it was the argument about that statement in closing argument about mr henderson silence and we we stayed in the brief that the court's review was for abuse of discretion i'm sorry that it yeah we did not state that we said it was because it was part of his motion for judgment of acquittal but we can see that the united states has correctly stated that the court's review of that issue is for abuse of discretion sorry civil bankruptcy counsel not on the bankruptcy fraud between them and the u s troops these office and in law enforcement talking about making sure they had a criminal case of bankruptcy pride and i understand this was mr henderson's counsel that was having these e mail conversations there had been three anonymous tips i guess you've been to the bankruptcy court claiming that there was problems with the bankruptcy schedules his counsel was threatened it appears in these e mails with their own criminal liability which certainly conflicted them immediately that was never disclosed  in fourteen days the sentencing judgment or fourteen days of the last motion but i can assure you that most counsel do not want to risk losing that appellate rights if they guess wrong number one and number two there was no assurance that within those fourteen days that his counsel could get another motion filed it revolves an exploration of his civil bankruptcy counsel and  trial that effected the fairness of that trial that answer your question but i am i hear what you're saying can you can you raise those issues in a twenty to fifty  five generally brady issues that are discovered late can be raised in twenty to fifty one and can you also raise them in connection there was a apparently it encrypts you are ross accused in as a criminal prosecution separately right because there was have been an issue to consolidate those two tracks correct there was and the consolidation is the issue why this brady information affected was st trial but as to the nd trial it wasn't some much of brady issue because it was produced i'm not sure exactly when it was produced it was definitely produced by the time of the sentencing in january of two thousand and  nineteen and that trial didn't proceed until november of two thousand and nineteen as i recall so so this nation and was was  the bankruptcy for our truck and was and was invoked there is that right through you know what the information is yes it's attached well at least  guess the tip of the iceberg is attached to the motion for continuance but why it affected the st trial was the government sought to consolidate those trials and when they saw the  defendant opposed it they in fact at that point superseded the indictment because they realized they had a problem on the face of the indictment which was what the court had to look out for consolidation so they always believed that the bankruptcy fraud was part of the money laundering that it continued the concealment in a point of fact i think it was in november of two thousand and seventeen they filed a motion and lemonade to be able to use the bankruptcy pleadings and the money laundering caves and all of the money laundering in bankruptcy discovery had all been produced like a year earlier in these cases had dr so the defendants decision whether or not to testify and i have to take this solely from the record that we have which is clearly incomplete his decision whether or not to  impacted by this because the bankruptcy broad suddenly had a new not just defense but maybe a reason to dismiss the bankruptcy fraud  it is its case number sixteen dash to your eighty five dollars and he was convicted of three counts and got a seventy two month sentence and is that under appeal honor i believe the brief is currently do the st week of august thank you so up if i if i could follow up on judge morris questions i i understand why if the underlying claim here is that his attorney at the trial was not truly acting independently i understand that but you don't seem to of that doesn't seem to be the basis of this brady argument i also understand why this information would arguably be relevant to the to the bankruptcy fraud case but i'm still mystified as to how it impacted sentencing in this case which is the question that the judge moore asked you and i've still not certain that i understand your answer well it impacted sentencing in a roundabout way and that is and i'll answer your last question the time he was sentenced for the money laundering case if if that had been fully developed in the court and said yeah there was a pretty violation we're going to retry this case the bankruptcy privateers have been tried yet he could have been consolidated or the bankruptcy broadcast could have gone st and just because we now know the result of that case doesn't mean that results accurate it's on appeal and it also  something that was known at that time but it's seems to me that what you keep saying is that this information that was learned late after the trial impacted the fairness of the trial but that that doesn't seem to be what's in front of us and in this case the issue is the denial of the continuance of the sentencing so whether you have a good claim about whether you got a fair trial or not explain to me how that us well it wasn't going to be before you in any other way if they weren't allowed to bring it up at that time and the judge stopped all that and went forward with the sentencing in the judgement and i don't know and it's not a can't appeal the underlying conviction until after you've been sentenced so you filed a motion to be continued the sentencing it's denied the sentencing occurs as there then ever subsequently been a motion dealing with the fairness of the trial using all these arguments that you're using today now so how how is that how is that before us i ask you to remain on the case so that it can be before you i'm saying the judge abused his discretion in not doing the sentencing to give those attorneys time to file that to investigate it and to develop that and i do need to correct eleven of your statements or a part of your question at the beginning and that was it wasn't his big fraud trial that we're talking about that his trial counsel never did a trial they were civil bankruptcy counsel they they filed his pleadings they filed his bankruptcy for him they advised him on that make up see they were not criminal defense attorneys they did not do the bankruptcy fraud kids and were not planned so i just want to make make it clear i'm as clear as this confusing can can be but i just feel that he was denied he was denied the opportunity to raise exactly what you're saying should have raised and put a record below and that's why you should remain and one last time how was he didn't have the opportunity to raise that following the sense what what deprived him of that opportunity there wasn't time in fourteen to ends this civil bankruptcy or you have to file was a notice of appeal saying that you are appealing on you know ground x you might not have the time to fully develop what was going to be in your brief but the notice of appeal could have been now because that record wasn't made all all that they did was they said we found