the honorable the united states court of appeals for the st circuit is now in session all persons having any business before this honorable court make it their attendance and they shall be heard god save the united states of america and this honorable court court is in session morning everyone i'm chief judge howard judge thompson and i would like to welcome judge arias to the court and to thank you judge arias for sitting with us and helping us out we would also as a court like to think all coun for your sacrifices in flexibility in these trying times and if all goes well we'll have good arguments today without technical difficulties dn thank you judge today's cases will be called  previously announced in the times will be as a lot of the counsel the st case today is united states versus joseph baptist appeal number twenty dash one thousand four hundred and united states versus roger richard b district court's memorandum in order for us to identify any concrete lines of defense that could have created a reasonable probability of a different result in light of the overwhelming evidence offered at trial the government's opening brief in this case was replete with quotations from prejudiced analysis failed to engage with this evidence notwithstanding strickland's clear dictate that prejudiced must be assessed in light of the evidence as a whole and indeed in attempting to defend the district court's analysis that he falls victim to the same mistake despite criticising the government for spending much of its brief discussing the evidence at trial that he said himself spends much of his brief discussing the shortcomings of counsel that are not in dispute here his discussion of the strength of the evidence is limited to two paragraph deficiencies that might not be sufficiently prejudicial in isolation to work reversal now the word that recognizes that one plus one is sometimes more than two but you can't aggregate prejudice from individual deficiencies without st determining that those individual deficiencies were in some way and to some extent prejudicial and you can then determine whether the aggregate prejudice flowing from those individual deficiency is sufficient to warrant reversal without considering that prejudice in light of the strength of the government evidence counsel are you saying that that at least one of the errors must itself be prejudicial that's correct that's correct the individual  be alone sufficiently prejudicial when measured against the weight of the government's evidence but they must still be prejudicial and i believe that this court cases support our understanding of cumulative air and that if you read it as that's not what judge i would asked they need not necessarily be sufficiently prejudicial to warrant reversal but there must be some measure of prejudice flowing from them that's still not answering the question are you saying that one individually has to be prejudicial  has to be an error before we can even look at the cumulative error doctrine and if that's what you're saying i would like to know what you're citing for that again and forgive me if i'm not conveying  clearly but our understanding is that any individual err no not alone warrant reversal in other words if she hears the rather crude analogy if the strength of the government's evidence is five you could well have a score of five you could well have an individual deficiency that results in a level of prejudice of state one that alone would be insufficient to warrant reversal but you could have individual errors that have prejudiced to that and that that add up to something more than five so i get it we believe that the individual errors must work to some level of prejudice even if that level of prejudice isn't sufficient to warrant professional tell me why that should be so i tend to think of this case and through the following lens even if none of the errors by themselves are prejudicial that there's that there's another option when all the errors get added up cumulatively the presiding judge could determine that there hasn't been a fair trial that the that the cumulative nature of the errors is what results in the prejudice is there something wrong with that lens that i'm seeing it through because the reason i see it through that lens is is that i think we should be deferring largely to the judge who sat through the trial well that the district court's decision is entitle to deference to the extent that it applied the appropriate legal inquiry and respectfully the likewise it says that if he had been better prepared he might have been able to more effectively challenge the government's evidence but there is to say how that's the case and critically it fails to explain how these and identified what lines of evidence are in great could have led to a reasonable probability of a different result which again is not likelihood that is substantial and not just conceivable and i think to refer this court to some of its own decisions that the defendant your cites to gostin cor attention the remainder of that decision the ten circuit discussed in detail against a specific lines of defense that the tourney did not pursue and how those lines of defense could have cast doubt upon the government's ability to prove that laments of the crimes charged and moreover in rivera the th circuit sitting on did the same that offended i think misreads that case as suggesting that one can aggregate deficiencies that are individually non prejudicial but what that case in fact holds is that cumulative error own only aggregate actual errors and the court recognizes that error and the ineffective assistance context is defined by reference to the two prong test at four instruct that in conducting its own ineffective assistance analysis there the court did so precisely as we argue it should have been done here with reference to concrete lines of defense measured against the strength of the government's evidence that it has therefore cited no case and we are aware of none that supports this expansive view of cumulative air and we would argue that quite the contrary stricklin is clear action absent an actual or constructive denial of counsel which for reasons i think is clear from the party's briefing does not apply here prejudice is required and the way to demonstrate prejudice as countless decisions in their history is to point to