it's a good day it's friday happy valentine's day everybody so they only got fifteen minutes to get straight to the heart of your argument before we start firing questions if you're when the red light shines don't treat it as aspiration judge edmondson likes to say but if you're finishing an answer to question from the court of course feel free to finish your answer united states versus kim  please the core counsel as you know i represent john kim by john chemist present in the courtroom here this morning i'd like to talk this morning about two issues the trial court refusal to give the entrapment charge and the trial court's denial of the motion for new trial based upon the improper introduction of the two transcript portions i'll take those in reverse order well i think you might want to understand kind of what what the trial judge had been hearing and making the decision about whether to give that instruction there'd been an event where as i understand it the evidence was mr kim and others decided they were going to go over to the victims bar mr lee's bar to quote collect money and at least get some drinks well you know i think that the word collect was used and they were the goal was to go get drinks you know and that was that what that was there at a restaurant elsewhere and they were they said let's go drink some more and and and and the practice had and and it was mr the evidence was this is mr kemp's idea well again they were at a restaurant and they were they wanted to have more drinks and one of the guy said i don't have any money and there was whether you know there was a real showing here in d c you know i understand and what you are again as you know that the bar fight which the jury acquitted my client of they did not find that was an act is not something the that was the testimony and irony is that that i mean it is the testimony clear that all he was saying it was for illicit more ambiguous about what the paying the money was given a surrounding stacked facts and circumstances the that was what was clear to my client was that this was payment for the bar and there was it it say that they didn't say that but but otherwise again and the informant is getting a bar for free so this happened that happened in december we moved to the payments in january and that is all at the instigation of the informant and it there's no doubt it's an informant it's calling up john kim and saying hey were you deliver this money will give you the money and mike that then the victim informant who you know last he was left with with your client after having been beaten at an event that was the fact in throughout the recordings when the informant is trying to work on can so we're not dealing with the malice or intent element the question that churchill prayers ask you and it's a question i have as well is for purposes of them to snip is it not our read the quick testimony it's from page one hundred and fifty of the trial transcript quote after that i talked to john john said do not call the police if you continue to pay jean everything will be fine i said ok and that's it that as the suggestion of payment that led to january th is that it isn't in reasonable reading by the trial judge with all due respect i would say yes i don't think judge batten made anywhere near that that repeatedly contacted my client my client refused to do initially said what money would it be unreasonable for a trial judge whether the particular trial church here did or not get into as you quote unquote say granular nature of it that a trial judge found that he said pay the money and then a call was made on january th for payment of money to show that your client and not the government was the initiator here i can't i will not concede that unless you can see that i'm asking for a reasonable trial judge could view it that way i i i don't think that given all the evidence in the case i don't think that is the reasonable interpretation with all due respect don't let mr finlayson even if we look just at the dialogue that you want to focus on where he says he doesn't care about the money it's not his i don't pay attention to less than two pages later in the transcript he says ok i'll help you but i'm not sure refuse refuse maybe too strong a word there and then in the next call they they just move forward pain of the money and there's no most really your client says in terms of a refusal is that he's not involved with money management isn't that right he says it's not mine i don't care about it and it's because you and sue is trying to get him to take it this is not where john kemas call it going to say hey please give me the money so i can give you gene this is he's not trying to encourage this in any way this is all instigated and induced by the government before that let me ask you this counsel let's assume that i disagree with you about a reasonable trial judge reviewing the december the testimony about the december meeting and then what happened in january even taking that on its face is there anything to be said for your point of view that the statement that i just quoted from is your client telling the cooperating witness here to pay eugene and then the january call he's offering your client the money meaning i want you to take it do you want it do you want the money is there a difference to be read into that even even reading the even getting more important to the transcript then you would give it i'm not sure to be on to be and i haven't and i don't quite understand  in december the testimony is this that after your client after the cooperated with us got beat up and your client spoke to him your client said after that i talked to john john said do not call the police if you continue to pay eugene everything will be fine and he said ok fast forward to january th two thousand and ten your client says essentially empty summarizing hey here's money i five hundred dollars you can keep it or you can give it to whoever it is that it is that a substantive distinction between you need to pay eugene versus the offer here which is not to pay you jean but two you can keep whatever you want out of the five hundred bucks i think if i understand your question i i think that helps me in other words i'll tell you why i think maybe too but tell me doesn't it isn't that the problem that's the problem with the point i made is this is a section two case that well the problem is though john king was always aiding and abetting it was always please help me brother do this for me brother it was not he was not aiding and abetting  he was abating you sue aiding it because you still was asking him to please help me please do this for me it was not it was not the other night he was not doing it for chung and it was not to his own benefit can i just briefly talk about the other issue i think those transcripts really