court my name is ted sample jones i represent appellant josef's iota your honour's or lead claim on appeal concerns the admission of former testimony under the confrontation clause and that i'll start with a point that i take to be undisputed that is that the exception for former testimony at common law was narrower than the exception for former testimony under the federal rules the historical evidence on that point is overwhelming and indeed if you read the advisory committee notes to rule eight zero four the advisory committee explains very clearly explicitly why it made the decision to expand the admission the allowance for admission of former testimony but the common law was narrower and i don't think the government disputes that point what really is in dispute between the parties is the method of constitutional interpretation that this court should apply the government's position is that the sixth amendment should be interpreted in accordance with the rules of evidence our position is that the sixth amendment should be interpreted in accordance with its original public meaning in other words the right of confrontation as it existed at common law counsel you wouldn't disagree that former testimony is used all the time in criminal cases former testimony is used frequently in criminal cases and there are certainly situations where it would be allowable both under the rules and under the common law for example testimony preliminary hearings rule for rule fifteen depositions those are admissible this is a very different situation your ideas but i'm just wondering why you think we should harken back to the common law as opposed to develop the rules on it mission a former testimony we're going to let me respond that with a quote from crawford this is a page fifty four according crawford to the confrontation clause is most naturally read as a reference to the right of confrontation at common law admitting only those law as of the time of founding in other words as of seven thousand nine hundred one for the purposes of the sixth amendment so the supreme court has said very clearly that as exactly how the confrontation clause should be applied is to hearken back to what it meant at the time of the founding  is the harm if this testimony is admitted in other words could it be argued that it was harmless would it whatever was said in that testimony with respect to the rest of the case absolutely your hon to this is a huge portion of the government's case and just one one aspect of it is just the sheer bulk of it this is the case with with only about five days of evidence presented the government spent a full day of that in fact a little more than a full day reading mr jim eales deposition into evidence it was something like twenty percent of the government's entire case just in terms of the time beyond that your honor and even more importantly mr meals testimony was the only direct testimony on the point of mr child as knowledge with and participation in the conspiracy there was other evidence that the government presented as corroboration but mr jamil was the only one who could say joseph shota knew what i was doing was aware of it and was part of this criminal conspiracy is the only  direct evidence on that point he was indeed the government's key witness for mr shy of his guilt and your honor all we are asking for is an opportunity to question him on the stand all we're asking for is that he be brought into court in front of the jury placed under oath and cross examined he is the chief accuser against counsel me ask you this what do you do with cases that have come from this sunken including united states admissibility no your honor because you know goes on to say i think that's kind of a shorthand statement but in implementing the command is not the same as singers coextensive and you know goes on to say very clearly the confrontation clause might be different and judge gould in his concurrence says very forcefully the confrontation clause is in fact one of course the concurrence is not the majority opinion and it appears to me that we were saying in that case that federal rule of evidence  rules in terms of determining whether or not the evidence is it miscible your honor when the prosecution admits hearsay in a criminal case it must comply both with the confrontation clause and also the federal rules of evidence our position  where we've actually gone back to the common law and apply the common law the common law in this ability standards to to an objection under competition  the the testimony is whether the proffer testimony is actually testimonial in nature i might think about giles the question in giles is what is the scope of the former i'm sorry of the forfeiture exception and the supreme court said the same thing you determine the scope of the forfeiture exception to the confrontation clause by reference to the forfeiture exception as it existed in seven thousand nine hundred one that is again what we are asking this court to do there is an  unrelated point your honor judge of scanlon wrote an opinion just a couple months ago in united states versus henderson on the fourth amendment and said exactly the same thing the fourth amendment must be interpreted in accordance with its original public meaning which means interpret it in accordance with the right as it existed a common law that is exactly what we are asking this court to do and your honor i will we don't have a federal of evidence for the fourth for fourth amendment issues but there was an issue there with the rules of criminal procedure and again as soon as the court wrote in henderson and it right thank you thank you is a confrontation clause argument i'm not going to repeat that argument i did want to make one point in response of judge of scanlan's question about harmless error i think it's important to bear in mind that when you're talking about the confrontation clause it's harmless beyond a reasonable doubt which is a pretty stringent standard for the government to meet and for the reasons counsel pointed out i don't believe that error was harmless beyond a reasonable doubt i want to address  in my few minutes here a separate sixth amendment issue that goes to mrs shota only and that's the ineffective assistance of counsel issue i will say at the outset it is odd to have an ineffective assistance of counsel issue in direct appeal correct we happened to have a complete record here because of the way things played out post trial the government agrees with that and of course we don't we generally want to hear from counsel in more detail before we decide ineffective assistance of counsel case well generally you do want to hear from counsel and your detail well here there was plenty of detail because judge poe found very quickly that there was a privilege the government interviewed both lawyers at it at great length mr vega for about an hour and mr mcmullan for about half an hour and there was a summary of those interviews that the government included in the pleading  that's included in the excerpts of record so that there was a full opportunity