good morning my name is in short and along with don bosh we represent richard baumgartner i would like to reserve three minutes of my time please for rebuttal affirmative concealment that element of eighteen u s c four is at the heart of this case and if this appeal can be resolved by finding that the evidence is legally insufficient to support that element then this court doesn't need to confront the constitutional limitations of eighteen u s c four as we've outlined in our briefs several definitions of affirmative concealment have been proposed based upon various fact patterns we've seen in cases intentionally giving a false impression that the earlier felony never occur we see that  detail cases it can include giving an untruthful statement to authorities it can include throwing dust in the hands of investigators and providing them with misleading information that's from neil versus united states which was the case that the sixth circuit used to develop the four element test for misprision of felony in terms of the application to this case is i understand the government's brief it was mr bong garners invocation of drug court to these various individuals that hail actively concealed a federal drug conspiracy to distribute drugs we suggest that argument cannot be sustained as a matter of law under the individual facts of the cans in this case elegy anderson county june of two thousand and nine miss castlemaine at that time is incarcerated in anderson county she is being held on misdemeanor drug possession offenses misdemeanor paraphernalia of fans and one felony charge of tampering with evidence mr bombard the evidence showed he said miss castlemaine had been in his drug court truthful statement and that he believed she would be a good drug court candidate for judge eligible court first of all that that right there kind of broaches on one of the cases that we see the chambre in a case where whether a pretty full statement but not the whole truth can even simple possession yes sure i'm right let me ask you this is purchasing a gravel product from a group a member of a group that conspiring to deal in drug was purchasing then yes i think that would have the potential to bring him within the ambit but that was not the evidence in this case i understand that but from his standpoint the point before  your honor i have not personally experienced or defended that kind prosecution counsel if i could take you through the cut to the chase here if you look at the approach to the assistant district ns eleven judge which was on a drug charge in knox county he says it was burglary drugs and dui is that the same charge that was before judge jackson in knox county earlier that same year the burglary charge once judge jackson banned that over to the grand jury so that was the same charge somebody did but then drugs and dui came in later the dui came in later the evidence is not necessarily clear about that the drugs appear to be from the result the evidence shows when she was in the hospital and there were certain pills that were found in her room and confiscated and she was charged with you have some specific attacks on individual pieces but it started especially with blevins and overall all right isn't it the trying to keep her out of trouble in effect to get her out of court is a way of concealing the conspiracy that you have your coconspirator or not coconspirator strike that you have a conspirator for whom you have she's both your supplier potentially your mistress and whatever but by keeping her out of trouble doesn't that conceal the conspiracy your honor there was it lisa let me see if i can put this in context probably at least fifty percent of the time  but as to these five specific contacts they happened at specific times when she was in i grant you there are various ways but there are various ways that she was either in trouble or in need of assistance or something to make her look better and not be in trouble is not a fair statement of what they would have thought they were actually doing now do you know this kind of what i'm prodding you on is for i think this is really what the government is saying in their brief with mr blends and magistrate briggs is that the statements he made such as trip to mr clemens she may have been in his drug court she was in his drug court statements they gave a false impression that she was on the involved in ear in any serious criminal activity and worsening in terms of legal evidence sufficien that that cannot suffice to be active concealment of a federal drug conspiracy it's not active concealment of any kind of criminal activity it has to go to this underlying federal dru conspiracy people who know does the recipient have to know about the drug conspiracy or only the defendant in making the charge in other words if the defendant is in fact trying to conceal it by making the statement does the recipient have to know that it's about a federal drug charges it would certainly have to have that natural tendency juran i'm not saying that that that would have to be shown that it actually did but there would have to be some natural tendency to conceal simply for example i suppose every time that i represent a client it could be said that what i'm trying to do is to make give the impression that my client is not as involved at the end that's what they said about socrates i mean the worse appear the better cause right and so i suppose standing here at this minute i could be said to be