please the court mr my downloads conviction should be reversed for multiple independent reasons the first of which is that his constitutional rights were violated by pervasive unjustified and largely undisclosed ex parte communications between the prosecution and the district court issues related gaited and decided against mr my download not only without his participation but often without his even knowing that the litigation was taking place resulting rulings included some that determined whether the trial would go forward and something odd mr me download benefits of the benefits of rulings he had already won what is so remarkable about th not just the casual use and sheer volume of ex parte communication and not just that there was no justification for it or frankly even a proffered justification but that the very existence of most of the ex parte communication was kept secret from the defense that means that mr mcdaniel not only had no ability to participate in the litigation of the issues he had no opportunity to argue that he should be permitted to participate we submit that this is not an acceptable state of affairs in a criminal trial conducted in an american courtroom mr mcdaniel when the government disagree about many things but there are a number of principles governing ex parte contacts that we think are not subject to reasonable dispute one is that they should be rare another is that the require a showing of extraordinary need a third is that even when that showing is made and found to exist the excluded party must be told that the ex part communication is taking place at least in the absence of very unusual circumstances for example when there is a risk of safety risk to the safety of a witness or a juror each of these principles was violated here there were nearly sixty ex parte contacts in this case at least that's the number we know about with respect to almost all of them there was not even an attempt to justify proceeding without the participation of the defense much less  actual justification and with respect to almost all of them it was not even an attempt to justify the failure to apprise the defense of the communications again much less an actual justification for the secrecy to take just one example the prosecution was told on a tuesday to apprise the just record in the defense by friday whether it would be able to go forward with the trial on thursday the prosecution decided that it would be unable to meet the friday deadline rather than doing what one would think that any litigant would do in that circumstance which is to contact the court and notify the posing party that the court was being contacted and what the notice and what the request for relief was prosecution simply picked up the phone and called chambers and asked for an obtained an extension mr mcdonald the defense was in the process of this until after the fact and this isn't just any litigant that i was not explain i'm sorry your honor how was that explained i don't know that there was any other information about an ex parte continuance of a response i think that's what you characterize it as that was that was do right there was no explanation by the prosecution and after the fact process no and it's never been to this day there's no explanation in record none and there's non third not in the hall the judge called the law clerk well they called chambers we don't we don't know exactly what happened and that's part of the problem with the it wasn't an e mail it was a telephone call yes so the oral communications can't be reconstructed and that's one of the problems with the ex parte communication much of an extension that well they got an extension until monday at which point they much it wasn't but the context for this is that mr downlow had invoked the speedy trial rights from the start of this case the government was trying to gather a lot of evidence overseas and was having trouble doing it mr  date at every turn one was granted overs objection and when it was granted the district court made clear that there would be no further extensions no further german to the trial date i thought on this too at this tuesday hearing the government said we're still having so in this were not to say i'm sorry for the big decision absolutely and that's not the only outcome determinative ex parte communication that we have in the day on this one for a minute how long before the trial da this thursday through monday transaction takes place i think it was a couple of weeks up a little weak leapt check that i think it was less than a couple of weeks ultimately when twentieth which was a thursday the original due date was for the representation as to whether the case would go forward i believe was march twenty first the case was ultimately an order continuing the trial again was entered on march twenty fifth the trial commenced on april twenty third so we were about a month were about a month away at that but you would want you told the next day about the continuance what you told of friday yes yes so what you say they should have filed a motion for a continuance that's what they wanted well then they should have proceeded the way anybody you would think would proceed in american court room which is to file a motion all us i've been serving on you exactly exactly then again this is just or alternatively they could have called defense counsel so we're supposed to report to the judge by friday but we need the weekend to think about it further you have any objection to that i mean that in an ideal world that's how it would have happened to lute lee and then almost certainly defense counsel would have said of course you have until monday i don't know i don't know that that's true in the district of maryland a defense lawyer would have said of course you have until monday will again judge i don't know what happens elsewhere in the in the context of this case where we had been you know vigorously invoking our speedy trial run under stand that but you haven't raised the speedy trial issue in this appeal that's true ok so again i'm trying to understand and the reason i'm staying on this is because you raised this one which i assume maybe i should and this is the most serious substantial ex parte claim i don't i don't want to tell you that it's our most serious i think in a way that raised it in a way that will in the record in a way it's the most egregious and it is the most representative of what happened throughout the course of the trial that the that the government would proceed in this i think speaks volumes i absolutely agree with you on that and as i suggested what should have happened phone call to defense counsel and the problem judge expects to hear from you would have on iraq you have said yes there's a problem no you wouldn't do well let me let and even if you had no judge in this country would denied the government a weekend to reassess its position on whether to dismiss the case when the trial is four weeks off let me i mean let's just be practical and real here let me let me respond to that in a slightly more general way if i could i want to be specific because again you raised this one of all the ex parte contacts you could have raised this is the one you write i focus i think what your line of questioning is getting to ultimately is the question of presence of force and i'd like to speak to that if i could it's our prejudice is concerned it's our submission that we don't have to show prejudice ok because this is a structural error the whole corpus obviously my question imply only ask you to assume i don't agree with that problem ok that's fine but that's fine you don't say a couple things about ars yes holdings if i could the first is that it was a civil case so it didn't implicate any of the fifth and sixth amendment criminal trial procedural rights that this case does the second thing about  holdings is that it was a do it was a civil case and the only constitutional right at issue was due process which doesn't give rise to structural error in the same way