you're not going to show and tell no no no that we've extended counsels time as much as you wanted but l berger i know you told us who was going to do what is are you doing the tape issue now so let me ask you that exactly what i want to say and we appreciate the extension of time even so the case is so large and complicated s i will address the sentencing and trial issues ok mr dershowitz will address the authentication of the tapes and the related denial of new trial in order to leave some rebuttal time we've asked the clerk to take one minute off charges as framed the authentication of the tapes issue could imply that right now he's going to talk of that's right that's right but this is a case that went to trial the petards were contested mr brown a seventy six year old lawyer for writ corporation was convicted on most of the charges and he was sentenced to ten years in prison yes let's almost get one whole sentence out sentence are you have are you handling  can you can you be specific with us and tell us how in this case the substantial rights of mr brown were negatively affected yes and that's an unusual issue i mean you might ask deal and they submitted to the judge in advance of the hearing it doesn't have to happen but it can happen before the hearing it with the judge would consider the plea agreement and the judge issued as you know a written statement the day before saying i will not accept this plea agreement of the state and the agreement had a five year cap to it it had a very high probability of a lower guideline range substantially lower guideline range agreement he would be prosecuted for any other offenses no he had there was a promise to allow him to cooperate and that the government would recommend and this was very valuable in this case three levels the full three levels for acceptance of responsibility he was going to benefit very substantially from this agreement if he could bring  court well if the court were to accept that yes because this was not a a plea that the court was bound to accept this was one that the court could have accepted had it chosen to although i think that's complicated the plea is one of the court agreed it was bound to accept that is the court said and was right in saying that it would it would take the guilty plea to one count and and grant the government's motion to dismiss all the other counts but the court said it would not accept the related agreement are you know how rule eleven separates accepting the plea and accepting the agreement and it was ever to reject the agreement and this is that is that what happened here and that's what affected his rights and what essentially forced him to a trial with this outcome of the ten year sentence the court to engage as the record shows in ex parte communications with the prosecutors the day before which should not have done and which violated his rights by preform ing an set aside you help me understand if the court was not required to and i don't hear you telling me i don't know what law you'd be relying on to say that the court was in a position where it had to  ok i'm required to accept and to sentence in accordance with this the court was not required to sentence and there was no agreement to a sentence in the court would not be required to sentence so other than within the five that's the case and the court s but misstep here where there are any was to say the day before the hearing instead of at the hearing this is i'm just not buying this kind of a deal that strikes me is offensive cetera et cetera et cetera probation officer informally reached a tentative view of what the sentence would be utterly improper and having accepted the having said that she that she would dismiss the other counts which  is the b one a part of the agreement there was only a recommendation of sentence there to be made not a binding and therefore it was there was nothing for the court properly within the proper role of a judge in this process to reject ok then there's two questions i have a that what you have said is true and it's error yes well where is the harm in the error the ten year sentences start of the five years and said worst which it's gross prejudice which he very well may have gotten had he pled right but no she did or you could do is remain and i mean that wouldn't give you a basis to have accepted really because she acted improperly and how she wanted about rejecting the most that would give you it doesn't make them innocent but the most that the most it would give you and this is a chance to reconsider maybe that's for another judge if we did ask for another judge but this or another judge and we have a the remarkable position to say it's an abuse of discretion for a judge to say i'm looking at the facts of the record here and i'm not comfortable with this the say in effect what you're saying is there is no discretion the judge had to take in a plea agreement of this kind that's right there because when you have a reason the judge would have some authority for it follows from the richard to rich's decision on the separation of powers in the dismissal power once the judge agreed that it was the government's position and not the judges to decide that one count conviction with a five year maximum would serve the public interest and that was an executive discretion decision the court could not say i won't allow this man  agreement that i'm prepared to put the printer of the ford off if the court had a reason that was consistent with the judicial function in this process ok but but but so is there are the reasons or statute that says what you're saying here judicious language and her angry tone in the text are they communications all of that was not a proper exercise of the judicial function they all of this discussion has proceeded on the assumption that she rejected the ple as a matter of fact there's not the record reflect that she said look i'm going to let you go back and think about this