case numbers one four five seven two one one four five seven to two united states of america versus joshua dobson in paul got the third arguments not to exceed ten minutes for your honor i was hired after the sentencing and have been representing mr dobson on appeal i wanted to talk about the issue that i framed as issue number one in my brief and that was the attorney client privilege th it on appeal and a man by the name of mcdougal from the chattanooga bar who was appointed by the court but he was represented by the name slips because i have it written down here that he was represented by the lawyer  lawyer sent to the material by mistake why does your client mr dobson have any standing on that particular issue i think he has standing based on the government's own admission that it was mr between dobson and the lawyer while they were charged as coconspirators mr piper characterize these statements as statements and further inside the conspiracy mr piper advise judge collier the district court judge that this was mr dobson's issue as well that affect i agree but i don't see that he has standing to reason specifically in other words it was not his privilege was it but he is it was not his privilege was it it's not his privilege per se but he was impacted by the the breach of the privilege by mr mcdougal the trial counsel for mr got the court has had the opportunity to see those three or four pages that were according to mr dougal inadvertently included in a reciprocal discovery production and mr dobson is mentioned prominently in that e mail and it gives  i know that the defendant characterized it as a road map of what the theory of defense would be on those three gift letters which by the way both mr god mr dobson were convicted of the government candidly characterize it issue and they even told judge collier that they felt like the effect of the e mail was to throw mr dobson under the bus i know that the government would like to have this issue as to who sort of thrown him under the bus with his property as well i mean there are a lot of have thrown dobson under the bus but mr got did not end up testifying that proffer was not used against god as far as i could tell from my reading of the trial transcript so we're dealing with mr du goals mr mcdougal's breach of the privilege by the inclusion of those documents even if you assume that he had a standing to raise this issue because he with impacted that it either directly or indirectly i think what judge collier tried to fashion was a pro prohibition on direct use that it could be not used in the government's case in chief it could be not you could not be used to cross examine mr god but that did not address the question and it wasn't used to cross examine was it i'm sorry it was not used to cross examine and it was used directly wasn't directly used to cross examine but i think mr piper was very candid with the court he said that he had read that information and it was burned into his consciousness and he didn't know if in the course of the give and take of cross examination of a witness that it might creep into his consciousness and that was in my view the flaw and the deficiency in judge colliers ruling although he tried to fashion a remedy for direct use there was no remedy fashion for derivative use and i thought it was a true macdougall also that he had already talked with smart and basically didn't learn anything although having seen what you know got said that was burned into his brain i'm not sure the mr mcdougal with all respect was really understanding the hypothetical questions that judge collier was putting to him during that colloquy the judge put a very important question to him squarely about derivative use would it be a fair use of that information if the government took the information in that e mail which is was found to be by the judge privileged and confidential attorney client material conceded by the government to be attorney climate ereal the government characterize it as incriminating material but the judge asked mr mcdougal would it be a fair use for the government to pick up the telephone or send an agent out to interview those three bankers that they had never heard of before and i think you can tell by mr mcdougal's response to judge collier he didn't understand the impact of the derivative  do that the government did they in fact go out and talk to bankers they never heard of before that would be a question for mr piper but i think that's the danger of the way that the issue is handled there a e per se rule if one if a lawyer for the defendant sends information privilege information to the to the prosecutor the prosecutor must this this well no but i think there needs to be more probing searching spent two hours i you know i went through that i have to say i can think of a single question that was not asked by judge collier now that i've got some perhaps but i think the deficiency really goes in the not eviden use how is mr piper to use his words going to unring the bell he is in possession of material that is clearly attorney client privilege material given the actual trial can you point to anything that you would characterize as derivative use well it's it's a little muddled and murky to be honest with the court we don't know what motivated mr piper to make decisions as to who he was going to call as a witness what questions he would put to that witness how he would fashion is cross examination those are all examples of the non evidentiary derivative use of it i take it you can't you really you have not pointed to something that happened at trial and even speculate that that was helped by this this material i can't do that because i can't divine what was in mr i mean i understand that but you know there might be occasions where you would say that was why i was asked i think the remedy of just saying well you can't use the document that you've read and that you've adopted and it's in your memory is an insufficient is an insufficient remedy i think that what should have happened is one of two things or should have been a more probing evaluation of the issue by judge collier on the issue of non evidentiary use and the issue of derivative use by having the government go through some line by line or some exercise with him to assure him that no non evidentiary use of the material even use and that simply wasn't done counsel didn't ask for