that the rights at issue here do which are right to counsel during every critical phase of the proceedings  i'm saying it's this thing you can want you to make a point but right you could be absolute that's a good that's a valid argument to make there's no question about it but but that case we did require prejudice you did and that the second point i would make is that even if you  yes holdings applies here we should still win because the critical part of ours yes holdings as far as we're concerned is what prejudice means in the context of error resulting from ex parte communications it doesn't mean that you have to show that the result of the trial would have been different in that there would have been an acquittal it doesn't even mean that you have to show that the outcome of the particular proceeding within the course of the trial the particular ruling would have been different without the ex parte communication all it means as this court said in that case is you have to show that you were deprived of an opportunity to meet and oppose the claim of the other party that is indisputable of the case here as to all of the issues we raise on appeal that would take you back to where you were before it's a big judge davis suggestion is right on the money what should happen is they should have called you and ask you which whether you would agree to something  if you said no they could then have a ask you to join a telephone call to the court for a telephone conference or they could have chosen to file a motion and give you notice and say it's going to be heard probably maybe by telephone or something but they chose not to do any of those three they chose to go directly to the court that's what you're getting at it yes or are absolutely right but what judge later suggested is that is the reasonable way to do it and that's why it would be done in ninety nine percent of the situations i mean i've been in your shoes and i've been on the prosecutor she used to and we used to talk to each other about these things that's right what's expect us to i don't disagree with anything you're saying and this is this is obviously not the only ex parte contact that occurred here there were close to sixty and the the ones that even the government concedes are substantive ex parte communications fall into three basic categories the first has to do with a discovery request by mr medan low for and let correspondence a lot of this evidence as i've said came and went over to the stuff that's right this was the documentary evidence that came from overseas there is a request for assistance made to the swiss and the russians and they provided documents a mystery download before trial said we'd like to see the correspondence between apartment of justice and these foreign governments and there was motions practice on that and the court issued an interim order on that motion and said to the government give me all of the correspondence i'll take a look at it in chambers and the government didn't do that it submitted exemplars it didn't it didn't give the judge all the correspondent that's right and it did that without notifying the defense or the public in any way that it was doing that it did that ability to tell the judge in force the order that you issued that we you know this ruling that we won without our even knowing that this was taking place the court denied our request for discovery and issued an order that we submit a proceeding it changed rules right there were what should have happened if the government didn't want to do what it was directed to do so that it should have filed a motion for reconsideration it didn't do that it just took it upon itself to do something different this record allowed it and it denied us relief and then as i was about to say in denying us relief in a had to classified hearing on the record now that's that's a separate category of ex parte communications which i hope i can get to but here in denying relief the district court issued in the order that said i have reviewed all of the i directed the government to provide all of the correspondence i have reviewed it and i'm denying the defense access to it so that's the first category second category involves a different subset of foreign evidence and this was done in the courts that it reviewed all the correspondence yes but had that's right because we now know as we're trying to put the record together after sentencing and after mr downlow had surrendered was sitting in prison we're trying to put the record together on appeal we learned about this and all the other ex parte contacts the second category of evidence involves foreign testimonial evidence what the parties refer to as the swiss depositions this was one of the most hotly contested issues before trial this was one of the most important categories of evidence that the government offered as as was also the case with the documentary evidence from switzerland the government throughout the course of pretrial proceedings made it clear to the court that without this evidence it probably wouldn't be able to go forward we oppose it move to take depositions of swiss weapon witnesses we opposed it the court directed the government to do a number of things one of which was to give the court the surance is that the swiss witnesses would not invoke any privileges the government we now know made an ex parte submission to the court unsolicited that addressed we have not seen it but as far as the government's briefs on appeal suggest it had something to do with difficulties in obtaining statements and testimony from swiss witnesses and the possibility that they would be invoking privileges we didn't know anything about it at the time we were unable to oppose it we didn't know about it until the appeal the court ultimately granted the motion to take the swiss depositions and as a consequence the trial went forward and we know what happened at the end of the trial which is why we're here today if we had known about it and really i don't want to spend more than twenty seconds on this why did you what was the basis for the opposition to the deposition but essentially that the government couldn't satisfy the rule fifteen standards of the testimony was irrelevant that the witnesses could actually help here at trial there were privilege arguments all sorts of privilege we are didn't raise privilege while we were arguing that the that the deposition shouldn't be allowed because they were privileged problems as a matter of swiss law that would prevent them from actually being used and that is ok part of the reason that the judge asked for this representation ok i get i don't want you to take up a lot of time so as far again i don't want to belabor this point are our primary submission is that this is structural error but again you don't have to agree with me on that in order for us to win as far as the prejudice is concerned i just want to say two things about that if i could that sort of a high level the first is that if this is not structural or at the very least if prejudice relevant it's the government's burden to show an absence of prejudice the six circuit cases which reversed criminal convictions on which we rely make this clear ordinary principles of constitutional harmless error make this clear it's the government's burden to show harmlessness beyond a reasonable doubt so that's the first part it's not our burden to show prejudice it's the government's heavy burden to show an absence of projects the second point i just want to emphasize is one of already made which is that in this context unlike in many others in criminal cases prejudiced does not mean show that the result would have been different or since it's the government's burden show that the gristle would not have been different whether that applies to the trial as a whole or to any particular part of it it just means show that you didn't have an opportunity to meet and oppose the arguments you were making harmless error or a lack of prejudice in this context and the r s yes the