may please the court my name is mark topol i appear on behalf of appellant howard vogel your honor is the key issue at least the key beginning of the many issues that are presented in this matter is whether or not the judge's findings follow concerning what facts where available at the new trial motion concerning criminal conduct by the government's main witness steven ableman during and before during the trial able men in terms of crossed the cross should be paid numerous that's a false identification documents to open bank accounts created false documents detailing his business destroyed incriminating evidence made false statements to police falsified tax records lied under oath in a judicial proceeding and he was in portugal lied under oath in a civil lawsuit stole money from his drug trafficking associates not good if you have life insurance relative life insurance and lied to police and you're saying this one friend actually whenever it occurred that he lied about the thirty six thousand dollars that was going to change the whole result trial i'm saying two things number one that there wasn't just one transaction there was a whole series of transactions that occurred before and during the vocal trial and after which showed that during the time that he was telling the government and the jury that he was behaving that he was being honest that he was complying with his plea agreement particularly that he was disclosing all of this money was actively engaged in a series of money laundering transactions and i don't believe that anything in the impeachment evidence at the trial concerned contemporary matters that were going on while he was testifying as opposed to historical matters moreover i don't believe that the record and the case law indicates that where the central witness you know is lying about a non insignificant thing which is not of a minor type that the cumulative standard should apply we're talking about what we call the relaxed standard but just for a moment your honor i would like to address that factual issue because i think it's very very it's been completely misstated well it's critical because it doesn't form the verse i mean i agree i don't know whether you agree it shouldn't say that the standards that could be applied here are several and evaluating this and they blend into each other depending on the facts the critical point of the facts here is that two months before the vocal trial for a property that was subject to forfeit by the united states was sold by ableman through an agent named gold who secretly kickback money to him then took that money and this is before vogels trial he took that money he put some of it in his wife's account and then he admitted that that money was put there to hide it from the government that's money laundering he also admitted that the rest of the money was concealed through an elaborate scheme whereby he created the same thing that he accused vogel of doing when he testified against paul creating receipts creating false sales and he also submitted subsequently to the prosecution bank statements that went back in time where he says that these what i said was it was legitimate income wasn't this is an active criminal guy who's operating during the vocal trial and complete contrary to his promises to his testimony and what makes it even worse is that the government in its closing argument actually said that mr able men should be believed and i quote he was given a good deal but mr ableman is the only person who was under a plea agreement with the united states found to tell the truth he was the only one in that situation who was on the team now there's no question that the money that was involved that was being deposited secretly before the the vocal trial was for football money we have cited the evidence it's out the record at seven eighty seven this is proceeds from a perforated property the government argued to you in and he agreed in his plea agreement in the first case to forfeit that edelman did not intend to disguise the true source of the funds or hide the accounts into which they were deposited that's that's ridiculous argument the scheme that he did of putting it in his wife's account given the scheme that he did to cover it up so we start with the promise that he lied about a series of criminal conduct that was going on contemporaneously w testimony before and after his testimony in the vogel case that was not disclosed accorsi couldn't be disclosed it was hidden it wasn't learned until later there's no argument that that that this is newly record here is very clear that between june and august of two thousand and two one month before the vocal trial these sales occurred this money was generated this money was then deposited in  into the bank and it did and furthermore judge schroeder i would point out that many of the cases i don't talk about the activity that causes the new trial occurring before the trial or during the trial i mean williams all activity that occurs after the base trial so i don't know whether judges walker's point on that which i think was absolutely actually totally incorrect whether or not legally it's of any relevance and part of money laundering thirteen forty one thirty forty three three seventy one because you work with two other people but basically if you look at the model pattern instruction for money laundering which is in the ny circa eighty eight point one two one goh was interviewed by the d e a s and at seventy seven eighty seven he talked about these properties being that the money the gold sent which was secreted was sent from money gold sent ableman which was secreted was the results of the property sales of the core for their property where he scratched his commission it wasn't there's nothing when when a criminal forfeits his property united states he's not entitle them on the property so to have a sweetheart deal actively in good faith make sure it's in any interest in their property so the bottom line the bottom line that here is that this was for federal property he had no right to it and according to the evidence we have from from the source of the of the money this wasn't the result of loans it wasn't a result of him doing legitimate activity or selling jewelry it was the result of a secret kickback of the funds that were from for for them proper now in that situation i believe we should have at the very least been entitled to look at what the probation office was presented in terms of the actual discovery of the statements because on those statements we would be able to show although i think that we have certainly gone far beyond speculation and showing you committed crimes we would be able to show the whole series of crimes and then the question becomes what jury looking at able man who was by  dispute the central witness in this case what the jury is going to credit his testimony they see that he is actively committing crimes that under his plea agreement he says he's not going to be committing at the time he supposedly telling the truth the actual of the actual legal standards i think that it's very important that the what mr ableman was doing the degree to which his conduct was central to a judgment  the fact that it's an impeachment doesn't mean it's not also material as you know under the case of particularly the davis case if it is of such of such moments that it becomes material and i believe that if the star witness for the government has testified that they are cooperating with the government and they are describing that howard vogel did a series of criminal conduct with no which is identical to the criminal conduct unknown to the government the star witness is doing at the very same time that this fence will have an argument and should have an argument for the jury not only is this guy a craven liar who and criminal but he is attributing bad conduct to the defendant in the case in return for whatever weigh so your honors i will