quickly and that and i think the government has now conceded and we are at a place where there is a present sion of prejudice once once we're beyond when we're out of the wavered debacle once we're out that there's a presumption of evidence with a presumption of prejudice which must be rebutted and has not been rebutted judge bags entire ruling below was based on a premise that there had been a waiver so there cannot be an out of time  it yesterday so i get a letter on the eve of all argument that says you know all that stuff like several pages in the briefcase all complicated in the record you know where i don't worry about that could be helpful if it you know it's further in it vance but on the on the eve of oral argument you know to get that or you know i just act just as a practice pointer that's not very helpful defense defendants and defense attorneys can rely on what we're saying and it was decided as an office this wasn't me ok and so i think you can report this back to the office and i was certainly part of those conversations i'm not trying to i understand i think judge crier i don't want to speak for him but i think i will hear is not being critical of that decision what he's been critical of as this seems this conversation seemed to happen very late in the day and i go to him that and less so given that you've conceded error where are we well we are on the question of whether or not the district court abused its discretion in finding that the error was harmless beyond a reasonable doubt evidence was highly prejudicial absolutely not we're not conceding that it was highly prejudicial we are concerned our argument is that it was mentally prejudicial our argument is exactly what the district court found so the district court in denying the motion for new trial re the  was that the defendant substantial rights were not affected that this was harmless beyond a reasonable doubt that the admission of parts two dollars and three dollars did not if that the verdict and there are two reasons for that one that the parts of two and three that the defendant and takes issue with were minimally prejudicial and the other reason is that the other evidence that came in was absolutely overwhelming as to the defendant's guilt and with respect to what that overwhelming evidence was the jury heard that there was a gang that this was a gang that engaged in a lot of illegal activity that the defendant and mr eugene hsiang were the two leaders of this gang and that this gang tried to make people scare them the evidence showed and great detail but the jury acquitted mr cameron counts one and three they did when looking at the overwhelming evidence in looking and analyzing whether or not there was abuse of discretion and to dot denying the mission for a new trial this court must look at the evidence as a whole so the fact the supreme court tells us that the fact that there was an acquittal on counts one cannot be taken into account when looking at the overwhelming evidence as to counts five dollars and six dollars and that's true even if there appears to be a logical inconsistency in the verdicts i look back and it looks like the jury deliberated for seven or eight hours before they reached a verdict so how can we say there was no reasonable possibility of prejudice here because we are not we are not even allowed under the law to engage in suppositions and hypotheticals as to what the jury was doing we have no idea and we can't make any assumption from the length of time or the fat even the fact that there was an acquittal on some counts and so the overwhelming evidence looking at the record of as a whole shows that there was a gang shows that this gang was violent shows that this game wanted people to scare wanted to scare people and says that the defendant was one of the leaders of this gang now we know in particular that they scared mr usui and we know what happened on december th on the assault and there doesn't seem to be any refusing to get the entrapment instruction here look put aside for the moment the statement that i read and that judge bill pryor was talking about regarding what happened at the december meeting pretend for a moment that that never happened the statement of pay you gene and we just have starting this the general gang involvement what you talked about and the january th call right with the january th call be problematic for you under that factual circumstance it would not be in tell me right so that statement that the defendant points about all the things that have happened to him so like you gin before either you either to you or to you jim i'm asking for help i will do it i don't like being a problem you know that i from the beginning don't like to cause problems and he says i know being i don't want you to cause problems he doesn't take the bait on the money then again number two you can sue says so can you do it then i will do it starting next week the business is really bad there haven't been any customers since yesterday rumors also so if you want it i'll give it to you if you and he says oh the money you are bearing pay the partnership he doesn't say the money for protection or anything else he's talking as your opposing counsel said about a potential business relationship and then then he says you're going to ignore that he says give it to you jane and then he says young sue i'm going to tell you this because i'm really concerned for you really i this money management i don't care i don't know it's not mine so at then there's more and more conversation it only two pages later do we get the big brother please help i'll give you five hundred dollars and he says so the five hundred dollars since you were having difficulty if you wanted to give it to give me the five hundred dollars i'll give it to you or to you jan that's the th time he's asking and only then do ok i will help you so as not to cause the problems that you were talking about how is that not some evidence of inducement after getting absent what happened in december right so whether the question the legal question is whether or not there was some evidence that the government created a substantial risk in this court has given us different factors and one of those to speak to your concern your honor and this is what we look at was there evidence that several attempts at setting up the illicit deal had failed and that on at least one occasion the defendant had checked directly refused to participate so it is our argument that when the defendant says i this money management i don't care i don't know that does not constitute a direct refusal and consistent with that is the very next page the defendant says ok i'll do it and in that same phone call the defendant says ok i'll do it four times and then on january th said that call happened on january  are fully a apply pressure and simply