situation makes this clear discuss the seventh circuit decision which found a lack of prejudice what that what that means in this context is there was an ex parte contact but despite the ex parte contact the excluded party still had an opportunity to participate for example where one party makes an ex parte submission to the court and rules up there in the local rules of the maryland court and how you how you go about things if you want to seal them up and i'm not sure i'm not sure whether the local rules specifically address that i would say that i think the case law and general principles of trial procedure and criminal procedure make clear what you're supposed to do you are if you want to make an ex parte submission you talk about  are making this request ex parte you have to make a showing that justifies that district court has to make a finding that it's justified a record has to be made none of that happened now just filed that's absolutely correct and to this day one of the problems with this is that we don't know for sure what's really in the record that occurred during the course of the proceedings and what is and i mean the government concedes that oral communications with one or two exceptions couldn't be reproduced so we don't know what the substance of oral communications was it did an e mail search but only as to communications between chambers and some subset of the prosecutors not all of them so we said the word letter brief for your brief your brief argues about the letter briefs that were submitted to the court right ex parte yes and were never so the prejudice here it seems to us is sort of layered the first is that we couldn't meet or oppose the arguments because they were ex parte the second is that because we didn't know they were taking place we couldn't make the argument that we should be allowed to meet and oppose them because we didn't know they were taking place we couldn't seek more generalized relief from the district court which ranges all the way from saying please don't do this anymore to you know asking the judge to grant a mistrial or recuse himself and then all points in between and as i've just been discussing with judge king we also have the problem that this appeal is necessarily being prosecuted on an incomplete record he was interviewed the government interviewed him a couple of years before the disclosure was made when the government was not going to disclose it on its own it submitted the information to the district court a few days before trial began and asked the district court to make a determination as to whether it needed to be disclosed that was done ex parte without any notification to the defense it wasn't  we had no idea but the request was being made the same day appropriate procedure in your opinion for him to go you know for the government to submit evidence to the judge to ask the judge if it appears to be exculpatory it's completely appropriate to it's completely appropriate what we think the government did wrong was in not docketing it so that the public and the defense didn't know that it was taking place and that that matters that was critically important as it turned out here because you mean the despair east memorandum when they sent it to the judge they said is it you copy the transmittal letter or email so that you you know they did they were say we're sending something to him either that or or frankly the more appropriate thing to do is to make a submission i mean the way sealed documents are filed all the time you file file it publicly and electronically and if it's ex parte the public and the opposing party just see this sort of blank electronic entry that shows that this happened but it doesn't show what the substance of it is they were confusion a term in camera with the term ex parte absolutely that's absolutely right then in camera there's nothing wrong with an encounter a inspection of evidence in appropriate circumstances what's wrong is that the other side supposed to know that it's taking place so the the judge there was an ex parte undock you did request for a decision as to whether it needed to be disclosed the same day the judge directed the prosecution to turn it over but they didn't turn it over the same day they waited until a few days after trial had commenced at which point we knew about it for the first time and we made all of our arguments under brady that the problem with the timing of this is that at that point as a practical matter there was really nothing we could do about him between that time the that's right i mean they should have they should have turned it over months if not years earlier but at the very least they should have turned it over before the trial commenced once you had an impaneled jury as it was a  well i mean that can't be a justification for waiting till the eleventh hour to make an untimely disclosure of brady if it's in the government's possession i think it's an objective standard that brady did care whether it's good faith or not that's sculpt or your entire good while at the very least in the government's possession i don't think it's a defense to a brady claim that this one particular prosecutor prosecutors are busy there's no question about it but it's not a defense to a brady claim to say well this particular prosecutor just happened not to have focused on this until the day before trial if it's in the government's possession and it's been in the government's possession for months or years it seems to us there's not an obligation to turn it over so that was in connection with the in the sciri memo that was the first ex parte contact the second was after there was a hearing on this and the judge expressed a lot of concern about it and said  this is clearly exculpatory i'm exploring all of my options as far as remedies are concerned i believe the next day or maybe later the same day there was another ex parte communication with chambers from the government this this one by letter  by e mail in which it said can we have a hearing this was i think on thursday or friday late in the week i'm going to bring our national security specialist from our office and and the court said yes we didn't know about this until the monday morning of the day when the hearing occurred so we we showed up at this hearing not knowing what it was about in any meaningful way not having had the opportunity to prepare and during the course of this hearing a third ex parte just in connection with in the sciri memo third ex parte proceeding occurred the the judge and the prosecution including the national security person from the office went into a closed hearing which was not transcribed the judge had been considering as a potential remedy directing the government to turn over the entire memo which was a fifteen or so page memo that had turned over just the single sentence from the memo this ex parte hearing occurred and when the judge came out he said on the basis of what i've just been told  going to direct the entire memo to be turned over to record whether the memos classified or not i think everybody agrees that the memo itself was not classified the government's position was that what this national security official from the justice department had to tell the judge was itself that was last a five that's right that was off the record for was there was no court order there that's right there was no court reporter there and and what happened in that hearing was reproduced by the government i think seventeen months after the fact again not until this appeal was noticed and we're trying to put the record together in a in the sorry it's part of that that's right that's right so those are the three i think the three most important categories of export that communications which we say violate mr medallist constitutional rights there was no justification for them there was no attempt to justify them and with respect to the vast majority of them we didn't know about them as they were happening so we lost the opportunity not only to meet in the pose them but even