specific actions neglected by council and analyze how those specific actions could have created a reasonable probability of a different result council would you unless the panel has additional questions on this point in your remaining three or four minutes could you talk about bond  problem here though is that the error that the district court relied upon simply is not cognizable as a matter of law according to the district court its decision to grant on c n n a trial rested on its conclusion that his defense strategy was distorted as a result of the roaches deficiencies but as we've pointed out there's no record evidence that the substance of his defense was distorted to the contrary what evidence there is indicates that the strategy that were caught that was contemplated in the strategy pursued one in the same and in fact bonzi and his opposition has not suggested otherwise what on c is relying on instead is the district courts conclusion that he had to say and do more than he might have otherwise preferred but there  with that conclusion the st and as we noted in our three thing there is no record support for it but secondly and even more importantly having to take on a larger than anticipated role is simply not a legally cognizable form of harm conspicuously failed to identify a single case granting a new trial on such tenuous croutons and we are aware of not in cases applying a separate piece framework to analyze claims of harm resulting from the deficiencies of the co defendants council have demanded more pursuing the entrapment defense didn't that undercut bond sees attempts to show that there was no conspiracy at all well mr guard i would urge the court to read law roche's opening in its entirety there are indeed references to the f b i attempting to lure a back into a bribery scheme but what laroche in fact argued was that that's he's understanding of what was going on was different that what he understood was that he was being paid as a consultant and that both he and repeatedly stated that they would do things only above board and never offered any bribes i'm missing something here so i thought the government acknowledges that this proved pursuing the entrapment defense was deficient performance not sure going fast that we're not challenging the notion that it was deficient performance but in terms of prejudice i believe that one does have to look to the entirety of the trial record and importantly here at the entirety of the opening statement there is no doubt that laroche pursued as he put it a quote a book backdoor entrapment defense but the suggestion and the defendant's brief that that amounted to a wholesale admission that were in fact was that bribery scheme in which the defendant was taking part i simply it is just simply not borne out by the record simply are not are not present here whether the defendant had to contend with the evidence that he would add had to contend with in a trial of this whether there was offensive or great just behavior on the part of co defendants counsel and on the flip side they have considered and weighing the potential for any such prejudice based the one million of factors that are present here including most importantly the fact that the defendant himself was represented by capable counsel who was able to cross examine and examine witnesses as well indications that the jury was instructed to and did compartmentalize the case against each defend that there is no such analysis of these types of factors in the district court's opinion and the near reference to a resulting requirement that sees attorney had to work harder by saying and doing more than he might have purchased simply insufficient as a matter of law unless the court has additional questions from the stephen census we will hear from mr marks district courts do not lightly set aside jury verdicts and hear the district court was exceedingly deliberate and careful in making that decision the context here is that after a nine day jury trial with extensive post trial briefing a two day evidentiary hearing at which trial counsel testified for an entire day and extensive discovery at the prosecution's request the district court made the determination that justice in fairness required a new trial because the district court confidence in the fairness reliability of the verdict had been undermined by trial counsel's prejudicial deficiencies the specific rulings the just report made were twofold  st the trial counsel was deficient in almost every aspect of this representation from the pretrial investigation through the delivery of a ghostwritten closing argument that error is conceded by the government on appeal second the district were also found that dr bad piece was prejudiced because when taken together these errors affected the entire evidentiary landscape of the case and in left the prosecution case not subject to any meaningful adversarial testing led to a breakdown in the trial process and thus an unreliable and unfair verdict that decision is due a high degree of deference both as a that decision is subject to an abuse of discretion review because it's necessarily based on in this court's language the district court's awareness and sense of the ebb and flow of the trial the district court specifically referred to its own observations of what unfolded in the court over the ninety day trial as a critical part of its assessment and the counsel i took the government's argument in part to be that  the district court had to find prejudice flowing from at least one of the errors and no such finding was made what do you say about that so i say two things st of all if we can certainly discuss how individual  here were in fact prejudicial but i think chief judge howard your summary of that humid air doctrine was absolutely correct the purpose of the doctrine is to aggregate non prejudicial errors and to determine whether they have a pervasive effect on the trial and affect the entire of an entry landscape that's language that flows directly from strickland which explicitly said there are no mechanical rules for a prejudice analysis and all areas should be looked at in the aggregate that's a principle that's been explicitly adopted and applied by this court since a poll and and it's also and i don't think just because it's not prejudicial we should dismiss med locke out of hand i think it's the