morning morning your honour's good morning counsel i'm david guarneri i'm from lexington kentucky i represent henry reimer i was also mr reimers trial counsel this is an appeal from a jury verdict convicting want to realtor and yes your honor two minutes please i'm sorry one minute one minute ok time keepers got that correct misspoke there we believe there were several evidentiary errors that occurred at trial that prevented mr rymer from receiving a fair trial and which necessitate a reversal and a remain the first one that i would address and it goes directly to the money laundering count it is the district court allowed the admission of numerous exhibits consisting of bank records from a variety of financial institutions primarily in the california area the government conceded that they did not have the certifications that would allow them to be self authenticated conceded they didn't have a custodian from any of the institutions but they believed that they could call one of their case agents the the examiner from the kentucky department financial institutions who who based on her testimony during her period of time at the kentucky d f i has familiarize yourself with numerous bank records that she herself worked at a bank and that they appeared to her to be the sort of bank records she was familiar with they appeared to her to be the sort of records made by somebody with knowledge of the events made at a time close in time to the events being documented all the things that would be necessary hundred k or even eight zero three six but the problem is that she didn't have any particular knowledge of those institutions her testimony can be nothing doesn't just the fact that those are the records that were produced in response to fairly  specific subpoenas provide a lean which the plants her actual well it provides a link that they came from those institutions but it doesn't and that's why we have a certification often times along with the subpoena what the subpoena doesn't provide the link is that they were made at or near the time by or from information transmitted by somebody with knowledge that the record was kept in the course of a regular conducted activity of a business organization and that making the record was a regular practice of that activity the rules don't allow those to be assumed even though we may in real life believe that to be the case there's a there's an a and with that so the government has to prove all perp the proponent of the evidence has to establish all those things and the opponent can defeat those by showing that the source or information or circumstances of preparation indicate lack of trustworthiness we we  wouldn't have the and if if the fact that they look like i kind of liken this to they look like a duck they quack like a duck they walk like a duck so they must be a duck yes these look like bank records but the roles don't have a the rules have very specific requirements that must be put forth and the cases cited by the government where a postal inspector authenticates records of a local post office or where an f b i agent who has been investigating a particular company has gotten familiar with that company's business practices that is what the rule has the custody and or other qualified person miss gibson just simply wasn't and other qualified person based upon her lack of familiarity with the institutions in question what's the standard of review for that i think it's abuse of discretion i know that there was an indication in my brief that i think it's the noble because it's a question of law but i think the underpinning facts of it lead it to be an abuse of discretion i think the absence of the there are just simply is no question that the the person who offered the records to whom the records were offered then they purport to have a knowledge of those institutions i think that in abuse of discretion there were additional records introduced exhibits government exhibits three sixty one and three sixty one b which were records from the sensually the california secretary of state that's not what they called him in  california and then exhibit three sixty three was from the arizona commissions on corporations and these were prior cease and desist orders the arizona one goes back to the late one nine hundred eighty s the california one was issued in two thousand and three but it's for conduct in one nine hundred ninety eight we think that that too was hearsay the government hasn't challenge in its brief that it was in fact that those documents were in fact their site and that they didn't meet any exceptions what the government has said is well the court didn't admit them for the truth of the matter asserted the court admitted them because they are intrinsic to the fraud that these investors would not have invested in these particular projects had they been aware orders well i think the problem with that argument is if they're not being offered for the truth of the matter asserted if you strip them for their their factual content then they have no metairie ality to an investor's decision eight in order to meet the public records exception two things have to be true at least two things that be true one is the order of the record itself has to set out the offices activities these simply don't do that the other issue at least what the arizona one is the organization reporting has to have observe the proceedings while under a duty a statutory duty or some lawful duty in this case the arizona corporation commission received a recommended report from a hearing officer who was actually the one who presided over in her testimony and observed the proceedings the three commissioners who signed off on the cease and desist order didn't observe anything so we don't believe that those qualify as hearsay but that's where they came from to answer your question judge given that i think they're properly certified the problem is they don't meet the exception under eight zero three eight and if you take it for the position  government said well we don't have to worry about hearsay because they weren't offered for the truth of the matter sergeant they lose all progress of value at that point the another big evidence or here that we contend infected this trial is the government did not charge my client or the co appellant in a conspiracy to commit mail fraud yet the government spent three days offering testimony about what they called phase one of this overall scheme my client was in involved it's in phase one in the apple e's break the government says well there was one check for thirty seven hundred dollars that investors said that he paid to my client to interview raymer regarding