to argue that we should be able to meet in the pose them we think that  structural or even if you disagree with me about that we think the prejudice standard can't possibly be satisfied by the government i'm not sure exactly whether i have any rebuttal time left at this point but if i do are you doing so good i don't want to  case in the defendant certainly has not cited any cases where a court of appeals has reversed a criminal conviction let alone after a six week trial based on ex parte contacts relating to discovery disputes especially where the defendant has not challenged any of those discovery rulings on appeal and that's perhaps our primary and strongest argument on the ex parte issue and why is that it's because discovery does not concern quote  critical stage of the proceedings let alone as other panel in rinds cases cited a few years ago a case i know judge king is very familiar with you say two years ago years ago in the late ninety's your honor the panel disappears ago in right where the court said quote the presentation of or admissibility of evidence during an ongoing trial that's that is a critical stage of the proceedings but discovery pretrial discovery is not a critical stage of the proceedings indeed this was not a situation where quote the opportunity for effective defense must have been seized or foregone so that stuff went on during the trial you had the you had that it was called the f b i parte about the honor and i think it's very important you know we've tried in our briefing to lay out each of the ex parte situations where they're distinct and they're important to consider separately you know i'm going to back to where you all do things up are all the case well your honor i should emphasize that you know if you look at the docket in this case it is hundreds of docket entries everything was had in open court except for a few a handful of contacts and i'm not caught not talking about the forty five e mails of the law clerk which are purely logistical purely non substantive i think everybody would agree apologize yeah well it's sure this isn't one of those your honor i am more than happy to stipulate that we would prefer not to be here today talking about the forty five emails you probably would have been a hard thing just to copy the other side no dispute about that but you know there's no certainly we'd agree with that but there's nothing wrong with letting the other side know about it in a big criminal case i don't dispute that you're honoring the lawyers in the case i always thought you did all of the lawyers was right on right and for the most particularly when you're communicating with the court for the most part we did proceedings should be open but you know those are in proceedings and i guess that's my point when i walk her e mails the prosecutor or the defendant which he did by the way there are e mails in the record where the law clerk who was diligent trying to do his job essentially said hey i need you know i need a copy well that doesn't mean you do it ex parte well you know i tell the other side you're submitted to the judge you don't show the other side what you're given to the judge but you've got to communicate that you're given something to the judge you know i don't want to be hyper technical about this your honor we doesn't say it's in camera ex parte it says in camera if the in camera review to see whether you can say we don't think there's a good scope or tory but we want you to take a look at it we're not going to restrict or defer discovery etc the court may permit a party to show good cause by a written statement that the court  the relief is granted the court must preserve the entire text of the party statement or so do you show this in the record you know other stuff was in the wreck the reason it's not in the record is because the district court ordered disclosure and that's why this case is different than every one of the other cases cited in the record yet won't let me let me address each of them your honor because you've got a categorize it you know the brady stuff hearings that weren't the record i'm sorry your honor had hearings that weren't in the record well let me emphasize the beauty issue first i mean i said maybe you ought to start with an saying you didn't do it right or not to do it right let me explain why there is no prejudice in this case your honor as your honor has or that this goes on all the time though well no no it doesn't want to begin i know it doesn't go on all the time i mean look logistical types of contacts do happen all the time big office explained it has to show up on the record and have to be reasons for well there are a couple things about the washington post case your honor first of all that is a first amendment case and the issue in that case is did the public the washington post have access to certain materials regarding a plea hearing and a sentencing the relief in that case and this is one of my most important points judge king the relief in that case was not to vacate the conviction the relief in that case was to open up the docket and to make the transcript for that plea hearing available to the public hear all of that information is available to the public all of it is in the in the joint appendix or the party supplemental appendix all of these these letters except for brief redactions which relate to work product which we've asserted then and we continue to assert now is is open to the public so the relief in washington post public now yeah but not during the trial year and a half after the problems go well but i guess i'm broke today on the point about washington post as i say and first of all washington post i think very clearly in the course of the trial there were no there was nothing but in the record were you all made a request to go in camera that's correct or an ex parte proceeding in there were no findings made by the judge that just that would that was justified straight we're going to have this  x parte proceeding which i'm going to hear from the national security man right in get an explanation of what all this is and so my point kind of stuff would really make his record look i think the members of the bar would certainly honor and perhaps you and i have are just looking at different provisions i don't see anything in the local rules that requires a prosecutor when seeking to submit brady information to the district court to docket that information in fact rule sixteen as i've said in the jencks act which also talks about he went to the district judge and sought a ruling and judgment sadi rather than as the defendant asserts was sort of in a joint enterprise with a prosecutor no judgment and he said turn this thing over and with the good leo information the prosecutor produced it immediately the next day he sent a letter again as any responsible prosecutor should and said you know there is this one sentence about the mess of a satellite program which is completely different by the way than the sign up program which is what was charged and convicted at trial he just said look i just feel like this is not discoverable but i want the judge to make that call that's responsible behavior fully in compliance with the u s attorney's manual and judge clearly sculpt or well he says later on april twenty sixth excuse me right at the hearing there's a mistake his initial reaction w order you simply didn't turn it over and you didn't tell the other side you were going to turn it over and you did and you let the jury be sworn in and you let the jury be impaneled right let me explain a significant step in a criminal trial it the reason there was a three day delay is because there were other agencies involved in with respect to releasing the information to the defendant the judge didn't qualify you know that's why turn it over once you get clearance from these other agencies he's the federal court and he's presiding over the criminal case and he's got a jury in the box get rid of sworn in judgment said he said he had no problem with his order