out about this at the last minute we're giving you notice that it looks like attorneys in this jurisdiction  colluded with the government who did with the bankruptcy trustee and did so while they were under threat from an all indictment themselves for this bankruptcy the same bankruptcy and never disclosed any of that i see if he is it's going really to substantive guilt level as opposed to sentencing well i wasn't trial counsel but yes i think they could have if they had the evidence at the time that's a pretty serious thing  that when we dealt with the motion for a continuance and you know he just said that this was related you know it could possibly provide a defense in the in the bankruptcy fraud case but it really wasn't related to the money laundering conspiracy thing in any way but how could how would mr henderson raise the issues that are involved in this in the conspiracy to money laundering when he found out at this late stage i think he could have filed a petition for post conviction really i think he could have filed a motion new trial which under under newly discovered evidence if it was this as he developed it if it had been developed it also was not before the court but it was addressed and it's come up in the bankruptcy fraud trial  so i think those are two entities they could have done it so so your opponent has emphasized the need to file an appeal within fourteen days from after the judgment understand to be the relevance of the communications between the civil bankruptcy lawyers and the trustee on the guilt or innocence in the  so so if you used if you claim that he committed bankruptcy even though he had been tried and convicted in this conspiracy and it turns out there is some sort of deficiency in the bankruptcy fraud think to follow up and judge mickey are you saying that there was not introduced by the government into evidence here anything having to do with bankruptcy brought issues  don't believe there was around it and where i might be confusing myself to is that is that you did talk about whether he had declared the five hundred thousand dollars on his income tax return but what you're saying is he did you did not claim the committee bankruptcy fraud was in any way a part of this conspiracy no your honor we did you're correct the income tax   what he was charged with money laundering conspiracy so really what we needed to show is that the money that came in to his f t l properties account five hundred thousand dollars money and i think there's a lot of that it circumstantial evidence but it fair amount of circumstantial evidence that shows that he knew or should have known that starting with decided they didn't really want anything to do with this transaction henderson decided he did it because he was going to get it fairly substantial commission fifty thousand dollars commission followed by another fifty thousand dollars  state court for credit card fraud he had been ira brodie who is another person in this in this whole bond scheme to lead you to credit card charges twenty five thousand dollar response is to bail him out and continue to deal with them and and then also mention to the bail bondsman that he expected to make a lot of money from whitmire out of the sale of  the same time money was gone in and out of that account a fairly rapid pace with the f b i found later when they got the bank records and so when the money came in and where the money that was not a comment on mr henderson's failure to testify or failure to call the f b i to look at it in context the government was discussing st ira brod at closing argument is i understand that the lawyer for the government is speaking about brody he said if i'm going to get money i'm going to call the f b i st not isn't that jesting that anderson needed to volunteer information it's it's different arguably from a situation in the in the exercise of the right to silence kind of situation but it's almost requiring people to go to the f b i took volunteer information is that a proper comment again what it was you were randomized you were told that your silence when be used against you and then a trial when you came up with an alternative explanation the government's case a trial they used your silence against that's not really what this case is i mean it's not a comment on his failure to testify or really his failure to even go to the f b i i think what the government trying to do is just compare two different approaches to the same situation  even if the comment was somehow improper which the government disputes it wasn't misleading or or whatever and it was also isolated was not extensive  it wasn't deliberate you know made in like of like you know after the court of the state had an objection to a similar line of questioning and the evidence against henderson were sufficient to prove beyond a reasonable doubt  but bankruptcy filings and petitions and information and money laundering case to see if i can give you the what difference does it make if they tried but failed well because then it was used as say something that was held over right hander sense had he testified they were going to commit and and that was the judge's ruling so they said they were relevant to the money laundering case now they say they aren't they also tried to consolidate they knew when they tried to consolidate there was this other why assume they knew at that time that there was this other evidence out here it wasn't produce because he didn't know about that he didn't know he had this huge issue and depends to the bankruptcy fraud case and i let me let me try one more time ok notwithstanding their efforts the jury didn't hear about bankruptcy fraud right correct now they're still convicted him of this conspiracy so if if you could just explain one more try why something that the civil attorneys were doing in connection with this bankruptcy had an adverse impact on this trial when the jury didn't know that he was even shocked charged with  are right henderson was his own best witness and he was unable or unwilling to take the risks that were facing him to testify and his proper is actually a part of the record it's in a sealed pleading it's in the one s it's an attachment so you can see it's proper you can see what he would have said he would have been a great witness arms out and that really is the crux of this because he opposed consolidation and i think the court would have granted consolidation if he had not opposed the government could have also try bankruptcy bride case st and during the sealed hearing on this motion to continue  henderson's counsel said you know also that the order of trial turned out to be important and that it was you know litigated and and not decided that the bankruptcy pride case would go st i couldn't find those pleadings i couldn't find that information but i know that that it wasn't contested when you said it and any they also said in a motion to continue that it affected mr henderson whether or not he testified and so we don't have you know what was going to happen in this case if he had testified and i think that's the crux and i guess that's a good place to end this it's my time and thank you both for your argument