and this time here united states versus walters  please the court good morning my name is alexander shapiro and i represent william walters on this appeal the prosecution and conviction of mr walters was tainted by extraordinary government misconduct from start to finish it began with a deliberate systematic campaign to violate grand jury secrecy the f b i agent supervising the investigation quite remarkably has admitted that in order to revive what he called a dormant investigation he embarked on a deliberate extensive and illegal campaign to leak confidential grand jury information to reporters at the wall street journal and the new york times in exchange for information about mr walters from these reporters and in order to generate press that could create evidence for the government the government then tried to conceal this the defense filed a pretrial motion about this and the government told the district court that this defense motion and request for a hearing was a fishing expedition and baseless they were pleated lee stated that their weeks had not come from the government and their briefs stated that there was no leaked information in these articles they submitted a sworn declaration which also contained at worst misleading information the district court had initially ordered a hearing and then the government in order to prevent mr walters from further exploring the facts and developing the record of how he was prejudiced tried to avoid the hearing and was successful by then submitting an unsworn letter attaching six partial in mails out of thousands of e mails and text that the government had apparently reviewed over just a three month period as opposed to the entire two years that we now know this is agent was conducting this leak you are arguing that this course of conduct amounts to and reduce government misconduct we are your honor and also a blatant violation of rule sixty one case in which case have we ever found outrageous government misconduct maybe we should more often wonder how we ever had just to be clear we make two separate arguments so first there's the argument that the rule six evolution self tainted the investigation and under bank of nova scotia and numerous cases from this  court the district court could have exercised supervisory authority to either dismissed the indictment or if least hold a hearing and we're asking that is that subject to abuse of discretion no your honor and we would submit that at a minimum the decision to hold a hearing here was erroneous because the what happened was the government admitted to the misconduct after having concealed it and misled the district  court precisely in order to avoid the hearing that would have enabled mr walters among other things to discover more facts to come and prove the prejudice government was willing to assume violation of the rule but the argument is that that there is no prejudice and and what is the prejudice here well your honor there are three three things and i also submit that more could be found at a hearing first of all the prejudice is that this investigation was dormant as admitted not only by the agent but there are numerous articles which are in the appendix that relate to the leaks that make the article don't come out until may of two thousand and fourteen your honor their articles and just as a couple of examples there's one page i believe eighty six another one on three eighteen those articles appear in the spring of two thousand and fourteen in the articles themselves say that the investigation was dormant the articles don't come out until two thousand and fourteen but there there there is evidence that the investigation was ongoing during two thousand and thirteen well your honor the up of the week started in two thousand and thirteen and investigating before that well before that yes your honor just to be clear the point is the government was investigating for several years and was unable to produce enough evidence to indict mr walters and the articles came out in the spring of two thousand and fourteen indeed in the spring of two thousand and fourteen additionally the government submitted an affidavit a sworn affidavit in support of its application for a wiretap in which it said that investigative techniques other than a wiretap were not working so those are that's additional evidence that the but there wasn't but there was a you know an ongoing wiretap in play no your honor the weeks started the leaks started in two thousand and thirteen in two thousand fourteen the government told the district court in its application for the wiretap that there was not that other investigative techniques weren't working and that's why it needed the wiretap then the leaks start back to you and have an active investigation even if it's not fruitful for a period of time but i just mean it's dormant well your honor this agent said it was dormant and and the point is that nothing was happening your honor and what happened after the leaks the article started coming out among other things was that the mr davis started to repay a loan that the government claims was a phony loan the government used this evidence both in the grand jury  and at the trial to suggest that it was some kind of consciousness of guilt evidence against mr walters and then on top of that there's an article in august of two thousand and fifteen which is the first article that actually names mr davis and that we believe is what triggered him to cooperate what triggered his cooperation and so for all of those reasons we believe that rogers has been shown but most importantly and we've asked as an alternative remedy for this court to remand the case for the limited purpose of holding a further hearing we believe that a further hearing would help mr walters further demonstrate the prejudice his ability to do so was cut off there are numerous questions that need to be answered that the government has deliberately swept under the rug for example who else was involved the district judge himself in an order he issued this past april twenty eight thousand on april second stated that the full extent and identity of the other participants is not yet known to that court it's clear from what limited information the government has selectively chosen to appeal that numerous others were involved  potentially at not just at the f b i a hearing is needed to establish that also there are others involved how does that impact press well if we need we need to know exactly what was leaked and what among