judgment said he said he had no problem with the timing of the disclosure and that's on the record the reason there was a three day delay and the national security chief explained this and there's no dispute about this we had to get approval from the national security division in washington and from another agency to release this information to the defendant the prosecutor released it the minute he had authorization to do that so i think the fact that the judge orders  turned over doesn't authorize you to turn it over yes now we did turn or turn it over the article three court order to turn it over to so we could do it over till we find out from washington where they're going to go along with you well with respect of a right over gave it to him in the letter ex parte you gave you already what the substance we're talking about you know the letter came on april twenty fifth so three days after the judge ordered us to disclose it there were issues out of our control that is the maryland u s attorney's office is controlled that we could not immediately disclose it so we disclosed it as promptly as we could which is on april twenty fifth and judgment said he specifically said at the brady hearing later in the trial i have no issue with the timing of the disclosure he had no problem with that so the question really becomes about prejudice and that's really what i want to focus my my and my argument on there is no prejudice to mr mudd damo when a brady disclosure is made to him that is that in the fact there was an ex parte communication when that information is actually disclosed to him this is not like every other case where the district judge limits discovery and the issue on appeal is oh my gosh i should have had access to that information because it would have changed everything this defendant did have access to both the brady information and the he did and he and you all had it for three years before that well let me address that directly your honor mr madonna never saw a continuance in this trial not once he never he never said stop the trial this is brady information but the information you had yes two thousand and ten yes we're going over two thousand your honor the reason why we didn't turn it over is because the prosecutor in good faith never thought it was actually brady material and we maintain that here today it's a different satellite program built by the italians it's one hundred kilogram satellite unlike the sign a satellite which is a twenty kilograms satellite it never launched unlike the sign a program which is what this whole case is all about and the most important thing there this whole  prosecution here focus on the relationship between the iranians and the russians that's what the entire conspiracy charge in counts one and other counts is all about the medicare program is a fundamentally different satellite program right  italians which never launched so the prosecutor when he's looking at this information says you know what this isn't even discoverable it's not real sixteen it's not chang's it's not brady it's not anything else but out of an abundance of  one stray sentence that says something about this mess by satellite back in two thousand mr madonna which is his own statement by the way right how can the government suppress a defendant's own statement but that's the brady issue i want to focus on the  prejudice to a defendant when he receives the information we turn it over so there is no prejudice of him the fact that there was an ex parte communication now the fact that he wasn't noticed your honor first of all as i say i'm not aware of anything in the local rules in maryland rules sixteen says nothing about seeking advice from a district court i don't think there's any rule requiring him to notify the other side now in this court in this case were to suggest or to require prosecutors to do that going forward i think the bar would welcome that kind of guidance but this prosecutor is acting responsibly when he timely seeks advice from the district court about what should i do with this information and it's any turn it over i don't just agree with what you do yes i did that when he asked for the advice of the court the problem is works when it's remitted or i do not dispute that judge king and let me persuade you that never has a court reversed a criminal conviction let alone after a six week trial based on lack of notice to a defendant regarding discovery disputes it's never happened we had a lot of people coming in already this is never before we go there and well i don't want to suggest that your honor but let me just say this and be very you know be very clear about it you know the defendant has talked about the right to  receiving notice of the of the filings and as i say there's two related claims there there's a first amendment claim a sort of a right to public proceedings and there's a sixth amendment claim the defendant's right to have sort of the public scrutinizing a sporting event or it's not your honor but the reason why again reversal is not warranted here you know in every one of these cases i'm talking particular about waller supreme court case waller versus georgia you know the suppression hearing in that case was not open to the public  and the supreme court did not reverse and this is really my most important point when immigration of this the remedy in these contacts is not to reverse the conviction what happened in waller was the supreme court remanded the case for a new suppression hearing and the court said if the result of the suppression hearing this time in public or you know open to the public is the same the conviction is untouched there was no new trial and in every one of the cases you know the defendant has cited a number of cases here you know kennedy is the second circuit case where the district judge a criminal case mailed in the written verdict rather than announcing it open court the second circuit did not vacate the convictions there it sent the case back for the judge to announce the verdict in open court and left the sentencing in place did not reverse in owen's first circuit case you know where the jury was close your selection was close for a day everyone agrees jury selection is a critical stage of the proceedings unlike yours or to be fair to say or large but you're going to raise them harmless they're like a precious yes like a road correct so we didn't argue that well i think our brief is pretty replete with arguments about why he wasn't doing wrong you well he wasn't prejudiced right so with the trial may ninth two thousand and twelve there's an extensive hearing about the m let materials these are the swiss foreign records and there's a hearing about the defendants motion to compel discovery now let me back up for a second the defendant admitted in open court at this motions hearing that he had no entitlement to any of these material it's all discovery right is the underlying records to the request he had absolutely no right it's not rule sixteen it's not  and there is no constitutional right to discover it we all know this he has no right to these materials and he says that he basically throws himself at the discretion of the district judge and says judge i want to be able to attack these depositions in switzerland and he says without any basis in the evidence i believe that the u s government got these depositions under false pretenses so i want to discover the entire case i want to discover all of the e mails between the u s prosecutors internally and the prosecutors between the u s and the swiss so that i can then go to switzerland and attack these depositions in judgment he says look you're not entitled to the stuff but i am willing to give you a hearing i am willing to review these materials in camera ex parte and make a decision because the government had a certain work product we said he has one title meant to these materials because they're internal e mails right so let's be very clear about that we then submit the materials on me on june sixth and that's