don't match what happened here so i can give you some examples of that  if so in jacobson which is the quintessential supreme court case i'm proud of disposition the supreme court said that this was not proper where the government agent was urging the defendant to i guess  purchase i'm assuming child pornography and they were telling the defendant you will be joining in a fight against censorship and the infringement of individual rights and sort of appealing to this higher this higher good in brown which is an th circuit case this court said that this was not proper when the government informant told the defendant that her friend was in trouble with colombian drug lords and that they needed they needed the defendant's help to save her we just don't we just don't have that level of  sorry and i'm mispronouncing that g j e r g i the defendant said i don't know and this court said that that does is not tantamount to a direct refusal but because  arises in this context it arises because the victim has been beat up who is responsible for the event where that happened john cam and  th two thousand mind so at that end there the statement is pay eugene and it will be fine and here the offer seems to be much different which is i want to give the money to you you can take it he can take it you can split it and that seems to be the tenor of all the conversations in january which is i'll give the money and i just don't want any problems and you can do what you want with it that seems to be quite different doesn't it well this is again and aiding and abetting charges as came out argument and and so we have that legally factually we also have evidence that this was a gang that they work together patrick least testified that whenever money was involved john cam got involved because he was the he and the older about a foreclosure on the bar's structure everything's going to be ok after the man's just been beat no been beaten up extremely violently with a gun in his mouth and he was punched his nose was broken  and then we have the defendant's own words about protection after this violent assault we know that another gang came in and this was a man named cial on and his his quote unquote crew back are you sure you really want to do this don't do it stop here because eugene is protecting there's no doubt to me at least that there's sufficient evidence it's not that it's the finish will part not the later things that happen they can switch for a nd to the transcript i you're opposing counsel correct that we presume prejudice in this case exhibit fifteen plus we're going to pick that based on yes after our rule twenty a day later we are yes and we are proceeding only on our argument that there was that that i understand imus but if we pursue prejudice though how do we get to our most famous finding we're presuming well and i was having overcome that the presumption is is below that it and then the government rebounded that and we rebutted at exactly the way the district court found that the prejudicial portions apart to the arguably prejudicial portions that the defendant points you were minimally prejudicial combine that with the overwhelming evidence conviction of prior i can admission of prior crimes which otherwise would not have come in in this case as i understand and were explicitly excluded for forty conversations well this is actually would have as special agent c s can testify without objection that the f b i knew about this gang so the parts three of which the defendant takes issue with he says i was on the f b i list we have an f b i agent testify at trial we knew about these guys and guess what i purchased drugs from them and i tried to purchase firearms from them and i know they told me about their excursion activities and we actually engaged in an undercover extortion as operation and i see my time is up my posen counsel mentions argues that it's not these are not prejudicial transcripts the problem we have or a problem that's in this transcript is we have we have rd party hearsay we have speakers that are never a den of fide my client's right to cross examine about these matters as  whoa i have no idea who j w is who's talking about being shot and the implications are in the government would suggest in our you very broadly that everything in this in these transcripts related to the conspiracy but the fact is talked about drug usage at the very end of part two there's this discussion where john chemist saying so and so must be an informant and he asked me for twenty ounces of cocaine that he wanted to trade for meth support to has drug conversations in part three we have my client talking about doing cocaine and that he only stopped when he came out of jail and that evidence would never have been introduced if that's that sort of quintessential bad character evidence that you know he was in jail long enough that he stopped doing cocaine that is sort of the you know the a prior conviction a prior time in jail is this the type of the thing that is sort of archetypical bad character evidence that should not be introduced to a jury we've heard repeated conversations about all of the overwhelming evidence and that this was a gang this gang had no name i dispute completely that john kim was a leader they had no they had no ritual they had no handshake they had no dues these were a bunch of guys that got together got drunk and did stupid things this is not a gang in the traditional sense at all and the idea that john king was a leader you remember after january the st john kim was not seen with these individuals for an entire year there after the f b i agent imbedded himself with eugene chong and his group john kim was never there a year he's there is here over a year this the only discussion these transcripts are about i'm getting beat up i wanted to stop i got beat up by this other person you promised me protection please help me please help me that's exactly what that i took the call the request again repeatedly is please help me there in this came out in the trial chill on used to own cobb and back and work with the young so there is a prior relationship back there that god knows what it's about but the battles with chillon i mean the government lumped every every conflict and everything that ever happened to they try to put it at the feet of john kim and that is just not fair the man was entrapped we put it we presented enough evidence to get the jurors should have been a jury question in that and it's clear as day it should have been did jury should've been allowed to consider they never had a legal framework when they never had the proper instruction to know what to do with the idea thank you mistakenly said that i know you have court appointment and we appreciate you except in the appointment and discharging your responsibility very well this morning thank you thank