clements bill which was in phase one but  most that check would have gone to a single count of the indictment in the government and its brief hasn't even tied it to one of the channels in the indictment so the fact that this was not charged as a mail fraud conspiracy made that the three days of testimony were my client's name didn't even come up there was little no prob of value but it was so prejudicial because phase one in the government's own words was a complete mail fraud case is it really did you know have to charge a conspiracy because an element of the offense itself is a scheme to defraud so the scheme is wrong that whether a conspiracy is charged or not well they do they do recognize that in the case law recognizes a separate charge of conspiracy well i'm not saying you couldn't have one but the fact that you didn't have such a charge doesn't really matter given that the scheme is a part of the substantive mail fraud out and the government still has to establish that but what the government didn't establish was my client's substantial connection to all this stuff under phase one of only got fifteen seconds left here there was also newly discovered evidence that came up that we think warrants a new trial that set forth in the briefs and there were syncing years that we think at a minimum required remained for re sentencing but time is up so unless there's any specific questions i want to rely upon the the contents morning your honour's may please the court i'm here this morning representing mr witt steen who was a defendant in the court below i'd like to reserve two of my minutes for a bottle if i met him and i'd like to focus the court's attention this morning on the motion for the new trial and i'd like to spend most of my time discussing that and why that requires a remained for a new trial in this case mr west steen were represented himself in this matter and his defense was i i was selling these shares in the results of the oil wells and i was misled by mark cornell as to the output of these wells i along with all of the investors was duped by mr cornell in the same fashion that was his main defense before the jury this matter mr cornell testified in mr weston's case in this matter and he testified in a very unusual way for a criminal case instead of mr cornell getting up and testifying here's how i met mr west teen here's what we did here's what our agreement was they put mr cornell on the stand and then almost immediately played a video tape of his statements to the f b i which he had made a short time before trial it was in that videotape obviously wasn't subject to defense counsel for mr west in being in the room or mr westin being in the room that was just a statement that was made to him or by him to the f b i agents they put that on for approximately two and a half hours and that was there was part the sum and substance of mr cornell's testimony he was later called back on the second day trial to clean up an issue that they had but that was his testimony now after the trial mr this mail fraud scheme he's mr cornell's also has separate clients that he is also duping with false promises and regarding real wells that have nothing to do with this case and he is using he's using agreements which are substantially similar if not exactly identical to the documents that are used in this case this obviously doesn't feel very nicely with the defense in this case which is which mr weston says it was mr cornell all along it wasn't me so he this motion for new trial co counsel files the motion for the new trial and they have an evidentiary hearing on the issue and the evidence  hearing kind of had two parallel courses it one was this is brady evidence even if it's not brady evidence it's newly discovered evidence which requires a new trial and so because it was argued  brady evidence one of the main issues was when when did we learn about it and what did we do with it and kind of in an unusual fashion once again there was only one there was only one person called to the stand and that that evidence you're hearing and that was the eight usa that handled the case themselves in that was still handling the case in continue to handle the case after that here that was the only witness that was called states attorney's office have a duty that wasn't within their case file such that it was brady evidence they didn't call anybody from defied that in call them the individual the first learned about the evidence they didn't call the deify criminal agent that sat in the criminal trial to talk about when they found out about it instead the usa put himself on the state assuming you get the issue about whether there was a duty to t over that evidence at the civil division and assuming that there was what after and assuming that it would have been of some benefit perhaps to mr weston the problematic have it it's hard to  and one way or another most of that evidence is admissible and good you've got him going at it again claiming they're too naive to know what's going on there's just a whole lot of proof here that indicates that the story that happening sure and in your honor i think that the that the problem is that the district court judge evaluated what the import of this evidence was erroneous lee in because the because the district court judge looked at it as a quantum of the credibility of mr cornell and that's how that's how this was decided was that all of this evidence really goes to the credibility of mr cornell which was destroyed in trial anyway and so therefore this is cumulative evidence it's impeachment evidence it really doesn't go to the core of can we get over the hump of all this other evidence that that was that was needed at the trial in this case and i would suggest that and again this was not charged as a conspiracy to mail fraud there were twenty nine discrete counts of mail fraud and if you take a look at document fifty one which is the superseding indictment in this case we know from from from a usa taylor's testimony that at least in april of two thousand and fourteen cornell was doing these other transactions that are the parallel transactions so we have starting on count twenty two so from counts twenty two through twenty nine at a minimum those cover the same time period as these parallel schemes and if mr weston had had this information available to him at trial that he that that he was running these parallel schemes he could have pointed out to the jury and said do you know this that this mail fraud is this scheme or is that this alleged s and he could have made that argument to the jury and then it would have called in and would have called into the other counts in the