good morning and this case present several novel issues that the fifth circuit hasn't considered before my brief raises several additional issues which i don't expect i will be able to address in the time i have allotted this morning so it is my intention to focus on the alleged constitutional error and the fifteen fifteen see defense which i believe is the fifteen fifteen c defense mr fish is a criminal defense attorney and he was charged with obstruction of justice in connection with his representation of several different defendant criminal defendants and that were charged with crimes in federal court and nobody raised that defense in his in his trial it was not raised by his attorney who volunteered on his behalf after several of his former attorneys were disqualified and or he lost his attorney his initial attorney because of a conflict of interest that arose in the case the fifteen fifteen c defense specifically provides that an attorney who provides at least lawful legal representation can not be guilty of obstruction of justice that is exactly what the government alleged mr fyshe did in the indictment the evidence they offered at trial including showing that he had in her disappearance is filed motions on their behalf in their cases demonstrated clearly that mr fish provided lawful legal representation to his clients i'm not certain if the government was even aware of the defense at one of the pretrial hearings the government to tony's pointed out that they didn't believe that he had any defense that he could raise they raised public the public authority defense they said it didn't qualify so there were several defenses that they raised saying that fish was not entitled to those defenses but nobody ever raised the fifteen fifteen c defen it's my belief that his volunteer counsel was perhaps not even aware that it existed when i consulted with mr fyshe he said it was never ever raised by anybody that is on the record evidence i believe sufficient evidence to find that his volunteer counsel was in effect she argued in closing argument that mr fish provided valan lawful legal that issue why isn't that sufficient you had some argument by a counsel that he was just providing defense to the jury there some evidence of that as you pointed out already why isn't that destruction instruction majority of people that are charged under those are not attorneys it only applies to a defendant attorney who is charged with obstruction of justice and so a jury who's given just the pattern jury charge does not have any differentiation between a non attorney defendant and attorney defendant only an attorney defend isn't title to the defense it wouldn't apply to any other defendant and so the pattern jury charge does not does not identify a recognized the distinction between those different types of attorneys so and in additionally the case that they relied on out of the eleventh circuit i believe might have been the ni conspiracy count it was not the obstruction of justice itself count which requires evidence of mr fyshe a specific intent by not being instructed that if if they found  that he was providing lawful bona fide legal representation he couldn't be guilty of obstruction of justice the jury didn't know how to i that i wake the evidence when when they were considering an attorney  defend versus a non attorney defendant also the government in its briefs suggest that mr fish is arguing that the fifteen fifteen c is an element of the government's office that we are not making that position the class case made very clear that it's not an element on the off chance which the government must allege in its indictment but once raised either by the indictment or the facts of the case then because it negated the intent element of the office the government did then have to take that on the next to burden of disproving that mr fyshe did not provide lawful legal bona fide representation and in this case the government dismissed several counts on that very basis they dismissed the in will money laundering count because mr in wall testified that she was aware of the proposal that he didn't decide to go for it that he hired mr thinnish for the express limited purpose of representing him in a bail hearing and he also writes the payment of that money to mr fish for that purpose came out at trial that in fact mr kish had obstructed justice or money launderer big because those defendants actually testified that they legitimately hired him for a legitimate purpose and on the whole their accounts those should never have been mother told the f b i that mr williams said i can't help him i cannot help your son and that mr mr mr mr herrera's mother told the f b i that she paid mr fyshe the money to represent mr her odd thing it was filed under seal he sent two separate letters to the court requesting to be reimbursed for his expenses i the reason i became aware of it is because after the second letter was submitted and it was submitted there was no electronic filing showing it he sent directly to the judge in chambers and she placed in under seal she issued an order which was filed asking the government to respond to his request because it was an unusual request and she didn't see any legal basis for it the government filed a one line response saying they had no objection to the request and i have no idea if anything has ever been done about it because there's not been any subsequent order entered by the court in either granting or they're not anything with three you know since the government evolved its response are you being paid by mr parrish no representation no i have worked pro bono on this for the last year and a half and in fact i gave mr fish money out of my own pocket to hire because i was very distressed at the representation of mr crumb and why did you get involved in this law in undergrad convinced me to go to law school and he also knows mr fish and it referred me to mr fish for it for it to consider an interlocutory appeal on the  traceability hearing issue which i did do i did follow a notice of interlocutory appeal for him in originally on the district courts denial of the traceability hearing and we filed a motion to stay the jury trial it was trial the other thing i wanted to address because i think it's