you're with your briefs you don't need to read them to us we'll get right to it so i will call the first case number sixteen dash six zero eight four three united states versus warrant at all and we'll hear first from mr robinson justice because i do think the standard view may make a difference in this case mr warren never filed for a severance even though miss lead did would that then be a waiver instead of a forfeiture because he is clear it's not like some attorney didn't remember to make an objection forgot about it and then realizes it later on appeal here he was aware of the need to move for severance a judge told him to move or severance and he didn't move for a severance should we deem that a waiver i believe that's a waiver and even if it is waiver i think would satisfy the standard for this court to take it take it upon its ability to correct the error that occurred well if it's waived we can't do that if it's forfeited we can but  waived it's not of first why is it not waived it's not waived because one it was brought up throughout the trial it was clear that the judge was put on notice that there was an issue with respect to the joint trial proceed against these  defendants particularly with respect to mr warren and mislead you know you know i can't get away from the fact that counsel did not join misleads objection and requested his unease doesn't that mean cheney says it was this option of severance was out there because we as counsel made it in so your client and his attorney very well may have made a strategic choice that we're better off being tried together and that's really not a bad strategy because in my experience in these most i defend in fraud conspiracy paces the the quote lower level defendants often want to be tried with the bigger defendants because they often can just you know go by the ways and the government focuses on the big guys now in this trial of course it turned out the opposite result that the little guys got convicted in the big i didn't but if that's a strategic sure waste your client maybe he was better off being tried with a higher level folks why should he didn't be able  michael was a powerful attorney from powerful law firm he was running this case as the lead attorney even though he was pro se and the counsel that was the care mr client i mean and i will tell you i have seen plenty of cases where there's three or four different defendants or plaintiffs represented by different lawyers and somebody will come up with a good idea and everybody else to go i join in and because it's easy to do you don't have to go do the research or write the documents you know think all you can do is go i agree so they would have been very hard to do in the judge even said you will need to file one so i can move i can rule on it so it wasn't like the judge was saying you better not file a motion like that or i'm going to  like you need to do that so i i think there's a problem there but i do want to ask you something else and i'm going to i'm going to move on because i think you've answered  is that there's an air and imo spot you prong on that there is an air let's just say that but then how can we say it's clear can you point me to a case of anything even remotely similar where we reverse the district court case excuse me it would be the kaufman case roman nello and johnson each of those are on point with this issue in terms of of of the unfair r in the with respect to the fatal variance in the charges there's the error with respect to michael watson's critical he was able to provide testimonial evidence and statements directly to the jury in the guise of arguments from counsel because opportunity was the defendant's so there's a confrontation clause issue as well mr warren was never able to rebut following up on the obviousness point can you cite any cases saying it's error that it's a confrontation causes you want to produce a codefendant is is making statements and that's testimonial again it seems to be a matter of first impression and as far as i can tell when subject comments were an objection made to morning that please the court of the course of the five week trial there was specific substantial specific and compelling prejudice against kristy lee and this was primarily due to the attacks of her co defendants michael watts david wa fraud and so that set off the red flags in my mind because i was the trial judge that we have a severance issue we have a problem that has anybody not counsel yes yes yes and also let me ask you would you really be better off then with a separate trial time and time again beginning with oral argument opening statements excuse me david watts record page five forty five the five forty six the watts camp got scammed out of ten million dollars by kristy lee the watts camp was misled by they're very very good very talented former prosecutors record page six or team the six fifteen we even like harris teams will prove who committed this fraud and it will be overwhelmingly clear that kristy lee committed this fraud the fraud started with kristy lee and that's record page six twenty two and judge davis to answer your earlier question our motion our first lesson for severance was filed seven days after the start of the trial and so the trial started on a monday and that that motion on a motion was brought to the attention and put the court on notice that we have an issue here that need it the following monday or was it seven days of trial sub it's it was seven days and then a real ball started on september eighteenth question what didn't mislead do this or that but then the witness usually says we will move over i don't know so given that the questions of counsel aren't evidence i understand clearly counsel is trying to redirect the focus of the blame on mrs wood but what actual these identifications christy least who was in a position to verify these these people and get their identification information correct the wants can do the exact opposite the mutually exclusive in the trial everyone had to acknowledge these clients were not real clients so watch is trying to push the blame down on you according to mr warren your clients are trying to push