other things what did that what did the agents get back from the reporters in exchange for the leaks and how was that used against mr walters was the united states attorney's office involved as i mentioned earlier not only was the was the did the government attempt to conceal this from the district court and frankly none of this would have come to light if the district court had initially decided to order a hearing in the government shouldn't be allowed and it's his view that there's nothing further to be were and that would have an impact under the circumstances given the fact the government concedes that its agent was a problem well your honor i say submit that at a minimum the judge castello abused his discretion because what he did was he took the government's concession and and and it accepted the premise that once they had conceded the violation there was no o at this point at a minimum your honor the district court should direct the government to provide discovery of the other thousands of e mails and texts that reviewed but did not share with the parties or the court with the defendant or the cork and in addition we believe that a hearing is appropriate as well but at a minimum that material should be provided in addition it only pertains to that three month period and we know that the leaks thousands of e mails related to its own discussions with journalists about this investigation it's a grand jury investigation these facts are remarkable and even the six e mails that were disclosed to the district and by the way the government initially submitted that letter ex parte and didn't even want to allow the defendant to see it at least one of the e mails is not even a full e mail and it and so much is not known about what was leaked who leaked it and how it harmed mr walters what information did the government get from these reporters that was used against mr walters i see i'm very low on time i just want to very briefly touch on the perjury issue because i think what it was straits is that the extraordinary misconduct in this case did not stop with the investigation and the indictment but continued through the trial i think it's quite clear that mr davis was lying about this bat phone which filled a critical gap in the government's court and one from the seven circuit that we've cited in our papers in which the courts have said that when there's knowingly perjured testimony and even if some of some or all of it is on earth during the trial that the conviction must be reversed because it's repugnant to the constitution and we think that's clear here because it's an absolute certainty that this lie about the bat phone was not true mr davis was absolutely certain and did not waiver this was one of the few things he didn't waver about in his testimony that this alleged bad phone handoff occurred at a particular place the dallas airport love love field terminal one that he saw mr walters plane that he described the insignia on the plane the other participants who came on the plane with mr walters the purpose of their trip which was to meet with some banks in dallas or the district court acknowledge these discrepancies and determine in essence that that he was mistaken that the witness was mistaken but your honor there was no basis for that that was just that speculation it was quite clear from all of the evidence that was presented that there was no other for this is a subpoena very substantial evidence that the government presented including all the phone calls the sequences the phone calls on the train other evidence b p besides  that during my point simply is we're not looking at at the back phone isolation we're looking at the back phone and the testimony about the bad phone and the context of all of you haven't presented but your honor my point is that the bat phone is really the only piece of evidence that the government had to corroborate mr davis claims of having tipped mr walters about the white wave spin off existence of the ba mrs davis that was if anything her testimony i think undermined it first of all she said it was maroon whereas he had stated repeatedly that it was black she had purported to identify two telephone numbers in her own cell phone that she claimed were the numbers from mr davis's back phone when in fact they were his office telephone numbers and furthermore she said that when the divers were there was a television report about the divers several reasons why he would be skeptical as to whether they would find well your honor i think what's clear is that he was certain that as precise as to precisely where and what the circumstances were of the handoff we know that that absolutely guilt at this trial was overwhelming this is not a case where there is a real concern that an innocent man was convicted what we're doing here today is my adversary is asking this court indeed remarkable agent shops conduct in this case is indeed remarkable i think that our office is reaction to it at the time was appropriate and i as though judge castro would have been on firm ground if he had attacked or questioned the honesty of government counsel well i think there are a number of responses to that first i would say that the government acknowledges that we should have done more investigation at that point when the allegations were raised in retrospect that's something that i think all of us wish we had done you speak of the myself included did not have knowledge of that and so the authors of the brief did not have knowledge of that fact while it is true that there were individuals at the office including one of the former assistants who had known of it at the time originally address the motion in our response in terms of the legal standard after hearing it was ordered then of course we did more investigation and as soon as we realized what had happened as soon as we went back through the e mails and realize that this has taken place we did everything to try and remedy that fact we asked the court to assume a violation and to move forward with that fact agent shabazz has been referred to not only the f b i s disciplinary committee but  monitoring it very closely in spring i believe it was last month he ordered that they continue to give him additional reports he is staying on top of it to the extent that there's not going fast enough he has said that he may appoint a special rather than the two years we don't know who else was involved in making leaks we don't know what information the reporters came to the f b i why should