it please the court my name is karen landau and i represent raymond challenge i'd like to reserve four minutes for a bottle i'd like to focus on that the case presents several issues but i'd like to focus on three hopefully we'll get that far the first i'd like to talk about the denial of the right to a public trial and if there's time i would like to talk about the issue of counsel on the forfeiture have a public trial what's the second one counsel the substitution the the failure to relieve counsel and appoint replacement counsel and then finally the forfeiture question although the i think that last one is addressed fairly well in the briefs and of course i'll address any questions posed by your honour's so so go your first one and tell me why you think the child was denied a public trial but in this case as as the palace  re the judge ok so the principal witness against mr chow who testified for about eight days was an undercover agent he was has his true identity was never revealed to the defense and there's a separate confrontation clause about the clause confrontation clause argument about that but i'd like to focus on the public trial part in addition while he testified again for a substantial portion of the trial the judge excluded the this is a substantial exclusion of the public from a trial the court the reason and so what we have here is we have cases where we've agreed that undercover agents when testifying could testify with a show here and dark glasses and other ways to show to mask their identity right well ok go ahead i don't want to interrupt you now i think we have those cases so why don't you tell me why it's constitutionally significant to have a video feed with as opposed to having a disguised undercover agent testify in court because i'm having trouble telling the difference i think there are several points here first of all the cases in which the disguise has been approved have not been cases involving the question of the denial of a right to public trial it is a distinct constitutional point and if this is important because if if if a defendant is denied his right to a public trial that is structural error it is not subject to subject harmless error analysis that's the first point all those cases let's not public about the video be shown the court ruled that for one thing your out of the public is excluded from the trial and that is a significant would point out i'm just trying to make the facts on the record as they are they are so i heard what judge breyer was question about and my worry was the only thing with it is not make this a public trial here is that they didn't have the view of his face that's the bottom line is and so you want me to find that without the view of his face there is no public trial  case we couldn't get a ball in this courtroom but we put them in for to live another courtrooms and they all heard it all well and that's what happened here but there's a difference your honor because he announced this the right to public trial part of the analysis includes the concern that want to defend when a witness that a witness is more likely to prevaricate when the public is excluded that so the concern and i understand  mean i think there's a difference between overflow and actually closing the courtroom the point is that the public did not have access to the trial in this case for eight days court heard all the objections made findings made the decision as to why they did it and put it on the record absolutely and i what is my standard of review then on that oh this is do novo review you're all right this case i would like to add something about but the right to public trial for not absolute right it's not absolute but to close a courtroom there has to be an overriding interest not just a substantial one that's pres versus george all u s b sherlock which is the one i'm going on trial maybe partly closed if the trial judge has stanch will reason now we're looking at that substantial justification we look at that but then the closure  narrowly tailored to exclude spectators only to the extent necessary to satisfy the purpose for which it's ordered and then the last is must have a hearing must make the factual findings must consider reasonable alternatives everything happens here everything happens here except you've either got to say this wasn't a substantial rush justification or it was a narrowly versus yes i understand what is that regardless regardless i would say that there was not an overriding interest and you know i am at some of the protecting the witness for a morass of physical harm to protect the witness in those particular situations it is not a sufficient justification that was not the justification here the justification here was that the government had expended a lot of resources in developing this undercover agent and i don't dispute that and that was the second one though i mean there were two overriding interests and i agree with you you know i tend to agree with that but on the second one which is what gets missed discuss his protection the protection of the undercover agent there w that not an overriding interest if it were made out but there was really no spin that was really no specific evidence about any threats i mean the arguments that the government made and it got some of them a father since i don't have them so i disadvantage there but you know the argument that mr chow was a danger was really first of all and in the sense that he or his associates would pose a danger associates who were l was years ago but this is not in the u s i think you need something more than that and the cases in which there has been similar closures involve a much stronger showing for example and you know in elma saying and that i think is the leading case on this point there was and that was again a confrontation clause issue but in elma saying you had two israeli security agents testifying not only was there their identities were their identities classified but there were you know the government presented evidence that hamas sought out identities of israeli security agents and targeted them and their families on the internet there was no kind of to my knowledge as much as i from