anything particular of that sort before judge collier i mean you could imagine  least the way you're talking to you had been counsel you might have said that and we want them to promise this and we want them to promise that that didn't happen it didn't happen and i think the court should also be aware that mr mcdougal with all respect to  him he had his own agenda he wanted to make sure that the court did not perceive this is a serious issue because he was the one in the barrel he was the one that had inadvertently to use his word disclosed attorney client privilege material so of course he's going to say nothing to see here everything's fine and then i think you could glean from the colloquy between the court and the defendant mr god that god had some real misgivings and mr a good room for that so i may have a little bit difficult to hear you do i'm sorry last week up if you don't hear us it inevitably one of them is chosen not work very well today which is par for the course i did not represent mr got at the trial either first of all i think there's a couple things about the context of this that are important the first is that when mr mcdougal who is a second lawyer to represent mr got got in the case he asked mr got sin me a narrative of the case tell me what it's about what you did everything you know about that is the e mail that was inadvertently disclosed it was a crucial e mail  all the pieces of paper in mr mcdougal's file certain that would have been the most important to keep secret and so that you know it goes to the level of the problem here the other thing is that they focused on two pieces of information that were in that e mail one was a conversation that mr got had with mr smart who was a banker mr got believe that mr smart had told him it's ok to do these gift letters the other was that the e mail said the by the way up talked to three other bankers who said i couldn't do it and mr g only defense at trial was i did not realize what i was doing was illegal so the fact that he had talked to three other bankers who said it is illegal if known by the government would destroy his only defense so it's a very important issue that was brought up mr mcdougal had a duty to do something once he realized that he had sent this email he did nothing the united states seems to be the only party oddly maybe knowledge that the only party that seemed to take an interest in protecting mr got so it filed  and from that point on it seemed to focus on the question of the issue involving mr smart and very little was ever said about the three bankers the most important piece of evidence except time and again by mr piper and it one point and i think mr straw is right mr mcdougal had a conflict of interest he was clearly worried about what he had done so his first statement to the court was judge the government already knows all this information well how somebody else told them he's relying on a proffer that he wasn't part of it was a proffer with his prior lawyer plus the one party that was somebody else would that have been smart himself did the interview i'm sorry are what i meant that wasn't clear what i meant was mr gotz first lawyer had a proffer with mr got with the government mr mcdougal the second lawyer says the government already knows about all this stuff but the government said no we didn't know this we certainly didn't know about the three banker's so at that point there's clearly a conflict of interest there and mr mcdougal is not representing his or it's part of the first he says there is no harm because they already knew it one point the judge was talking about the smart statement and he said is this the only real problem in this case is this the sum total and mr mcdougal said yes the next line in the transcript judge looks at mr piper says mr piper you have a shocked look on your face m i was shocked by the words sum total in other words the government was trying to tell the judge that there's a lot more important information it was disclosed here and it just never got discussed it was mr mcdougal's duty to bring that on up and he did not do that so at that point i don't believe mr gotz being represented very fairly and that mr mcdougal has a conflict of interest the second thing and this has been touched on that they judge said to well what what's the remedy what remitting do you want and he says i don't want them to be able to use that e mail in their case in chief ok haitink seemed to care that that left it open for the prosecutors to cool groom mr godfrey took the stand about these three bankers that also didn't take into consideration the fact that they had the information in mr mcdougal seem to be concentrating on the dock the document it's the information that's important now the if the prosecutor knows the most crucial detail of the only defense that mr got has the same question i asked mr straw i answer can you point to anything in the trial where you can even make a speculative allegation that the government was advantage in some way in what they did in a in a question in a cross examination in a tactical decision i have i have a response it's not as concrete as that and it thank you for using the word speculative maybe it is but here's the thing  the one thing mr mcdougal did that i think was proper is once the judge ruled that i'm not going to let the government use this document in this case in chief which meant that they were perfectly able to cross examine him about in the judge said take up that issue later but when the trial came along mr mcdougal put mr god on the stand he asked him about the three backers i would have done that too if you know that something bad is going to come out in the trial one where the other you always better to bring it out in your case and sort of act like it's not a big deal and take the sting out of a little bit of my my my response is that it looked to me like the lawyer had to change his tactics because of this ruling and it got would not have been asked on direct about the three bankers is that the guts of it that's not i can't say that ago you said you would have asked him as well but i thought you meant you would have asked him under these circumstances i would have if if i was going to trial with somebody and i knew that there's three back and i as his lawyer would have brought it out you're asking me would mr piper have thought to ask that question