there be a hearing to examine these questions and others i think as found down below he had an ample evidence to record to make a finding that there was no prejudice here taking the claims of potential prejudice that have been raised first with respect to addressing this claim of  which should be clear is the statement that agent shabazz made when being questioned it's a self serving statement to try and justify why he leaked this information so i think it's important that it be taken in that context when judge his style was presented with the actual timeline of this investigation it's clear that the investigation was not dormant in april of two thousand and thirteen i believe it was april twenty sixth of two thousand and thirteen finra made a recommendation to the investigation from the point where the finra recommendation or federal referral came in in april of two thousand and thirteen the government was actively subpoenaing records and reviewing phone records trading records and developing this relationship between mr walter leading the investigation well i mean i am not sure that when you undertake to debunk your of a serious argument you get for it for well i think there are a number of in accuracies in my adversaries brief taking those two i think the implication was that agent chavez was the one that was actually doing the day to day investigation and would have known regularly what was going on with that investigation and that's simply not the case reason supervisor he could know as much as he wanted to know he could have known but i think that the record that judge cristol carefully considered and coming to his conclusions debunks that that story that chavez has presented he was presented with a timeline of this investigation which showed very clearly what the government was actually involved in and that the investigation was active it was opened in two thousand and eleven with a focus that was separate from mr davis indian food in and thirteen the federal referral comes in and from there on the government was doing the typical steps that it doesn't every insider trading investigation to gather these records and develop a circumstantial case that is then put together and a very detailed how it was used to what affected him i think an important fact with respect to that your honor is that judge castello and my adversary have the ability to review the grand jury minutes here so we know exactly what the grand jury was presented with obviously have to deal with not exactly your honor and judge cristol has to deal with the issue of whether or not this defendant was prejudiced in this case and so to the extent he undertook that increase which he did in very and the special appendix page sixteen notes that he noted that a further evidentiary hearing is not necessary here that he's been provided with sufficient evidence by the parties in order to make a ruling and that ruling was based on the government assuming a violation of six with respect to the prejudice inquiry which we have to turn back to here there simply is no prejudice and that's something that if a hearing even were to be ordered there's nothing else for the defendant to explore pointing out that in this matter the government produced just one or two percent of the information and  mails that are potentially relevant any lawyer who gets to produce even one thousand nine percent of the documents the other side wants has a very big advantage well who knows what's in the others but and how could judge can still be confident when judge castille has only seen what the government has deigned to produce well your honor again what judge cristol was looking at was whether or not there was a violation of grand jury secrecy and then to the extent that that is found whether or not there has been any prejudice and so that has to take us back again to the facts of this case and here and looking at what was presented to the grand jury and now i think it's important to remember we're not at the stage pretrial where we're only going on the grand jury record there is now been a full and fair trial where the jury convicted the defendant and i think in this court and united states versus i isn't this court also upheld a district court's decision not to hold a hearing noting that the defendant had an ample opportunity during the trial and i isn't to the further developed prejudice what is the standard of review here on this if you ho hearing abuse of discretion your honor and judge himself did not abuse his discretion he carefully consider the evidence before him he repeatedly invited the defense counsel to present to the court  examples of prejudice he thoroughly considered all of them there is a very thorough record on the potential prejudice here and what they have come up with you have a serious argument is that whatever was going on is going on behind a screen that they cannot look or how much they don't know what was in return for your very difficult for them to make the argument to prejudice i disagree your honor with respect to the fact with respect to prejudice they need to be able to show that in some tangible way that mr walters was denied a fair trial that there was something that substantially affected either the grand jury's decision to indict or his ability to get a fair trial here there is nothing that rises to that level the arguments they have made mr davis went as it were in the newspapers most his job and his livelihood was already financially embarrassed and therefore was reduced to coming to the prosecutor on his knees  responses that your honor first judge just all rejected that argument and found that that was wholly speculative second even if that were the case this court has considered that and united states versus friedman where in that case that was found that they the circuit assumes that the prosecution systematically targeted targeted grand jury leaks for the purpose of cultivating cooperators cooperators and they are the current found that  did not lot rise some level of prejudice to want the dismissal of an indictment so even if that were the case it doesn't rise to the level of prejudice that would result in a different outcome for mr walters they're seeking a windfall here the appropriate remedy is what is already happening that agent shabazz has been referred for a criminal investigation and where they're starting with agent sheilds in the disclosures in this case they have the ability to look into the fact of whether or not other  agents were involved