the record that i have that i don't think  showing like that was made and so i do think that this really is about and judge pryor has said and you know no disrespect to judge prior but he made he clearly said on the record said this agent is seventy four the government's expend a lot of resources on him and you know i not going to tell the government that he can't be used because now we have we are we live in a connected world and if his face is made public his identity will become but again he also said it was because of her fear of retaliation and violence and injury to the agent you know but that is again i would argue that the showing was insufficient and also in this case this is the kind of this is case where there's a federal undercover agent and any case and the government has to show more there has to be something specific to the case to the best of my knowledge there wasn't i would like to move on well i mean  counsel and the somewhat so and i will preface by saying is the court knows i have not made a claim of ineffective assistance of counsel on direct appeal although i would say that much of counsel's performance was just withdraw they did not did not move to withdraw so finally after the motion for new trial was denied they did move to withdraw and the judge relieved one of the attorneys but refused to relieve the attorney who was clearly retained as well as the youngest souce yet who was technically well appointed he was appointed but he was an assistant really so essentially as a result well the bottom line is let's get to the real question if a party is deprived to counsel of choice for only a temporary period of time post trial does that deprive the party of counsel in the long run well i think it does that's the question it does because there wasn't a long period of time it was all post trial and they had counseled me when they needed it for the right i mean and yes it was counsel of choice that makes it that way that makes it your best argument i mean you're after me because it's counsel joy i understand that but it was only a temporary period of time it was all post trial and i guess i'm trying to figure out what's the violation in that but are you saying that is it because of the twenty to fifty five because he was in allowed to file a twenty two fifty or he wasn't allowed to file a motion for a new trial based on ineffective assistance of counsel but we never get to the i mean he so he doesn't follow the motion for new count for a new trial the judge tells him essentially wait til you're twenty two fifty five and then is there every twenty t tonight so i guess there's a couple of you know that there's a couple of different points here first i think he was deprived of counsel for a period of time and i guess i'm sure oh it's clear that even i mean i'm sure oh is this president and you want me to buy a car or into this situation where counsel of choice was only not given for a temporary post trial he's automatic a problem that's what you're arguing and i want to know what kay says that well there isn't a case this case isn't it well there isn't a case exactly that point i know and that's not support of course you know that their ineffective assistance of counsel failed to move to withdraw it timely fashion so that new counsel could be appointed and in absence they he was did not he was deprived of counsel in terms of the sixth amendment at the district court did not clearly and manifestly abused his discretion in denying the motion for a new trial and the forfeiture order was not plainly erroneous i will focus just on the claims that defense counsel talked about which was the partial disclosure closure of the courtroom as well as the chosen counsel issue but i welcome any questions that the score of this panel has on any of the other issues the district court clearly complied with sherlock in fashion to do what i'm going to say is that that's not the right standard because in yasi there was an absolute closure that means that in that case the courtroom is closed entirely for the testimony of those two child witnesses that was not the case here as this panel already recognized in the argument the courtroom was physically closed but there was overflow and there was video feed and that video feed showed the court proceedings live there wasn't even a delay the only thing that it isn't show was the witnesses face so as this panel recognized the public was able to listen to the entirety of the testimony as it was happening that does not constitute a full closure and therefore the sherlock standard applies the sherlock standard does not require an overriding interest it requires simply a substantial interest which there manifestly was in this case we were talking about here the identities are the the physical images of these undercover agents and these were not just your typical undercover agents these were undercover agents that were subject to the classified privilege and this kind of meshes into the other argument about the right to confront witnesses because some of the proceedings in district court on the two kind of blended in to gather but there were there was a seat behind the way that established the classified privilege covering these undercover agents and it makes sense these were not you know just these are not agents who are engaged in a you know just a one time or two week drug trafficking deal they were the kinds of undercover agents that were involved in a three year continuous undercover  operation involving an international crime syndicate the triads that extend beyond san francisco extend beyond the united states extend into asia and so we have we have individuals who are of a higher level than your typical undercover agent so we're not talking about something that will cover every single case involving an undercover agent not only do we have the classified privilege which is a very unusual factor in this case we have a very high level of danger that in this case again it is not the case that in every single rico case you have a defendant where there is such a strong evidence that he ordered killings of his enemies in this case we have evidence that the friend ordered the killings  for which