very important is the forfeiture and the pretrial restraint of his house the government did it in a sort of unusual way in this particular case they they recorded  didn't have other sufficient assets and the difference in on one point out in this case between this case and the court case is that the judge relied on to make that finding in each of those cases the there was a probable cause finding this by a court and that's why they needed to make that initial showing that they lacked other untainted assets because there had been a warrant issue a pretrial pre issued so that a court had somehow determined probable cause but in this case they recorded a list pendants there was never any court involvement in determining whether the government had probable cause to say the substitute asset instead the government argues it can pursue alternative theories of course richard well i believe that based on this court's decision in the utica that just came out in september that i don't know that the court may be aware of it i did not see that the court was on the notice service list i did file and motion to stay the interlocutory order of sale in the united states court justice kagan referred that motion to the entire court and it is currently stet for conference on february seventeenth so i believe that the supreme court is also very concerned about the government's acti restraining parker it as directly for for the ball and then claiming that claim in seeking it as a substitute asset instead said lastly i think based on the ca decision and i know that it wasn't a specific issue entirely but based on the discussion between good solicitor general justice kennedy and chief justice rob robert comments in his dissent due process requires a traceability hearing any time a defendant contest forfeiture and that was that was not afforded mr fish in this case i believe that for all of the reasons that are in the breeze and the unusual fact that this case presents that he needs to be this case is to be reversed and remanded for another  i'll first address the issue with regards to the fifteen fifteen see that issue is has never been decided by this court as to whether it's an affirmative defense for or not  government's brief the defendant does have the obligation and burden to raise and from a defense and other words to present sufficient evidence that a reasonable jury would find in its favor and in this case it pending probation violation that was the extent of the obstruction that he was charged with in this case the indictment itself is alleging that serious did everything outside of legal and bonafide representation in other words talking about brought bribing government officials making sauce promises that cases are going to get fixed telling represented defendants not to talk to not to tell their lawyers telling represented defendants you know to not take motion that he did make appearances is or can you flesh that out somewhat is the of the yes your honor in most of the cases he was it was involved in he was or move pretty quickly and the e mail case i think is the case that they're referring to where he did file a motion for bond but in that case there is overwhelming evidence that there was also an endeavor to obstruct justice by involving williams to fix this medicare fraud case for three million dollars to be paid up front everything was always a plot a large substantial amounts and in that case they did that what happened was you know in the end couldn't come up with a three million fish insisted that all of it be paid up front he couldn't so then he decided he would just have fish represent  effort to investigate is no discovery there's no meeting with the crime beyond these new issue discussions about money there's none of that involved in the record not in the traditional sense your honor it was it was information that they were getting and it didn't have to be true it could be bogus information that supposedly williams the codefendant was going to give to his government contacts in washington and this information was then going to be the key to them getting their cases dismissed but as far as engaging in  traditional you know communication with the prosecutor and offering cooperation to the prosecutor and people involved in the specific case there wasn't was all going to be done outside of the criminal case that was going to be done with individuals that weren't even involved in the case  and that's why it goes back to the evidence as it was it was either a false promise that was never going to occur or it was contemplating bribing the government officials even though in this case there was no evidence of any government officials were ever involved  evidence of anything but lawful and bonafide representation which in the government's brief we go through each item of evidence that shows that he acted with corrupt and unlawful purpose you know there was information from  his investigator even said they were talking about bribery he felt uncomfortable there was information from another lawyer who met and said i told you no not to get involved it sounds like this sounds like bribery there was tape recorded conversations there was  you know there was the defendants themselves that each cooperated pretty much the other and they didn't even know each other it's about what happened in their cases there's a substantial evidence that shows you told them not to tell their lawyers they had to pay the money upfront  representation that they were supposed to be the right relationship they had with their ongoing attorneys they were told to have amber era and protea were told to give provide fictitious information it didn't matter if it was true not going to corrupt intent you would know that that's not bonafide legal representation and so there's several you know keep their arrangement secret don't tell anybody don't buy it having an inmate paying them for referrals goodson paying his son cash in several different visits for him to refer these clients which a lot of them are fellow inmates paying williams and not a lawyer a substantial amount of the states that were involved also i consider my question answered honestly ask you another one going on behind the scenes she doesn't know the cons of things that