trying to  defendant specific knowledge the defendant here knows what's going on up i was focusing on i thought you were trying to say that the recipient needs to know about the drug felony know the gun not offended baumgartner knows actually that the defendant's acts of deception were too far removed from the underlying narcotics conspiracy to have concealed that conspiracy that there's basically the conspiracy that the government claims he can see on the he made other statements of deception and some of them may of applied to various criminal activity but either make he did make statements regarding  deception regarding this specific conspiracy is you know if i understand your argument i think that that is fair and i think that can involving in the be at the y m c a is a very good example of that your honor there is no question that telling her that miss castlemaine passed the drug screen was incorrect what did that did that only if anything concealed her personal drug use the only leap you could make as a matter of law to say that had indeed tendency to conceal an underlying federal drug distribution conspiracy would be if we say anyone who uses drugs or who is a drug addict by definition is part of a federal drug and sober when he makes the statement that she's a good man to judge  make him go to mr prison because he's he's not making an active represented misrepresentation regarding this this particular conspiracy is this is that basically of the argument you're giving i think clearly for count one with h it is your honor because the proof is undisputed that had she gone into drug court it would have severely limited her ability to continue to operate in what the government claimed was this federal drug pure they were required to find it in order to come to a conclusion the defendant was go well we have raised two jury instruction questions if you're speaking more specifically as to the element better instructions we could find anywhere in the country through two quick questions a minute ago when you were you were saying that well if she'd gone to the drug court he would have been counterproductive i take it that's counterproductive to the continuance of the conspiracy not necessarily counterproductive to the concealment of the conspiracy it might have ended the conspiracy in the sense that she couldn't keep operating it's not a fair distinction i don't think it would have had any effect on the previous  approach to briggs was subsequently followed by vacating the your warrant and releasing her own on her own recognizance that would seem to have assisted the continuation of the conspiracy no your honor that had absolutely no effect on the continuation of the conspiracy that kept her from lead kept her from being in jail no your honor absolutely not she was being on the whole from juvenile court and also being held on criminal court charges she was incarcerated her but she still was being held on the not ok so what you're saying is that these are be bruited because it helped but because independently she was in jail on something else she didn't actually get out on the street so absolutely no ok but but so did act favorably it just didn't have much effect briggs vacated the arrest warrant did mean he did it again as far as he was more may please the court david lewin for the united states yawners the evidence presented to the jury in this case is sufficient to affirm the defendant's five separate convictions for his violations of eighteen us c section four that is in this prison of a felony and the drug conspiracy your honor the united states believes that there is a nexus but the government would agree with your honor that if he had approached judge elegant said you know dina cousens favorite color is blue and in reality it's red that fact that this judge richard baumgartner former judge preyed upon people's understanding of drug court drug court judge alex testified it's for addicts it's not for drug distributors richard baumgartner different people would have to law doesn't hold that someone like richard baumgartner would have to approach a judge and say hey judge elegy i want you to know the dean of calcium and not in a federal drug trafficking conspiracy that's no case says that he doesn't have to say that you don't want to say that but he would have mislead actively miss levy wouldn't that away from a belief that she was participating in such a conspiracy he was misleading you have to look at the context that's what all the cases show your honor there is no formula as to what constitutes an affirmative step to mislead or to misrepresent or to conceal richard baumgartner received a letter from dina kasem and she wrote in that letter from the interesting county jail i'm stuck in this jail i'm indicted i'm afraid i'm going to do a long stretch of time people get stuck in this jail and they do not get out it was only after he received that letter that he then contacted judge l h and references drug court all because he wants her to get out because she can't he may misrepresentations regarding this but conspiracy to i guess law enforcement decision makers yes your honor he's he's attempting to cast her as nothing more than an addict an addict who is in dire need of jail free drug court where she can get counseling treatment job training and whatever else is supposed to come with drug court he wants her out and by effectuating her continued conspiratorial acquisition of pills for him he necessarily is concealing