i would like to reserve the rest of my time at this time on the street have some questions you may get it thank you thank you very much trial was clearly erroneous so why spend a moment explaining why it was not and then address why he hasn't met the standard for obtaining a new trial what happened was that sometime before trial run the summer of two thousand and two ableman received thirty six thousand dollars from ken gold ken gold was the broker for one for the sale of one of abel men's properties that was being sold so that the proceeds could go to the government can gold however was legitimately the broker on that and was legitimately entitled to earn a commission which he did therefore his commission on the sale of the property even though the profit for the net was supposed to go to the government and gold was legally entitled to receive those proceeds and they are not drug proceeds are tainted substitute drug proceeds and there was no money laundering with respect gold obtaining that money for the commission from the sale what gold then chooses to do that cannot retain the money or at least there's no cases and no support the defendant has cited to suggest that when someone legitimately earns money that's them giving it to someone else who was earlier involved in maybe generating drug proceeds it becomes rechange in there for drug proceeds views of the able men the fact is they were not drug proceeds when earned by gold and his giving them to a woman does not reconvert them into drug proceeds so i think the district court was correct that there was no there that the evidence supported that ableman receipt and deposited the funds prior to vocals trial did not constitute additional crimes and that the criminal conduct occurred beginning in november of two thousand and two after vocals trial when able then lied to the probation office about what the source of the thirty six thousand dollars was so that's the conduct that we're talking about the district court had never then cherry basis for making its ruling based on golden ableman statements about the stores of the money and the of probation occurring in november in two thousand and two and that finding should not be disturbed moreover it means that the court's finding that the government engaged in no misconduct for having said that the criminal conduct occurred after trial should also not be disturbed the question then becomes does a goldman's polish trial conduct warrant a new trial and the answer to that is now and let me just say we believe even if the defense's version of the conduct or the timing of that is credited but still it is now more into a new trial and that is trial based on newly discovered evidence that didn't need to not be merely cumulative or impeaching you need to be materials of the issues involved and it needs to have its introduction would have to probably produce an acquittal and defend cannot meet the burden on any of those promises as this court recognized the evidence was merely cumulative the fact is the jury and i think this is the most significant aspect of the impeaching evidence although as the court indicated there was lots of it during the trial some of the impeachment evidence was not purely historical the jury was told that even after able was he said that he had received approximately six hundred thousand dollars in drug proceeds from razaq i believe and that he then gave that six hundred thousand dollars to vocal he had made the trial that was a lie he kept the six hundred thousand dollars for himself so the law involved falsely implicating vocals so the jury was aware that he had done that and that he had done that even though he had promised to cooperate with the government so the idea that this then lying about thirty six thousand dollars to protect his own assets which had nothing to do with vocal was somehow change the jury's finding of a woman i think is just not supported by the record moreover as the court already indicated the jury also knew that he was a large scale drug dealer smuggling drugs laundering millions of dollars had lied under oath to a magistrate judge had destroyed evidence had tried to get others to destroy evidence so i don't think that he had been receiving ten thousand dollars a month in living expenses from his drug proceeds with the consent of the government during this time and during the trial so i really think that there is that the finding that this evidence is merely cumulative is strongly supported by the record  damning of bo ball and his knowledge that he was laundering the legal proceedings he had hundreds of thousands of dollars flowing through foreign bank accounts most of which were not held in his name one of the people whose name both foreign accounts were primarily from the hubby bank the middle east bank and one of ableman accounts in australia as well as cash we know that vogel had no legitimate source of income during the years of question did not file any and then told her not to tell anyone about it or she should watch her back he had his attorney harper who had sent mr hereford to testify that he had been sent a check from vogels attorney for two hundred fifty thousand dollars from an account in geneva and that harper had asked mr herefords destroyed the check because of it got in the wrong hands he could get in trouble this was all independent evidence corroborating his knowledge of the illegality of the money that ableman with approximately a million dollars worth of joy smart currency which he told her he was giving approximately six hundred thousand dollars worth of to bogle agent fox then testified that from the bank records that the jury heard about a woman and in light of some of the significant corroborating evidence of able men's implication of overall i think the able man is lying to probation to prevent the forfeiture of thirty six thousand dollars the district court properly found w able man what has lied to trial about being in compliance with his plea agreement that still would not trigger any kind of lower standard in terms of determining whether a new trial is warranted the crassly decision specifically held that it was not going to apply apply any different or lower standard when a government witness was found to perjure themselves at trial that was the specific explicit holding of krasny and it said instead  for the first time in the course of this proceeding the argument was raised by the government that somehow the money that the stableman received for through his secret deal with the real estate is somehow not for affor money in his plea agreement i think that argument is flatly wrong and i'll tell you why in this plea agreement he gave up any right to any of the four federal property proceeds from etc etc it's as if somebody who has drug money can put it through some sort of regular say i'll make a side agreement to receive some benefit from it because the person who is getting whatever their regular commission  that money arose from drug related property didn't belong to ableman a woman had no right to it again i don't think that that critically makes any difference ultimately because the question as the question is is what did he do  other witnesses and as of the trial we have described app length in our briefs we do not believe we believe ableman was the only person who gave testimony in that case that vogel knew that able means money was from drug dealing and that none of the other transactions showed that none of the other witnesses nor did the bank records show that and that's why it's a it's a very complex case i appreciate that but it is also very important here that what able men did and what he was doing during  trial and what he didn't say and what subsequently came out be exposed to a jury so that they can make the judge and the cases talk all the time about you know it's the jury that has to ultimately make this judgment it's clear that we're dealing with a less than