to explore that in detail and of course had there been need for further development we could have had an evidentiary hearing i don't think either judge poe or anybody else felt a critical piece of evidence against mr there wasn't a lot of evidence against michele or that's one of our arguments but one of the sort of three key pieces of evidence was a two million dollars payment that she made on november the second two thousand and twelve and the government viewed that payment as evidence of consciousness of guilt and if it was mentioned in the government's closing it was mentioned in the government's rebuttal it was mentioned by the district court there was a significant piece of evidence in the case against mr yoda in a case where there wasn't a lot of evidence and she wanted to show that she had been told that it was illegal yes this is the point she she consulted a lawyer mr vega a former us attorney for the southern district of california before she made that transfer she went to mr vega she asked him if it was ok to make the transfer he told her it was and then she made the transfer and she didn't just make the transfer of the two million dollars to pay standing in voices she also sent hundred thousand i would say manufacture a question the answer is no michelle in her declaration said there wasn't and even mr begg although he couldn't pin it down he had several meetings with michelle to between october thirtieth when he was hired in november second when the transfer was made  couldn't identify exactly which meeting he gave it was where he gave the advice but there was no question that it was before the transfer was made and that's corroborated by documents there's a one hundred thousand dollar transfer from by exporting to mr vegas sperm was the morning of november the second and i think it's fair to infer that mr vega satisfied himself that that was a lawful transfer before it was ma issue i'm sorry really the issue at trial i thought the issue was whether or not the transfer was pertinent evidence that michele to knew our city of known that the sons where  scheme so whether it was made before whether the advice was given before the transfer after the transfer would not affect the knowledge element that the government wanted to show that this was act that that her knowledge of that her guilty knowledge could be inferred from the act itself and it could it the impression that was created at trial was that michel you know to learn about the lawsuits being filed by five hour energy and shot this money out the door just as fast as she could the suggestion being that that this was done it was done in a in a with  knowledge of of but in the now a jury question i'm sorry isn't that a jury question it is absolutely a jury question but the jury should have heard all the evidence and the what all mr vega would have said was it was legal and i told her it was legal exactly but that's that's any real question about that and she did it after she knew that five hour energy had frozen the assets of some other people who had been selling five hour energy so that the picture that was created for the jury was somebody with guilty knowledge trying to get money out the door as quick as she could it's a much different picture when the person who's sending the money out goes to a lawyer or a reputable lawyer and says is it ok for me to send this money out of that and i  that this smacked of illegality that the this was evidence of consciousness of guilt and it refutes that if you go and talk to a lawyer and say here's what's going on may i send this money is it ok doesn't this money it was it would have created a different picture of a key event in the case i've used all my time will give you an inappropriate thank you very much  morning may please the court join us lemon for the united states your honors mr and mrs show you received a fair trial and you should affirm their convictions the district court here scrupulously protected their rights and faithfully applied precedent and the showed his real complaint in this appeal is not with how judge co exercised her discretion or that the ruling she made it's really with precedent it's that they don't like the state of the law but they have not shown that judge poe abused her discretion in any of her rulings and those were careful thoughtful rulings and let alone that she plainly or clearly erred i'm happy to address any of the issues in the case i thought i'd start with the confrontation issues that seems to be of particular interest what's your response to counsel comment about the relevance of jim eales testimony in the earth in the earlier proceeding as far as how it related to the government's overall case he said it was crucial and i asked the question could it be looked at as harmless or it absolutely is harmless if it was because that was only a small part of the government's case even the government referred to all the jamil as a crook and a liar and as someone we can't trust so if there's anything in this case that the parties agreed on it's that while he jamil was not a trustworthy person and that that's why in closing the government told the jury you shouldn't believe anything he says unless you can corroborate it with other parts of evidence in the record it's also not true that this was some overwhelming part of the government's case the government called over a dozen witnesses the star witnesses in the government's case were were kevin to teac justin and the defendants themselves i mean recall that the defendant's own deposition testimony came in a trial with br redactions and those depositions of the defendants themselves were just damning frankly and that's what judge poe found in her rule twenty nine and rule thirty three rulings as as to adriana showed as she went through six key pieces of evidence from adriana shows own civil deposition she made credibility findings so the star witnesses against mr and mrs start show where mr and mrs shota well why did you introduce the other depositions the end if they were not that listed some incriminating terms like trucking supplies in ink and that showed that adriana show showed a knew about the scheme and that she was part of it just in jail to testify that while the jamil told him to send that invoice a so the questioning of all the jamil corroborated pieces of evidence like but but just as far as the on availability and prior opportunity to confront issues the legal questions here before the court i think it's important to go through those one by one because judge poe did that very carefully and applied precedent and she found that all the requirements were satisfied so counsel may i ask you do you have a case where a civil deposition has been used in a criminal trial for and and there's united states versus paling which is a third circuit case from twenty fourteen that's also cited on page thirty two of our brief but this court i think this may be a distinction without a constitutionally significant difference your honor that the difference between civil depositions and criminal depositions because this court has a