and i don't know the answer to that if i had to speculate and say very may please the court on perry piper kerman a usa in chattanooga with respect to these issues mr cabot i'd like to address his statement first during the motion for judicial inquiry hearing that we have before judge collier i informed judge collier that on no luck pat myself on the back but i think i said that i'm a fairly aggressive cross examiner and i would have asked mr got well was mr smart the only person that you talked to about the gift loans coming from non family members we had already interviewed a fellow named chris hsu make who was a banker who as i recall had three or four files sitting on his desk that mr got never followed up on because he was trying to do gift loans through non family members i do believe your armor that the aspect of him talking to three other three or four other bankers was briefly mentioned during cross examination but it certainly was not my focus but i already you from the e mail i randomly called several mortgage companies and asked if anyone had a program whether seller could contribute to the down payment all of them said no the government has a statement from chris hsu make that will confirm this so had already spoken to shoemaking mr dobbs conceding that we that we had already turned over in discovery these this idea as well as keith smart we had talked to keith smart on several occasions i actually was the person who subpoenaed mr smart  mr got called him as a witness before we would have called him on rebuttal and i'm not certain that we would have indeed called him on rebuttal but in any event i did tell mr got and i told the court during the hearing that i'm certain that i would have asked mr got if he had interviewed have talked to other mortgage lenders about a gift loan program that came from the seller or one of  one of the prosecutors may have been did indicate that after i mean everything to having seen the inadvertently disclosed document that you couldn't i'm ringing the bell so that might very well mean that having that knowledge embedded somewhere that you're going to trade on that knowledge perhaps throughout the trial even though you may not stand up and hold a document up is that a fear  interpretation of that of the import of that statement it was me who said it your honor let me make the record clear i think the fair import is close to that respectfully i don't know that i was talking about whether i was going to trade on that information the information that i think then and i think now that is most damning to mr got and to mr dobson was the fact that got stated in this e mail to mr mcdougal that he talked to smart who told him that the bank did not care where the down payment came from as long as it was from a family member this is got saying this to mr mcdougal in the e mail that we got and that's what i was talking about it would be difficult to unring the bell on that now i understand this we had already talked to smart smart was adamant that he never told anybody that the seller could provide the down payment and in fact he was adamant on his direct examination when mr mcdougal had him on the stand that he in fact told them that the gifts must come from a family member so i do think that's a fair characterization i'm i'm reluctant to say that i would trade on that information your honor but i do think it's a fair characterization that i did say it would be a difficult don't ring the bell because i thought i knew what smart was saying and now that we in fact did have confirmation that mr got was agreeing with what mr smart said so that's what made it here that you're saying that you you already head the evidence or evidence that you could use from smart but now you would really believe that i mean to i that deposition as i was going through it that's why i keep asking about what actually happened at trial and i don't see much that happened at trial except to the extent that it it's a little fide your belief in your own case is that i will i believed it before your honor and i think it probably did help to solidify but i believe that before and anybody who's ever bought a house knows that the seller can't make the downpayment or part of a down payment it's absurd and that's what makes it  fraught i believed it then they were using these this is the the the sad part for the government here is that this this is created an issue and it's an interesting issue i haven't been a lawyer that long twenty six years but it's the first time i've had to argue this kind of case and it's made it created an issue and what i think would respectfully submit is an otherwise fairly routine mortgage fraud case the issue here is that we received some information that was incriminating and reason why we for the purposes of impeachment first and foremost we've never use this information i never use this information again i only looked at it twice the first day that mr mckinnon had received it and came into my office and said quote hey look at this which had been a good reason for me not to look at it and secondly when i was talking to pray over the pressure responsibility advisory office i explain to them what was in the letter beyond that i never looked at it again until m sentencing counsel raised it as an issue for a very departure that's the next time i looked at it but again then i think that was where my own ringing the bell comment came from your honor was that you know you see something like this and and it's kind of like your spouse telling you she's here she's out the door and you probably are not going to forget that kind of statement and it's just one of those things that happens and you can't quite put it out of your mind but i would respectfully submit that we've never use this information in any scenario even though judge collier stated that he would leave it open to impeachment and mr got testified completely inconsistently one hundred percent inconsistently with this e mail he got up and said smart told him the letter can come from anyone and it didn't have to be a family member he stated that and i never said well didn't you tell mr mcdougal or i never went to the court at sidebar and say judge you said we could use this for impeachment we did not know in fairness there was a ton of evidence against mr got mr dobson about these fraudulent gifts loan letters charlene conner was a lady that