and you can come back to me but that mr brown chose not to do that and that's how the case went to trial the judge said in writing the evening before but not at the hearing because the hearing wasn't held that's right these are the reasons i have decided to reject the agreement but not i have concerns let's discuss them in court i thought i thought the record showed that the court actually said i'm i'm prepared to rethink this in a fact and i want you to think about it and then we're going to we can talk about this some more and that it was just the ball was sort of left in your client's court and in my remembering the record inaccurately it's part of what you say is true but it's part only part of what happened the judge agreed invited the government to present see the facts before she makes a decision why would she ask for more facts if she already has all the record shows she had made up her mind and then the the prosecutor expressed concern about how this was going and facts if that were all there was that would be wrong but if you do fairly describe what happened here and say it is improper it is shocking and improper you don't have to say it's shocking but it was that that would be appropriate guidance the judge overstepped her role in the plea up greenman process to the point of being involved in in effect in plea bargaining by saying go back and redo this that's in development in plea bargaining what she should have done if i understand you right which she should have been according to the rule is waited till the day the hearing and then said i can accept this this is something that is you know that would not this is something like this case actually your view is on the day of the hearing she should have said i have to accept this plea because it's strictly an executive function that this yes it's your right but i am but i'm warning you that you might very well get the maximum sentence after i've read the present report and heard counsel at sentencing that's right i think i understand if i could turn to the sentencing point just clear that up quickly i was wondering my mental timing was also so where do i stand but why i don't want to take a couple minutes like two minutes on this and you have a point thank you because i did want to say the easiest point here is the illegality of the sentencing here we are in the we're in the fall of two thousand and four and over there was a very long process for this remained for the resign for the new trial hearing so we were on direct appeal from a sentence imposed in the fall of two thousand and four before booker this the second the judge did not properly anticipate and who who did exactly how the supreme court would come out in booker i three months or didn't anticipate oh no no no she anticipated that the supreme court would find an a constitutional problem in the sense in process but what would happen from there was not correctly anticipated she she went with a judge to cells view which turned out to be wrong that the supreme court would throw out the entire federal sentencing statutory system and revert to purely discretionary standard sentencing that's what the judge said that she was doing was imposing a completely discretionary and standardless sentence we know that we know that from the reliance on the williams case in her opinion we know that from her statement of reasons where she said i don't have to give reasons because this was a discretionary sentence she said the guidelines played no part in my decision although that wasn't really entirely true because we did spend a lot of time calculating the guidelines in earlier hearings  and this court's practice has been in that situation of the on bank decision in davis of course you know that it's been to vacate and remand for resentencing under the proper application of the proper principles and he's been in prison five years now and applying the proper factors giving full consideration for us and it's no greater than necessary and all the sensing factors and having properly calculated the guidelines i must say at that time in two thousand and four there was no circuit authority on this how did you  i'm sure you are and i'm not so yeah i guess that i'm pretty good and i subsections but i'm probably wrong on this one that it's the kind of plea times of plea agreements that i'm talking about that it was a it was it was a non binding it's the features of the agreement for a non binding recommendation once you accepted the subsection a feature that is the dismissal of counts which is says it's in the court's discretion but physician we know from the case was very limited then there was no reason there was nothing in the features of the agreement that the judge pointed to you that you're a list worthy of just your position if i've got it right it's not that this was the traditional c p u that binds the court this is right it's a discretionary plea yes your problem is judge couldn't tolerate and that would be legitimately affect the judicial function and the judge might in the judge's discretion say no to that there were no such features in this agreement the reasons given were reasons that are not the judge's business in this process  are focused on the tape or do you claim so let me let me double question you claim that anything was added to  in the course of this transfer from digital to analog and analog let me answer that in two different ways because i know it's a question but the answer is there is no way to we know things were taken out of the tape we know yes we know that you claim that what appeared originally to have been mr brown's statement wasn't mr brown the statement it was mr something appeared in the tapes that really wasn't a statement by either mr brown or mr no it's not a question of something that wasn't said by either which the placement there is for example a statement of no no which louder voice which the which the expert said could not occur if you use a