closest case to this was the issue in that case and what the opinion says is when counsel's representation is deficient in several respects we do not try to measure the result of each individual error instead we evaluate how the errors affected decision was based on chronic now as the court knows the difference in chronic and strickland is chronic is a presumed prejudice standard based on actual actual or constructive denial of counsel we think the record here is so powerful the deficiencies were so overwhelming and pervasive and multiple that there was a constructive denial of counsel and this work could affirm under chronic but that our core argument is a stricken argument and the reason why it's different from from theodore is because once this court decided chronic was the wrong standard and stricklin applied it had to then remain in to the district court to do the strickland analysis that analysis had never been done here there's no question the district where did the strickland analysis it cited the law explain the two prongs and then it made explicit findings with respect to deficiency and prejudice i think the government's real complaint about the prejudiced analysis here is not that there was no finding of prejudice the absolutely was it's written in black and white in the district court's decision and the real complaint is how the district were described that and i think it's telling that both in the opening brief and the reply brief the government criticizes the district court for not  discussing the strength of the government's case of course is no requirement for the district court to write its opinion in any particular way or both many wrote incantation of the summary of the government's case that itself would be the sort of mechanical rule that strickland explicitly rejects i think we can reasonably infer from this case that an experienced district court judge after sitting through a ninety trial hearing all the evidence certainly had in mind as a factor that the strength of the government's case weighs into the prejudiced analysis it would be supremely ironic in a in a strickland case where the court makes every effort to to assume competence on the part of lawyers unless there's a showing of incompetence to assume that th was somehow incompetent in fact the law in the st circuit is the opposite we assume in ordinary course district courts know the law and correctly apply the law regardless of whether they say in their opinions exactly what the government wishes they might this motion for a new trial and you had an opportunity to go through the evidence to see what was what could possibly have been presented that wasn't presented so the answer is yes  no your honor so we are certainly not in a position to go through all of the voluminous just the recordings in this case one hundred hours of recordings a small subset of which were selected and and played at trial many of those recordings and i see my basis on the rule thirty three dollars motion however we did conduct and begin to conduct investigation and we've submitted affidavits which are in the record from people appear to share joseph that from people who could have testified for example to use lifelong commitment in charitable works in haiti to the practice of paying cash bonuses to employees in his dental clinics to the practice of using social development programs as part of public works projects and as part of needle lobbying so we were able to to begin to assemble a factual record based on our own post trial investigation of the types of evidence affect a trial counsel would have presented in this case and which would have created a reasonable doubt unless the court has no further questions i thank you for your a straightforward application of rule thirty three now i know this court is very familiar with the new trial standard but i think judge lynch explained it best in the united states the carpenter decision that we cited at page twenty seven of our characterize those circumstances so as to limit a trial judge's authority to rule on a timely motion for a new trial in that case judge lynch observed that the experience trial judge who sat through the trial and the closing submit that the same holds true holds true here as it relates to box his claim judge burroughs watch this trial watch the evidence presented watch the witnesses and observe the jury for a case in which patty's trials counsel essentially all but gave up and after having observed the sequence of events determined based on her own observations that poncey was prejudiced by having to shoulder the entire load of the defense in this conspiracy case where these two defendants were on trial for granting a new trial is one of the most discretionary calls that a district court judge can make and they rightly reserve it for sparing use and had judge burrows denied bonce his new trial motion here or we would be in the honor i submit that but his counsel was was able to do the best he could to present that defense to the jury but at the same time he was sitting there with his codefendant who was not defending his case whatsoever so when witnesses came on the stand and banty's counsel had to cross examine the government's witness after witness after witness the perception to the jury was that this was a case solely against defendants were linked by the allegations and the evidence but the government the primary focus of the government's case was on baptist based on the number of recordings against him in the witnesses that they presented however bo essentially gave up the case the government concedes that bond sees counsel and trial attorney had to lead the entire defense of this case that cited and judge her as new trial order and then guilty i think that's part of it your honor and i do think that the other half of that equation is because because the case was primarily against  tiste bonce he's counsel having to get up and basically defend the entire case which was a conspiracy case where the parties were linked by the allegations and the evidence from the jury's perception and it was it would have been difficult for the jury to unlink that to the two defendants based on the evidence and how it was presented and then but the but that wasn't that wasn't the only the only type of consideration that the district were considered she also had her own personal