the blame down even further but no one was this you can't dispute that these were you this because it's not something that has been discussed which is the standard review for ms lee even if we spot you that you couldn't known before hand in and so filing a motion to sever was filed as soon as it could be the motion to sever was based on the antagonistic defenses and didn't raise the variance point so wouldn't there were a view of the variance question before applying error rather than abuse of discretion i think the but the interesting to adopt a because the court d severance it resulted in a variance and and i would agree that that wasn't raised at the lower court level and so what's the effect on the standard view for us if if in fact we spot you that the antagonistic defense was raised timely but we're less persuaded in light of recent precedents what do we do with the variance argument do we treat that as plain error or how do we how do  compelling prejudice which was the conviction that's that's where i would respectfully request the court to team and what would that be called on the variance point what would the standard or review what we call that i don't i mean i don't i don't know but i but but stock but my position is that that that the variance the jury verdict resulted in is prejudice that is the prejudice let me ask you one question how do you deal with a fair supreme court decision and for the peril you want to i mean vie read that case there's a drug conspiracy case and there was a question about knowledge of drugs in a b different than what's prudent trog and tell me if i'm wrong but i understand your theory to be she was charged with filing false claims saying these people who work had claims against b p are making of me making of social security number victimize b p and the whole point process but watts gets in there and says oh she was struck ripping me off because i paid ten million dollars for them to go beat the pavement and come up with real clients for me and they didn't do the work and they just took my money and spend wisely so i was ripped off but if the jury accepted that theory it's still required that they were making up the names making up the socials so wouldn't it also mean if they were doing that to just take the money from why they also were making  the multiple conspiracies proven during the course of one one conspiracy alleged but multiple conspiracies alleged during the course of the trial i think our cases are simply says of the gun that's sufficient for the jury to come out and find government but as i said to your co counsel i definitely can argue this or hear this all afternoon but we got to let you go and we got to hear from mr kennedy christie leader on plane or review or abuse of discretion or some other standard would it make sense to not do warrant i mean it it it doesn't isn't that a little bit illogical that we say these two should have been severed but this guy's lawyer screwed it up and hers didn't and therefore we're going to give her the trial but not him that makes sense just logically maybe does as a matter of standard view i don't know you tell me it was the only thing that i was trying to get at is to distinguish between each of those defendants how the law would apply to them individually but as a practical matter even if you assign the plain error review to him you would find that there was no clear error here this is a case that involves seven defendants and his judge growling noted at the outset when lee first brought up this motion as is in the case many times especially when this one is involving potentially two point three billion dollars over forty thousand claimants in a b p will spill one of the largest natural disasters to hit the united states that different world than everybody just doing their own thing it would be except for the fact when you look at the opening statements made by the defendants kristy lee herself through counsel made an opening statement which we all know was not evidence but nonetheless pointed the finger at michael watts this is at the very beginning of the trial as their trial strategy was laid open that they were relying in good faith on others whether to downstream to the field workers or trained to what's specifically she said that she was relying on these mass tort experts to fix any deficiencies so it was even clear from day one of trial that they were going to point fingers at each other and she was one of the ones point think so in that i did b p actually get  frauded because it seemed to me that there was this big collection that got michael watts his seat at the table but then when the the forms were actually filed to recover the only the real people came forward the handful of real people that there were a mean there weren't these fake social security people didn't collected day like as if i understand the question correctly as the person forms were presented to b p i don't know if there was a dollar figure ever transferred that never came out at trial b p as it turned out was not cooperated in this particular prosecution because apparently they had their own a litigation involved wants firm but what is clear is michael wants circulated an e mail which is government's exhibit two basically we have no proof and within that same e mail speculating that the settlement to go as high as three billion dollars so whether or not he collected that money or not he negotiated the settlement and used those bad eggs i guess my point was more directed to the appointed judge cost to raise towards the end about the variance because it seems to me that if kristy lee is trying to get paid by watts she helps him simply by giving him a big pala name so he becomes one of the big dogs at the table regardless of whether b p ever pays a dime based on that so isn't that the so then when watt's turns on her and says i was paying you ten million dollars to give me real people as opposed to just help me look good that is a little different from we were all in a conspiracy to make up people that b p would pay those that does sound different so explain to me how that's not a variance it is in and i don't believe the theory to be but