nagra which has no value in control so what obviously happened according to the experts is somebody on a digital device but that phrase in at a certain place where it was not in before didn't experts say that yes yes yes yes yes doubt it's like he had possession he was in balance no doubt under the high definition they take pictures of that another one for he takes a look at an early television that rory doesn't do any of the testing doesn't look at the  that perhaps that was the most damning evidence in the case let the let's assume that ok second answer is that what it says is if you take over if you cut there is no way to tell if you take out sections which is what is claimed and there was stop starts it was editing there was deletions if you cut out sections of a tape it becomes in accurate is there any evidence that anything  remember and i know that this is in accurate that's not the way it occurred you can't ask me seventy six years old or even set my age or twelve years old to remember exactly what was the of the problem is and that's exactly the problem i do not and will i can remember but that is not the conversation that occurred but if you ask me to say what exactly did i say you're putting a burden on me which is impossible to satisfy in that's why he kept saying look i know i didn't saying this in certain contexts and let me if i can ask you questions proper let's even for the moment hypothetically assume that it was proper to the lake for three months to let the government recall the experts and cross examine the experts etc etc all of which i think was clearly an abuse of discretion particularly friday season doesn't apply we know your position ok now let's go to what happens when they suddenly produce improperly in violation of what they said to the court the agreements and everything else this new expert assume that the court ruled it's not the three times then puts them in there he doesn't provide any if you're looking for a search for the truth he doesn't provide any of the evidence that would allow us to question him substantively compared to what we had to produce but more important than that is if you read his conclusions what he never did is look at the evidence my example with respect to the  he never gave you if if it's serious or sion i must not have read the brief closely enough i was not under the impression that there was any claim here that mr ginsburg had withheld information from you he never gave us the backup materials to his examinations never prepared a report which had the backup information as we were weak briard to do and a month adjournment extensively producing that information so your problem is that the court didn't make him produce something not that he withheld something but that's right and he had no no backup but my real claim your honor is we have we took the position from the beginning it's very hard to detect edits that ever done on a digital machine new technology has allowed that to be done we did it we showed the evidence that it was done never looked at it he never looked at our evidence that our peed he never looked at our ever danced the materials that we produced to the prosecutor in order to show this is what we did the example i'm giving  d never looked at the pictures of the h d as they came with the h d camera he didn't look at that and he took this technology which we understand cannot be used to detect these edits that in the courtroom there here in the hearing the argument was what you have there are two arguments one was what you have now produced to us is different from what you had produced to mr owens back in zero three but more important than that presented evidence we did have a stipulation because the quotes if you are only one day we grant fredericks to affirmations that were produced which dispose of the question and say it's inaccurate the quote says we didn't submit testimony that's correct it's not the appendix because it wasn't made it so the undisputed evidence was by after david's submitted by stipulation that show that it was inaccurate and she says i'm not going to deal with that ok you're ok thank you thank you the tapes and to answer the court's question no even to the question as to whether or not there was any evidence of word editing on the tapes in their own expert stuart allen testified in the citation is that for appendix sixteen twenty two dash twenty three there he found no evidence of word at it because this was an issue that was aggressively pursued with mr allen and mr own by the government while they were on the stand please point out to us do you believe that there are instances on these tapes where words have been substituted or words have been deleted and he said no he admitted no there was no and then six defendants xor expert stuart allen what they focused on was glitches pops and noises things that are expert mr ginsburg all explain as being normal recording anomalies in the course of a mr ginsburg because he had no sensible foundation particularly in light of the the great i def t v style  pick evidence that your experts had produced one should take that argument head on if you would as i understand mr dershowitz complaint is that mr ginsburg didn't look at their work product mr ginsburg and that's what he listened to that's what he meticulously applied is knowledge to in determining that it was authentic he didn't spend time looking at the erroneous lee produced clones or tapes or digital copies that the defense experts then their drum about all right so if i understand what you're you're saying it's he had no obligation to look at it and it was up into the court to decide whether or not to accept whether his testimony was credible or not even though he didn't bother to look at the defense evidence he offered explanations for why the defense experts noted what they know all rational explanations and logical explanations that the district court carefully considered and reviewed