was paid to pretend to be the relatives of people who were buying property so i don't necessarily believe that this was a big issue but i would submit that this information has come to us inadvertently that hopefully we did the right thing with respect to it and the defendants cannot show prejudice they can even show derivative use prejudice because we already had the information from smart we'd already talked to chris you make and we had a mountain of other information showing their intent and now will agree with you judge bogs that it did in my heart of hearts that confirm for me that that this was fraud but the other information in the in the case the other evidence was overwhelming with respect to their intent to defraud i will note for the court that there was a good case out of the district court in michigan more lingo that talks about the two prong test and it's in my brief whether the defense must show an intentional intrusion which even the defendants concede we do not have in this case and prejudice we certainly cannot show an intentional intrusion and i would also invite the court to a case called lenore's i had in my brief but i think i was about two hundred fifty words shy of my limit so i cut that ours is a connecticut case it's a state court case in connecticut it's footnote ma'am step back to the  and that can be found at twenty two at lenox third five three six pinpoint site five three nine foot no tan and the reason why i'm inviting the court's attention to this is that they talk about the  lose that they would have to prove an act of intrusion that we sent somebody in to get the information which obviously we did not do but that's what the that footnote some state court judge or probably his or her law clerk get a really great job of researching that issue and laid out the case law very well on that so i would invite the court's attention to that case  mr cabot said that the lawyer had to front the other bankers i've already given notice to mr got and the irony here is i believe that mr got was able to hear much more about my plan cross examination of him three weeks before the trial than we were able to use we didn't use anything so there was some benefit to mr got doing this lastly i would say that as a policy matter if we were going for going to relieve a prosecution team for this then every time and i'm can imagine a defense counsel would be so duplicitous as to do this but every time a prosecutor receives inadvertently receives material that's incriminating and we were to be relieved that and in this case it's not used against the defendant then that would be a difficult policy for the government to follow the entire white collar division in chattanooga both of us tried this case and we were a small office and we had put a lot of effort into it and prepped it and had a lot of witnesses and the probably took about i think eight or nine days in the sentencing hearing was six days so it was a long lengthy and difficult process but i don't believe that the remedy a reasonable expectation that privileged communications which now the government characterizes incriminating would not be shared with the government i think it's a little disingenuous for mr piper to suggest that if you all write an opinion that gives some relief to these defendants that the floodgates are going to be open that all these unscrupulous an ethical criminal defense lawyers i was a former a us that's that's a theoretical situation this keys with your client mr dobson prejudice i think he was prejudiced because the government was able to make non evidentiary derivative use of the us this information that was contained in that e mail and this notion that  mcdougal was trying to sell the judge collier that oh there's no problem the government knew about this all of this anyway is just not accurate it is up borne out by the record mr piper at the at the hearing said that he did not twenty three ninety eight an affidavit of mr townley who said that this notion that mcdougal was saying that all the information was already known to the government was not borne out by his discussions with mr mckinnon the for the government mr piper mentioned something about this in response to something judge donald asked about this on ringing the bell comment and he seemed to characterize it as coming up in post trial sentencing it came to two comments first of all about the prejudice when the judge made his ruling at the end of that hearing the defense lawyer knew that that information was coming in about three bankers but for the disclosure you would never have had to worry about that no one would have known that but at the time the trial started defense counsel did not know whether those three bankers might be sitting back in the jury room so i think the prejudice is it came into the trial with respect to shoemaker at least they seem to make the case in the argument that they did know about him and they had contacted him he is not one of the three men not one of the three if you look at the e mails it's clear my point is we can say the defendant mr got waive this issue because he brought it out on direct ott i submit he did what he had to do i would have done it bring it out try to take the sting out but still prejudice and to say well i'm i'm not going to bring it out let the government do it so i don't feel like i waived it would have been not a smart thing to do the other thing i want to say i'll sit down is this could have been fixed easily if the judge had listened to the recommendation from the ethics people in the justice department and appointed mr advisory council who could have gotten to the bottom of it who would have been standing in front judged or not worried about a mistake he made but worry about his client's case and i think that these problems did result in  prejudice and i don't believe mr got got a fair trial is how so let me ask you if your answer to my previous question there's a point in the the e mail i randomly called several mortgage companies to ask all of them said no the government has a statement from chris hsu make that will confirm this you're wrong it seemed indicate that he is one of the three i didn't read it that way but that certainly could you could ok but at least that's what we should look at if we're worrying about this point ok thank you counsel york any other questions for that case will be submitted