the so called cover letter it's at page two of the sealed supplemental appendix that cover letter is an index and again the defendant had a notice he knew the judge must said he had ordered and there's a it warder on the docket page one thirty five of the joint appendix were judgment said he said the government produced these materials to me in in camera because he's not entitled to it but i'm going to review it to see if he's got a right to it we do that that's the part that he said you did give all of the judge you get us what he gave you a sample yeah and we were forthright about that in judgment said he said and i hate to be  transfer and i we should have emphasized in our briefing we did and i apologize for that first me said he said i hate to review two or three thousand pages to figure out what's going on here but at least it feels like i need a look of these materials when you mr prosecutor make statements like work product so the judgment said he said on the record don't send me thousands of pages and this is page fifty six of the hearing is that i explored a no brainer this is an open hearing this is at on may ninth two thousand and twelve in open court are you saying that the judge gave you the authority to pick and choose which e mails you want to show him well i'm saying he said i want to look well we'll see actual requests or are you saying that the judge gave you the authority to pick and choose which e mails to show well yes you know when i read this statement i hate to review thousands of pick two or three thousand pages to figure out your assertions about work product it feels like i need a look to decide whether or not the work product assertion is when we produced the materials on june sixth we sent a cover letter to judgment he's saying very clearly there's over a thousand pages of e mails here and over the question is what does that have been snow is going on my understanding from their representations is that you're going to provide all the correspondence all the e mails to the judge and that's what it is they're expecting him to be and the documents on which to base his ruling and then they find out later on where we didn't show him all the e mails we we went through and providing samplings it was that in a letter to the judge yes that went to the other side no it did not go to the other side that i meant that let's but here's the thing your honor it goes to the judge he then reviews the materials in camera and announces in open court and you give him a copy  in the court file this up here you don't have it right it created they did months later well you know again we have obviously voluntarily supplement the record because we wanted this court to have an opportunity to look at the letter and it's in your appendix it's in the sealed seven hundred pounds to their motion know there was no motions filed in the district court about completing the record we did it jointly and voluntarily did yeah and then we entered a stipulation that was a motion we had to file a motion who brought up the issue that the record was they brought it up with us they brought it up to you and then you so you all work that through the yes well that materials in camera you do not get access to the internal correspondence because it's work product just like the government said back at the hearing on may ninth so he had notice that we had submitted these materials right he didn't he didn't object he didn't dispute he was glad that misjudgement said he had reviewed materials to which he never had any entitle him to in the first place because this is a discovery dispute about internal government e mails said he then ordered the government to produce certain materials we so  he got relief mr madonna got relief we did turn over certain supplemental and materials which again we had no obligation to turn over it's not discoverable material but having reviewed the stuff that we provided in camera ex parte judgment he said you must turn this over government certain things and the rest of it is legitimately protected by the work product doctrine now would be let me be very clear mr madonna has not challenge that ruling on appeal and it speaks volumes about it because he had every basis to go to switzerland and attack those depositions remember the whole point here is for him to get discovery about internal communications so that he can then fly to switzerland and attack the depositions in switzerland by saying the government somehow lied to you in getting th s request he had that opportunity he went to switzerland the record is very clear about this he contest a dual criminality in switzerland there's a letter in the record that the defense counsel sent to the swiss prosecutor saying this whole thing is illegitimate because no dual criminality the swiss took the extraordinary step of ordering us to respond to that and there's a letter in the record september twenty fourth of two thousand and twelve that we send this is after all of this where we send to the swiss prosecutor saying there is dual criminality and here's why so this issue judge king's i appreciate the court's questions on it and the trash as well as well as davis you know he was not prejudiced because he had every opportunity to contest the swiss depositions that's my whole point this is a pretrial discovery dispute where he is not appealing the ultimate order the ultimate order the judge said he said that he issued has never been challenged on appeal he has never of alleged an abuse of discretion because he knows the judgment said he was an act of grace to even get him what he gave him right all of this stuff is not discoverable so that's the cover letter now there's the issue about the depositions and i want to get too much into the facts but this is important the rule fifteen depositions there's a hearing on this on in late december of two thousand and twelve and again in open court there's a discussion there about the disc the defend against seeking all discovery he wants all of the witness statements in advance of the deposition because he wants to basically cross examine the defendants he has no entitle mint to that information under the jencks act right you only get it at the time of the guy testifies and under the discovery agreement in this case we only had to turn those materials a week in advance under summer twenty seventh there was a lengthy hearing about the depositions and again the defendant asked for all of the discovery in this case and judgment said he says why do you think you're entitled to this why are you entitle to all of the discovery in the case you are not entitled to this material if you if you think you're entitled to it now let me review these prior witness interviews in camera ex parte say and i'll tell you whether or not you have entitled untitled a minute to it early at that very same hearing and again this is in court in open court on december twenty seventh judges rules on the materiality of the upcoming depositions he says this is an important part of the government's case to determine the extent to which prospect telecom was in fact formed as part of the conspiracy to conceal payment of money etc so it is relevant in that regard so there was an in court on the record finding made by the judge on december twenty seventh before we sent anything to chambers saying these depositions are material and of course the defendant has never challenge that on appeal  depositions buried him he knows are material he knows those depositions were relevant there were a critical part of the government's case judgment said again in open court said these are material and then he enters an order under summer twenty eight a formal docket order saying i am granting the rule fifteen depositions this is at page thirteen fifty of the joint appendix with certain conditions and that's one of them is produce these witness interviews to me in camera because the defendant is not entitled to them at this point to let determine whether or not in fact there were any assertions of privilege