every one of these allegations and thirty page opinion every one of the minor complaints that the defense experts pointed out she reviewed considered what they had to say and then also took input from mr ginsburg in reaching her own conclusion but to get back to what the court mentioned earlier this was not just a battle of experts dueling experts the court also relied upon the testimony of several witnesses the men and women from the f b i who handled those tapes they all testified that they did nothing to those tapes that they were pristine and authentic and they mean that they testified under oath so even if we put the experts the dueling experts aside the district court would have been entitled to rely on that testimony alone and sustaining her her conclusions was the extra loud no no no unexplained and unexplainable as the defense is i believe it was and if we go back and take a look at judge rambos opinion you say it was unexplainable or was in this for i believe she did i said i'd have to go back and look at it specifically on her but in that thirty page opinion you can only describe that opinion as being extreme meticulous and extremely comprehensive she started out with a primer on how recordings are generated the differences between analog recordings and digital she then went on to the different take needs that were employed by the different experts and then she examined each and every one of the complaints that the defense experts had raised during those four days of testimony and address each one she paid careful careful consideration to all the evidence and she said it was permissible involved or specifically the score that it is not a violation of the pennsylvania no contact rule or any other states no contact rule that have adopted the model rules and that's what pennsylvania has when you look at pennsylvania's four point two rule it talks about the authorized by law exception and there was nothing in the official commentary though about the well recognized a section at that time about confidential informant green died in a confidential informant investigations but if you look at the model rules of professional conduct from two thousand and one you'll find a complete paragraph in there about that exception and about how many courts have all recognized  and the comments say this is outside the scope of the rule confidential informant investigations in the pre indictment stage that's a venue did eventually get around to adding that paragraph to their rule in two is this long sentence of reasonable absolutely not yet you say yes i didn't expect you to say no but why i mean tell us because a this really lengthy extremely lengthy sentence was and we should consider reasonable because judge randall was equally meticulous and comprehensive in addressing all the sentencing issues as she was on the older three factors is that we have to look at it to see whether it's reasonable why isn't this longer then required under the second the guideline arraying factors that rather reason i disagree your honor i think she gave careful consideration to the possibility that that was factor in if you're talking about the stock loss she plied the average selling price methodology which legitimate things effect but that wasn't all that she did your honor she did several things beyond that she then reduced that last by the percentage by which the criminal and our earnings prove during the trial that mr brown was involved in ninety two million dollars of that five hundred million dollar inflation so she reduced the loss by almost eighty percent which is since the criminal for earnings were only eighteen percent of the five hundred million she reduced it by that percentage she also did two more things advocated by the defense she took the eleven cent dividend out of the calculation to reduce the the the actual loss and she also greatly reduced the number of shares that were hurt by the fraud the government prepared numbers based upon the full number of innocent shares and by that i mean all shares held by anyone except the defendant judge ramble cut that number in half and she only used the number of shares that were actually traded during the time period she came in the numbers that actually w come up with under the three windows that we looked at six days seven days and eight days before and after the disclosure were once then a share nine cents a share and seventeen be is going to do this again or is a dangerous to society oh i do have thirty five fifty three ahead of me time i'm really very concerned about the sentence in this kealey criminal on back to protect the public from further crimes to prevent to provide the defendant who is now seventy one years i just that right is in his age and my god to provide him he though educational i believe he was age seventy six at the time of trial or sentencing which trial was two thousand and three i'm not exactly sure is the length of the sentence and we have to decide if it's reasonable so i'm asking you not why she was reasonable but why it would be reasonable for us to not to send  suggesting that she was the least i don't think i don't think the other side is suggesting she was sloppy they're saying she was wrong so what gets over is pressing for what i'd like to hear too is what are the reasons why this is a substantively reasonable sentence from the government's perspective you know talk to us about the character of the offense the character of the offender the thirty five if you make the pitch that ten years is within the discretion that a reasonable judge could exercise in sentencing this defendant for the crime of conviction we got to the hundred twenty months guideline range par merely due to factors one the mound a loss in a case well they're not saying that that was wrong i don't understand them to say i don't understand them to argue they are saying it's not reasonable it's just too high it's not reasonable a large part there was a