can using a fake company so they had to phon even though it's given to somebody who is not capable of being bribed on the actual underlying facts yes ok and the courts have long held that to one liability applies regardless of the officials ability to carry i think i think this is really something i think i want to i want to make it crystal clear in my own mind in your view we read the guidelines it doesn't matter for purposes applying the twenty three to be three guidelines that it was someone who was in fact a high level officer returning to be a different high level officer compared to an airman or a grocery store clerk pretending to be the high loft of officer in your view the guideline applies you need a case yes it would apply in both cases  accident as it were that the person doing the impersonating is a high level officer in your view doesn't make any difference i mean if we were take that's what laws are who clues in that would be correct and i think we would hold on the position that the severity of the crime is in part large part determined by i get that and i thank you thank you very much your time i'd like t court i think i put the proverbial cart before the horse the this case really starts with rivera o versus united states the government should have disclosed to the informant because of his presence at the scene of the crime his participation at the scene of the crime and the fact that he set up the crime in his initial conversations with george martin the court gave an entrapment instruction to this jury based in part of a small part on the informants conduct during the course of the case it comes down to this there is no single line in any of these informant reports which are exposed to tori but if the jury was aware if the informant was subpoenaed if the agent was subpoenaed and the jury was made aware that murrin was a spy for not only the united states government but also if you look at the unredacted documents for the secret police in romania if the jury knew that and they knew the degree of his involvement in this investigation that information would be exculpatory in the sense that it would demonstrate the basis for the entrapment defense and ultimately this is probably more like be with me and that is when you examine all the evidence before you isn't the answer to the question that had the jury known this information it would likely have considered that and might have achieved a different result it's a basic the basic question is due process and fairness should the government have provided that information how could it with a straight face allow a trial to proceed where everybody was referring to this man as marinda but wouldn't so much identify himself again to fight more into the court as an informant or even in its brief admit that to this court or even admit that to this court under seal or protective order so the court used to sitting in the afternoon united states versus martin is submitted and the next case for argument will be johnson versus mcdowell