an affidavit might be coming from the defendant might show all she knows is what was presented to her and that's the problem with ruling on you know active assistance at the i don't know exactly what the answer would be are they precluded from bringing new ineffective assistance of counsel claims that were not raised below they didn't really that subject didn't come up in the appeal i don't know if they would be barred from it even though they had the opportunity at that time but with regards to what she specifically addressed with regards the evidence that was presented she assassin the evidence that was presented and the arguments and found that he specifically did not raise ineffective as it does i think in the government's brief we also argue as to why each cla actual sentencing so that's kind of hard to object to the kind of hit you're as a surprise what was the purpose of the line there we're on right i believe in the motions that were filed prior to the sentencing it was raised the government first move for many judgment and then it stated in that it was back in july the sentencing was in october so it was if the government moved for money judgment and stated in there that it would seek the forfeit  superseding indictment two thousand and thirteen the grand jury made a probable cause finding it was it was alleged in the indictment that the with for property that proceeds were used from the payments that were made by these criminal defendants to fish and that there were proceeds that were paid into the house and so the problem was the mechanism when the indictment was filed four years passes we have two indictments and we have a trial and during the trial there were a couple of counts dismissed one of them was e mails with regards to two hundred fifty thousand dollars payment which was made within a few months of the purchase of the house and there was also a count from herrera that was dismissed an eighty thousand dollars payment you know with trial strategy as to why they decided to dismiss those counts you know in hindsight i'm not really sure exactly what the reasons were you know it could have been you know we don't want anything to interfere with the specific wrongful unlawful conduct that occurred you know with regards to filing the for bond or whatever so in regards to that at the end of the day even at the time when the jury was had come back with a verdict the prosecutor reiterated that yes you know there was a lot of you know there was money that went into the house a lot of it had been dissipated and you know at that time they could have asked for the jury to deliberate on the poor preacher issue but and the court brought it up while the jury was still there and at that point nobody requested waiver issue that the government is brief stayed at i mean it was their government the jury was there to proceed and nobody requested it fishes a lawyer himself i mean he and that goes to the waiver issue with the interlock tory appeal on the on the tracing hearing judge resident on the other example of an effect of assistance or counsel with regards to ask no because in this situation it benefited fish at the end of the day he was subject to money judgment for the entire amount of the proceeds that both defendants  jointly and severally obtain and so at the end of the day he was always going to be looking at a one point one million dollar money judgment so whether they went after the house as a substitute asset to satisfy the money judgment or as a direct you know part of it you know it was never the government's position that filing the notice of those parents meant that we own the whole property was always that we had an interest as a notice of interest on the property when it was filed so at the end of the day you know instead of splitting up ok this portion is would not have a right to proceeds so going after the house as a substitute asset that allowed her to keep her one half interest so it benefited fish indirectly in the in the way that his wife got to keep her whole one half interest at the government going after it as a substitute asset versus trying to take a portion of it as a directly for federal asset so in a way that it going back to the ineffective assistance of counsel question it benefited fishing in the end indirectly because his wife was able to keep more property so in the end his his fortune would not have been any different with regards to this interest he was always going to be looking at a money judgment for one point one million and and at the end of the day any property up to that amount was subject to forfeiture your honor is also with regards to the waiver issue i think that was discussed with me in the inner locker tory appeal that governs position is that was the way it was a it was like withdrawing an objection there was a his rights are new firm of lee would really that so with regards to the argument concerning the denial denial of the traceability hearing it was waived but even if it wasn't when you're out of the government's position as a judge rosenthal was very conservative all the test she only plight applied one threshold and that was for fish to come forward and show you know sufficient showing abbott had some sort of evidentiary support that he had no other assets other than his interest in this with for property with which to retain counsel and in this case that he when he did not he was he was expecting us to hold weight they refused to cooperate and she gave him five different opportunities that was hearings that occurred over a year period and during that time he repeatedly said he didn't have to do it he shouldn't have to do it he shouldn't have to make any showing towards the end he submitted to bare bones affidavit she said this is clearly insufficient and stated her reasons in order which is in the government's break he then provided a second affidavit along a net worth statement but then you had supporting documents that were not legible and the court said you need to file these under seal the government least needs to be able to look at them too so you can have an inquiry concerning the assets there was no meaningful ability to do that because they refused to refile legible copies that's all you had to do she said i need you to