what she was doing he chose to speak to all conspiracy at that point i thought that point he and castleman essentially were only in a buyer seller relationship well john of the united states has never alleged that richard baumgartner was part of this or that he knew there was a conspiracy beyond that that he was trying to conceal the conspiracy as opposed to trying to just help her personally yes or ard the the our brief lays out the sequencing of events when she was in his judge's chambers in may of zero nine where he says i wipe my opiates can you get me hydros and it's important what she says she says yes she doesn't say let me check i'm not sure he gives her one hundred seventy five dollars that is evidence that she has a mutual understanding with someone else to obtain drugs and deliver those drugs to him and when he spoke to judge ellett she was operating under that understanding of that relationship between him and her and her visa v the pill trafficking network of which she was a part and when you read that point you rested only on the fact that she didn't have the pills on her she had to go further back yes you are see she didn't have the pills on her she was not going to go to a doctor or pharmacy she was going to get tills from her pill trafficking network jury her have been in the that is she if they did that does she say that to him at that point no your honor but when you take her unequivocal yes and his unequivocal handing her one hundred  seventy five dollars in cash those work that word in his behavior and handing her the money communicate one his understanding of how she's going to get the drugs she also testified that her pill suppliers had fronted her in the past she testified at what time in what context that is for him to be concealing a conspiracy the first statement of what she does isn't isn't relevant is that i mean how does he know that that she's part of a conspiracy rather than simply a seller he knows that she's going to have to get drugs from someone else and those drugs are not going to be for her they're going to be for him a relevant to eligible if you look at all at all five of these what it what is the strongest in your view or is it simply that any keeping her out of trouble furthers the conspiracy or you i think when you look when he started this criminal relationship with her he warned her he told her do not go against me so you have to ask yourself why would he make such a warning to this defendant of his why would he want her that way he wants her because he knows that she presents a unique and especially volatile risk to him his livelihood his professional reputation don't ever go against me she knows that she has a lot of power when they engage in this type of relationship and even though halfway through the conspiracy into the spring of two thousand and ten she hands him off to christopher gibson and he's getting his pills hand over fist from chris gibson she does i read the opposing counsel she was in the knox county jail from the summer through the winter of two thousand and ten but she wants his help he knows that he can't just cast her aside and leave her to toil away in a county jail if he doesn't help her if he doesn't interject himself into her criminal justice matters the way he was in the way the evidence was shown to the jury and made all those statements the jury was allowed to decide what his intent was in making those statements to three judges  state prosecutor and how that his intent it was argued that it was just to cover up an affair or that he was just some magnanimous criminal court judge who was motivated out of genuine concern for her welfare the jury rejected those bas s you're saying first that he needs to conceal the conspiracy because of the conspiracy as a whole is revealed his connection and he's got his crimes were going to be revealed that's yes i buy that part but then his specific statements have to be to intent intend to conceal the conspiracy yes he's got a desire he's got a motive then the question is  might start with to me the weakest which is the y m c a she needs a place to stay how would that be any different than paying her rent for a moment yes or would that be mr president if he you know obviously if you have a mistress you might want to have an approach meant for her it would help her in the conspiracy but it wouldn't conceal the conspiracy your honor i think with miss b b the fact that the y w c a worked hand in hand with his drug court dina castleman again needs h he arranges for her to get a place to stay at the y w ca again what he can't do is he can't say dina i've had enough of that are you saying that anything he does for her is going to conceal the conspiracy i mean we can't it can't be that is that any statement you make to somebody else no it's not to anybody else but these weren't just chance encounters with random people on the sidewalk these were deliberate people that sought out it's important that he initiated contact nice things for her in one sense you're saying to keep her quiet or keep or on the strain is that yes or are really more what you're saying yes your honor and by even within that b b that's why he had to participate in the fossil occasion of the your analysis he can't call in that b b and tell the truth in front of dana castleman in his office when he says i'm about to go to hell for this he picks up the phone and says it's clean if he says it's dirty you need to kick her out right in front of