he was convicted on count two that he conspired to orchestrate the killing of jim kong for which he was also convicted in this case that he also took out previously to the facts of this case danny won that he was involved in the murder or the attempted murder by committing that he in fact the trial transcript also shows that certain points he was dissatisfied with raymond lay who was a close confederate was also close confederate because they wouldn't listen to him at different times and he wanted them taken out as well so this is a case where you have a defendant with very strong evidence that he was willing to and able to have the resources to take out those people that he thought were in his way and certainly the undercover agents in this case particularly dave jordan or the undercover who went by dave jordan was one of those people he was some value i thought pretty reasonable argument i so he might the district court might not have talked about it in that particular proceeding but it's all related it's all related to protecting the true identities of the undercover agents and also protecting their the dissemination public dissemination of what they look like in the court proceedings so i think that this court can draw upon the previous holdings with respect to the protection or the protection or just withholding of the true identities of those witnesses but also  substantial reason is for example the classified privilege and the fact that they would not be able to operate as undercover agents given the kind of undercover agents that they were given that they were subject to the classified privilege i believe does constitute a substantial interest i think that even without the danger exact see that's the thing that i worried about is that based on what judge prior said in the district court that i've really got to find that be this stage reason or my not make it because he didn't really talk about the other interests that he brought forward well your honor i think if you look at the record and especially at some of the orders that he i can see the orders in other hearings but i'm to i think that he was clear your honor i think you can draw on the other orders but again i think that even if this court is going to rely just on the classified privilege and the undercover agents that that does constitute a substantial interest particularly when you look at it in terms in connection with how narrowly tailored this closure was this was a partial closure this was not a full closure again the public was able to witness everything everything that happened during the testimony of these witnesses say for looking at their faces and that is just a partial closure that doesn't impinge upon the defendant's right to public trial the point about the right to a public trial is so that there is kind of a testing you know that other people are watching that the eyes of the public are watching  so the idea is that that will keep everybody straight in line and it's not a secret proceeding and there is nothing secret about this proceeding except for the face of the witness so i'd like to also talk  to but this is all related all the findings that the court made with their spec to what was important about protecting the identities of these undercover agents are all related and so you can really look at that and draw upon that even if in that specific order or in talking about that specific procedure the court doesn't then specifically make those findings again he does refer to it at different times he says i'm i'm holding best time i'm sustaining or agreeing with the government for all the reasons in the orders including the secret privilege and including the c profiling and so i think that the court can look to that entire record i think that was the basis for judge buyers ruling and for the fashioning of this particular remedy but i think that also yes sure i think that the record actually shows very clearly that chow had fully choice of counsel and i agree with a lot of what the court or the panel said earlier on except for this which is of course by your questioning ye s the statements that were in the questioning but what i don't agree with is the idea that he was actually deprived of counsel or choice of counsel even during the month between june sixteenth when briggs was relieved and july  second when sarah and smith were both relieved and this is why because the defendant does not have an absolute right to choice of counsel particularly when it's appointed counsel and this is a little bit of a complicated situation because briggs and smith were both appointed even though they initially started off as retained so when they came to the court with a motion to withdraw the court made the correct  analysis by looking at it as a complex analysis and looking to see if anybody was conflicted and in this in through the inquiry through the procedure and through the hearing on june fifteenth the court determined that chows real concern was with bricks child claim that brooks had lied to him was not communicating with him and numerous things and upon incur a trout indicated that he didn't have a problem with sarah except for the fact that briggs was in the way repeatedly throughout  at the district court stated that from his observation that he could not really imagine anybody who had been more prepared and had had defended that if a defendant in a better way so with with this background and with the statements that cho actually made at that hearing the district court found that there was no conflict and actually that child didn't really want sara to withdraw chow really had a problem with bricks briggs was appointed counsel because he was being paid by a fund so when the court found that there was a conflict it then relieved briggs and it maintained the appointment of smith now stat was a perfectly appropriate thing to do because they get through the hearing there was no real conflict with smith the problem was paid for by government yes but this went once the government funds are being paid to an attorney and then that person that attorney is converted into appointed counsel it's their choice goes out the window because they use a choice anymore