twenty three million dollars total loss that added fifteen offense levels that to the facts that's what got us up to one hundred twenty months the second factor responsible for the high guideline range was the four level enhan the kind of sense you can mr brown was found by the dysport and the government's proof showed that he was the linchpin of this conspiracy not only to defraud friday but to obstruct just through mr brown he orchestrated the acts of several others in and and encouraged and directed others three or four of the people to go into the grand jury and commit perjury n by your opponents you know your mr we took up most of sickle first time talking about the plea would you respond specifically to his assertion that it was not within the court's discretion to decide whether or not to accept this arrangement because it was exclusively a executive branch function to decide whether to drop counts or not counsel is dead wrong about that if you take a look at rule eleven which governs guilty pleas this was a rule eleven c one a a plea agreement and it was this a rule c one a plea agreement because it called for the government to move for the dismissal of the remaining counts against mr brown under rule forty eight the government cannot unilaterally dismiss counts it can only be done with leave the court and there are important policy societal interest for that reason this court addressed them in the richards we talked about that case in our brief to the court is is designed to be in the posture to c that's the stipulated sounds right and that's not why not what we have that's not what we have all right but because it was a c one a it the court is specifically granted the power to defer its decision on acceptance of the plea raised again here today what prompted the prosecutor to say words the effect of as we discussed yesterday well what was that about your honor i'm no how to answer that other than to point out that on a cold record they are they are and be us since it's subject to different interpretations i don't know what is the real this about as we discussed yesterday sounds like yesterday there was a discussion all i can tell your honour's i think they take mr breen a could have been referring to the letter that was sent down from the judge today for i don't know but i do know this that  the court did not reject that pleading the court never rejected that plea agreement it stated its intention the day before it had a bad day quite frankly and the next day realized i'm going to consider this and i'm going to give it some time and that was clear from that conference from the very beginning of she told cowardly when i was clear gives give us  what the judge said that and where the responsibility to move the process forward was that point you can take a look at the transcript yard but when you soon as we walked into that conference room as soon as the letter was raised judge rooms first responses i'm not going to read that letter and as soon as counsel shut up and gave her a chance to explain what she was thinking and saying she told everyone i'm going to defer ruling on this until i see the pre sentence report my letter was was a result of my initial understanding of what the facts were i now realize i want to see what's actually in the pre sent to use my booklet speed in order to be able to cover it just very quickly what the court did not do it sentencing is review the piri five fifty three factors and then make a determination as to what sentence is the lowest possible sense to affect an interim time period and so what she was doing it she used the guidelines and then thought she had absolute discretion and in the way refers to the thirty five fifty three of course i cannot tell what was in our mind i can tell what the record reflects let me jump sky sion with the other side when we were in around it seemed clear that there was discussion from what was said so you don't say that in line with your statement that i ought to press for a answer i'm taking that as a no right there wasn't any you know there was  should not have happened thing happened there was a discussion since what occurred was the way i read it she said i'm not taken the position that i've indicated i would on the contrary i'm going to consider this i'm going to wait to see the pre sentence report what what happened in the case what is that x party communication if it took place have in the way of impact at all and i think that is the heart and soul question and let me answer the question let's divide for one second the unrelated to the court and it could have things that are affecting the court to the extent that anything is affecting the court undoubtedly the court has power to review that and there is a question as to whether or not the court can say i'm not going to allow the dismissal of other counts there's a conflict in the law on the map that's not an issue here the judge agreed that's an executive function you can dismiss all the other counts i have no power so now you have the question she has full discretion as to what to do with sentencing what she was asking for more information on among other things is i have an attitude as to how bad this defendant is i will accept other information with respect that i wait for the police for the sentence for that purpose that's on the police the plea agreement i say is an executive function the only problem with nothing binds the court the court can still give five years if  court chooses to if it goes through the proper processes and i suggest that she wasn't through the proper processes here because she prejudge which she was going to put that aside put that completely aside completely aside while the ex parte conversations what i am honor is if i have an agreement with the government which in no way affects the court you have all your discretion or your power you can do everything you want you cannot reject the plea agreement but i have made with the