it was the circumstances that actually led to it because once they hired a lawyer garrett who was the middleman between warring you've got to remember that greg morin had previously been indicted and convicted in the southern district of mississippi put together bad dockets in the fin fin litigation which accords aware of he had previously worked with christie levy and michael watts on the theme of litigation i believe that resulted from all this katrina fame housing so all of these parties knew each other and they knew how to go about establishing a docket and that's why they hired kristy lee for her specific inroads into the vietnamese community because she could speak it she knew the folks there they started off by getting names and social security numbers of potential clients what  they found out very early on is astute guera that they weren't ending up and they had bad names they reported that the wants the evidence showed that watts wanted this docket cleaned up but here's where the problem came the deadlines started rolling on they had to present these claims by a certain amount of time or they would lose these claims and would be able to protect these individuals the entire time kristy lee is telling them that they're going to get it fixed america mind over ten million dollars has come into mississippi through city council and being into the coast very some outs going between the players warning late but in fact they never did fix them so they set the spreadsheets to michael watts and ultimately at the end of the day even if he didn't start out in the conspiracy to do it he knew that the bundle of mains were not proper that they didn't have authorization to have this person and then applying information yet he was the last person to be able to put these packets together negotiate w claims process because what was going to get a seat at the steering committee that he didn't otherwise deserve because of this inflated number of claimants would have been b p in addition this whole claims process that ultimately they were the ones that were going to be defrauded by b p wasn't really victimized was it i mean it didn't actually pay out money to fake claimants at least i'm sure it did in general but in this particular scheme i haven't really heard that what i've heard is that it kind of all came crashing down when the claims had to be fall because they found out that defendants that he had in fact negotiated a two point three billion dollar settlement on the sexual plaintiff docket but we knew the whole game was they needed coins exactly right and so should the he was convicted of creating fa women's right so how is that different there was always an indictment which was a scheme to create very claimants so what could be that the head table of the steering committee i believe i understand what you're saying there is no difference  in other words what was alleged in the indictment was that there was a single conspiracy each of them had their own individual parts but leaves jobber part of that conspiracy will was to hire illegal workers to tame names and packets then we're all in this to take out b p versus levy is defrauding the guy that paid her ten million dollars i mean that he paid her he says to get real names you guys say to get fake names and so that's what the case became about the ten million he paid her and they're spending it on cigars and all this kind of stuff as opposed to this group of people trying to take on big old b p because of this terrible disaster maybe clarify it's not that the indictment alleged that they started out to get bad names if i'm understanding question the idea was that when they started this entire process it was to be legitimate however they're being well known and very successful lawyer now comes in and joins hands with the government to take on the mina in essence and you don't think that's a different case is she her lawyer thought they were trying it's not there is the possibility and i mean you look at it there's a lot of things that are going around but it comes in to the same umbrella in that list was providing the names to once ok watch used those names once they knew that those names were not authorized that's when the criminal liability attached because they were in possession of these personal identifying information that they weren't supposed to have using it to pursue a claim that's b p additionally or alongside of that if in fact lee was telling watts he simply more money a work order on this it is true that she could have been trying to milk him for more money but the overall conspiracy that the government charged and was shown in the indictment in the jury instructions was that collectively they conspire what did the jury believe as we see from the verdict the jury believed that lead to fraud in watts no six has the whole thing in the government's position is you articulate it now makes no sense with a not guilty for watts because without watts you can't have this conspiracy i mean leave yourself can't go follow these claims she not the lawyer she not the one you know the big dog at the table in terms of and again i don't i'm using these analogies i don't mean to be disrespectful to people they're all human beings and i recognize that but the point being he she is not he's not she is not the guy that can sit at the table and be the big lawyer the big plaintiff's lawyer that's one of the group of elite counsel and all that so without watts she  she's nothing and so your theory your original theory is watts is the king pin and everybody else is just kind of part of the the mix but what's this theory was he's this pristine guy who was brought down by this  woman and warren and that's what the jury believed him to mean that just sounds different now whether it's technically different as a matter indictment log we will we'll figure out but it seems very different to me practically there's a number of things that are on the record that the her because ultimately what the government showed was that she had knowledge she knew that she was told fifteen different ways that you had to cease to clients you're not supposed to do that that is the government's evidence