observations from what present what was presented at the trial based on the witnesses being presented and what the jury likely perceived his counsel in this case had to take on the primary defense the government doesn't dispute that the government says there is no evidence to show that counsel had to play an outsized role but the government itself acknowledges that that balance is counsel had to lead the defense this was a conspiracy case that originally started with going to regional indictment against baptist alone it was only a year later the government so all i can say to that your honor is that it from from from the cold record it's difficult to provide a clear answer because that bond counsel had to do so much couldn't i can provide you an example in in the find of the final governmental witness the case agent way he was he was one of the government's major witnesses he was the last witness of the government and through that witness the government entered twenty six exhibits that were introduced and eighteen of them were audio recordings at least eighteen of them were audio recordings and most of those recordings contain back he some of them the witness explained the wiretap process but this was on that which the witness discussed and interpreted the use of coded language but those were baptist words that were interpreted for example he used the word essentially had to cross examine the witness on evidence that pertaining to bat piece involvement in this for the purpose but for purposes of protecting his own client's interests what's unfair about that where the other defendant's attorney does not question the witness at all where a majority of the evidence relates to that witness there's a prejudicial effect on the defendant whose counsel is questioning the witness  made all of them did an independent analysis on translation correctness and was otherwise thoroughly prepared to cross examine on what christmas happen if i haven't responded to that question before but but my wrists my response would be based on the judge's observations and what the jury likely perceived after that piece counsel essentially gave up is that the evidence against that teased that was that might have only involved that piece applied to both of them equally and maybe gave it more credence than it deserved in the case that that i that i could i could point you to that there are no cases that are all on all fours with this case i think this is a very unique case it's not very often and i agree with the government that there are defendants in multiple defendant trial cases where counts are represented by attorneys with different skill levels but it's not the case like this one where one of the defendants but how would it have been any different if that  efficient and to to point to the example of special agent tuam trunk testimony he might not have questioned him as extensively on cross examination based on evidence that related only to t baptist we're looking at this in retrospect but the judge was sitting there watching the trial take place and from her vantage point and in viewing the witness testimony and the jury's watching the witnesses testify and assessing credibility i think it's this based on the record before the court it's the appellate court's role not to nd guess the district courts you know of what was transpiring live in front of her about the trial i think will thirty three is the is the is the rule that judge burroughs applied in this case it's the rule that judges are often called to apply at the end at the end of trials when  e party who is for a new trial and this court has said time and again that using the use of the new trial is to be exercised sparingly and i think that judge burris struck the right balance here and based on her you know perception of what happened at the trial in her observations determined and could not be competent in the outcome based on what took place relating to  counsel essentially giving up and bombs his counsel having to take the lead in this conspiracy case where both defendants were linked by the allegations of being tried together and let me ask the judges if there are additional follow up questions i just said one quick one if you don't mind me me we're looking at a coworker and you're absolutely right we don't know what we're doing in the courtroom was was mr that tease attorney doing it thing other than being quiet because i do think it presents a comparable situation where we're now we get a situation where the the codefendant in a conspiracy case was tried with the defendant who was in abstention during that trial and was the defendant who was present at trial had to defend the whole case on her own and with that i would thank you for your time and ask the court to affirm thank you mr you go to if you would mute memorandum in order and then dashed out that it extended with respect to prejudice we believe event is a failure to engage in the appropriate inquiry and indeed the court's extensive discussion that it instead of deficiencies only serves to further counsel i don't know and you're me but we're having some trouble hearing you judge yes i wonder if counsel were to use her video if it might help with our audio sometimes that helps sorry i apologize if as a result i am trying to jump in at question in our view the defense case that is at worst one of  to show that certain of his actions were not inherently illegal but whether he needed to pay a bribe doesn't answer the question of whether or not he in fact did or intended to do so and whether certain of his actions were perhaps not inherently illegal it doesn't answer the question of whether by agreeing to give campaign contributions with the intent of inducing a government official to give something in return or by agreeing to make charitable contributions twenty percent of which are tangential and we do not believe create a reasonable probability against the likelihood of a different result it certainly goes to the issue of the the prejudice that he suffered as a result because even though it may not as from the court if my mate just on an unbiased see i think the government's or its questions hit right at the he was represented by a very capable counsel and to the d argument in this case attorney to even sent us attorney marks an attorney your code or you should disconnect from the hearing at this time