or there was any materiality issues we produced the information on january third two thousand and thirteen with a two page cover letter and it is not judge king a letter brief it is simply a standing here today i wish we senator the other side hard standing here today i wish we had sent it to the other side just because it would have mitigated a lot of the issues on appeal are you do but the question is did it prejudice mr modano and my suggestion is there was no prejudice to the defendant where judgment said he had already granted the rule fifteen depositions and mr madonna on appeal has never challenge that decision so the question is how was he prejudiced how are his substantial rights affected by the fact that these rule fifteen depositions we're standing here today clearly were material there is no dispute about that the house your testimony and the haiti testimony buried mr to mr madama he's never challenge that decision on appeal his judgment said he clearly properly granted the depositions so did this cover letter somehow sway judgment said he no because he had already granted the motion he had already said on the record on december twenty seventh two thousand and twelve these are material so let me just focus on those two contacts your honor because i know him my time is running down i want to persuade this court you know again if we had to do it all over again we would have noticed the other side there's no doubt about that even with the brady in the gate legal stuff you know it's important that we say it in our brief and i'll say it now the government has no interest in the adversary process in any way being compromised you know we're a party to every single federal criminal case in this country we have an interest in making sure that we are noticed about everything that's going on right but there are legitimate instances where ex parte contacts are appropriate you know when a defendant has a guilty rule well in that we messed it all up but i'm not going to say clearly guilty we have an obligation on we have an obligation perhaps higher than any other party to do the right thing judge king and berger versus united states says that and when i stand here and i embrace that but the question ultimately in this case is was there any prejudice to the defendant in ex parte contacts that had nothing to do with what was going on a trial right the cases where convictions have been reversed all have to do with the admission of evidence during an ongoing trial that's the language in ryan's none of that happened here where every single one of these issues was openly aggressively zealously litigated in open court the swiss and what issue i mean there are untold number of documentaries about the m lat records right and judgments said he had essentially you know it's a purely discretionary issue and that's my point it's discovery and he had no entitle meant to any of the stuff there's no dispute about that the underlying and let materials the internal e mails between us prosecutors and the swiss prosecutors is going to entitle meant to that but judge mississippi fairly can suppress the defendant's own statement and that's probably the easiest in the clearest way to resolve that discovery the defendant says well you know this was ten years ago well i haven't seen a single case suggesting that somehow you know there's a time expiration on a defendant's own statement so that's why none of it's brady you know that's why even if it is you know whether the timing happened or didn't happen ultimately if you find that this isn't brady material all of that's really kind of irrelevant the the key point your honor and again i don't want to get caught up on this three day delay but the record is you know is clear on this we did not have authority to release it until the twenty fifth and that's all i can really tell you and there's a summary you know there's a classified summary  there is no no but the very last sentence let me be forthright judge came the very last sentence in that letter from mr salem to judge miss hetty on april twenty second two thousand and thirteen says if the court orders disclosure i will notify you if there's any issues about any other agencies he says that he says that and he is open about it with judge missy and i don't have it right in front of me but it's the very last sentence in that letter and you'll see it there were issues in terms of releasing this information to the defendant immediately we exculpatory to me fair enough your honor the question then becomes these admissible was it suppressed or was it well and if it is or if it isn't well if it is admissible judge king you know the defendant never made any use of it he had a month of the government's case with which to cross examine witnesses with this information he put on his own case and he never took advantage of it in fact the one time he cross examines using this information he gets an answer that he doesn't like right he cross examines the government's expert mr mcdowell mr mcdowell says mesbah is different but is not sign no one is an italian satellite one hundred kilograms which is different than the twenty kilogram satellite we're talking about so it's not it wasn't suppressed right because it's the defendant's own statement so i understand the point that you're making about disclosure and the need to provide this information but that all assumes that it actually is brady material and that's a very high standard in putting aside the fact that we did turn it over which is important i don't think it's wasn't suppressed and the ultimate question in this is the u s supreme court you know in bagley the petitioners bird mr burden is to show that in light of all of the evidence including that untainted by the brady violation in other words find that it's clearly exculpatory fair enough wasn't suppressed by the government no because it's his own statement we did not suppress it and then putting aside that issue we turn it over and he had a month with which to use that information on cross examination and then he put on his own case in fact he called one of the government's case agents who was present at the necessity meeting didn't ask her about it because he knew this isn't helping your honor that wasn't his defense at the end of the day so i know my time  it if i could just make my last four point here at the end of the day as judge king and the court as observed earlier the issue with ex parte contacts is whether or not there was prejudice to the defendant right did it affect his fair trial was a critical stage of the proceedings somehow subverted or corrupted by whatever ex parte relationship happened here and i would submit to the court in this six week difficult criminal trial all of these contacts with the national security thing is a little bit on the side because it didn't even deal with the brady issue ultimately none of those contacts had any material effect on the issues the trial it's all about discovery the material is all about whether or not he  internal e mails in the deposition letter is up does he get early janks material right does he get his hands on those witness interviews three months before the depositions or just one week as the parties had agreed in their discovery agreement it's all about discovery and i am i want to be careful judge draxler but i have never seen a case i'm not familiar with any opinion that has reversed a criminal conviction based on the pretrial discovery dispute i'll be very sincere with  court i've never seen it and the reason why is because it doesn't go to the fundamental fairness the critical stage of the proceedings and that's where the sixth amendment right attaches mr madonna was able to contest these discovery rulings in open court infinitum there are lengthy motions hearings where the parties argue about the materials as well as this was depositions ultimately judgment said he ruled against the defendant and he has not challenged any of those decisions on appeal not once  he said the district judge abused