indictment because if you take a look at all that that there would have been a valuable claiming  absolutely would have because if i got if i understood the theory right absolutely because if you take a look at the individual counts like count twenty one is jane merrick to the commonwealth of kentucky count twenty two is james back to the commonwealth of kentucky mr is not even as the person that did the mail fraud in these this is simply mark or no sending something to the commonwealth of kentucky or vice versa the commonwealth of kentucky sending something to mr cornell so now you have to determine a jury would have to see my time is up for i can finish my answer of the jury would have to determine well was this the west raymer alleged fraud or was it the cornell separate fraud and how do we know given that cornell actually didn't testify to any of this thank discretion in concluding that the evidence a was cumulative that was an express finding in a district court relating to all the evidence that the jury knew about the fraud that cornell had engaged in and on that point i think this is critical and this is a point new side deal fraud in april of twenty fourteen and what the usa argued to the trunk or below was you know what this does shows that he learned very well so this would have cut both ways if the defendant fact it wasn't really known to anybody we have testimony from the post trial hearing that the doctors involved in the side deal fraud those victims they actually never even filed a complaint and what this civil deify people say is unless you file a complaint we're not even a store an open case so that didn't happen until after the trials and to make sure you understand we're not giving up on this possession notion but more to the point that full record of that if the know we have to give this court says in harriet that we should give a significant amount of deference to a trial court's decision making in the new trial motion context and that makes perfect sense this judge sat through an eight day trial heard all the evidence knew what the jury knew about mark cornell knew what the jury knew independently about the defendant's guilt on the charge defenses and in i think a fifteen page very a thorough opinion concluded you know what this w difference they haven't shown and met their burden of reasonable probability of success a different verdict that that decision is entitled significant difference and i think it's appropriate  person outside the organization whose records are sought to be admitted all that is a record is the witness be familiar with the record keeping system i do not understand this court case or any court case won't stand for the proposition that that government agent has to walk into court and say i knew that p and c bank did this this in this that's not how i understand it and that's an abuse of discretion decision making call for the district court judge to assess whether or not that person is between phase one phase two and phase three we've shown that we think this rumor was involved in phase one number one but number two we allowed to show a scheme to defraud we're allowed to show how it started but august twenty third teen mailings so apparently the jury heard mr rimmer's defense counsel below went on cross examination he said hey it was a guy involved in phase one several witnesses i said  so in that respect i think you know a little bit in the context of no harm no foul i i feel like i've covered the point i wanted to cover i'd be happy to address any questions that the court has it's a court has no additional questions  we would ask you firm the convictions and sentences below  one ninety eight f thirty five sixty seven it's a nine hundred ninety nine opinion of this court it does say that a person outside the government agent or other person outside the organization can provide the required testimon documents so long as the witness is quote be familiar with the record keeping procedure of the organization it would completely undo the whole purpose behind their say is it's inherently unreliable it's not subjected to cross examination there are defined exceptions but they are exceptions that are intended to enhance reliability you can't unring that bell yes the jury found my client not guilty of counts two through six that were all phase one but phase one was a total sham there were no holes in the ground there was no operator my client was bootstrapped mr westing throughout the trial so the jury couldn't possibly separate westing fraud in phase one when considering that my client was allegedly step locked arm with him in counts two and three i think that the fact that the jury found him knock you know that there was no probative value to that evidence the district court did abuse its discretion in allowing it and it should not have been admitted so there's a saying that hindsight is twenty twenty but you have to take a look at the value of this evidence had it been available to the defense at the time of trial the defense was it was cornell it wasn't me what would the effect of the juror been on the jury if they could hear that in fact cornell was independently of westin and raymer running another scale that contained the same language the same documentation what would a jury have done with that we don't know because this evidence wasn't made available to the defense by the time of trial and i will say that we're also not giving up on this issue that this should have been turned over by the time of trial and i'll point a civil and there's a criminal and they don't share information with each other but what he says is it's strictly what i've been told they well off the two investigations you'd have to ask them exactly the parameters of each and so here's the problem is that again i've argued the witness advocate rule we heap they didn't put on either of them to so we could ask them the parameters of each all we have is the what he learned from talking with these folks and he tells that clerk you're going to have to ask them the parameters of how this works he admits on seventy five sixty one that the defense in this case was that westin argued it was cornell it wasn't him and he also admitted that and seventy five thirty eight wrong who's the who's the civil the f b i person that had this information ron would have known that there was a criminal prosecution from the time of our indictment i assume so he admitted that the dia fine knew about the criminal prosecution in august of two thousand and fourteen well before the trial yet somehow we're supposed to agree that these are walled off with each other there should be a new trial in this matter based upon this