her he knows he's got problems he has to keep her happy especially there towards the end of the conspiracy when christopher gibson was the one that was providing him all the pills but when you look at these statements the jury is allowed to draw reasonable inferences as to what he did and why didn't it in action is more by by law again to various people about various things you keep her happy drugs but at least there are some problem with whether they're in some way related to the conspiracy yes your honor but even within that b b and that b b you can't stay at the why did you see if you even using drugs and again the fact that he was a sitting drug court judge saturates this case you if you're a doctor if you were a doctor and you wrote ferrets prescriptions to keep somebody happy let's suppose that rather than being a judge or you're the doctor and maybe you're also getting some from her but let's suppose that you could write prescriptions would that be in this prison your face lee testifying your fastly stating that they need the drugs would that be miss almost like this court's opinion in goldberg where the doctor was giving prescriptions to the pharmacist and he knew that the pharmacist was adding on to those prescriptions but the doctor did nothing more then just sat back and allowed that pharmacist to continue to add on to his prescriptions and this court reversed that in this prison conviction because that was just a mere failure to report well but my difference in mind was that that the doctors prescriptions themselves were false that is that the the person did i mean i take the distinction you're making but this guy did make some false statements but they were then only only to keep her happy so  i don't see i'm not you're saying that goldberg is distinguishable i'm trying to take you one step further the press the prescriptions themselves were false that is the person did not need drugs so he writes a prescription for ms smith  illegal form of cuticle activism and legal form of judicial activism no i think what he did was he committed all the crimes required for miss prison what what he  sought out those three judges in the state prosecutor in the housing director he did so with an intent to keep dina calcium and crimes of which he was the primary beneficiary he knew full well what's going on them quote suppress to keep it to keep it perpetuating and by doing that he's also having to conceal those are mutually exclusive you can't attempt to have her perpetuate in this conspiracy and not also conceal it at the same time what was shown to the jury was a corrupt man wearing a judge's robe going in interposing himself between his mistress drug dealer and three state judges a state prosecutor and a housing director and it was his knowledge that she was involved in a federal drug trafficking conspiracy in his knowledge of the fact that he knew that that could not come out it couldn't come out and he chose not to keep his mouth shut he chose to engage these people and that's why we're here the jury was able to draw a reasonable inference as to what his intent was when he constantly invoked drug court which was a blatant lie the jury was free to draw any reason that they you didn't try to to try him as a part of the conspiracy or was the conspiracy  any of these other people tried in federal court your honor dina kasman and christopher gibson were both in state prison at the time the participation i see my time is up and there was no evidence that we could find that showed that richard baumgartner was wanting to distribute those seven hundred fifty dollars worth of hydras per week that he was going to agree with your adversary that simply by saying he wouldn't become a part of the conspiracy no your honor but he did give her the phone and that obviously in terms of mr bond gardeners intention to to use mr lawrence term inject himself into the criminal justice system on her behalf we also need to understand in the evidence show with mr baumgartner himself being a judge for example when he goes down in the back hallway to talk with judge jackson the only thing judge jackson does is called balls and strikes all day long probable ca not problem calls he could have had any conversation at all with judge jackson and according to judge jackson's testimony it would not have mattered one bit what he did when he went into that court room to see if there understand that's the only thing your check since going to did he was asked and testified very specifically for example if mr baumgartner had said it said you she's the worst person in the world i want you to throw the book at him he said for her to have an intent to conceal i would have to back up one step your honor and say that i would need some suspicion that any of these people would have had any idea that there was some as they have to be somebody has to be on to them in order for you then to try to play defense is that at least something that we can look at objective like to know gee we sort of hear some rumors that maybe she's into big stuff and he says that she's only in drug court that be good enough i think the government might get to the jury with that kind of i mean on this we know i know you have the other things about federal authorities but focusing just now on intent to concede ok sorry go ahead that was mined out that was that was ever any other thing else from my colleague kate thank you that case will be submitted the court will take a short recess