his discretion in the materials or the depositions i don't want to go on and on your honors i appreciate it thank you very much  i'd like if i could to just try to clear up a couple of issues relating to the and like correspondence in the swiss depositions i think it's actually pretty straightforward there were orders issued on the public docket as to each as to the m lecoq correspondence the first order was issued on may twenty ninth two thousand and twelve this is page one thirty five of the joint appendix it says order that the government shall deliver to the court for in camera view and i'm skipping all correspondence between the government authorities of switzerland the russian russian federation in connection with the government's respective and let requests to those countries after that order was issued there was the submission of example arce not all of the correspondence then on july twenty seventh judgement city or order issued an order on the public docket that says this is page one hundred four of the joint appendix by order dated may twenty ninth two thousand twelve that's the order i just read from the court directed the government to deliver for in camera view and i'm skipping all correspondence between the government in authorities of switzerland and so on the government has submitted to the court and the court conducted  in camera view of those documents we didn't know that those documents meaning all of those documents were not submitted to the court until mr mcdaniel had been sentenced to eight years in prison that is all the public docket shows as far as the correspondence is concerned as far as this was depositions are concerned there were again too few orders actually one was issued this is a new order on the public docket december twenty eighth two thousand and twelve page thirteen fifty of the joint appendix in relevant part it says the government's motion to conduct depositions pursuant to federal rule of criminal procedure fifteen is granted subject to the following then over to the next page thirteen fifty one i'm skipping the government shell prompt li obtain from the swiss government and if possible from the proposed opponents an indication that the opponents have waived any legal privileges under swiss law including any right against self incrimination attorney client privilege or other legal privileges that they may assert during the depositions after this order is issued the government makes its ex parte submission which the exact substance of which we to this day don't know about we the defense but according to the government's public briefs in this case it had something to do with whether swiss witnesses would assert privilege then another order on the public docket january for seventeenth two thousand and thirteen this is page thirteen fifty three of the joint appendix because the government has adequately complied with the conditions set forth in this court's order dated december twenty eighth two thousand and twelve the order i just read from the government's motion to conduct conduct depositions pursuant to federal of criminal procedure fifteen is granted no longer conditional because it's got that representation part of which was undeniably that ex parte submission that nobody knew anything about rahman has suggested that both of these issues were litigated extensively i don't deny that but his position alternately seems to reduce to the idea that if seventy five or eighty or ninety percent the litigation is adversarial and five or ten or twenty or twenty five is secret that's just fine that's obviously not just fine and that's the basic problem here let me say a little bit if i could about another important part of mr rahman's submission to the court which is that these relate to discovery and we're not challenging the underlying discovery rulings it seems to us with all due respect that that is just a colossal non sequitur our point is that if there had been an appropriately adversarial presentation on these issues one of which has as i've said and as we say in our briefs determined whether the trial would go forward and if after that adversarial presentation the judge in the exercise of discretion of his discretion had come out in favor of the government and against us that we would be able to argue that it was an abuse of discretion maybe it would be maybe it wouldn't our point is that it wasn't an adversarial presentation he made these discretionary determinations on the basis of a submission from only one of the parties we don't have to appeal the ultimate decisions to be able to come to the court and say that they were made in a profoundly constitutionally impermissible way mr rahman suggested that there's no problem here because discovery disputes aren't critical stages of the proceeding what i would say in response to that is that at most at most even if you accept that that goes to whether this could be structural error enough the r c a s holdings case which judge king and i were discussing when i stood up here a while ago was a civil case so obviously six the men men and fifth amendment trial rights are implicated in the civil case and the court reversed in that case so at the very at the very least we've got a due process problem here and the government for the reasons i've exculpatory comment related to a missile system that differs from the one that mr me down low was ultimately tried for and convicted of brokering and i have to say i've always found that and are rather remarkable assertion when one considers that in the government's own rebuttal summation after we had or that mr mcdonald should be acquitted because the missile system that was the missile that was ultimately launched was not the one we brokered the government said don't worry about you know the names of these different missile systems it's all the same thing that at bottom is that there was there submission one was a draft or an early version there of the other i don't see how they can now say that there was no brady violation because it involved a different system one that was their theory that they put before the jury and it has to be presume that the jury agreed with it in finding mr medan low  guilty one last point on brady if i could the point the point mr rahman made is that you know what do we have to complain about when this was actually disclosed the complaint is not over its disclosure it's over the timing of it's this close year and the problem is that it was disclosed too late before we could make any meaningful use of it the jury had been impaneled th trial had started the witness was overseas after the disclosure was made the witness wrote a letter to the court saying if i had known that this was going to be disclosed i would have agreed to have my deposition taken when the jury has been impaneled and the trial has  n it's completely unrealistic and impractical to think that we could have moved during the course of trial for leave to take rule fifteen that position's up this witness who was abroad and either the trial would proceed without us i don't exactly know how that work would work or there would be this extended adjournment in the middle of trial after the jury had already been impaneled i have a question i want to ask you this is take you off track will do we factor things about that one is no i think this is a an asserted constitutional error review was done over but second and really more fundamentally it would be one thing if the judge had actually been asked to rule on the permissibility of having ex parte contact some of it he's presumed to know the rules of ethics and what's permitted what's not permitted in and he went on and did they say that you assert or i guess on that well you know we're here to assert the constitutional rights of our client and whether to stay in it and you're doing a good job well and whether these violate ethical canons or not it's not for me to say what i would say is that they violated our client's constitutional right you thank you as you finish i had thank you