series of cases where it's admitted criminal depositions and criminal trials and for purposes of the confrontation and you know for analysis we don't think there's a there's a difference between civil and criminal that what the issue in my mind in terms of the rule is whether or not there is a similar motive in a civil deposition right to cross examine and to delve into the issues that are pertinent in a criminal trial that was my concern so but if i can just get rid of those two elements first there's no question about on availability here these witnesses invoke the fifth amendment privilege judge co made findings that they were unavailable and there's also no question about a prior opportunity to confront the second prong of the analysis because the show his lawyer in the civil case did confront these witnesses they they were cross examined during the civil depositions now the show does of the criminal trial made the strategic choice not to introduce those cross examinations they could have done that they chose not to do that so now getting to the similarity of the motives under eight zero four b one judge poe again made careful findings where she compared the civil case to the criminal case and she found that the the motivations were substantially similar so recall that under now to be substantially similar she found that they were fundamentally similar that was the language she used and that is the standard this court applies in her under mcfall and giger and it other cases and so in those cases this court has said that it's not a fine grained approach you look at the similarity of motives from a high level of generality and here judge she she compared the elements of the civil case to the criminal case and she found that their interest the sh interest really were the same in both proceedings including challenging state of mind because they were cross claims and other things that happened in the civil case where the shall go to state of mind was really a key issue so judge caus findings on the similarity of motives she goes through in detail in it this is an e r one forty nine to one fifty three and she found that the similar motives included blaming others for the scheme case so the motives really were very similar they weren't identical but that's not the standard the standard is whether they were aware that they were fundamentally the same or fundamentally similar so again judge poe applied th precedent and the show does i think complaint is really without precedent it's with the i think baseline proposition as you spoke about with with mr sampson jones about whether it will for the one really does incorporate the standards of the confrontation clause but what this court said in joining us was quote where the requirements of rule eight zero four be won are met we generally conclude that the confrontation clause is not violated and that's the precedent the judge  properly applied here unless the court has other questions on that issue all i'll move on to ineffective assistance i want to take issue with one with a few things that mr klein said one is that he said that there was no question that the two million dollars transfer was to pay bills there absolutely was a question about that in the civil deposition michaud it was asked have you ever transferred two million dollars before and she couldn't cite a single example which she's ever done that she said she was asked where have you ever transferred one million dollars before and she couldn't cite an example of that so this was absolutely at issue you know whether she was actually paying bills with this money i would also note the judge co found after reviewing the record here and the interviews of the attorneys is it legal for me to transfer two million dollars to my brother's company in mexico and drain the account of exporting and remove my name as the signatory on the exporting bank account  merely asked is it is it legal for me to pay my bills and he said he didn't know of any legal impediment to her paying her bills that's it you are sixteen to twenty one there's a judge has findings on that issue  but again i think judge poe didn't didn't reach the question of deficient performance because she didn't need to reach it because she could find easily i think that there was no prejudice and she found this two million dollar transfer if she was just one part of a mosaic of a lot of testimony her counsel said today that the evidence was weak that's not what judge poe found judge poe found that the evidence strongly supported michele with his conviction and judge poe went through six key pieces of evidence that supported that conclusion  and again that whether mr vega had gotten up at trial and said yes i told her it was legal for her to pay her bills would not have changed the jury's assessment of this case overall counsel do you agree with opposing counsel that this is one of on the similar motive question the government is not cited any case dealing with the prior testimony of a civil codefendant there is only one federal case on that point that is the seventh circuit decision in feldman which is cited on page forty three of our brief in the seventh circuit there said the testimony of a civil co cannot be admitted under a to four b three made for b want to sorry for the reasons we've stated i just also want to note one thing about the circumstances of the cross examination of mr jamil his deposition his deposition took place over four days but as extended out over a year the show not have an opportunity to cross him until october thirtieth two thousand and thirteen by that point they had already essentially settled the case with five hour energy the district court entered a settlement agreement only eight days later so by the time they finally got a chance to cross him the civil case was essentially done they had no incentive to develop his testimony they only questioned him on a couple things about who got more money between a teak and jamil the reason they didn't admit that testimony at the criminal trial is because it was  irrelevant to the questions that were at issue in the criminal trial on the question of harmlessness your honor i would just emphasize again that it is the government's burden to prove that this is harmless beyond reasonable doubt the government did not tell the jury do not believe mr jamil what the government said  l i'd like to talk briefly about the motive issue as well in the confrontation clause this was a civil deposition and in civil depositions one it is rarely the case that a lawyer will  the testimony of someone as thoroughly as he would in cross examination at trial that was particularly the case here for the reason mr sample jones has outlined in addition to that one lawyer was representing mr show to michelle and the company at trial took a different position from mr sze otoh she somewhat pointed the finger at him to the point where he moved for severance right after her opening statement that was never going to happen in the civil deposition where one lawyer represents all three people the differences between michele