well it's almost always easier to tie the people at the lower end to rot in the street doing the drugs or in the fraud scenario the accountants in a company who are actually fudging the books and there it's pretty hard to provide a defense just like here it's pretty part to provide a defense to collecting fake people's names and socials but in the c e o of the company says oh i didn't know my accountants were doing that those fudging numbers sometimes that defense work sometimes it doesn't hear it work for a watch he could say oh i thought we were getting legitimate names that were legitimately making me someone on the steering committee but in fact this woman this guy warningly they were out there getting fake names unbeknown to me and but is that change that they knew the names were going to be used by the claims process to get ammunition lobbed at him that they were not given notice of because it's not a government they're not government witnesses but then the government benefits from that in convicting them well then what's interesting about that is  severance because had this been tried as just united states versus lee and warren then you all would have had to bring these experts or not and if you hadn't maybe they wouldn't get convicted but if you brought him then you would had to do proper disclosure in all of that somebody to tell the personage that these were made up numbers we had a witness who testified that they met with greg moore who said we know the documents but we know we got the names out of the phone book we clearly interview witnesses who said i never signed as a client so we don't need expert testimony to say what the percentages of accurate versus not accurate or who handled them because we knew that levy was in charge of the client that the bihari you had forty thousand names or whatever the number was and a handful of them were improper numbers or names or whatever i wouldn't find that shocking but ninety seven percent is pretty shocking well you know and when you're talking about intent and wrongdoing and whatever i think you would expect  long list of names i mean you wouldn't want that as a lawyer and of course it would be unethical for me to allow that as a lawyer but i'm saying it wouldn't probably when a resulted in a prosecution let's put it that way but when most of the names are wrong well then so you don't think the experts that watch called added anything to the case because basically all the witnesses we put on said that it was just chris daly on set i saw claims from both mississippi and louisiana with the same signature it looked like they were using different it looked obvious it appeared that they were trying to blow this up and generate these and he testified about the method by which the field workers were paid by the packet again bringing forth circumstantial evidence paid them kristy lee did she was in charge of the said there were some things that i believe that watch trapped himself if i had to spy on you know i have to be speculating on what what did with some of the jury and others it was a very long trial and again this high corporate hierarchy how much they actually saw what they did what they did and ultimately the journalism locally and warren weren't small fish in the overall scheme right ultimately i mean there were and at a similar level in that regard but they w found well since the firm intended the wall from intended this much loss that that's attributable to warren and warren's is no you did a show that more particular to me i have this intent defraud b p of this amount so what's your response to that i believe in a case like this he would not necessarily know ultimately the amount at some point time but once they negotiated the two point three billion dollar settlement because that was always going to be up in the air how much is this going to be worth because it depends on the individual claimants whether they were a decade and or a boat owner so there were a lot of variables that went into it but ultimately when he sent that e mail about two point three billion dollars it was clear at that point he had a good idea but the district court looked at that to and said even if you didn't intend for the two point three billion let's also try to make our best educated guess and take a look at the percentage of fraudulent claims based on the government's case and we saw again even there they further reduced it and then again even on that amount the court determined that that five hundred fifty million was only the threshold amount for that thirty was that he was putting boy here in the court sentenced him even millo the guidelines even taken all this into consideration and when asked that they get anything else to submit on the damages he had none so this was the  best the court could do in taking a look at the total ok thank you with respect to the loss the court made an error in determining that degree worm was responsible for the entire loss subject and there just isn't intended loss to b p that without making a relevant conduct finding without determining what was mr warren's subjective in the intended loss in this case assuming he was guilty and obviously was at that point guilty so that was the area to be maybe it was that the court needs to find what it was within the scope of his agreement within this conspiracy simple in my eyes just looking at it objectively and with the reading of the transcripts the evidence against mr warren was limited to he was in charge of hiring ms lee who was in charge of the field hiring the field workers are the offense conversation post defense conversation to someone that he felt he realized they were just getting things out of phonebooks that that was his his knowledge of the offense and the third one was he was he was living  extravagant lifestyle on the wants law firms dime buying cigars clothes of clothes and cars and having an affair with that i names thousands of names came to michael watts cried to kristy lee was even higher number one the government just said they didn't rely on watches experts that's not true my brief page forty six it's also important to remember the testimony of one of the defendant