he's now appointed that what you're arguing that's right so smith is not doesn't chose not entitled to appointed counsel of his choice he's in yes he picked briggs right and briggs is out so there's no question briggs is gone once he asks for him to withdraw and there is a inquiry briggs's gone so the question is whether the court by appointing smith to continue on the case has violated chows right to choice of counsel and he has not because the court is appointing this person now he may not be somebody who you would want to see on your c j panel depending on your criteria but there's nothing in this case that suggests that smith was in apt or could not provide constitutionally effective assistance in fact we have somebody who had at this point a long history on the case he had been in the trial he had been the one who was primarily responsible for the post trial motions and he was an attorney who was on that case and he was the one who had interface with primarily and talked to a lot so it was reasonable for the district court at that point to say i'm going to keep this person on as appointed attorney and this is not a situation where during at the june fifteenth hearing where a child came in and said i want to substitute in somebody who is retained or who will provide his right so we're talking about him asking for appointed counsel reasonable and not clearly erroneous finding that child didn't really want serach on challen fact said i really want to tear sara to be more in charge but briggs was in the way of the rewrite are really the only reason that's whatever well i agree with those cases and i think that absolutely there was harmless particularly given what you had in this particular situation which is during that single month between the time that you know the  substitute in you really didn't have anything going on and when drugs came on the only things that happened during that period of time where there are a couple of additional sort of conclusion inclusionary trial motions that were filed in the sentencing memo and w came on he did not ask to file a new sentencing memorandum he did not ask to file new substitute motions other than just to file the a new motion for a new trial which happened before anybody had asked to withdraw from the case because all of this happens well after trial and after the motion for a new trial is denied so there's really no prejudice it is entirely harmless it's certainly not structural er and for the reasons that the court has stated even if there had been a deprivation of the choice of counsel which i don't believe that there was this court should deny the defendants request for for relief which in erroneous so all of this happened before honey cut came down and i think it's very clear that the standard here is plain error and this case just doesn't meet that standard because honey cut talks about how there is not joint and several liability to hold an employee accountable for the proceeds that the mastermind obtains here we have a totally different situation you have the mastermind at issue it's clear from the record that child was the one who orchestrated the money laundering operation he is the one who set things up with david jordan he is the one who put who was in place with david jordan he substituted the person first it was george in a and kevin suit when he was not happy with them he put in alan's true then when he was not happy with who he substituted didn't leslie you and james powell so he was the one who controlled who was going to be operating this and then he benefited from all of that not only by controlling the operation that really getting a lot of money from them their their setup was really that they had to support him entirely all his living expenses all his eating expenses his interment taman expenses his clothing these underlings had to support him and in this case i think that evidences show that he did obtain directly he obtained indirectly from the commission of the offense of conviction the money that at issue so i would argue that it doesn't meet the plane or standard because of that the question ultimately is under honey cut and how you read honey it is you can't forfeit a defendant's property from a defendant unless you establish and it's only by a preponderance of the evidence right that he obtained proceeds directly or indirectly and i think that the evidence in this case clearly shows that chalo obtained at least indirectly proceeds from the money laundering operation which he controlled and so i would ask this court for those reasons to find that it doesn't rise to playing or if the court has no other questions we w the in this case first of all i don't agree that the record clearly shows that shot i was in charge of the money laundering he was charged with aiding and abetting he was convicted on aiding and abetting in maybe a pinkerton theory so it's how you cut is really on all applies to forfeitures under nine hundred sixty three and ninety two which were charged in this case the fourth circuit has made the same finding with regard to nine hundred eighty one so i mean i think when you when you look at the weight of circuit authority clearly shows that at a minimum points i doubt very much that sure lark is a good law after george versus presently and the reason is that ensure locker with a talk about a substantial interest for partial clo closure involved excluding the defendant and family members from the trial and yazzie which is post both post pressley post pressley clearly makes makes clear that a closure is requires an overriding interest i would i submit that that is the standard to be applied to the closure in this case lastly and i'm telling my last seconds i would add that in this case the judge's comments on the whole issue of the super filing and the danger issue was made with respect to concealing the defendant's identities two identities from the defense and also defense counsel the issue of the public trial and the reason stated by the judges the court pointed out were were made and were concerned with the agent's desire to continue working or the government's desire that the agent should be allowed to continue and i think that that is