other disclosures were made all of that can be looked into in that criminal investigation all of those things that did not impact mr walters trial here here he was given a fair  carefully because he felt that he had a full record and that there was no prejudice here the court should affirm his rulings i'm see that i'm out of almost out of time if there are additional questions  you are so i just like to respond to four points first the government says that it takes this matter very seriously i would submit that the record in this case shows otherwise first of all with respect to the referral to main justice which by the way occurred eighteen months ago the district court himself has several times been critical of the meager reports he is getting which we have no access to from the department of justice and  order on april second which is docket number two sixty four in addition to noting as i mentioned earlier that the extent of the leaks and the identity of other participants is not yet known the court criticize the government for its failure to really be doing anything then about this and noted for example that it had previously had occasion to counsel to use the charitable word the public integrity unit for submitting a report with four lines of text beyond the introductory and concluding sentences which contain virtually no substance the fact of the matter is nothing has been done and indeed agents jobs's out there running hedge fund consulting business called believe it or not tone at the top funds how to comply with the law and apparently unconcerned that he's going to be prosecuted and for good reason secondly with regard to the government's efforts to kind of minimize the extent to which it attempted to mislead the district court i do want to take just a few minutes and go through some clearly misleading statements in the sworn declaration the only sworn piece of evidence the government submitted and in this matter when it was trying to avoid the hearing eric and this is a docket forty four in the district court i don't believe it's in the appendix but i would urge the court to scrutinize paragraphs twelve fourteen and seventeen paragraph twelve says that on may thirteenth the united states attorney's office learned from the f b i press office that the wall street journal would not be able to publish a story about our investigation until may twenty second at at the earliest in fact the united states attorney's office was well aware that the reason the wall street journal wasn't publishing the piece was that there had been two meetings between the f b i and the wall street journal to urge them not to do so one on  with agent shabazz as well as another person from the f b i and one on a telephone call on may thirteenth and this is reflected at appendix two twenty two twenty two if you turn to pick up paragraph fourteen this sworn declaration states that the assistant had learned from the f c c that the new york times was considering publishing an article and quote realizing there was no virtually no chance both papers would hold off on their no chance the papers would hold off when it when in fact the reason that they knew the article was going to be published was because because and this is an appendix to thirty because the f b i had been in contact with the two newspapers and also and this is just remarkable i would urge the court to read this e mail in the middle of that page that the f b i had an obligation to tell the journal another journalist was planning to write a story i mean this is just i know this sounds crazy but it's a conspiracy between the f b i and the wall street journal in the new york times i mean th unbelievable now my point though is that this declaration is incredibly misleading because it fails to disclose this information which the assistant who signed the declaration is on this e mail and then lastly and not least paragraph seventeen in paragraph seventeen this is system swears that he and the case agent mr force and that neither of them leaked yet nonetheless we know now know that agent thorson was aware of this may twenty seventh meeting which had by the way five people from the f b i not three with the wall street journal that agent thorson have learned about it at the time and there's no mention of that in here there's no mention of all of this other material that we now see certainly literally true what's the basis for assuming that these five agents were conveying to newspapers information that was derived from the grand jury  upposed to their sources well well leaks are not punishable by dismissal of what we do know is that and what the government admitted in its december twenty sixth submission was that there were leaks of grand jury material but rather and in addition the problem is that we don't know so even the government's december twenty sixteenth submission makes clear that it has conflicting information about what occurred at this meeting agent shops and at least one other participant at the meeting apparently according to the letter told the united states attorney's office that information about the investigation was shared with these reporters at that meeting apparently three other members of the f deny that but who knows what really happened we're not able to explore it and all we have is the government say so in that letter and i submit that that's unfair and and and two other quick points your honor just with respect to  the government's main argument really which is you know this is a windfall to mr walters in no way is this a windfall he was harmed by this pattern of illegal conduct by the government and the extent of the violation as the government c as the district court has said as recently as two months ago remains unknown and so how can we know to what extent it has prejudiced mr walters when the extent of the violation remains unknown in the district court allowed  remain unknown by refusing to hold a hearing at the time and lastly i just want to correct one thing which is the government makes the argument that mr walters had an opportunity at trial to explore these matters that is in fact not true defense counsel asked for permission to go into these topics and what mr davis knew about these articles and the leaks and he was not permitted to do so you can find that  transcript page five forty five is the district court's ruling and there's argument that starts a few pages earlier transcript page five thirty seven if the court has no further questions we would ask that the