file legible copies instead of filing legible copies he appeals files are now like retore pill and that was it that was done at that point but you know getting to dropping the inter chose to drop it but judge rosenthal took a very conservative approach in the way that she proceeded with this and she gave him so many opportunities to be able to just come forward and say let's see where we are because when you look at matthews versus eldridge which the holy land or in this the fifth circuit in holy land decided that matthews versus eldridge doesn't apply and that's when due process requires a hearing what what showing should be made and it's a three part tast and the first for there to be a private interest that's being impacted by the procedure his right to qualified counsel of choice how would it be impacted by what was occurring here and so the courts have held all held except for the ninth circuit that to show a financial need for the you know to provide sufficient evidence to show that you have a financial need for access to that asset to pay attorney's fees as you should show you do actually you have no other assets with which to find an attorney and he refused to do that so he refused to even show the first aspect of the matthews vs eldridge because if you don't have a if you don't can't show you have don't have other assets and you can't leave your private interests really goes down to almost a minimal almost like what holy land said with regards to a third party if you they were like an unsecured creditor i know it's a different situation it's not a defendant asking for counsel of choice but still it goes to assessing his private interest and that's what the court have been restraints they've been actual restraints or seizures and that's what argument was in this case is this not even a restrain or a seizure all it is is a notice telling the world that yes this party that this property there's some litigation that is attached to this property but it's not the same thing as a lien it's not the same things attachment is not a restraint and it's not a seizure so it's even also a less impact on the private interest because you can still sell even though i know it does affect the fair market value but you still have control over that property it's not taking which by the way he submitted a secure for a two hundred thousand dollar bond right upon when he was convicted he wanted to be out on bond and he had this asset which he's declared to have two hundred to three hundred fifty thousand dollar equity that was available to him throughout the proceedings so we now know he does have an asset that has activity that now he he's he's been arguing that he should have on appeal and that's sort of a side issue that doesn't have any to do with the properties involved in the in the criminals or  united states supreme court rules and justice kagan referred my motion to the entire court my motion is to stay the interlock atory sale of the whitford property judge rosenthal intern in order to sell the property before the appeal is even resolved if you happen to have the supreme court docket number it's sixteen zero six six three two i think i can definitely provide that to you before i leave this afternoon  filed it in the united states supreme court and justice kagan referred it to the entire court for their consideration to serve opposing counsel of the company i did not serve the i serve the solicitor general which is what the supreme court rules require me to do so i assume that that that they might have been notified by the by this solicitor general from it in washington d c but all i know is that once i filed it and it was referred to the court for  conference the attorney mr doyle who has been pursuing the sale of the property has stopped communicating with me about it so and before that he was very eager to sell the property was an appeal from require and so i'm assuming that solicitor general notified the u s attorney's office because they have stopped pursuing the sale at this point in time regarding the waiver claims first of a waiver is intentional but there's a known intentional relinquishment of the right and mr fish did not knowingly waive his right to contest his due process rights by non suiting his prior appeal he non suited he did not dismiss it with prejudice and so that is not a waiver it is the government in fact that waived any claim it had that the word for property is tainted it continues to argue in its brief that the wickford property is tainted in reliance on cross accuser statements only no evidence they made no effort to prove that the work for copper t was tainted i believe because they didn't have any evidence to do so and that's why they were court gillis pendants because they couldn't establish probable cause that is why they didn't try to prove that it was tainted at trial because they couldn't prove probable cause and that's why they went for it as a substitute asset instead because there was never any evidence that it was tainted to begin with not only that record shows the new did you present any evidence that where you weren't the lawyer but whoever the lawyer were that mr fish was actually earning money unrelated to this alleged bribery i do not i do not know that there was any evidence of that in the record in fact i think that mr crone did a pretty pitiful job and i think probably had to do with his medical condition i believe mr mccann is an exceptional attorney he has an exceptional reputation as a criminal defense attorney and i just personally believe based on reading the record that he was ill that he suffered some serious medical condition in the middle of the trial and that that was likely to have impacted his performance in this particular case the text messages between him and mr fyshe demonstrate very clearly he did nothing to prepare for this case he didn't interview a single witness he subpoenaed witnesses they called his office and he never even returned the call he told mr fyshe that criminal defense attorneys don't interview witnesses and he could do it at night by phone he never called these witnesses then there was testimony these witnesses could have offered that would have directly contradicted testimony that the government offered including the